CRIMINAL LAW OUTLINE Professor Gruber Spring 2007 Table of Contents:

1 What is a crime?

a.) Sources of Criminal Law:

1.) Statutes (a) Penal codes (1) Most crimes can be found in criminal penal codes / statutes (state or federal) (b) Define the elements of crimes and defenses (1) Prohibits a state of mind (mens rea / intent / culpability element) & conduct depending on circumstances (actus reus) 2.) Constitution = places limits on Legislatures ability to define crimes 3.) Cases = Precedent/Common law (a) Used to interpret statutes (b) Determines if statutes are constitution (c) Sometimes defines crimes and defensives

b.) The Model Penal Code works kind of like the Restatements; written by ALI to as a guide to legislatures and
judges created by criminal law wonks.

c.) Elements of a crime:

1.) Objective element = Actus Reus (a) Conduct (b) Circumstances (c) Results 2.) Subjective element = Intent (Mens Rea) (a) Culpability (b) Mens Rea d.) Winona Rider hypo: Guilty? 1.) Actus Reus of Theft (a) Conduct = obtain, use or keep the property of the victim (b) Circumstances = victim doesnt give permission (c) Results = none required 2.) Mens Rea of Theft (a) Defendant knew he obtained, used or kept the property of the victim. (b) Defendant knew the victim did not give permission. (c) Defendant intended to appropriate the property to her own use. e.) In order to get a conviction, prosecution has to prove every element of the statute. 1.) Ways to defend a criminal charge? (a) Undermine an element = if defense disproves even one element, then the defendant isnt guilty (b) Argue an affirmative defense (c) Argue a problem with the statute 2.) Possible defenses for Winona? (a) Definition of used or kept (b) She believed she had permission f.) What should we do with Winona?? 1.) Why would we punish her? (a) Utilitarian: punish people to achieve the best consequences for society (1) Deterrence a) Benthams general Principle: act as to maximize utility (2) Incapacitation a) The purpose of criminal punishment is to remove dangerous people from society so they cannot harm others. (3) Rehabilitation

(b) Retribution (deontology): she committed a moral wrong, and she deserves it; punish people because they deserve it regardless of the benefit or detriment to society. (1) Single reason for punishment = desert / deserve it (2) Immanuel Kant: a) General Principle: 1) The Morality of an act stems from first principles, not consequences 2) Never use man as a means to and ends. b) Specific Principles: (Retributivism): 1) Punish only those who deserve it 2) Those who deserve it must be punished 3) Punish only as much as deserved. 2.) Why shouldnt she get the worst sentence? (a) She is not dangerous to society (b) She is not a bad person (c) Waste of government resources (d) No harm no foul (e) Proportionality 2 ACTUS REUS

a.) Actus Reus = 1st of the necessary elements for a crime

1.) 2 elements of a crime: (a) Objective / actus reus (b) Subjects / mens rea or intent

b.) What is the actus reus of a crime?

1.) Conduct 2.) Circumstance 3.) Result c.) When you require a criminal act, what other elements would you be required? 1.) The act must be: (a) Past (punish only past conduct) (b) Voluntary (punish only voluntary act) (c) Wrongful (act must be proscribed by law) (d) Conduct (more than mere thought) (e) Specified (statute must be clear) (f) In Advance (prohibition must precede act) (g) By Statute (law must be set forth) d.) Overt Act Requirement 1.) According to Proctor v. State, you must have an overt act in order for a crime to be constitutional. (a) Substantive due process = there is a legitimate state interest, however, it cant be rationally related to (b) Rule = if its only in the realm of thought, you cant punish it. 2.) Controls on Legislature created the actus reus requirement: (a) Constitution (Due Process requirements) (b) Commons Law (Traditional Criminal Elements) (c) Statutory Interpretation (Interpret elements of crime as consistent with Constitution and Common law)

3.) Proctor v. State (1918): 3

(a) Facts: Defendant had intent to sell alcohol and kept a place. He was convicted of keeping a
place, to wit, a two-story building, with the intent and for the purpose of unlawfully selling, bartering, and giving away spirituous, vinous, fermented and malt liquors, etc. (b) Held: The statute was unconstitutional (c) Rule of Law: A criminal statute is void unless it contains the element of an overt act. Criminal statutes may not punish mere intentions (d) Rationale: Constitutions DPC and the common law tradition require an over act. i. In this case there was an act renting or keeping a place. However, renting or keeping a place is a legal act. He owned the house prior to the intent. ii. The punishing of mere intentions with a legal act is not criminal. What if the only reason he went out to get the place was for the intention of selling liquor? If he always intended to sell liquor and always planned to buy a place to do it? The sequence is what makes the difference in the case. a) Role of timing 1. Lawful Intent -> Lawful Act -> Unlawful Intent = Unconstitutional 2. Unlawful Intent -> Otherwise Lawful Act = Constitutional iii. Therefore, the statute is struck down not because its unconstitutional in all situations, but in a lot of situations where the act precedes the intent. a) Policy and theoretical reasons not to punish intentions? 1. Havent executed intention can change mind. 2. Difficult to prove? Maybe 3. the idea that gov will try and police thoughts, how to gather that evidence 4. we want people to be able to discuss their intention so they can be talked out of it (e) Hypo: If he instead bought soda to sell it, hed be missing the mens rea / intent element to sell alcohol. (f) Hypo: If he bought moonshine and bottles and brewed it in his neighbors kitchen, and sells it on the corner, does this statute apply? No because he didnt rent or keep a place. 4.) Hypo: What if Gruber asks for a Z-pac antibiotic and Crawford agrees to bring it. Has he committed a crime? Under Roberts would be screwed. (a) U.S. v. Roberts: possessed a substance (steroids), and had intent to distribute them; He legally acquired steroids, however, there was no act. Yet the court still convicts him of possession with intent to sell (1) Rationale: When you have the steroids in your hand you have fewer steps to the completed crime. Unlike Proctor where he was only in possession of the house, more removed from the crime.

5.) D.C. Code (Supplement) is like Proctor because it seems to possess some of these things is considered
lawful. How come this is constitutional and Proctor statute isnt? 6.) RECONCILING PROCTOR AND MODERN LAW (a) Proctor = the lawful keeping of a place cannot be made criminal simply because the defendant intends to use the place for an illegal activity in the future (b) Today: (1) Possibility 1 = the Proctor doctrine is dead Gruber says shes never heard of Proctor being used in modern law (2) Possibility 2 = There is a distinction between keeping a place and possessing a thing because keeping a place is father removed from illegal activity.

e.) Omissions: 1.)

Jones v. United States: Shirley Green had a child out of wedlock. To avoid embarrassment of having the child in her home, she arranged for Jones, a family friend to take care of the child in her own home after birth. When the baby was 10 months old, he was rushed to the hospital and diagnosed as suffering from severe malnutrition and lesions over large portions of his body, apparently caused by sever

diaper rash. He was admitted into the hospital, fed repeatedly, apparently with no difficulty, and was described as being very hungry. 34 hours later, he died due to malnutrition. Charged with involuntary manslaughter. (a) Held: The case was remanded b/c the instructions given to the jury did not mention the necessity for finding a legal duty of care when it is a critical element of the crime charged, the fact finder did not decide whether Jones had a legal duty to care for Anthony Lee. Failure to instruct the jury in concern to this was plain error. (b) Rule: an omission satisfies the actus reus element only if the defendant had a legal duty to act. (c) Rationale: There were critical issues of fact, specifically whether appellant had entered into a K with the mother for the care of Anthony Lee or, whether she assumed the care of the child and secluded him from his mother. 1) The court recognized 4 situations in which a failure to act may constitute a breach of a legal duty: a) Where a statue imposed a duty to care for another; b) Where on stands in a certain status relationship; c) Where one has assumed a contractual duty to care for another; d) Where one has voluntarily assumed the care of another and so secluded the helpless person as to prevent others from rendering aid. 2) Hypo: Youre a member of this new jury and youve heard all the facts. Are you gonna find any duty? If so, which ones? a) There may be an oral contract. b) #4? Depends on whether anyone else had access to the baby. 3) Lets assume none of these apply. As a juror, what are you gonna do? a) Acquit her? Would you feel good about acquitting her? (d) Hypo: If someone leaves the baby on your doorstep and you just leave it there. It dies. Should you be held liable? (e) Hypo: If you hear baby crying and screaming and thumps in next door house, and dont report it, and wife is killed. Are you liable? 1) StatuteUnder circumstances you do have a duty to aid. a) Whats the difference between what Jones did and to violate the duty to aid? Duty to aid is misdemeanor. b) Should the rule be you have a duty to aid/act whenever the person is in grave danger and its not harm for you to act; if you fail to act, you can be liable for the persons death?? 1) MATTER OF DEGREE: The rule should be based on a matter of the degree of injury. 2) Examples: Should we be liable for not a. Saving people from fire? NO b. Rescuing drowning person in a pool? MAYBE Feeding the hungry baby? OF COURSE (f) Jones court adopts a bright line rule approach 1) Jury has 2 choices follow the law and acquit or go against the law and convict her using the standard 2) However, according to law, have to follow the bright line rule approach (g) Difference between Legal Rules and Legal Standards: 1) Legal rules are bright line rules that tell you, You cant do x and you cant do y. a) Lets people know where they stand / Predictability 2) Legal standards are more flexible and situational a) Argument against = youre not giving people notice as to what is and what is not reasonable.

2.)

Contracts for care: In Commonwealth v. Pestinikas (1992), the court found that the failure to fulfill an oral K with a sick, elderly person to provide food, medicine, and other necessities can sustain a conviction for murder where it established so clear a breach of promise as to indicate malice.

3.)

Family Status: (a) New Yorks highest court has ruled that a stepmother is legally obliged to protect her stepchild even from abuse inflicted by the childs biological father. People v. Carroll (1999) (b) Degren v. State (1999), the court held that an adult with responsibility for supervising a child may be found guild of child sexual abuse if the adult fails to prevent abuse by another. (c) Knox v. Commonwealth (1987), there is no legal duty to prevent rape of child can be inferred from general child abuse and neglect laws. Categorical Approaches (Rules) (a) Jones: Omission is an act where has a legal duty to act (4 types of duty. (b) MPC 2.01(3): Two situations in which omission is an act: (1) the omission is expressly made sufficient by the law defining the offense; (2) a duty to perform the omitted act is otherwise imposed by law, (c) Other approaches (standards) (1) Duty to act when: a) no or minimal danger to actor, potential grave danger to victim; b) act when reasonable person would act

4.)

f.) Possession: 1.) Is possession an act? More importantly, is it an actus reus, a sufficiently bad act to merit criminal liability? 2.) MPC 2.01(4): Possession is an act if the possessor knowingly procured or received the thing
possessed or was aware of his control thereof for a sufficient period to have been able to terminate his possession.

3.) U.S. v. Maldonado (constructive possession): Santos (working for the gov), brought drugs to hotel.
Maldonado introduced himself as Mr. Palestinos friend, took him to Room 302, used his cellular phone purportedly to contact Mr. Palestino and informed Santos that he was on his way. Santos requested him to call again to ask him to come quickly. Maldonado asked Santos if they could put the cocaine in another hotel room with some of his friends, but Santos refused. As time passed, and the man still didnt arrive, Santos became anxious. He proposed to Maldonado that they go out for a soda. He agreed. Santos placed the bag in the closet and they left the room. As they went down stairs, the supervising customs agents detained them. Santos explains Palestino still hadnt arrive. Maldonado was taken back to room 302 in custody. There were several more calls to the room purportedly from Palestino, 2 or 3 on the cell, and one of the hotel phone. Shortly after the final call, the operation was ended. Maldonado was charged with possession of cocaine with intent to distribute. a) Proc Hist: Jury convicted Maldonado of possession of cocaine with intent to distribute in violation of 21 U.S.C. 841(a)(1). He appealed. b) Held: he was in possession c) Rationale: (Joint possession) This is constructive possession, which is a power and intent to exert control or dominion over an object not in ones actual possession. What is odd is that Maldonado is thought to have power even before the drugs are paid for. (He might not have possessed the drugs per se, but he possessed them by omission, in that he didnt kick Santos out controversial reading of constructive possession). (1) Do you think this case is the similar situation as two drug dealers who jointly owned a stash? No because they were in agreement of joint ownership. (2) Do you think Santos thought that as soon as he left the drugs in there, Zavala had joint possession? No. (3) Intent to control: Is knowledge of the substance of the bag enough?

(4) COURT / MAJORITY IS SAYING DONT MAKE FINE DISTINCTIONS TO DEFINE INTENT (5) GRUBER IS SAYING MAKE FINE DISTINCTIONS TO DEFINE INTENT / The dissent got it right, not the majority / The majority really wanted the guy to be guilty b/c he was a bad guy and there really wasnt anything they could've pinned on him in legal terms d) Coffins Dissent: what is required is that the person has a right or authority over something. Having it room, not enough, unless evidence to support theres a power. He didnt have the money, he tried to have it moved somewhere else and was refuted, he was not the intended recipient. Knowledge and intent alone would cause an actus reas problem. e) RULE: Possession includes not merely the state of immediate, hands-on physical possession but also constructive possession, or the power and intention to exercise control, or dominion and control, over an object not in ones actual possession.

4.) Maldonado Constructive possession = 2 requirements:

a) Power to exercise dominion or control over the object b) Intent to exercise dominion or control over the object

5.) Problem = what does power to exercise & intent to exercise mean?
a) Mere presence is not enough. (1) United States v. Jenkins (1996) the defendant challenged the sufficiency of the evidence proving his constructive possession of drugs found on a coffee table in an acquaintances apartment in close proximity to the defendant. Noting that no cocaine residue was found on Jenkinss person, nor were his fingerprints on the equipment, nor was there evidence that the equipment was then being used, the court overruled the trial courts conviction. a) Rule: Dominion and control are not established by mere proximity to the drug, or mere presence on the property where it is located or mere association with the person who does control the drug or the property. (2) People v. Gina (1988) the Court held that a defendant found hiding in the rafters of a burglarized jewelry store was properly convicted of possession of stolen jewels despite the fact that the jewels were in a bag on the floor of the store. a. Rule: Juries are allowed to evaluate the surrounding circumstances and determine whether the defendant was otherwise exercising dominion or control over the item. (3) Check cocaine and have claim ticket, or a gun for collateral for a car those things provide evidence that provides power.

b) Intercepted possession: (1) State v. Clark (2001) the police intercepted a package containing 12 lbs of marijuana,
removed all but a fraction of a pound of it, and then made a controlled delivery to the defendant-addressee. b) Rule: Constructive possession has been found when the narcotics were (1) on the property in which the defendant had some exclusive possessory interest and there is evidence of his or her presence on the property; (2) on property of which defendant isnt an owner, had sole or joint physical custody; or (3) in an area which the defendant frequented near his or her property. c) Rationale: The court concluded that while there is no evidence as to the actual source of the drugs. Although defendant may well have had the requisite intent, there is no evidence he ever had the capability to exercise dominion and control over the original package. c) Duration of possession: (1) United States v. Lane (2001) defendant claimed that his momentary handling of a gun as he purchased it for a friend didnt establish possession for purposes of 18 U.S.C.

922(g). The court rejected this argument, distinguishing the gun possession law from drug possession under 18 U.S.C. 841. Concluded: the drug statutes goal of 6.) Problem/critique = this blurs the line b/t the act and intent. There is no act of possession w/o intent to control g.) The Requirement of Voluntariness 1.) What does it mean to have to be voluntary? (a) Martin v. State: Got drunk at home, police dragged his ass into public and then he was boisterous. Charged with violating a statute that made it criminal to get drunk, appearing in public, with one or more persons present and manifests a drunken condition by boisterous or indecent conduct. (1) Conduct at issue = Acting in a disorderly manner (2) Circumstances: a) Being drunk b) Being in a public place with other people present (3) No Result Required (4) Held: he didnt violate the statute because he didnt voluntarily appear in public. (5) Rationale: What was the court saying was involuntary here? His being in a public place with other people present. (6) Rule: Every single actus reas element must be voluntary. (b) Hypo = The police dont like Mark and they drag him from his home and leave him at the side of a public highway. He tries to flag people down to get home, but no one stops. He then takes out his flask of vodka, drinks, gets drunk & boisterous, and is arrested. Will he be convicted for violation of the statute?? (1) Knowing he was drunk, he made the choice to get drunk and made the choice to get boisterous. a) These 2 choices lead us to conclude that he acted voluntarily. b) As long as you are voluntarily drink and are disorderly. (2) The difference is that Mark could foresee that he wasnt going to get home. (c) Hypo: Martin is sitting in a bar and getting drunk and disorderly, but intends to sober up before going in public. Bartender kicks him out, now he is public disorderly. Is he guilty under this statute? (1) Yes, b/c he should have been able to anticipate therefore not involuntary. (d) So, there are 3 possible combinations: (1) Voluntary drinking involuntary in public voluntary disorderly (2) Involuntary in public voluntary drinking voluntary disorderly (3) Involuntary drinking voluntary in public voluntary disorderly

h.) True Involuntariness vs Mens Rea

1.) If someone moves my arm for me not doing the act, but there are conditions that are the functional equivalent of someone moving my arm for me. If Im having a spasm, Im not trying to move my arm. There is a blurry line b/t involuntary and mens rea

2.) People v. Grant (1977): Trial court gave this instruction: insanity. was in a bar and there was a fight.
Defendant leaps over a parking meter and hits the officer in the face. An hour after he was put in the jail cell, he had a grand mal seizure. Trial court gave this instruction: insanity a) Held: conviction overturned b/c the jury instructions only instructed on insanity not automatism.

b) Rationale: Court is saying the issue is not insanity, but automatism (though capable of action, is
not conscious of what he is doing). Insane lacks the capacity to realize doing something wrong. c) Whats the difference between automatism and insanity? (1) Automatism = cant control your actions, but understand the consequences of it. a) Difference = One of the elements are not there b) Definition = state of a person, who though being capable of action, is not conscious of what he is doing c) Procedure = like most defenses, government has the burden to disprove beyond a reasonable doubt. d) Result: If Defendant is acquitted, she will go free. (2) Insanity = you can control your action, but dont understand the consequences of it. a) Difference = Elements may be there, but not holding them guilty b) Definition = As a result of a mental disease, defendant lacks ability to appreciate criminality of his conduct or conform conduct to law. c) Procedure: Defendant has initial burden of proof d) Result = If D is acquitted, she will spend time in an institution (see John Hinkley Jr.) d) So what if an automaton is a killing machine, why dont we convict him??? (1) Retributivism = I dont care if hes a killing machine, if his actions are triggered by his automatism, then he doesnt deserve to be punished because it was his choice; he didnt exercise his free will. (2) People v. Decina: Its a degree of foreseeability. a) Automatons cant put themselves in a situation that will create unreasonably and foreseeable danger. b) He was criminally liable because he was subject to epileptic attacks and seizures that might strike at any time and he knew that driving a car and having a seizure would be dangerous. (3) What if Grant argues his case is different because it would be asking him to stay at home forever? a) Gruber would argue that he was at a bar.

3.) This whole thing makes more sense on the Sliding Scale of Forseeability:
Less Foreseeability External Interference Spontaneous Physical Acts Recurring Physical Acts/Psych. Conditions More Foreseeable 4.) People are less culpable when they cant help it. a) What about pedophiles??? (1) Were extra tough on them even though they cant help it. (2) Why do we consider them worse? o Utilitarianism = incapacitation b) Wandering Scale of Mental Condition: Less Insane Punishment / Sane Punishment + Registration or Commitment / Repeat Sex Offender Asylum / Insane but not Automaton Not liable / Automaton Insane i.) The Prohibition of Status Crimes

1.) Robinson v. California (1962): Robinson is being convicted for being addicted to the use of narcotics.
a) What is the conduct? (1) There is none; they are punishing a state of being. (2) To be convicted under the statute, you dont have to do anything. b) Rule: status crimes are unconstitutional c) Justice Stewart (majority) = Cant make it illegal to be an addict because it is cruel and unusual to punish a person for having a disease (1) Violates the constitution / 8th Amendment Cruel and Unusual Punishment

(2) Youre punishing someone for a disease d) Justice White (dissent) = if the principle is that you cant punish someone for being addicts, then you should not be able to punish someone who acts on the addiction (possession, etc). e) Justice Harlan (RULED THE DAY) = without an act, there can be no crime (similar to Proctor)

2.) Powell v. TX: Drunk and disorderly. a) Held: doesnt violate 8th amendment
b) Rationale: not punishing him for his status, punishing him for the act of being disorderly in public. They adopted Harlans view. (1) White: get rid of disease analysis. Punish acts, dont punish non-acts. 3.) Supreme Courts Logic: a) Majority Logic (Inconsistent?) (1) Robinson it is cruel and unusual to punish someone for being an addict (2) Powell it is not cruel and unusual to punish an addict for feeding her addiction b) Harlan Logic (Consistent) (1) Robinson you cant punish addiction without action (2) Powell you may punish action, even if based on addiction.

4.) O.C.: Sentencing enhancement for being a gang member.

a) Held: FL SC finds this to be a Substantive Due Process violation. b) Rationale: There is a constitutional right to association. Thus regulation requires a Legitimate State Interest (statute must be substantially related and cannot be unreasonable, arbitrary, or capricious). (1) Limits the legislature from doing whatever they want. (2) State interest discouraging gangs; however, the law does not bear a substantial relationship to the state interest. (3) Whats missing from this statute? If you found that their membership in the gang was related to the crime, then it would be getting to the state purpose. Membership should be related to their crimes. c) In order to comply with Due Process: (1) There must be a legitimate state interest (2) The statue must bear a reasonable and substantial relation to that interest (3) The statute must not be unreasonable, arbitrary or capricious d) Section 874.04 violates DP because it punishes mere gang membership (association) and is therefore not reasonably related to the legitimate goal of reducing gang activity. j.) Conclusion 1.) Under Martin, every act element must be voluntary. a) What is at the heart of the voluntariness? (1) If its choice, may be guilty. 3 MENS REA a.) Gov must prove that you did every element of a crime. Mostly has to prove that you had an intent to do every element. Some state of mind regarding every single one of those actus reas elements. b.) Intent 1.) Intent is generally required (with notable exceptions) (a) However, Intent level may vary: (1) Can be specified by statute (2) Can be left vague and unclear (b) Intent requirements may apply to some but not all elements of crime (1) Intent generally may be negated by mistake of fact

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(2) Intent generally may not be negated by mistake of law (with big exceptions) (3) Some physical/psychological conditions make a person incapable of forming intent (c) Saying intent is required would get rid of strict liability. (1) Strict liability still guilty even if did everything a reasonable person would do.

2.) People v. Dillard:

(a) Elements of the crime: (1) Conduct = have to be carry a firearm (2) Circumstances = the firearm is loaded, and the you are in a public place (3) Result = none (4) Mens rea = none a) Does the fact that the statute doesnt mention intent necessarily lead to the conclusion that this is a strict liability crime? NO (b) Rule = Court will not read intent into a statute when it will frustrate the statutes purpose (i.e. regulatory statutes) (1) Regulatory statutes are strict liability (c) Held: no intent requirement (d) Rationale: (1) Judicial Options: when the statute does not specify intent, the court may: a) Read an intent element into the statute, unless it will frustrate its regulatory purpose [common law]; b) Interpret the statute as a strict liability (regulatory) statute [statutory interpretation], or c) Refuse to read intent into the statute, and strike the statute down as unconstitutional (2) argued I didnt know it was loaded, and I think it should be a defense because I didnt have the intent (retributivist) & Section 12031 requires union of act and intent (3) Court says there is no need for the union it is true common law requires intent, but this is a regulatory offense. a) In those offenses we might not want to wait around until the has intent. 1) These public welfare offenses, people who deal in things that are so dangerous, we put a special duty on them to make them do everything they can to make them less dangerous. 2) There is an exception to the common law rule that intent is required with regulatory offenses. (4) Court says it is worth it to put a couple of people in jail, b/c it deters people from violating the rule, otherwise people might try and fudge it a) Utilitarian argument innocent people will be punished for the larger good 1) Section 12031 is, in our view, a quintessential public welfare statute which embraces a legislative judgment that in the interest of the larger good, the burden of acting at hazard is placed upon a person who albeit innocent of criminal intent, is in a position to avert the public danger. 2) Although criminal sanctions are relied upon, the primary purpose of the statutes is regulation rather than punishment or correction. 3) Court is saying, Were not punishing, were just regulating. (e) Hypo: Don was given a container by his uncle, but it was a video recorder case. The uncle forgot he had left a gun in the case. Don wants to argue that he didnt know he was in possession of the firearm. What argument? (1) If he didnt even have a gun, and he didnt know it was loaded, and he believed he wasnt in possession of the gun, it wouldnt frustrate the legislative intent because hes not the type of person you want to regulate them.

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Dilla rd
Sta tutory Inte rpreta tion
Sta tute ha a re tory purpose tha s gula t will be frustra d by a te dded intent element.

Com mon La w
Rea intent into sta d tute unless it will frustra its regula te tory purpose.

Constitution (Due Proce ss)

Due Process does not require prose cution to prove intent for regula tory statutes

No Intent Require e m nt
3.) Model Penal Code is a total rejection of tort-like strict liability. (a) The only way you can impose strict liability, is if you remove criminal conviction. (b) Anytime you have criminal liability, you need intent requirement!!

4.) Morrisette v. United States:

(a) Elements: (1) Conduct=selling; (2) Circumstances=government property; (3) Results=none (4) Mens Rea = knowingly (b) Rule: only regulatory crimes are strict liability; the rest require intent. (c) Held: intent is required. (doesnt use Model Penal Code reasoning) (d) Rationale: (1) Agrees with Dillard that there are 2 types of crimes: a) Regulatory: dont need intent 1) The picture they paint of regulation is that are born out of the Industrial Revolution to regulate big corporations that can cause harm. 2) Only regulatory offenses may be strictly liable b) Garden variety: need intent 1) This case is garden variety because it is theft a. Conversion of govn property is a garden variety criminal offense b. Therefore, Morrisette had to know he was selling government property (the knowledge element must modify every act element). (e) Problem where do possession cases fit in???

5.) Regina v. Faulkner: Faulkner was charged and convicted for arson (feloniously, unlawfully, and
maliciously) setting fire (arson); Conduct: setting of fire; Circumstance: burning. Faulkner went to steal rum, bore a hole, and when he went to plug the cask he lit a match and the rum set fire and the ship burned. (a) Theres no question about his intent to steal the rum, so what is the question of intent regarding? (1) The trial judge told the jury that if they found he was engaged in stealing the rum, and that the fire took place in the manner above stated, they ought to find him guilty. Judge applied strict liability (2) Judge Fitzgerald: Felt the trial judge based conviction on nothing. a) Intent forms an element of the crime. b) Wants to quash the conviction b/c in order to establish the charge, it should appear that the defendant:

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1) intended to do the very act with which he is charged (thinking Im gonna

light this ship up), or

2) that it was the necessary consequence of some other felonious or

criminal act in which he was engaged (I am lighting this match and I know this ship can burn), or 3) having a probable result which the defendant foresaw(Lighting this match might cause a fire), or ought to have foreseen (reasonable person standard), he, nevertheless persevered in such other felonious or criminal act. c) Any one of those mental states might have sufficed for culpability. d) Problem = the judge never told the jury about any of these levels of culpability. Fitzgerald lays out the same 4 categories of intent. (purpose, knowledge, reckless, negligence). 1) Purpose: It is my purpose to burn this ship down. 2) Knowledge: My purpose may be something else, but I know (almost certainly) the ship is going to burn 3) Reckless: A substantial probability that the ship will burn but I am going to ignore it 4) Negligence: I have no idea (reasonable person would have realized) that the ship will burn, but I should have known 5) Strict Liability: Im guilty of burning the ship even though a reasonable person would have know, but my intent is irrelevant. 6) Strict Liability Plus: when one commits a felony, she is strictly liable for harms that occurred as a result of the commission of the felony. (will discuss later with felony murder, the only category where this still exists). 6.) Kinds of Culpability According to Model Penal Code (a) Highest Level of Model Penal Code Intent = Purpose (1) E.g. Faulkner intended to burn the ship) (b) Knowledge: (1) E.g. Faulkner did not intend to burn the ship, but he knew that lighting the match would almost certainly burn the ship. (c) Recklessness: (1) E.g. Faulkner did not intend to burn the ship, but he knew that there was a substantial chance that lighting the match would burn the ship) (2) E.g. Person who would shoot down the middle of the street, or people who shoot in the air on New Years and accidentally shoot him. (d) Negligence: (1) E.g. it never crossed Fs mind that the ship would burn, but a reasonable person would have realized the risk of the ship burning (e) Lowest Level of Model Penal Code Intent = Strict Liability (1) Doesnt matter that it never crossed Fs mind that the ship would burn and a reasonable person would not have realized the risk of the ship burning.

7.) Difference b/t Recklessness and Negligence:

(a) Difference b/t the actor being aware of the risk (reckless) and not being aware of the risk (negligence) = objective v. subjective (b) Probability of risk needs to be substantial for recklessness while in negligence just need probability of a risk.

8.) Difference b/t Knowledge vs Subjective recklessness: is consciously aware of a substantial risk of
harm. Dif b/t that and knowledge is the level of certainty.

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9.) What level of intent do you think Faulkner met?? (a) He was negligent because theres no way he would have known of the risk and gone forth with it
because he was on the ship and would be burned as well. (b) Trial court used Strict Liability Plus: When one commits a felony, she is strictly liable for harms that occurred as a result of the commission of the felony (not the rule except for felony murder). (1) Faulkner case is important b/c of Fitzgeralds discussion of the different levels of intent Have to give level of intent higher than strict liability c.) Strict Liability 1.) Wulff: Objective elements: Conduct=sell or barter; Circumstances=a migratory bird; Results=none (a) Held: law was unconstitutional (b) Rationale: Struck law down b/c legislature intended this to be strict liability. Court said if you are going to have a severe penalty then cant be a strict liability case. 2.) Approaches to Strict Liability Crime: (a) Approach 1 regulatory test o If a statute is regulatory in nature (public welfare offense), intent is not required (Dillard) o If a statute is non-regulatory (a garden variety crime), intent is required (Morisette) (b) Approach 2 The penalty test o If a crime is punishable by anything other than a fine, Intent is required. (MPC) o If a crime has more than a small penalty or a conviction can gravely besmirch someone, intent is required (Wulff).

d.) Negligence nowadays, can be punished by statute

1.) Problem: (a) By definition, a negligent person doesnt act with intent (b) Lack of defenses (1) Hypo: If I am moving a piano and tie a bow knot, and the piano falls down the stairs, breaks, and a piece of wood stabs a passerby in the heart, and that person dies liable?? a) Arguments: 1) Retributivist didnt have intent; doesnt deserve it 2) Victims rights / utilitarian arguments strongly favor liability 2.) Why punish people for negligence? (a) Say Mother Teresa negligently runs someone over, no intent to harm anyone. (1) Deterrence make people act more carefully and encouraging people to go the speed limit. (2) Victim rights argument grab person who we think should pay, want person who did the wrong, but is negligence wrong? JUST SOMETHING TO THINK ABOUT. e.) Recklessness 1.) Objective / Subjective Intent (a) According to MPC, to be reckless, the defendant had to know this acts posed a substantial risk of harm (subjective) (1) This is different from knowledge b/c of level of certainty a) Knowledge = absolute certainty b) Subjective reckless = substantial certainty (b) According to Simons, even though defendant didnt know that his acts posed a substantial risk of harm, he is reckless if he should have known (objective) (1) Theres two types of people: a) The one who wants to test out his new gun in front of the student union and believe someone could get hurt, but does it anyways. b) The one who wants to test out his new gun in front of the student union and has no idea someone could get hurt.

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(2) What does the reckless, subjective person do that makes him worse than the objectively
reckless person? a) An objectively reckless person doesnt realize it when he is engaging in highly risky behavior, where a subjectively reckless person chose to engage in the substantially risky behavior this person seems like a worse actor. b) Simons counter-argument objective is just as bad possibly worse how morally bankrupt is the person who shoots down a crowded street and isnt even aware of the risk. Indifference is as much or more dangerous than subjective recklessness. (3) Subjective recklessness is better for the since your awareness of the risk is what they would have to prove, more difficult than proving the reasonable person standard.

(c) Difference b/t objective recklessness and negligence is the degree of risk that the reasonable
person would foresee.

Objective/Subjective Intent
RECKLESSNESS - MPC: Def. knew that his acts posed a
substantial risk of harm. (subjective).

RECKLESSNESS - SIMONS: Def. didnt know that his acts

posed a substantial risk of harm, but he should have known. (objective)

NEGLIGENCE: Def. didnt know his acts posed a risk of harm,

but he should have known. (objective)

f.) Discerning What Level of Intent the Statute Requires

1.) United States v. Jewell: Jewell comes into the states with a secret compartment in the car and is charged
with violation of a statute that made it a crime to bring drugs into the U.S. He denies knowledge b/c could not say with near certainty b/c he did not look. Knowledge is knowing/awareness (a) Held: Willful blindness is the same as knowledge (b) Rule: willful blindness is the same as knowledge (c) Rationale: Willful blindness is aware of a high probability of things existence deliberately set out not to know. Used often w/ drug mules. (1) Diff b/t this and negligence or recklessness? a) The reckless me believes theres a substantial probability drugs are in the car, but dont believe theres drugs in the car. 1) So I drive in a car up to the U.S. and has substantial knowledge there are drugs in the car b/c someone tells him, the guy whose car you borrowed usually has drugs in his car, and you say, I know, but I dont think he did it this time. Guilty? i. Yes, because you are aware of the substantial probability of drugs in the car. ii. Are you willfully blind? No. 2) When negligent or reckless you are unreasonable or risky in believing that this thing doesnt exist, 3)

15

b) In willful blindness you are certain that it is there, you just refuse to know, dif b/t accepting and not accepting criminality.

2.) People v. Ryan: One mental state element in statute, how many of the elements does it apply to?
(a) Elements (1) Conduct: possessing (2) Circumstance: a) a hallucinogen b) 625 milligrams (3) Mens rea = Knowledge (b) Hopkins is the guy Ryan is receiving the shipment of mushrooms from, and is doing a controlled purchase/working with the police a snitch (c) Rule: if a statute requires a single mens rea, and does not make it exclusive to one element, it presumably applies to all elements of the offense unless a contrary legislative intent is plain. (d) Issue: whether the statute requires that he had to know the weight of the hallucinogenic chemical. (e) Held: the legislature intended for all elements of the crime to be intentional (f) Rationale: (1) Canons of construction = a) If its not a strict liability crime, and thus a mental culpability crime, the knowledge requirement has to be applied to all of the elements. b) A statute defining a crime, unless clearly indicating a legislative intent to impose strict liability, should be construed as defining a crime of mental culpability. 1) How do we determine the legislative intent? Look at the language of the statute, Commentaries, Legislative history, etc. a. What do we have to see in all of that in order to apply strict liability? 1. It has to clearly state the legislature wants strict liability for that crime. (2) Court did not discern a clear legislative intent to make the weight of a drug a strict liability, therefore, the knowledge requirement is applied to 625 mg. a) Cant apply strict liability here b/c cannot be an offense worse than a violation or in a non-penal jurisdiction that it is a regulatory public welfare offense. 1) The court seems to be saying every must do some chemistry on their mushrooms, but really the court is saying there is another way out, evidence that proof that typically 2lb of shrooms has more than 625 milligrams. (a) Purpose = to avoid over-penalizing the guy who gets unusually strong mushrooms. (b) Gruber things majority got it wrong because dealers know/believe they will get a range of strength drugs 2) They get the benefit of a shipment of being weak, by being underpenalized. 3) Legislative reaction was to make the weight a strict liability not only the chemical weight but the dry weight, too 4) So one who bargains for one shroom and gets ten lb is as guilty as one who bargains for 10 lb. (3) What clues did Ryan have about the amount of shrooms he had? a) Requested usual shipment b) Hopkins reported he was bringing a shitload c) Hopkins referred to the shipment containing 2 lb. d) Further, he knew that he was getting a hallucinogen. (4) Problem = He didnt know the amount of the chemical weight of the mushrooms a) Court says it would be enough for defendant to have known that the average amount of psilocybin for that weight of mushrooms is 625 mg or more. b) No such showing here

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(g) Hypo = If Gruber is standing in NY holding 624 mg, is she guilty under this statute? NO, 625 mg is necessary for guilt under this statute.

Requirement of Knowledge of Drug Weight

Strongest (Ryan): Knowledge of weight (625
milligrams or more) requires: (1) Defendant knew the weight of the mushrooms, and (2) The average amount of psylocibin for that weight of mushrooms is 625 milligrams or more.

Middle: Knowledge of weight (625 milligrams or

more) requires: (1) Defendant knew the weight of the mushrooms, and (2) The mushrooms turn out to have 625 milligrams or more of psylocibin.

Weakest (New NYPL 220.18):

Defendant does not have to know weight of drugs.

3.) State v. Lima: put baby in scalding water, and says she didnt know it was scalding. Statute is silent as to
mens rea. wanted judge to instruct jury that to be guilty she had to intentionally burn baby. (a) Rule: if the statute lacks a mens rea element, and the court decides to imply an element, the default is recklessness. (b) Held: entitled to new trial (c) Rationale: (1) When a statute lacks a mens rea element, like the child abuse statute here, what could the court do? a) Can strike down the statute b) Can read mens rea into it c) Can make the crime strict liability (2) Why didnt the court make this strict liability? a) What approach to strict liability did they follow? 1) Under regulatory approach all strict liability 2) Under Model Penal Code theres a recklessness requirement a. Model Penal Code 2.02 requires a mental state / does not allow strict liability b. When youre implying that intent, you cannot go below subjective recklessness b) Why does MPC set the bar at recklessness and not negligence? 1) It would be weird to punish people for mistakes (3) What does jury need to see in order to conclude Lima was reckless? a) Under MPC Subjective recklessness: There is a substantial probability baby will be burned if I plunk the baby in the water, eh w/e Im gonna do it anyway 1) To prove it: did she turn the water all the way up without testing it because she was hurried? 2) If the water was steaming, or she felt it, her experience w/ that tap before knowing it was scalding hot. b) Subjective recklessness requires that she knows of the substantial risk of harm. (d) MPC 2.02: (1) 2.02(1) A person is not guilty of an offense unless he acted purposely, knowingly, recklessly or negligently, as the law may require, with respect to each material element of the offense

17

(2) 2.02(3) When the culpability sufficient to establish a material element of an offense is
not prescribed by law, such element is established if a person acts purposely, knowingly, or recklessly with respect thereto. (3) 2.02(4) When the law defining an offense prescribes the kind of culpability that is sufficient for the commission of an offense, without distinguishing among the material elements thereof, such provision shall apply to all the material elements of the offense, unless a contrary purpose plainly appears. g.) Specific v. General Intent 1.) These are ways of categorizing crimes by their intent. (a) Gruber says these are not good ways to categorize them (1) This is not as good as purpose; knowledge; reckless and negligence. a) Battery: 1) Purpose: I want to smack someone and I want to do it against her will. 2) Knowledge: I touch and know it is against her will 3) Reckless: substantial probability against her will 4) Negligence: never crossed my mind that the touching was against her will, but reasonable person would have realized it was against the will 5) Strict liability: It never crossed my mind that touching was against her will and a reasonable person would not have realized it was against her will (2) Strict v. General intent: these are old ideas from common law and very confusing.

(b) Know that it is important to know the distinction b/c courts will make different rules for each
(1) E.g. voluntary intoxication is a defense for a specific intent crime, but not a general intent crime. a) with intent to crimes (2) The question we should be asking is what crimes fall into each category?

2.) Why this is a bad distinction = it means very different things at different times.
(a) The problem is that courts use the divide b/t specific and general intent crimes to denote categories. (b) Most of the time, it means something like this: (1) You can have a crime of simple battery considered general intent a) touched the victim b) Against the victims will (2) You can have a crime of battery with the intent to inflict grave bodily injury (specific intent) a) touched the victim b) Against victims will c) With the intent to inflict grave bodily injury (c) So specific intent: unexecuted intent to achieve a certain result (1) Problem w/ specific intent = it doesnt tell you the actual intent required. (a) e.g. Statute = battery with intent to commit grave bodily injury = specific intent crime 1) Situation 1: a. I knowingly touch victim b. I know it is against his will c. I know that my touching will result in his arm being broken, but it is not my purpose to break his arm. 2) Situation 2:

18

a. I knowingly touch victim b. I know it is against his will c. I dont know that my touching will result in his arm being broken, but a reasonable person would know that the touching will break his arm. 3.) Some of the many possible distinction: (a) specific intent refers to the mental element of any crime, while general intent refers to the broader question of defendants blameworthiness or guilt, including both the defendants mens rea and responsibility. (1) When we say specific intent, what we might mean is whatever intent is specified in the statute. (2) There are very few statutes that require, instead of knowing elements, knowing the law. (b) A general intent is simply an intention to do the act proscribed. A specified is an unexecuted intention to do something in the future. (1) If charged with assault with intent to kill, that would be a specific intent crime (2) If charged with assault, that would be a general intent crime, because that crime does not also intend for him to do something in the future. (3) If I intend to cause property damage with intent to do something else, it would be somehow a specific intent crime and easier to defend. (c) The only distinction that makes sense according to Gruber It relates it to categories we understand: (1) general intent offense punishes for consequences she expected, or knowingly risked or should have expected. (2) Specific intent offense punishes only for consequences actor desired. 4.) It behooves you to figure out what the court means when it uses (a) When there is a divide b/t these unexecuted intents, it becomes difficult to understand why the courts treat these different. (b) You have to know: these distinctions exists, and are argued, but lawyers not really sure what the distinction is. (c) This intent stems from old common law cases that refer to certain crimes as specific intent crimes. (d) How she & this book teaches intent = Purpose, knowledge, recklessness, and negligence 5.) The most shell ask us to do is to identify the difference b/t specific and general intent and explain the problems with the divide. 6.) Overall, its a bad distinction 7.) Review: (a) The two most common ways of stating divide of specific or general intent (1) Specific an intent to achieve something (murder the intent to achieve a death; burglary intent to achieve goal of stealing something. (2) Another way is to pick a place on model penal code to make divide purpose and knowledge vs. reckless and negligence.

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Specific v. General Intent

Specific Intent: Crime requires that the defendant intend a specific
harmful result. (i.e. Battery with intent to commit grave bodily injury). Under this view, specific intent crimes include (a) offenses explicitly so defined by statute, (2) attempts, (3) crimes that where common law has imputed such an intent element (i.e. burglary). Less common meanings: 1. The intent specified in the statute 2. Anything except strict liability 3. Purpose

General Intent: Crime only requires that the defendant intend to do

the harmful act. (i.e. simple battery). Defendant need not intend a specific result. Less common meanings: 1. The defendant intends the natural and probable consequences 2. Broad blameworthy intent 3. Knowledge, negligence, or recklessness

h.) Mistake of Fact 1.) It is nothing different than a way of negating intent. (a) Not a separate affirmative defense; another way of looking at negating intent. (b) Not every mistake is going to negate every intent. (c) An unreasonable mistake would not negate a negligence crime (1) E.g. a druggie looking guy hands you a bag of white powder it would not be reasonable to believe it was baking powder. If statute says knowingly or should have known. If statute says knowingly this defense would work unless willful blindness b/c honest and reasonable to my mistake best I can be in defense the only thing it will not defend against is strict liability.

2.) State v. Guest: charged and convicted of Statutory Rape (11.15.12): A person who being 16 years of age or
older, carnally knows and abuses a person under 16 years of age, is guilty of rape). Statute says nothing about intent. (a) Elements: (1) Conduct = carnally knows and abuses (a.k.a. sex) (2) Circumstances = perpetrator must be 16 or older, and the victim must be under the age of 16 (3) Mens rea = none stated in the statute (b) Guest wants negligence (1) Guests defense = mistake of fact = I didnt know she was under 16 a) The parties stipulated to this fact = prosecution conceded that there was a reasonable mistake of fact (2) Govn wants strict liability b/c the only way he can be guilty is if the court applies strict liability cant do it here b/c: a) Guest cites to: 1) Anderson v. State where court distinguishes between misdemeanor and felony (Wulff) 2) Cites to Speidel = regulatory test for strict liability; this is not a public welfare offense, it is a common garden variety crime, therefore cant be strict liability (Dillard) (c) Then what is the court going to do with this statute if not apply strict liability? (1) Court applies a negligence level of culpability (requires reasonable belief that she is > 16) a) By implying the negligence level of culpability, does the court follow the MPC? 1) No, MPC says Recklessness is the minimum default

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2) Under the MPC, it is fair to punish someone when there is a substantial probability (2) Hypos: a) Lets say Guest grew up in a small town and grew up with 5 sisters, and his sister are in their 20s and look like their 12. He moves to Miami to go to school to FIU. He goes to a party, and meets a girl. She looks older than his sister, so he absolutely believes she is at least 23. Is he guilty of statutory rape? He is guilty, b/c the standard is the average, reasonably prudent person b) If the court went with a knowledge standard, would he have a defense? Yes, he is most likely not guilty, b/c no matter how unreasonable his belief is, he did not know. c) If statute requires purpose, not guilty b/c he doesnt know shes under 16 d) If Guest has an honest, but unreasonable belief of her age. Is he guilty under the recklessness standard? 1) Subjective recklessness wed have to believe that he himself believed that there was a substantial probability 2) Objective recklessness His unreasonable belief would not be a defense under the objective standard e) Would his honest, but unreasonable belief of her age be a defense for negligence? No (d) Rule: Reasonable MF is a defense to everything except strict liability. (1) Unreasonable MF is a defense to: a) Definitely Purpose & Knowledge b) Depends for Recklessness c) Definitely not for Negligence

MISTAKE OF FACT - Scenarios

1. Statute prohibits defendant from intending to have sex with / knowing he is having sex with 15 yr old (or younger). (PURPOSE / KNOWLEDGE)

Reasonable MF
I honestly and reasonably thought she was 16

Defense to

2. Statute prohibits defendant from having sex with a person, when there is a substantial probability that the person is15. (RECKLESSNESS) 3. Statute prohibits defendant from having sex with a person who a reasonable person would know is 15. (NEGLIGENCE)

Unreasonable MF
I honestly but unreasonably thought she was 16

Defense to

1 - definitely 2 - depends 3 - definitely not

Neither Reasonable or Unreasonable Mistake of Fact are defenses to STRICT LIABILITY (Statute makes it a crime to have sex with a minor, regardless of whether the defendant thought it was a minor).

MISTAKE OF FACT
Statute Requires as Intent:

PURPOSE KNOWLEDGE RECKLESSNESS

Reasonable MF Unreasonable MF

Defense Defense Defense Depends Defense No Defense No Defense No Defense

Reasonable MF Unreasonable MF Reasonable MF

NEGLIGENCE

Unreasonable MF

Reasonable MF

STRICT LIABILITY

Unreasonable MF

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i.) Mistake of Law

1.) MPC 2.04(1) (a): Ignorance or mistake as to a matter of fact or law is a defense if the ignorance or
mistake negatives the purpose, knowledge, belief recklessness, or negligence required to establish a material element of the offense.

2.) MPC 2.02(9): Culpability as to illegality of conduct. Neither knowledge nor recklessness or negligence as
to whether conduct constitutes an offense or as to the existence, meaning or application of the law determining the elements of an offense is an element of such offense, unless the definition of the offense or the Code so provides. (a) The intent to break the law is not a material element (b) Therefore, Mistake of governing law is not a defense (1) You cant say you didnt know it was a crime to do what you did

3.) People v. Bray: Jury instruction requested he wants a negligence instruction so he could assert the defense
that he had an honest and reasonable belief that he was not a felon. (a) Elements: (1) Conduct = possessing a concealable firearm (2) Circumstance = you are a felon (3) Mens rea element in statute = none (b) Held: This was a mistake of non-governing law and thus he has a defense. (c) Possession element strict liability (1) Does he need to have intent on the felony part? a) MPC says there needs to be an intent on every single element. (2) Felony status is a material element. a) Court said Bray needed to have knowledge intent. b) One policy reason: it was hard to tell if felon under Kansas law. 1) Hypo: What if the felony law was clear? a. He would still would have a defense. b. Even people who make unreasonable mistakes could get off on this standard. (d) Is this a mistake of fact? (1) No, b/c he knew all the facts of what he was. (2) This was a mistake of law b/c he didnt know was the legal category that that put him in. a) Bray thought he had been convicted of a misdemeanor

(e) Mistake of Governing law vs. Non-governing law: (1) Non-governing law negates a material element. (2) Governing law negates a belief or knowledge of the law. (f) This was a mistake of non-governing law b/c it is not a mistake about a material element of the
law governing the crime. (1) Hypo: Lets say he thought it is perfectly legal for felons to carry a gun. This is a mistake as to the governing law. You have to know what you are doing, not that you are breaking the law. No defense (g) We know that in order to convict someone under this statute, the statute requires: (1) Knowledge that you possessed a gun (unlike Dillard) (2) What about knowledge you were a felon? a) Prosecutor says no b) Defense says yes

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c) Court agrees with defense because if they dont require knowledge you were a felon, it is like applying strict liability. 1) Doesnt want to apply strict liability because it goes against the prevailing trend (h) On remand, defense attorney should change instruction to under an honest belief instead of under an honest and reasonable belief because this case requires knowledge, no matter how reasonable

4.) United States v. Baker: convicted of a violation of the Trademark Counterfeiting Act of 1984
(a) Elements: (1) Conduct = trafficking (2) Circumstance = counterfeit goods (b) Rule: a mistake of governing law is not a defense. (c) Baker knows these were knock-off Rolexes, but he says a bunch of people are selling so he didnt know its a crime. (1) Does he have a defense? a) No, this is a Mistake of Governing Law b) Reason why is Mistake of Governing Law not a defense = Even if youre honest and reasonable, youre on notice that you had a duty to go and figure out the law and if you dont youre strictly liable. 1) Hes cant say, this is complicated law and intentional may be a higher standard.

5.) Cheek v. United States: (*Big exception) violated statute that made it a crime to willfully fail to file tax
return (a) Elements: (1) Conduct = omitting to file a tax return a) Remember: Omission when there is a duty to act can result liability. b) Here there is a duty to file taxes. (2) Mens rea = willfully (b) Under MPC: It was his purpose not to file return (1) But hes claiming he made a mistake of governing law a) He believed the tax was unconstitutional b) He didnt believe that wages were income (2) Even though mistake of governing law, the court allows him to assert it as a defense because the statute requires a HIGHER level of intent than purpose = WILLFULNESS (good for ) a) Requires government to prove that the law imposed a duty on the . That the knew of this duty and he voluntarily and intentionally violated that duty. WILFULNESS higher than purpose good for . b) In other words, would need to prove that Cheek intended not to file a return, and knew failing to file a return is illegal (c) Were not allowing Baker to assert this defense, but were allowing Cheek to WHY? (1) The tax law is so confusing that who is to say what is a reasonable deduction. a) Some laws are so hard to figure out, not only do you have to know that you are committing the elements, but you have to know that what you are doing is illegal (2) To allow conviction would put too many people in jail (d) Why wouldnt this work for theft? (1) Because it is a more simple crime. a) An average person highly paid airline pilot would not know all the ins and outs of tax law.

23

b) Maybe the law should have been a reasonable mistake of governing law but court went all the way the other way. c) If the standard was that you had to make every reasonable effort to get taxes done correctly, he would have been guilty. (e) Thus we see there are some regulatory statutes that require hyper-hyper-intent.
More Intent

WILLFULNESS: Cheek decided not to file a return, and knew

failing to file a return is illegal .

PURPOSE: Cheek decided not to file a return. KNOWLEDGE: Cheeks accountant called him and told him
That he was not going to file the return. Cheek did nothing.

RECKLESSNESS: Cheek asked his friend a long time ago to

file the return, but never followed it up.

NEGLIGENCE: Cheek went to a disreputable accountant,

asked once for him to file a return, but never gave him any financial documents. The accountant didnt file it.

STRICT LIABILITY: Cheek instructed his very qualified

accountant to file a return, but the accountant failed to do it.
Less Intent

6.) Commonwealth v. Twitchell: Christian Scientist parents didnt seek medical care for their child who died of
an obstructed bowel. They relied on a publication that said, they wouldnt be liable for neglect, if reason you didnt get them care is religion. Charged w/ involuntary manslaughter. (a) Elements of involuntary manslaughter: (1) Conduct: Causing death (2) Mens rea: Recklessness (aware of a substantial risk kid would die and ignored it) (b) Their beliefs arent a defense: (1) The provision deals with negligence doesnt govern recklessness (2) They made a mistake of governing law b/c they thought this governed their case. (c) s argued they didnt know it was illegal to recklessly not seek medical treatment, b/c they relied on the publication (spiritual defense provision) generally not an excuse. (1) They argued this was entrapment by estoppel (i.e. relied on official publication of the law) (d) Held: this was not entrapment by estoppel, but remanded for a factual finding on what a reasonable person would conclude about that publication. (e) Rule: [MPC 2.04(3)(b)] if you reasonably rely on an official statement by someone that is charged with interpreting the law, you have a defense. (f) Rationale: It would be unfair, bordering on entrapment, to have an Official say something wrong on the law, have people rely on it reasonably, and then prosecute them for it it is an equitable defense (g) What issues will be on remand? (1) Whether the statement was still Official when it was published in the Church publication a) State would argue not official and it says negligence, not reckless involuntary manslaughter b) Hypo: Lets say Gruber looked up law and announced that smoking weed was okay get caught, and use this as a defense 1) This wont fly only someone like the atty general in an official publication would be an entrapment by estoppel case. (2) Whether it was reasonable for them to rely on it

7.) Review on Mistake of Governing Law: 24

(a) General rule = Mistake of Governing Law (mistaken belief that your actions are legal) is no excuse) (b) Exceptions: (1) Statutes that are complicated and regulatory (Cheek) (2) Defendant has reasonably relied on an official (yet wrong) statement of the law (Twitchell) j.) Capacity for Mens Rea

1.) Hendershott v. People: (boozer) was living in his g/fs building. He choked her and ran away. She called
police. Charged and convicted with Assault 3rd Degree. (a) Elements: (1) Conduct = causing bodily injury (2) Mens rea = knowingly or recklessly a) In order to satisfy knowingly what has to be going through his head?? 1) He knows hes causing bodily harm b) In order to satisfy recklessly what has to be going through his head?? 1) He knows theres a substantial probability that hes causing bodily harm, but does it anyways. (b) He wants to use Adult Minimal Brain Dysfunction (Adult ADD) as a defense he wasnt able to know or be reckless b/c he has impulse control problems (1) Govn argues that mental disease short of insanity is a defense only to a specific intent crime knowledge on down in this case is general intent. a) ADD is a defense to purpose, but not to anything less. This is not a purpose crime and therefore cant have this defense. (c) Held: He may assert the defense (d) RULE: Evidence that the def suffered from a mental disease or defect shall be admissible whenever it is relevant to prove that the def did or did not have a state of mind which is an element of the offense (Same as MPC 4.02(1)) (1) Model Penal Code 4.02(1) evidence that D suffered from a MENTAL DISEASE or DEFECT shall be admissible whenever it is relevant to prove that D did or did not have a state of mind which is an element of the offense. (e) Rationale: how can they do it when the legislature clearly expressed what they wanted? (1) The appellate court rules that there would be a constitutional problem if you didnt let him argue ADD, would be a DP problem. a) They say it would violate due process b/c: 1) Prosecution has the burden to prove the case 2) If they didnt allow it in court, prosecution wouldnt be able to prove mens rea and you would take the burden off of the prosecution (2) Drawing a line in the sand where the defense works will not fly. This is not like voluntary intoxication, b/c unlike voluntary drunkenness ADD is not something in his control. (3) Difference b/t limiting affirmative defenses and limiting what Hendershott is trying to do: Retributive argument (f) Hypo: what if Hendershott knew that when he gets drunk he gets aggressive, drinks, and beats his wife. He asserts that hes not guilty what result?? (1) If you can foresee your involuntary position, then you can still be on the hook. (g) Argument that ADD negates knowledge? (1) Im so hyper that Im not thinking about the consequences, negates knowledge (b/c of my ADD I didnt realize my beating would cause bodily injury) (h) Argument that it doesnt? (1) Hyperactivity doesnt mean I dont know what Im doing. ADD is not about knowing what you are doing it is more an impulse control problem. He knew what he was doing, but couldnt help it. This is more automaton like. So, the court is kind of saying impulse control negates intent.

25

(2) Retributivist argument an impulse control person is dangerous lock him up! a) This defense should work for pedophiles but it doesnt work for them. There
are obvious favor and disfavor mental illnesses. b) Tension in the law b/t cant help themselves and super-dangerous

Me l Impa nta irme & Me nt nsRe a

L E S S I N S A N E
S ane Pe dophile Jail + Re gistration/ Com mitme nt Jail Asylum

M O R E I N S A N E

Go Home

Go Home

Me ntally Impaire d

Insane

Automaton

2.) State v. Cameron: Cameron wants to argue that she was voluntarily intoxicated, and therefore she didnt
knowingly cause bodily injury and she didnt purposefully possess the weapon. (a) Govn says this defense is only for specific intent (b) Held: the specific/general intent distinction for applying this defense makes not sense; in its place used the MPC culpability distinctions. (c) Old rule = voluntary intoxication could be a defense for specific not general intent crimes (d) New rule = voluntary intoxication is a defense to knowledge and purpose crimes, but not when crime requires negligence or recklessness. (1) This court says its not a defense to recklessness why? a) If the crime is recklessly causing bodily injury he knew there was a substantial certainty that he was gonna hurt the other guy, and did it anyway Cameron court would say, being drunk is reckless in itself. b) Not fair to say that being drunk is in itself reckless c) Reason the court says this = to deter people from getting drunk (e) Seems this would be unconstitutional as per Hendershott. (1) Legislature says: intoxication is immaterial in recklessness unawareness due to selfintoxication is not an acceptable defense. (2) Argued this was different than Hendershott b/c this is VOLUNTARY. (3) This went to the Supreme Court: Montana v. Egelhoff a) Held: Even for the highest crimes, voluntary drunkenness is a defense b) Rationale: It doesnt offend our sense of due process to b/c its not fundamental 1) Why not? B/c weve been doing it for so long 2) So what is the substitute for mens rea test for purposeful murder? Substituting it for a test that if it seems like the type of murder that would have had purpose if you werent drunk.

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Voluntary Intoxication
Old Rule
Voluntary intoxication is a defense when it negates intent for a specific intent crime but not a general intent crime.

Cameron
Voluntary intoxication is a defense when crime requires purpose or knowledge but not when crime requires negligence or recklessness

4 CAUSATION a.) Introduction to Causation: 1.) Justification for Causation Rule: (a) Utilitarian Justification: A rule that anyone near a crime could be punished for the resulting harm would have immense social consequences. (1) People would fear that they could be convicted of a crime at any time, and they would be deterred from legal as well as illegal activity. (2) Indeed they may never go out into public. (b) Retributive Justification: The just deserts justification of causation is more convincing. Causation links the wrongdoer to the wrong, making them personally responsible for the consequences of their acts. (1) Under retributive principles, punishment should not exceed the harm caused. Thus, attempted murder is punished less severely than murder at common law. (c) Causation of harm is actually a normative conclusion that, absent justifying conditions, defendant has wronged someone. (1) b/c a lot of crimes dont require result, this causation analysis only comes in when there is a result usually, results only happen to persons, i.e., death 2.) Strategies for Limiting Causation (a) But for (sine qua non): If the harm would not have resulted but for an individuals actions, that individual is the cause-in-fact of the harm (i.e. what D did was a necessary ingredient for the injury) (1) But for causation does not establish responsibility; it serves as a limitation on who may be culpable for the harm caused. (2) After an individual is determined to be the but for cause of harm, it must be established that he had the requisite mens rea for the crime, and that he was the proximate cause of the crime.

(b) Proximate Cause: The existence of factual causation will not alone support a finding of criminal
liabilitythere must be proof of proximate causation, which asks whether as a matter of policy the D should be held responsible for a particular result. (1) Proximate cause legal cause; this wasnt just any cause, but a cause sufficient to impose liability a) But for cause plus intent (foreseeability) (2) Foreseeability can cut different ways: a) foreseeability of the result, or b) foreseeability of the manner in which it will happen

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(c) Intervening Events: is an event that breaks the chain of direct causation (1) Voluntary Human Interventions: Free informed deliberate actions of a third party will
lessen the likelihood of proximate cause. This is consistent with the retributivist principle that the free will actions of human beings are paramount. (2) Temporal intervals: The longer the interval, the more plausible it becomes that but for defendants action the victim might have suffered some other misfortune

(d) Duties: Where passive conduct is a necessary condition for a result, it must be combined with a
duty to act [Welansky] b.) But-For & Proximate Cause 1.) Regina v. Martin Dyos: MD hit RM in the head with a brick, decedent suffered head injuries and died. Both of the wounds were potentially fatal wounds. We dont know who inflicted the second wound. MD Charged w/ murder and grievous bodily harm. Court reversed conviction (a) Why does the fact that the charge was murder make causation matter? (1) B/c murder is a result crime When you have to achieve something thats when cause matters. (2) Results = death and bodily harm (b) Ds defense = theres no way you can prove I was the but for cause of his death (1) Pathologist report = conflicting conclusions a) # 5 - Either wound would very probably cause death (this is the one the court went with) 1) If this is proved, then prosecution cant prove that Ds blow was the but-for cause (i.e caused the death rather than the other). 2) D would be a proximate cause b/c foreseeable b) # 7 - He would have survived if it was only one blow 1) If govn proved this beyond a reasonable doubt, there would be no chance for new trial 2) He would be a but for cause a. Defense may still have a proximate cause argument, but kills your but for cause argument b. Is he a proximate cause? Yes b/c it was foreseeable that: Someone would hit him again or That he could die from being hit on the head (c) Simultaneous sufficient causes: each action is sufficient to cause result. If what you did was sufficient it is enough. (1) There are but-for jurisdictions, and there are simultaneous sufficient cause jurisdictions (2) In todays world the court would flip between the two to make him liable. (d) PROXIMITY IS NOT ABOUT TEMPORAL PROXIMITY

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Dyos Pathology Report

Proximate Cause = But-for Cause D e f e n s e P r o s Conclusion 5: Either wound would very probably cause death Simultaneously Sufficient Cause Conclusion 7: Reasonable and sensible possibility of recovery from first wound

Conclusion 7: Reasonable and sensible possibility of recovery from first wound

Conclusion 5: Either wound would very probably cause death

2.) Commonwealth v. Rhoades: Rhoades burned down a building and firefighter Trainor died. Captain
Trainor dies of heart attack exacerbated by the smoke inhalation b/c his face mask doesnt work. Rhoades was a but-for cause of Trainors death. But not the only one. Judge tells jury that in order to find Rhoades guilty, you need to find, beyond a reasonable doubt, that Rhoades act in any way contributed to hasten or was part of the proximate cause of Trainors death. (a) Whats wrong with this instruction? It says you can satisfy causation with but for cause alone. (b) MPC 2.03(1)(a) proximate cause is But-for with Intent (1) Causation consists of: But-for causation, plus other causal requirement imposed by law. a) Where purpose/knowledge is an element, result must be within purpose or knowledge of defendant (with specific exceptions). b) Where recklessness/negligence is an element, result is foreseeable or should have been foreseeable to defendant (with specific exceptions). (c) But, MPC 2.03(2)(b) complicates things again by giving an out (1) But what happens when I intend a result, but something else happens? I intend to kill by shooting, but accidentally swerve car and hit a car that hits him. The result was not in my purpose. a) It isnt about the bizarreness, but whether I had time to change my mind b) Hypothetical: en route to kill, D swerves and drives car victim was in (not knowing victim was in the car) into ditch and UFO falls on it, and kills victim. 1. D couldve gotten to the house and changed mind therefore criminal liability may be precluded 2. Different from if youre about to shoot victim, pull trigger, and car accidentally drives in way of bullet, and victim doesnt die. c.) Intervening Causes

1.) Commonwealth v. Root: Decedent swerved out under a bridge and hits a truck head on. Root is charged
with involuntary manslaughter (actus reas: causing death) (a) Elements: (1) Mens rea reckless (theres a substantial possibility that this will cause death, but does it anyways) (2) Unlawful or reckless conduct (b) Held: Ds unlawful and reckless conduct was not a sufficiently direct cause of the death to warrant his being charged with criminal homicide (c) Rationale: D didnt force deceased to maneuver as he did. (1) The maneuver was an accidental and fortuitous circumstance.

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a) Using tort proximate cause is too harsh for criminal liability b) It seems that this is a victim liability rule (2) Gruber disagrees with this weird alive guy less guilty, dead guy more guilty (d) Majority = there is no causation if there is an intervening act b/t the Ds act and the result (e) Dissent = this is all b.s. they suggest that Root should be guilty b/c the victims conduct was foreseeable / there is causation so long as the intervening act was foreseeable to the D. (f) Who would the Model Penal Code agree with?? The dissent (1) 408 = you need but-for with intent and intent may also include natural events or what others do 2.) What is foreseeability? (a) Foreseeing the ultimate result (1) Root could foresee that someone would die from drag racing (2) Hamilton could foresee that the injuries he inflicted could cause death. (b) Very different result if foreseeability meant foreseeing the intervening act (1) Root could not foresee decedents choice to go in wrong land at the wrong moment (2) Hamilton could not foresee that D would tear tubes out of his nose

3.) U.S. v. Hamilton: Decedent was beaten, in the hospital recovering, was unrestrained and pulled his tubes
out and died. (a) Causation: inflicted a wound, and that wound is a but-for cause of death. (1) Note: Foreseeability and lack of intervening act do not seem to be required. a) Does the court care whether this death was foreseeable? No, they look at cases (Stephenson) where chick was raped and then took poison could argue no but-for causation b/c maybe she would have committed suicide anyway. 1) Was this death foreseeable? The dude pulled out tube not the death one could foresee from stamping on someones face. 2) Need to foresee end result or method of death? Was there a volitional intervening event? Maybe. Depends on if he was spasming or something when he pulled out tubes. (2) In Stephenson (rape case mentioned in Hamilton) could argue no BUT-FOR causation. Chick is raped and then takes poison. Maybe she would have committed suicide anyway. (3) Gross negligent medical care is the only thing that can break the chain. Wouldnt work in Hamilton b/c taking off restraints is not gross negligence. (b) In general: Actus Reus, mens rea, and causation general elements (c) Most cases dont need causation, unless a result is required. Always an actus reus and mens rea (unless strict liability). (d) RULE: cause a wound and wound causes death within a year and a day. Wound + But-for cause.

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What is Foreseeabililty?
Foreseeability =Foreseeing the ultimate result

Root could foresee that someone would die from drag racing.

Hamilton could foresee that the injuries he inflicted could cause death.

Foreseeability =Foreseeing the intervening act Root could not foresee decedents choice to go in wrong lane at the wrong moment. Hamilton could not foresee that decedent would tear tubes out of his nose.

5 - SPECIFIC OFFENSES A. RAPE 1.) Introduction a.) There are easy cases, and there are very difficult cases (1) Scenario: A woman is sitting her drinking in the front seat of a Porsche. He decides to bonk her on the head with a bottle, knock her out, drags her into the bushes, and rape her. This was a real 1948 case (Gordon v. State), where the court held that as a matter of law b/c she was drinking with him, this wasnt rape. (a) Voluntary social companion, immoral and unchaste woman, and not credible. (2) Difficult case hypo: Woman goes into the Rattskeller at FIU, they get drunk, and shes wearing a short skirt, theyre dancing, and the guy invites her up to the dorm room. She agrees. They are starting to make out, and she says, I dont think we should do this. Without more conversation go back to making out and end up having sex. She wakes up distraught. She calls the cops. Has a criminal act occurred her? (a) There was no force, or threat of force. 1) It wasnt very clear what she was trying to say, 2) Consent is a mental state whether when you do something, were you agreeing to do it? (b) Why do we care what she thinks? 1) Consent we care about what she said b/c it can determine with whether she consent. (If there is no mens rea consent is not an issue) 2) What if she really didnt want to, then he will say that he had no mens rea. b.) Rape Shield Law: Laws in 49 states (not in Arizona) limit the use of a victim's prior sexual history as an attempt to undermine the credibility of the victim's testimony. (a) If we consider the sexual history of the victim, we will consider toooooo many trivial things 1) Consequence of that = in a question of consent, the jury is not going to do the right thing women will never report rape (b) College students survey = what factors affected whether they thought she was lying?? 1) Her general reputation for sex 2) Was she after money, and did she spend it on her 2.) Actus Reus of Rape Actus Reus Standard Conduct Additional Conduct Circumstances

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Force & Non-consent Force Non-consent No means no No Affirmative Consent

Sex act or penetration Sex act or penetration Sex act or penetration Sex act or penetration Sex act or penetration

Force Force = threatening act or words (Barnes)

Victim does not consent Force = against victims will (MTS) Victim does not consent Victim utters words no Victim does not say yes or act consenting

a.) People v. Barnes: (got rid of resistance requirement) The victim knew for 4 years; went to his house for
marijuana; the victim tried leaving but couldnt open gate; went back into house; now you get to see the bad. D showed muscles to the victim and complied with D to avoid him getting upset. (1) Barnes convicted of Rape under 261, subdivision 2 as amended in 1980: an act of sexual intercourse accomplished with a person not the spouse of the perpetrator, under any of the following circumstances: (2) Where it is accomplished against a persons will by means of force or fear of immediate unlawful bodily injury on the person or another (a) Elements: 1) Conduct = sex 2) Another conduct required = force or threat 3) Circumstances = persons not his spouse, and the sex is nonconsensual (b) Note: Resistance is not required; however lack of resistance goes to the totality of the circumstance 1) Requiring resistance puts a woman into a terrible position because it can be more dangerous. a) May anger the guy and cause him to hurt her b) Plus, some woman freeze 2) Resistance: was brought in b/c of a presumption of credibility. a) This was an antiquated sexist rule that was changed to reasonable resistance. In Barnes, they eliminated this. (2) Conflicting stories: (a) What were the things Marsha says Barnes did that could be conceived as forceful, threatening? 1) He reared his hand back as if going to hit her 2) He was flexing 3) Made statements that she would see the bad side of him 4) Told her she couldnt fight him 5) At her refusal to get naked, he told her she was going to make him angry 6) Thus in the totality of the circumstances, it was reasonable that the jury would conclude that her fear of violence if she didnt have sex with him was genuine and reasonable (b) Barnes has a different story = she consented, they were loving and hugging, etc (c) We dont know where the truth is probably somewhere in between. 1) With the facts we need to figure out whether the jury could have found rape and this is determined by the definition.

(3) MPC 213.1 Rape and Related Offenses: requires force and NOT non-consent
(a) Generally: 1) Men cant be raped 2) If you were on a date, you have to be injured 3) If you werent on a date, you dont have to be injured

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4) NO MENTION OF NEED OF CONSENT (b) Definition: 1) Penetration, and 2) Use of force or threat, or 3) Use of drugs/intoxicants to prevent resistance, or 4) Victim unconscious (c) Degrees: 1) 1st degree = general definition + a) Bodily injury, or b) Victim is a stranger 2) 2nd degree = general definition a) Victim is a voluntary social companion, or b) Victim has previously had sex with defendant 3) Gross Sexual Imposition use of threat that would prevent reasonable person from resisting (d) Thankfully, the MPC no longer reflects the state of American rape law. 3.) Mens Rea / Non-Consent a.) Outward manifestations is the main point (1) Some jurisdictions go still a step further, eliminating force as well as resistance as independent requirements and focusing on the fact of non-consent as the crucial element of the crime.

b.) State v. Smith: Went to dinner with a girl and a group of friends and wound up at his house. He wouldnt
back off and she said I really dont want to do anything and she spit and kicked but the D was too big. The victim left her lighter under Ds couch. Next morning, they had sherbet. (1) Sexual assault statute: applies to a person who compels another person to engage in sexual intercourse by the use of force or by the threat of use of forcewhich reasonably causes such person to fear physical injury. (a) actus reus is penetration + lack of consent 1) Nonconsent is either actual OR inferred by the overt manifestations of the complainants conduct, (as they would appear to a reasonable observer, which is mens rea) (b) mens reas here it is negligence 1) Why is negligence bad for D? a) Its difficult to reasonably interpret a sexual incident 1) This deters unreasonable sex rough sex could be reasonably viewed as rape 2) Ds must then interpret partners actions reasonably 2) 39.3% in study say they pretended that they did not want sex when in fact they wanted it. (2) Defendant wants to argue the she had consented (a) Court allows him to assert the actus reus defense of consent (b) The only way he can win is if he can prove that he honestly and reasonably believed she consented (negligence standard) 1) If they had done a knowledge standard, he would definitely go to jail 2) The after evidence that she consented? She woke up and had sherbet with him. (3) Held: D is not suppose to have knowledge of the internal workings of the mind of others except to the extent that he should have reasonably have gained such knowledge from his observations of their conductso, D not guilty if the conduct can reasonably be viewed as consent, but if not then guilty. (4) RULE: Def is not chargeable with knowledge of the internal workings of the minds of other except to the extent that he should reasonably have gained such knowledge from his observations of their conduct. If the conduct of the complainant under all the circumstances should reasonably be viewed as indicating consent to the act of intercourse, a defendant

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should not be found guilty b/c of some undisclosed mental reservation on the part of the complainant. Reasonable conduct ought not to be deemed criminal. (a) Only a general intent to perform the physical acts constituting the crime is necessary for the crime of first degree sexual assault. Whether a complainant should be found to have consented depends upon how her behavior would have been viewed by a reasonable person under the surrounding circumstances

c.) AFFIRMATIVE CONSENT the next step of reform was to require the defendant to have obtained some
affirmative indication of consent to overcome a rape charge, not simply a reasonable belief of consent for lack of non-consent. (1) In re MTS: The , a 17 year old boy, engaged in consensual kissing and heavy petting with a 15 year old girl and engaged in actual sexual penetration of the girl without her consent. The victim alleges that the D had said he was coming to her room, but she thought it was a joke and rejected his advances. So, she fell asleep and when she woke up D was having sex with her and she told him to get off her and he did. However, D alleges that they had engaged in kissing and necking 3 days before and that she changed her mind about having sex so when she told him to get up he did. (a) Held: That the trial court correctly ruled that the victim has no expressly consented to the act of intercourse, either through her words or actions. (b) RULE: Any act of sexual penetration engaged in by the D without the affirmative and freely-given permission of the victim to the specific act of penetration constitutes the offense of sexual assault (rape). (c) Note: 1) A person does not have to expressly announce their consent to engage in intercourse for there to be affirmative permissionit can be and indeed often is indicated through physical actions rather then words. a) Rape is a crime that is defined by the communications between persons. b) Constructive consent: D must act consenting and is different from nonconsent in that the burden of communicating consent shifts from the victim (non-consent standard) to the defendant 2) Professor Schulhofers proposed rule a) Sexual penetration + knowledge that he does not have the consent of the other person b) Consent means that at the time of sexual penetration there are actual words or conduct indicating affirmative, freely given permission to the act of sexual penetration

(2) Commonwealth v. Fischer: the victim alleges that the D locked the door, pushed her onto the bed,
straddled her, held her wrist above her head and forced himself on her although she repeatedly vocalized that she did not want to engage in sex. The D claims that at a prior sexual encounter the couple had engaged in rough sex and so he did not believe that she was not consent, but once she said no he got out and off. (a) RULE: Actual consent means that it becomes a strict liability crime b/c even if the reasonable person would have said that there was consent, w/o actual consent there is no consent. Either you have it or you dont (b) Remember: sex + force - consent = rape 1) If victim doesnt consent to sex, even if use non-physical force guilty. 2) The court says this is a physical force case, not a psychological force case a) With physical force cant argue that she reasonably consented. 1. If theres physical force then there is no consent b) He wanted to argue that she consented to the force and that belief was reasonable. c) Court says: when you use violence you are strictly liable, cant argue reasonableness. 1. Court was mistaking the idea that consent obtained with force is the same as consenting to forceful sex.

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d.) Conclusion: Given the ruling in MTS, if you see a statute that mentions force, just analyzing force wont be sufficient b/c a court can take a force statute all the way to consent and even all the way to affirmative consent (1) You would have to analyze all the possible constructions (of mens rea)

Rape Mens Rea

Mens Rea Purpose Knowledge Actus Reus Force
D intended to force V D knew V felt force substantial risk that V. felt forced

Actus Reus Nonconsent

Actus Reus No aff. consent

D intended to D intended to have have sex against sex with no aff. Vs will consent D knew sex was against Vs will D aware of substantial risk that sex was against Vs will D knew there was no affirmative consent D aware of substantial risk that there was no affirmative consent Reas. person would know there was no affirmative consent A reas. person wouldnt know there was no aff. consent

Recklessness D aware of

Negligence Strict Liability

Reas. person Reas. person would be aware would know that that V felt forced V didnt consent A reas. person A reas. person wouldnt know V wouldnt know V felt forced didnt consent

4.) Incapacity to Consent

a.) Even if jurisdictions that retain requirements of force and resistance as independent requirements or as necessary indicia of non-consent, a D will be guilty of some form of rape or sexual assault where he has sex with a victim who is categorically incapable of offering resistance or of expressing consent, because of a disability, because she is unconscious at the time of the act, or because of youth. (1) Sex + victim incapable of resisting or expressing consent, due to (a) Disability, (b) Unconscious, or (c) Youth

b.) State v. Moorman: The D has sex with a sleeping girl who he mistakenly thought was someone else. (1) Held: That the prosecution did not commit a fatal error by charging the D under a non-consent statute
instead of the unconscious standard b/c the victims unconsciousness rendered her incapable of manifesting consent or non-consent. (2) Rape = Force + Non-consent OR against one who is mentally defective, mentally incapacitated, or physically helpless, and the person performing the act should reasonably know. (a) The court notes that physically helpless means: 1) A victim who is unconscious, OR 2) A victim who is physically unable to resist an act of vaginal intercourse or a sexual act of communicate unwillingness to submit to an act of vaginal intercourse or sexual act (b) A sleeper is someone whose will is temporarily lost it is w/o consentcommon law supports this b/c victim is incapable of resistance or consent (c) Note: Most states have a separate rape statute for situations where the victim was unconscious, but that is not the case here. c.) The Model Penal Code 213.1(2): (1) Gross sexual imposition consists of imposing sexual intercourse on a victim by means of fraud or coercion, or with knowledge that the victim suffers from a mental disease or defect which renders her incapable of appraising the nature of her conduct.

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d.) White v. Commwealth: The prosecution chiefly relied on a school psychologists test, done 2 years before
the incident, reporting that the complainant was at the upper end of the educable range for retarded persons. (1) Held: the criterion of the complainants incapacity at the time of the sexual encounter could not be inferred from general or earlier tests. (2) Rationale: (a) In this case the prosecution had to prove that: 1) The victim was mentally incapacitated at the time of the offense 2) That her condition prevented the victim from understanding the nature and consequences of the sexual act; AND 3) That at the time of the offense the defendant knew or should have known of the victims condition (b) What if the Womans capacity to decide on consent or ability to express nonconsent is impaired by alcohol? 1) Recall MPC 213 where the accused has substantially impaired [the females] power to appraise or control her conduct by administering or employing w/o her knowledge drugs, intoxicants or the means for the purpose of preventing resistance; OR the female is unconscious a) Scenario 1 = Where man knows that woman is drunk, but not unconscious, and knows that her capacity for consent is impaired, but where he did not cause her to get drunk, MPC seems not to impose liability. b) Scenario 2 = A few states do define rape to include cases where the woman was conscious and involuntarily drunk, but where someone other than the accused was responsible for getting her drunk c) Scenario 3 = On the other hand, if the woman becomes drunk through voluntary drinking, it may not be rape unless the state can meet the regular statutory test of force or nonconsent. - Compare this with voluntary intoxication in D may negate mens rea of purpose/knowledge

5.) Rape by Fraud

a.) Under certain limited circumstances, consent obtained by fraud renders the consent ineffective, and thus the intercourse is against the will of the woman is rape.

b.) Boro v. People: Victim was called by Dr. Stevens who informed her that she had contracted a very
dangerous, highly infectious and perhaps fatal disease to which there where 2 treatments, one was an invasive surgical procedure and the other was for the victim to have sex with an anonymous donor who had been injected with a serum which would cure the disease. The victim told her supervisor about going to meet the D at the hotel, which the supervisor reported to the police and the D was then arrested. (1) RULE: if a deception causes a misunderstanding as to the fact itself (fraud in the factum) there is no legally-recognized consent because what happened is not that for which consent was given, whereas consent induced by fraud is as effective as any other consent, so far as direct and immediate legal consequences are concerned, if the deception relates not to the thing done but merely to some collateral matter (fraud in the inducement) (2) Held: That the victim precisely understood the nature of her act, but, motivated by a fear of disease and death, succumbed to petitioners fraudulent blandishments not liable (3) State argued: victim was unconscious of the nature of the act b/c she thought it was medical treatment (4) Argued: victim was plainly aware of the nature of the act in which she voluntarily engaged and that her motivation is irrelevant (a) People v. Minkowski doctor treating patients inserting metal instrument then substituting the instrument for a penis.

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1) Here, the nature of the act was going to the gyno and the victims were
unconscious as to the nature of the penis inserted into them

2) Victims consented to a pathological, not a carnal act mistake in the factum

(b) Court found that Minkowski case was different from this case in that the victim knew she was to have sex 1) Here, victim is aware of the nature of the act sex but is induced by a motivation that cannot be considered mistake in factum, i.e., cure for disease. c.) Wrap-Up for Rape by Fraud: (1) Where the defendant tells a lie to induce the victim to have sex with him consent is valid. (a) Fraud in factum deception causes a misunderstanding as to the fact itself (The D is liabile). (2) Where the fraud is factual, i.e. causing the victim to believe that she is not having intercourse at all (like a case where a doctor leads the patient to believe he is inserting an instrument for treatment but inserts his penis), consent is negated (fraud as to the nature of the act). (a) Fraud in inducement consent that is induced by fraud; if the deception relates not to the thing done but merely to some collateral material you hear like at a barI have $50 mill and would like to sleep with me; not rapebuyer beware (No LiabilityBoro) (3) The difference is found in the victims knowledge of whether she knew the nature of the act. B. HOMICIDE 1.) Introduction a.) Killing is both very honorable (depending on the context e.g. soldiers) and sometimes the worst of things, depending on motivation and context. (1) Motivation and context is the key to the study of homicide. (2) When you start looking at the law, who is responsible is not always clear. (a) The heavy metal band that played in RI, used pyro and 97 people got killed. 1) Possible criminals: club owner, city official, band. French tourist killed by police SUV, trying to prevent a snatch and grab, they backed over this guy. Possible criminals: police officers, lifeguard, city. (b) Stats on 305: homicidal month is July more people out and about. 28% of female victims killed by husbands or boyfriends kill people you know. b.) The Common Law recognizes two broad categories of homicide: (1) Murder, and (2) Manslaughter. 2.) Intentional Killing (Malice and Premeditation)

a.) Murder: is the unlawful killing of another human being with malice aforethought or the intention to
kill, actual or implied, under circumstances which do not constitute excuse or justification or mitigate the offense to manslaughter. (1) Intent to Kill (a) The Intent to Kill is Actual where the D consciously desired to cause death (b) The Intent to Kill is Implied where the D intended to cause great bodily harm or where the natural tendency of the Ds behavior was to cause death or great bodily harm (2) Key difference b/t murder and manslaughter: manslaughter lacks malice (a) Malice: is defined as the intention to cause or a willingness to undertake a serious risk of causing the death of another, when that intent or willingness is based on an immoral or unworthy aim. (b) 2 types of manslaughter:

37

1) Voluntary manslaughter: an intentional killing that lacks malice b/c the killer
acted in the heat of passion after adequate provocation or acted in the honest but unreasonable belief the killing was necessary for self defense. 2) Involuntary manslaughter: a killing committed recklessly or highly negligent. (3) 2 types of murder: 1st degree & 2nd degree (a) 1st degree if: 1) premeditation and deliberation, or 2) if it involves a killing during the course of one of several major felonies as specified by statute such as robbery, burglary, rape, arson, or mayhem (b) 2nd degree is purposeful killing w/out premeditation (anything not 1st-degree) (4) When does capital punishment come into play? (a) Different statute: 1) Capital murder = 1st degree + other substantive criteria

b.) US v. Watson: (1st degree murder / pre-meditation) there was a car chase, Watson goes into apt., police
officer had gun drawn threatens to blow f-in head off, scuffle, on the floor, gun comes lose, Watson is over the cop, w/ gun, girls run away, cop says, it wasnt worth it twice, and BANG. Held: 1st degree murder b/c deliberated. (1) RULE: It is first-degree murder when shown that gave thought before acting to the idea of taking a human life and [reached] a definite a definite decision to kill. (2) How to prove deliberation: (a) Deliberation is proved by demonstrating that the accused acted with consideration and reflection upon the preconceived design to kill; turning it over in the mind, giving it second thought. (b) The conclusion reached after weighing over is intent the process of getting to the intent is premeditation (a deliberative process). (c) Very little time needs to pass, but some jurisdictions say day before. (d) Heat of the moment or passion inconsistent w/ premeditation 2nd degree. (3) Is the 30 seconds that there is no longer a struggle (the cool moment) enough to propel Watson from 1st to 2nd degree murder? (a) The officer gave the time to reconsider, think about it, and that supports idea of deliberative process.

Watson Premeditation Timeline

T1

T2

T?

T4

Lunning Chases Watson

Struggle Over Gun

Watson Decides To Kill

Watson Kills Lunning

Why is premeditation vs. no premeditation important? What does premeditation mean today? o The more thought you give to it, the more culpable you are.

38

Murde and Impulsive ss r ne

More Punishme nt
First De e gre Murde r: Life in Prison or De th a S cond De e e gre Murde r: Up to Life in Prison

Less Punishm ent

Go Hom e

Pre dita d me te Killing

Im pulsive Killing

Impulsive Killing by De nda fe nt w Impulse ith Control Proble ms (He rshott) nde

Le ss Im pulsive

More Im pulsive

c.) Two problems: (1) It is difficult to tell difference (when deliberated and when not) (2) More courts scale back, more doctrine gets removed from original purpose (a) cold blooded and hot blooded (b) Is there a difference when you consider in terms of utilitarianism d.) MPC has only one degree of murder, and that is purposeful. (1) Historically the dif between 1st and 2nd was automatic death penalty or not (2) This would inhibit jury from convicting for 1st degree (3) Now court looks at variety of contributing and mitigating factors, no automatic.

e.) Forehand v. State: Brothers at club in fight with Shriver then Burke, Pledger was cop at club. Brother gets
ass kicked by cop and other brother shoots the cop and kills him. Forehand is charged with murder in first degree. (1) This is opposite result from Watson. (a) This court is all about passion whereas Watson is more about timing than passion. (b) Its about ability to weigh choices. (2) Premeditation if the purpose or intention to kill is definitely framed in the mind of the killer and he proceeds to act in the execution of such thought or design, the element of premeditation exists. (a) Was fight in passion and then Pleas shot the officer and his brother 2) Why impulsive second degree murder here and premeditated first degree in Watson? Here, his mind wasnt all there since he shot his brotherits really hard to tell 3) Are passion and premeditation mutually exclusive? a) Passion and Premeditation - possible relationships: 1) Any passion is incompatible with premeditation. (Forehand) 2) Passion and premeditation are in fact compatible (Watson) 3) An extremely high degree of passion makes responses almost automatic, which negates premeditation (Sliding scale) (b) RULE: the unlawful killing of a human being, when perpetrated from a premeditated design to effect the death of the person killed or any human being, or when committed in the perpetration of or in the attempt to perpetrate any arson, rape, robbery or burglary, shall be murder in the first degree.

39

3.) Voluntary Manslaughter a.) The Theory of Mitigation

(1) People v. Walker: (provocation) sitting on the porch of friends house drinking & gambling.
Decedent approached and demanded they gamble, pulling a knife on them when they refused. throws a brick and hits him, and then uses guys knife to slit his throat. convicted for murder and sentenced to 14 years. Appeals saying he was guilty of manslaughter not murder. The defendant contends that under the law, if a killing occurs during a fight and before the blood of the killer has had time to cool, the offense is not a murder but a voluntary manslaughter. (a) Rule: To be voluntary manslaughter there must be a provoking event (or defendants reasonable belief that there was a provoking event); defendants blood was heated enough that Defendant killed; and a reasonable persons blood would be heated enough that he would kill (b) Held: this can only be voluntary manslaughter. (c) Rationale: In the instant case, the deceased was an aggressive, intoxicated belligerent who menaced strangers because they would not gamble with him. The defendant went to assist McClinton, had no words with the deceased; and hit him with a brick and then after being cut stabled him with deceases own knife. All the witness corroborate that the deceased was swinging his knife. Under the evidence, the defendant is guilty of voluntary manslaughter and remand so sentence can be adjusted. 1) If we were looking at this a la Watson, how would we characterize Walker as? a) He had sufficient time to cool, so it was premeditated. b) BUT the Court doesnt characterize it as this rather characterizes this as a voluntary manslaughter i. Do we have a highly emotional provoking event? Yea, someone waving a nice on the face ii. Is Walkers blood boiling? Yes, he was in the heat of passion 2) Why isnt this second degree murder? a) The element of reasonable provocation removes malice 1) Humans are frail and imperfect, as long as it wasnt malicious, no murder. b) Is voluntary manslaughter a justification of the killing? 1) No because what is reasonable doesnt make it right. 2) Just recognizes human frailty c) Why is Walker less culpable then Watson? (3 reasons) 1) Dead guy is a bad guy and we dont care about him, not a centered principle but a victim centered. 2) is lawful when approached, he is not a bad guy, like Watson. (Gruber says no to this one) 3) This is BINGO irresistible impulse to REASONABLE person. (d) STANDARDS: 1) First Degree Murder = deliberate killing without passion 2) Second Degree Murder = killing with passion 3) Voluntary Manslaughter = killing with passion + reasonableness (e) Do you think that Walker was reasonable? 1) Gruber says NO = Has a hard time grasping that once the guy is on the ground it is reasonable to slit his throat a) She disagrees with the Court here. b) Court is essentially saying that Walker is a better guy than a guy who gets in a fight and kills because what Walker did is reasonable. 2) How reasonable does the court think Walker was? a) VERY; Remanded with instruction of finding a guilty verdict of voluntary manslaughter.

40

But if Walker was a cop, court wouldve given him 1st degree murder (f) REQUIREMENTS OF PROVOCATION 1) Provoking event (or Ds reasonable belief that there was a provoking event) 2) Ds blood was heated enough that D killed, and 3) A reasonable persons blood would be heated enough that he would kill.

b)

Premeditation, Passion, Provocation

First degree murder Second degree murder Voluntary Manslaughter Better

Worse

Deliberate Killing without Passion

Killing with Passion

Killing with Passion + Reasonableness

(2) The Meaning of Provocation: affects the quality of the actors state of mind as an indicator of moral
blameworthiness. (a) Provocation is thus properly regarded as a recognition by the law that inquiry into the reasons for the actors formulation of an intent to kill will sometimes reveal factors that should have significance in grading. 1) The objective is characterthe provocation must be adequate (standard of the reasonable person). It is adequate it if would have caused the reasonable person to loss control. 2) The subjective requirement of D having been provoked (in fact). b.) Cooling Time

(1)

Ex Parte Fraley: (killing after sufficient cooling-time has passed = premeditation) Fraley thinks decedent killed his son. 9 months later Fraley goes up to him, and says told ya I would kill ya and shoots him. (a) Held: This was not provocations (b) Rationale: Passion and premeditation here. 1) His argument is he was adequately/reasonably provoked, in the heat of passion, and reasonable guy would have done the same. a) What is the provoking event here? Dan killed Fraleys son nine months prior, but was acquitted. 2) The court has noted that frailty can be helped; so sudden lashing out can be reduced, but if a long time passes then MURDER my friend. b) Court says, 9 to 10 months is a long enough time to cool off. (c) 2 types of rage: 1 acceptable and one not acceptable 1) Anger rage (lashing out immediately) okay a) E.g. Mike Tyson b) Accounts for human fraily 2) Brooding anger (revenge plan) not okay

41

a) E.g. Braveheart too much time has passed & you can reasonably control your human frailty b) However, there is a concept of re-triggered passion as a defense. c.) Adultery and Other Adequate Provocations (1) Rowland v. State: (adultery is sufficient provocation) was sentenced for life imprisonment for murdering his wife and appeals. walked in on his wife in bed with another guy (Thorn). They sprang up as they caught sight of him and tried to run out into the front room. Defendant shot at Thorn and instead killed his wife. (a) RULE: If the prisoner saw the deceased in bed with his wife, or saw him leaving the bed of the wife or if he found them together in such a position as to indicate with reasonable certainty to a rational mind that they had just committed adultery it satisfies the requirements of the law (b) Rationale: conviction of murder is not warranted by the facts and cannot be sustained. 1) Rowland argued it cant be murder b/c I didnt have purpose to kill my wife! a. Court will apply transferred intent 2) Rowland argues he was reasonably provoked and thus this is voluntary manslaughter! a. Court says it must be something that would be sufficient to provoke a reasonable person b. Adultery is sufficient i. Adultery situations not the most likely situation to cause a man to kill ii. Situation most likely to cause men to kill = when the girl tries to leave iii. What about adultery drives people crazy = Proprietary Notion (c) The reformed provocation standard: Criminal Homicide constitutes manslaughter when: a homicide which would otherwise be murder is committed under the influence of extreme mental or emotional disturbance for which there is reasonable explanation or excuse. The reasonableness of such explanation or excuse shall be determined from the viewpoint of a person in the actors situation under the circumstances as he believes them to be. (d) Basis for Provocation Rule: 1) Idea 1 = Provocation negates defendants intent to kill (Mens rea interpretation) 2) Idea 2 = Killing is partially excused or justified by victims wrongful act (Victims liability interpretation)

(2)

People v. Spurlin: (non-statutory manslaughter; victim must have provoked ) Couple was religious and then they got into sex stuff and she became a stripper. He picked her up at strip place and they drank, put the kids to bed, drank more, and he confessed he slept with whores on a business trip. She stormed off and he asked if she was gonna leave him and she was like, I dunno. Kills wife w/ hammer and son, but cant kill daughter, so he takes her and runs. He wants overturn b/c he didnt get voluntary manslaughter for Scott and feels that tainted the case. (a) Held: That manslaughter did not apply to Scott's killing (b) RULE: the provocation that triggers the heat of passion must emanate from the victim. (c) Rationale: 1) Traditional statutory strain - "In cases of voluntary manslaughter there must be a serious and highly provoking injury inflicted upon the person killing, sufficient to excite an irresistible passion in a reasonable person, or an attempt by the person killed to commit a serious personal injury on the person killing." a) No words of provocation are sufficient. 2) Non-Statutory Manslaughter = reasonable person standard. a) Some jurisdictions say anything that heats blood and would heat a reasonable persons blood (common law cases) b) Others require highly injurious, insulting acts and list them (statutory).

42

3) Neither of these answer question regarding his son (Scott) b/c question was whether
the provocation could come from someone else other than the killed person. a) Court here finds provocation must come from victim. b) Only way to get provocation in this jurisdiction provocateur does a highly injurious thingy and you kill only that person. 1. victim was bad; 2. killed bad victim. a. Killing innocent person is not included in this principle. b. Victim-centered defense c. Non-statutory is mens rea b/c issue is whether provocation interfered w/ killers ability to reason. Jury convicts for 2nd degree murder for Peggy and 1st for Scott. (d) MPC 343: more like non-statutory (we dont follow it) 1) Mentions nothing about quality of what provokes the condition, and dont need to kill provocateur. 2) Uses reasonableness a) Problem = who is the reasonable person? 1. Reasonable Man? 2. Reasonable Woman? 3. Reasonable Texan? 4. Reasonable Mafioso? 5. Reasonable Foreigner? 6. Reasonable Victim of Child Abuse? 7. Reasonable Victim of Spousal Abuse? 8. Reasonable Victim of Ice Cream Abuse? 9. Reasonable Mafioso? (NOTE: you can not make the standard subjective to illegal / bad groups) 10. Reasonable Al Quada Operative? (E.g. Khalid Shaikh Mohammed) b) Leaves room for subjectivity 1. There is an inherent tension is how emotional we feel about things may not match up with how bad victim is: e.g. mom kills childs killer vs. dude kills chick who leaves him. 3) Hypo: Imagine Gruber is the protagonist in The House of the Spirits and was dunked in Rocky Road ice cream. I am at the school karaoke and Crawford walks up to her and said, how would you like a cone of Rocky Road ice cream, and she freaks and stabs him / kills him. Is this a voluntary manslaughter? a) Provoking event: He offered her Rocky Road Ice Cream b) What is missing?: Reasonableness c) Is she reasonable?: MPC (we dont follow it) says the standard is a reasonable person in the actors situation 1. Can be used as evidence that you were in the heat of passion, but it doesnt change the reasonable person 2. The question is, how subjective is the inquiry?? 3. Even as subjective as ice cream abuse you can still be unreasonable (2) What should provocation be?? a) What is considered more/less legal does not match up with how emotional we get about it b) Hypo/dilemma we get into problems with: 1) The Jenny Jones case: a) She invited a guy on for whos your secret admirer show b) The secret admirer turned out to be a gay man c) Goes back home, gets a lot of shit for it, and kills the admirer

43

d) Defendant argues provocation by homosexual advance

What should provocation be

Leg l a Illega l

Le ing av Adulte ry Re lationship

Tra ffic Infraction

Sx e Abuse

Burglary

Murde of r Love one d

Less Em otiona l

More Em otiona l

Traffic Infraction

Burglary Le ing av Re lationship

Adulte ry

Sx e Abuse

Murde of r Love one d

4.) Intentional Killings (Cultural defenses, Honor Killings)

(a) People v. Wu: (culture may allowed to be taken into account) Helen Wu is from a community in China
where its shameful to have a child out of wedlock. She had a child (Sidney) out of wedlock with Wu. Defendant was a not-nice guy to her (took money, etc) & finally married her. He wanted more money. She was gonna say no. He said, dont talk to me until you give me money. She said, youll be sorry (evidence of pre-meditation). Sidney (son) reveals to Helen (mom) that Gary has a mistress (Rosemary) that he treats better than he treats Sidney. Gary beats Sidney. At this time, Helen has some other fear the only one who cares for Sidney is the paternal grandmother & shes dying. She described her state of mind at the time when she kills her son and tries to kill herself like so: she had heart palpitations & problems breathing, was emotionally overwrought, and wants to die. State wants 1st Degree Murder (requires premeditation (1) How might her culture come in to negate pre-meditation? a) She was going to go back to China to kill herself (dishonored) 1) My culture can give an alternate explanation to what otherwise would be premeditation 2) Lash inward vs. American lash outward a. Inward includes children b. Youll be sorry, meant suicide not murder. b) How might her culture come in to negate malice? 1) She was in the heat of passion c) The court is saying that a reasonable person (otherwise totally normal) could do this under the influence of passion if they are Chinese d) Problem = may cause Culture Clashes 1) Double-edged sword a. Either promotes understanding, or b. Stigmatizes (2) Held: Reasonable standard would be reasonable Chinese woman like Wu

(b) State v. Williams: Baby has a toothache native Americans in Washington state, living on reservation,
not very educated. They didnt seek medical attention gave him aspirin, afraid of authorities and didnt realize seriousness of condition. Face turning black and baby dies. There is omission here and there must be a duty, there is a duty here. (1) Mens rea ordinary negligence very low standard. (2) In assessing reasonableness should we take into account their fear based on culture?

44

a) 25-35% of native American children are taken from their home. So, should we look at
this from the reasonable American point of view? Or from reasonable parent point of view? b) The court used the reasonable person standard not taking into account their culture. 5.) Unintentional Killings (Involuntary Manslaughter, Reckless Murder) a.) Negligent and Reckless Manslaughter (1) Commonwealth v. Welansky: Welansky is the manager of a club & is sick in hospital for 12 days. There is a fire at the club & a lot of people die. Fusible plugs not working right, fire exits blocked, the decor was ripe for a fire this was an accident waiting to happen. 16 year old bar assistant strikes a match to change bulb. Charge is involuntary manslaughter (wanton or reckless conduct causes death). (a) Mens rea: recklessness ( knowing that a grave danger to others exists and ignoring it, or if a reasonable person would have realized the risk) 1) How do we distinguish this from negligence or gross negligence? 1) The degree of the risk is what makes the difference 2) Statutes dont make it negligent per se, but that is a factor. 2) Was Welansky subjectively reckless? Did he know it was substantially certain to cause death? No, he wasnt aware of the risk 3) Is there another way he can be guilty? If a reasonable person under the same circumstances wouldve realized the danger, hed be guilty (objective reckless) 4) What if hes negligent? Hes not guilty 5) Whats the difference b/t objective recklessness (guilty) and negligent (not guilty)? a) The words wanton and reckless are thus not merely rhetorical or vituperative expressions b) Difference in magnitude of risk 6) Was he reckless? Is there evidence that he was reckless? a) The nature of a public place is subject to fires b) You have to look at whether his actions / safety measures were sufficient c) B/c a fire in a resort is an ongoing danger, and thus the fact that the fire happened indicates recklessness 7) Why couldnt Welansky say that they told them it was a fire hazard and they begged him to let them in therefore it was an assumption of risk? a) You cannot contract away criminal liability b) Purpose of Criminal Law is about finding a person who violated a moral code c) Purpose of Torts is not to reward a guy for his breach of duty (b) MPC 2.02(c) is very different from Welansky 1) Distinctions: d) Involuntary Manslaughter (reckless homicide) e) Involuntary Manslaughter (negligent homicide) 2) When does a person act recklessly in regards to death under MPC 2.02(c)? a) Requires that a degree of risk be very high and disregarded b) They do allow for a manslaughter charge with LESS a. You can charge NEGLIGENT HOMICIDE i. Even though MPC normally doesnt allow negligence ii. Why do they allow it? 1. Justice is safeguarded by insisting upon that gross deviation from ordinary standards of conduct which is contemplated by the Model Code definition of negligence. 2. In other words, they up the magnitude of risk needed

45

Negligence Recklessness Spectrum

Negligence

Gross Negligence

Recklessness

Interior Designer recommends palm tree and cloth ceiling

Bartender fails to stop barback from lighting match

Barback lights match

Welansky keeps fire exits blocked and locked

b.) Reckless Murder (1) What bumps us up from manslaughter to murder? (a) The Element of Malice

(2) Mayes v. The People: Mayes is not a happy guy. Wants to drink arsenic and die. However, he throws a
tin measure at his daughter and a beer at his wife. His wife was carrying a lit oil lamp, went up in flames, and died. (a) Reckless usually involuntary manslaughter, but he is getting murder b/c there is malice here. Malice bumps it to 2nd degree malice murder. (b) He chucks his beer mug, shatters wifes oil lamp, she burns and dies. 1) Did he intend to kill her? No 2) What was going on in his mind? a) According him, he wasnt aware of any risk (wasnt subjectively reckless) b) Do we believe him? Gruber says: Hmmm kinda hard to tell c) Can we make an argument that he was objectively reckless? i. He threw it without be aware of the risk, but ii. A reasonable person would know of the risk d) Yet, we can argue he was just negligent (c) What was his intent regarding death? Probably not even subjectively aware of probability of hurting her, obj reckless? 1) Level of risk is the difference between obj reckless and negligence would reasonable person know that high probability of death? 2) At some level he was reckless, according to the court 3) What about malice? Abandoned and malignant heart a) Supports subjectiveness breaking horse danger great and apparent. b) The only intent he needed to have is the intent to be mischievous and if that results in murder, sufficient for second to degree murder. c) This case is vague in defining recklessness, and then goes into malice and is vague to define it. d) Other definition of malice some behaviors are so risky, whether you are aware of the risk we are going to say you have malice. (d) What is malice? 1) 2 common constructions: a) Mischief (pg 383) = you intentionally do something unlawful b) Very substantial risk (e.g. breaking the horse in public) 2) Other meanings of Malice: a) Intent to Inflict Serious Bodily Harm,

46

b) Extreme Indifference to Life c) Mischievous d) Seriously risky behavior e) Risk/Harm ratio 3) MPC 210.2 (1)(b): malice = reckless + extreme indifference to human life, gross deviation (e) Commonwealth v. Malone: (Russian Roulette Wheel of Homicide) he didnt want his friend to die. Bent on harm? Court looks at the percentage chance to see malice. 1) She likes this case, but it confuses the hell out of her 2) Is there a belief that his friend would die? No 3) What form of malice are they employing here? Substantial risk 4) What the hell is this 3 shot = 60% / 1 shot = 20% risk analysis? (Gruber rhetoric)

(f) Florida Standard Jury Instructions 7.4 MURDER SECOND DEGREE ( 782.04(2), Fla.
Stat.) 1) To prove the crime of Second Degree Murder, the State must prove the following three elements beyond a reasonable doubt: a) (Victim) is dead. b) The death was caused by the criminal act of (defendant). c) was an unlawful killing of (victim) by an act imminently dangerous to another and demonstrating a depraved mind without regard for human life. 2) Definitions: a) An act includes a series of related actions arising from and performed pursuant to a single design or purpose. b) An act is imminently dangerous to another and demonstrating a depraved mind if it is an act or series of acts that: 1. a person of ordinary judgment would know is reasonably certain to kill or do serious bodily injury to another, and 2. is done from ill will, hatred, spite or an evil intent, and 3. is of such a nature that the act itself indicates an indifference to human life. 3) In order to convict of Second Degree Murder, it is not necessary for the State to prove the defendant had an intent to cause death.

6.) Murder review (so far): (a) 1st degree murder = [mens rea of purpose or knowledge] +[premeditation] (b) 2nd degree murder = [reckless] + [malice, purpose, or knowledge] [premeditation] (c) Voluntary manslaughter = [knowledge or purpose] + [passion and reasonable provocation]
(d) Involuntary manslaughter reckless (subjective); Negligent homicide more like objective reckless 7.) HOMICIDE IN THE COURSE OF ANOTHER CRIME a.) Felony Murder (1) Level of intent corresponds w/ level of culpability except felony murder which requires no intent. (a) Felony murder is a 1st degree capital murder. 1) May be less depending on whether 3rd party shooter or something. (2) Why do we have this felony murder rule? Purpose = deterrence. Will prevent people from committing felonies. Families want justice.

(a) (3)

State v. Martin: Somebody died during the course of the arson. Felony murder rule in NJ: if you do one of these enumerated felonies, and in the course of it, its an automatic 1st degree murder 1) Actus reus engage in an enumerated felony + cause the death of someone

(a)

47

Mens rea only the one required for the felony; for the death none is required a) Felony murder is a strict liability crime 1. This means no intent required in the death 2. Results in convicting someone who was completely reasonable in believing no death would occur (b) Hypo: Say Gruber is robbing Skittles from someones house, the owner comes out, yells at her, slips, falls, cracks his head and dies. Can she argue that no reasonable person would have foreseen that someone would die? 1) NO b/c this is strict liability a) How does this differ from MPC? 1. MPC treats it as a rebuttable presumption for recklessness. 2. In MPC there is no felony murder. 3. MPC says unless you have intent cannot be guilty of murder 2) NJ didnt follow this approach b/c certain felonies are dangerous and can lead to death. 3) Court doesnt think a presumption is right instead this deters felonies, engaged in an activity that should not engage in and cannot argue that there was no intention. a) There is a possibility that if youre not the person who directly caused the death, you are not liable for the felony murder what do you have to argue?? (c) Unlike MPC, the only way you can get out of it is this affirmative defense that is almost impossible to satisfy 1) Have to argue you were not the probable cause a)What is the touchstone for proximate cause according to this court? Probable consequence (probable meaning 51+%) b) Hypo: Skittles example so Gruber goes in to burglarize your front porch of some Skittles. This causes a passerby to watch me. As hes watching her, a plane comes down and crashes on him, and kills him. Is she guilty of murder? i. Argument against: Causation is lacking ii. Is this a probable consequence? No iii. How probable is it someone dies as a consequence of someone stealing Skittles? Like .0036% c) You would think that under the Probable Consequence test, you could never have a felony murder!! d) HOWEVER, Under the Model Penal Code, this Skittles situation may be probable consequence i. How did probable become not too remote? ii. This is bad for defendants b/c it strays from forseeability iii. As long as theyve seen it in the movies, its foreseeable iv. Probable should mean something like more than likely not 2) In this case, Martin got probable consequence, but tried to argue the too remote language a) So what the heck is and isnt too remote? b) To be too remote, has to be sooooo strange that its unimaginable a) Why make causation so narrow? B/c when you bring foreseeability into this, your not making it a strict liability crime.

2)

(4)

People v. Hickman: Hickman (D) and several others were surprised by police when emerging from a burglary. The police gave chase, and one officer shot and killed another officer whom he believed to be one of the suspects. The trial court refused the state's (P) request that the jury be instructed as to felony-murder. The state (P) appealed. (a) Held: Yes, the felony-murder rule applies when a homicide is committed by an arresting officer.

48

(b) RULE: The felony-murder rule applies when a homicide is committed by an arresting
officer.

(c) Rationale: While the language of the statute does not mandate such a conclusion, it is wellfounded in logic. It is natural and probable that a crime will be met by resistance, and the possibility that one resisting the crime will kill another is ever-present. Since the chain of events leading to the death was set in motion by the felons, the responsibility therefore is theirs. 1) Was Hickman a but-for causes? Yes. 2) Was his shooting another officer foreseeable? It is arguable either way. a) Burglary is not a shooting situation cannot shoot a fleeing burglary suspect. b) Was there an intervening event? Police officer deciding to shoot i. Applying the RULE from Martin: was it too remote, accidental, dependent on anothers volitional act? ii. Probably not

(d) Gruber says this case does something extremely bizarre 1) How does the court decide whether or not its fair to impose liability on a defendant when actually a third party was the trigger man? a) The whole bad guy scenario if the guy who is killed is one of your co-felons, you dont get charged with felony murder b) Drew a distinction b/t whether a good guy or bad guy was killed c) Should remind you of Root (car racing case) victim was cause of his own death 2) Gruber says: Criminal law isnt about whether you like the victim, but rather what the victim did (e) Hickman courts standard of causation: if the victim is an innocent person, you are guity. 1) Court seems to say we care about intervening act when co-defendant is the
intervener. a) Co-defendant was a cause of his own death and an intervener more than an innocent person. b) Policy reason when a burglar dies society doesnt give a shit. 6 DEATH PENALTY

Pro and Con Arguments

Pros Some people deserve to die Deterrence Cost effectiveness Incapacitation Make victims whole Make society whole Religious reasons Cons Govt. shouldnt have power to kill citizens Not deterrent Not cost effective Innocence concerns Racial Disparities Vengeance is a bad message International sentiment Religious reasons

a.)

Death Penalty Timeline Revolution 19th Century: Automatic death penalty for first degree murder cases 19th Century: New Death Penalty system: Judge instructs jury that defendant is death eligible and jury decides without legal guidance. (3) 1950 1970: Political and popular scrutiny of unbridled jury discretion.

(1) (2)

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(4)

1972: Furman v. Georgia: Death penalty struck down on 8th Amendment grounds for a grand total of 4 years b/c jury had no discretion (5) 1976 post-Furman: statutorily enumerated factors (a) Gregg v. Georgia: Death penalty reinstated under a system of guided-discretion meaning you had to consider mitigating and aggravating factors. (b) Woodson & Roberts: Automatic death penalty struck down. (6) Other significant developments: Death Penalty struck down for rape; Death Penalty cases involving minors; Death Penalty cases involving mentally ill, mentally disabled; race arguments; innocence projects/ Death Penalty moratoriums.

b.)

Death Penalty and the Mentally Retarded Atkins v. Virginia (2002): (executing mentally retarded criminals offends the evolving standards of decency and is therefore violative of the 8th Amendment) the issue was whether the execution of mentally retarded persons "cruel and unusual punishment" prohibited by the Eighth Amendment. (1) The 8th amendment cannot impose: excessive bail nor excessive fines, nor cruel and unusual punishments. (2) Standard (for whether punishment violates the 8th amendment): (a) It cant offend the evolving standards of human decency, measured by: 1) National Consensus, and a) Court looks at the different legislations is it banned? i. At the time of Atkins v. Virginia (2002), 36 states had death penalty ii. How many of these states didnt allow for death of mental retardation? a. 17 didnt allow majority wouldnt allow b/t 17 + 24 that dont allow it at all trumps the 19 that do b. 19 did allow b) Why are amici briefs so important in death penalty cases? Courts look at them and poll evidence. Court looks at retributive and utilitarian aspects. 2) The Courts judgment (3) Imposition of death penalty as applied to a class of people different than Furman, Coker, and Tyson, which addressed Death Penalty from a general perspective.

c.)

McCleskey v. Kemp: Defendant was convicted of a crime and given the death penalty. He challenged his conviction by showing statistical evidence that many more blacks got the death penalty because of their race. The issue is whether this system of guided discretion produces an allegedly discriminatory result, is it unconstitutional? s claim is that he is more likely to get death penalty b/c he is black and his victim is white. Held: didnt make sufficient showing that black s are being discriminated against & further, made no showing that there was is no discriminatory intent. However there are two ways to make a discrimination claim, smoking gun or prima facie case (8th Amend & EP). (1) Rule: Statistical evidence is not enough to get a DP conviction overturned, there needs to be a showing of actual, individual bias towards a defendant. (2) Built into jurisprudential concept of 8th amendment it is supposed to be fluid and changing according to time. (a) One of the things we look at to determine what our standards are, is to look at what legislatures are doing. 1. Conservative judges want to be very deferential to what legislatures are doing. Wont overturn unless it is clear that majority of legis against it. Against idea of elite control judges saying I dont think this judgment is good. 2. Liberal prescriptive to legislature. Constitution is for the SC to try to figure out 3. There are two ways death penalty unconstitutional. One is if it offends evolving standards of human decency retards. Second is if the system where death penalty is dolled out is too arbitrary. (3) Who were the people arguably discriminated against?

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Baldus Study: Race of Defendant a) Death Penalty in 4% of Black D case b) Death Penalty in 7% of white D cases 2) Race of Victim a) Death Penalty in 1% of Black victim cases b) Death Penalty in 11% of white victim cases 3) Combo a) 22% when Black D + white victim (DISCRIMINATION) b) 8% when White D + white victim c) 3% when White D + black victim d) 1% of Black D + black victim (b) Do the stats show that the death penalty is arbitrary? The huge disparity is when you kill white victim. Discrimination against black victims. Some discrimination on the level. More likely to get death penalty if black killing white. (c) Gruber says: 1) Whites kill whites 2) Blacks kill blacks 3) Her theory =When people know each other get together, they kill each other (4) Eighth Amendment Argument (a) Court says This aint about you McCleskey! (b) McCleskey says, It was previously struck down b/c of arbitrary and capricious application of the penalty (c) If the person is more likely to get death b/c they happen to kill a person of the preferred race, then it is an arbitrary and capricious violation of the 8th Amendment (5) Equal Protection Arguments (a) According to the Court, in order to have EP argument, you need discriminatory intent by the legislature. 1) Gruber says that we dont have that here 2) But the Supreme Court jurisprudence also justifies a discriminatory outcome. Normally, you would look at the factors that led to discrimination and determine whether they were justified. 3) The Supreme Court was concerned with the impracticality of a remedy. There was a floodgates argument and a leniency argument. (b) Gruber asks: How else can you make an EP argument? You show impact, and then the burden is on the government to give a facially neutral reason for it. 1) What would be the facially neutral in this impact (the Baldus study) a)Its just discretion 1. Gruber asks: Whats the problem with discretion in state action? a. Allows discrimination 2. Court says But discretion is not all bad b/c jurors can give you mercy a. Compares to former, automatic application of death penalty b. We need a measure of discretion 3. Whats a 3rd option the court leaves out? a. If its a choice b/t discriminatory discretion and automatic application, then strike it down b. Well why cant you refine the list of aggravating factors, take out some of those aggravating factors? i. Why doesnt the court want to tinker with it? 1. People will start to bring forward statistics and argue they were discriminated against. 2. Will open up a can of worms 1)

(a)

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a. Gruber says: SO WHAT? study it! b. In Brown the court applied social science why
not here? i. The social climate at that time called for changes ii. The Court in McCleskey (1987), the Rehnquist court was in place and did not want changes (4) THIS IS ABOUT THE ROLE OF THE COURT (a) Gruber says the real question is: Is this situation acceptable? If not, what, if anything, can the court do? 1) At what point does risk of arbitrariness become unconstitutional? a) Gruber says that the Court here is saying that this level of risk is constitutionally acceptable. 2) The Supreme Court could have said play w/ aggravating and mitigating, proportionality reviews; however, the Supreme Court said this is something for the legisl not the judiciary do? a) Most of the time, the court cant/wont do anything b) In the post-Furman era, the govn points us to how this guy was the worst of the worst (b) Washington v. Davis the impact wasnt enough

d.)

Juvenile Execution Roper v. Simmons: 17 year old was convicted of murder and sentenced to death. The court used the evolving standards of decency standard to determine the constitutionality of the 8th amendment with respect to juvenile executions. The court did a national consensus standard, noting that 30 states did not allow the death penalty for minors. However, this number included states like Illinois that did not allow the death penalty at all. Of the death penalty states, 20 did allow it, making the dissents argument that the majority of states that still had the death penalty where comfortable with executing minors. However the majority noted that not many juveniles were executed in the states where it was legal. The court also used their own determinations which included international law. (1) RULE: Eighth Amendment forbids the imposition of the death penalty on juvenile offenders under 18. (2) Courts National Consensus Analysis: 1) legislatures opinions, 2) actual practice in the states, 3) opinions or interventions of state governors, 4) prosecutorial practice in trying to get death penalties, and 5) jury determinations. (a) Evidence that American society viewed juvies as categorically less culpable than the average criminal 1) National Consensus: at the time of Roper 30 states prohibited juvenile death penalty juvies a) Out of the 30, 12 had rejected the death penalty all together, and 18 had maintained it, but, by express provision or judicial interpretation, excluded juvies from its reach. b) The Court noted that even in the 20 states without a formal prohibition on executing juvies, the practice was infrequent c) The other 12 dont count b/c they are completely against the death penalty and would not have allowed juvenile death penalty d) Dont need a majority, you need to show the trend (3) Three reasons the Court held that American society viewed juveniles as categorically less culpable than the average criminal: (a) the lack of maturity and an underdeveloped sense of responsibility were found in youth more often than in adults and were more understandable among the young; (b) juveniles were more vulnerable or susceptible to negative influences and outside pressures, including peer pressure; and

52

(c) the character of a juvenile was not as well formed as that of an adult. Scientific and Sociological Studies: Juveniles lack maturity and have an underdeveloped sense of maturity. (a) When the court took its pulse in Atkins, what it looked at was social science to determine whether mentally retarded people are the worst offenders (b) Court looked at whether juvies were worst offenders & found: 1) Retributive: They lack capacity, and are therefore not the worst of the worst. 2) Deterrence: Studies show that juvenile death penalty does not deter juvenile crime. (5) International Law: Its part of our own judgment. We were right because the rest of the worlds countries confirm this decision. (a) Vienna convention: was violated when Governors put people to death when they didnt get consular rights. State governors killed even though Albright said dont do it. (b) Why support the use of international law (or not): How do we define cruel? If it is a cultural phenomenon should we use a international interpretation of the death penalty. (c) International Relations: We would have more clout in the international community if we followed the trend.

(4)

7 AFFIRMATIVE DEFENSES

a.) We were defending w/ missing elements, but now affirmative defenses (1) Two ways to be found not guilty of a crime if you meet the elements of it: 1.Justification denies a wrong legally correct action (what you did was good)
a. Self-defense 2.Excuse denies culpability (what you did wsnt good, but anyone in your place would do it) a. Necessity b.Duress excuse completely exculpatory. (2) Difference between justification and excuse: The difference between justification and excuse is a narrow one which has the same practical result in many cases. In either case, a defendant goes free (total defense), either because society thinks his acts were a proper response to the situation and should be encouraged, or because the actor had an incapacity to make a responsible choice and it would be unjust to punish him.

b.) Self-Defense justification used for murder, assault. (1) People v. La Voie: (elements of self-defense) Defendant was purposefully hit from behind by 4 defendants,
who pushed him out into an intersection. Defendant applied his brakes, but the car moved forward anyway. Defendant got out of his car with a gun. One of the victims told him he would make him "eat it." Defendant shot the guy. (a) Held: s actions were justifiable self-defense and therefore directed a verdict of not guilty because it was self-defense and no reasonable juror could find otherwise. (b) RULE: La Voie Elements of Self-Defense (justifiable homicide): 1) actually believes he is in danger of death or suffering great bodily injury, i.e. I am afraid. 2) actually believes that the danger is imminent, i.e. I am afraid now, and 3) s belief is reasonable, i.e., a normal person in the same situation would be afraid, such that using the force he used is necessary. a) Objective or subjective reasonableness?

(2) People v. Goetz: (What is reasonable? Reprise) was approached by 4 youths, who demanded defendant
give them $5 and "smiled at him." hauled out a gun and shot them, even as they were attempting to get away from him. He thought they didnt have guns. He did have a fear of being maimed. Established a pattern of fire. Wanted them to suffer/hurt/get as much as could. Would have shot Cabey in the head if he

53

had his head together. Charged with attempted murder. The lower court quashed his motion, stating that the prosecutor had introduced an unacceptable objective element in his defense by instructing the jurors to consider whether Goetz's conduct was that of a "reasonable man in his situation." (a) RULE = for self-defense, the reasonableness standard is an objective standard of reasonableness which asks whether it would be reasonable to someone similarly situated. (b) Held: That the standard was objective, therefore the lower court was wrong in stating that what mattered was whether the actions "were reasonable to him." Although the jury was entitled to take his prior experiences into account, they should look at what an objective person with his experiences would do in defendant's situation. (NOT COMPLETELY OBJECTIVE (c) Rationale: 1) What is the definition of self-defense in NY? Pg 522, Penal Law 35.15(1) a) Similar to that in La Voie: you have to reasonably believe that other person is going to use deadly physical force, or is trying to kidnap, rape, sodomize, or rob you b) What did prosecutor instruct the grand jury? i. Find him guilty if his belief was not what a reasonable man would reasonably believe c) Defendant argues and appeal court agrees: reasonably believes means whether it was reasonable to Goetz (completely subjective) i. Court considered Model Penal Code 3.04(2): a defendant charged with murder or attempted murder need only show that he believed that the use of deadly force was necessary to protect himself against death, serious bodily injury, kidnapping or forcible sexual intercourse to prevail on a self-defense claim a. Makes it a subjective standard b.Exception: if defendant was wrong and was reckless or negligent, he may be convicted of a reckless or negligent homicide i. Reckless = theres a substantial certainty theyre not posing danger, but Ill shoot them anyways d) Court agreed with the MPC, but looked at Legislative History and the New York Legislature specifically used the word reasonable which meant it was to be an objective standard, and thus concluded MPC doesnt apply i. Problem = Who is the reasonable person?? ii. Goetz wanted a subjective reasonableness standard 1. Reasonably believes that victim is using or will imminently use unlawful physical force against him a. For deadly force, defendant must fear death, serious bodily injury, or enumerated felonies 2. Reasonably believes that he must use force against victim to defend himself, and 3. Reasonably believes that the amount of force used was necessary to defend himself. 2) Social Psychology: There was a sense at the time in New York that the subways had been overtaken by criminals and were dangerous. Normal people were afraid of being on the subways (which was not statistical, but was socially prevalent; graffiti, muggings, homeless, etc). a) The New York law doesnt require a duty to retreat why? when you shoot, be prepared to kill them and kill all of them to be safe b) Why was he acquitted? he was the embodiment of all their [the jurys] fears i. When youre walking on the street and you see a white male walking behind you and you dont cross the street; but when its a black male, you do cross the street 3) Goetz's Own Words: He would have shot the kid in the head if he'd had more self control. He shot someone who was pretending he wasn't with them. He wanted to play with me, implies honor rather than fear.

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(d) Self-Defense requires that the defendant:

1) Reasonably believes that the victim is using or will imminently use unlawful physical force against him, 2) Reasonably believes that he must use force against the victim t defend himself, and 3) Reasonably believes that the amount of force used was necessary to defend himself. (e) What is reasonable? 1) Defense argues that "reasonable" means "reasonable to him." (subjective) 2) Prosecution argues that "reasonable" means "objectively reasonable person. What the court went with (f) If reasonableness is a subjective standard 1) Physical Attributes: Should we take this into consideration (yes!). Big guy gets mugged by little guy. Non-lethal martial arts training. 2) Past Experiences: Goetz was mugged in the past. He has used his gun to defend himself without firing. Goetz was a racist (which would contribute to the reasonableness of his belief).

(3) How Subjective Do We Make Reasonableness? (a) Argument against an objective standard: might be more fair to look at individual circumstances of
. Also hypothetical reasonable person doesnt take into account gender/race is the dominant person. 1) Argument for an objective standard: efficiency argument, b/c of the reasonable racist problem, taking into account traits that are not good, you cant say a person is good or bad when you are constantly trying to understand why they did what they did. Subjective Reasonableness Standardwas it reasonable to the actor? Everything else will be an objective standard. 1) Retributive: He should be punished less because his prior experiences make his act "less wrong." If a person fears something, they fear it, and they are more justified than someone who kills not out of fear. 2) Utilitarian: He should be punished equally because the results for him and society are the same, or more because he is unpredictable and more dangerous. The "this will send a message" argument. Why would we have a subjective standard: Because we shouldn't punish people who are reacting to fear. It is bizarre to tell the jury to look at it from the point of view of a "reasonable unreasonable person." By finding for Goetz we agree that our racism is rational and that, looking at it from a point of view of a reasonable person, we agree with his actions. Defendant's Mindset: 1) Subjective Mindset: Good because it goes to the "blameworthiness" of the defendant. Those who are less culpable should be less punished. Bad because people cause just as much harm and juries are forced to decide reasonableness outside their expertise. 2) Objective Mindset: Good because people are just as dangerous whether they are screwed up or not. Bad because people's mental state determines their culpability. MPC 3.04: Use of Force in Self-Protection: (wholly subjective) 1) Use of Force Justifiable for Protection of the Person. Subject to the provisions of this Section and of Section 3.09, the use of force upon or toward another person is justifiable when the actor believes that such force is immediately necessary for the purpose of protecting himself against the use of unlawful force by such other person on the present occasion. 2) Limitations on Justifying Necessity for Use of Force a) The use of force is not justifiable under this Section: i. to resist an arrest that the actor knows is being made by a peace officer, although the arrest is unlawful; or ii. to resist force used by the occupier or possessor of property or by another person on his behalf, where the actor knows that the person using the force is doing so under a claim of right to protect the property, except that this limitation shall not apply if:

(b)

(c)

(d)

(e)

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(A) the actor is a public officer acting in the performance of his duties or a person lawfully assisting him therein or a person making or assisting in a lawful arrest; or (B) the actor has been unlawfully dispossessed of the property and is making a re-entry or recaption justified by Section 3.06; or (C) the actor believes that such force is necessary to protect himself against death or serious bodily injury. b) The use of deadly force is not justifiable under this Section unless the actor believes that such force is necessary to protect himself against death, serious bodily injury, kidnapping or sexual intercourse compelled by force or threat; nor is it justifiable if: i. the actor, with the purpose of causing death or serious bodily injury, provoked the use of force against himself in the same encounter; or ii. the actor knows that he can avoid the necessity of using such force with complete safety by retreating or by surrendering possession of a thing to a person asserting a claim of right thereto or by complying with a demand that he abstain from any action that he has no duty to take, except that: (A) the actor is not obliged to retreat from his dwelling or place of work, unless he was the initial aggressor or is assailed in his place of work by another person whose place of work the actor knows it to be; and (B) a public officer justified in using force in the performance of his duties or a person justified in using force in his assistance or a person justified in using force in making an arrest or preventing an escape is not obliged to desist from efforts to perform such duty, effect such arrest or prevent such escape because of resistance or threatened resistance by or on behalf of the person against whom such action is directed. c) Except as required by paragraphs (a) and (b) of this Subsection, a person employing protective force may estimate the necessity thereof under the circumstances as he believes them to be when the force is used, without retreating, surrendering possession, doing any other act that he has no legal duty to do or abstaining from any lawful action. 3) Use of Confinement as Protective Force. The justification afforded by this Section extends to the use of confinement as protective force only if the actor takes all reasonable measures to terminate the confinement as soon as he knows that he safely can, unless the person confined has been arrested on a charge of crime. (f) MPC: Always allows self-defense claims that are honest, regardless of the reasonableness of their belief. However, if belief was wrong: 1) Reckless manslaughter: if was reckless in his wrong belief he needed to kill for selfdefense 2) Negligent manslaughter: if was negligent in his wrong belief that he needed to kill for self-defense 3) Imperfect Self Defense: in some jurisdictions, you can have an unreasonable belief that there is danger. (g) Problem with the subjective standard How subjective are we going to be? 1) Who is the reasonable person?

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Degrees of Subjective Reasonableness

Objective
Hypothetical reasonable person (no physical psychological characteristics taken into account). Reasonable man Reasonable male New Yorker Reasonable male New Yorker who has been mugged in the past Reasonable male New Yorker who has been mugged in the past, carries firearms, is suspicious of black youth on the subway, has anger control issues, and has abused drugs. Bernard Goetz

Subjective
c.) The Reasonable Self-Defender: The Battered Spouse (1) Where a woman kills her spouse b/c she believes this is the only way she can protect herself against ongoing battery by him, cts normally do not change the generally-applicable rules of self-defense (a) Standard for reasonableness: on BWS case the cts try not to allow too much subjectivity to determine if she acted reasonably. Most cts make the test, what would a reasonable woman do in Ds situations, taking into acct the prior history of abuse, but not taking into acct the particular psychology of the woman herself (e.g., that she is unusually depressed, or aggressive) (b) Imminence of danger: all cts continue to require in BWS case that self-defense be used only where the danger is imminent. For instance cts have not modified the traditional requirement of imminence to cover situations where the womans counter-strike does not come during a physical confrontation. Thus D would probably be convicted of murder for killing her abusing husband in any of the following. 1) V, after abusing D, has gone to sleep and D shoots him in the head while hes asleep. 2) D waits for V to return home and kills him b4 any argument has arised. 3) D arranges with someone else to kill V.

(2) State v. Leidholm: (bws self-defense reasonableness standard is subjective) Janice Leidlom was charged
with murder for stabbing her husband to death. She was found guilty of manslaughter and was sentenced to 5 years, which was reduced to 2. (Facts) she had an unhappy marriage filled with alcohol abuse, some good moments, and moments of violence. On the night of the murder, she had gone with her husband to a gun club party. They both got drunk. On the trip back home, an argument developed. They kept fighting after they got home. She tried to call the deputy sheriff, but her husband didnt allow her to use the phone (he pushed and shoved her away). As one point, the argument moved outside he kept pushing her to the ground. Eventually they went back inside and went to bed. While he was sleeping, she got out of bed, got a butcher knife, returned to the room and stabbed him. He died from shock and loss of blood. At her trial, victim said that she suffered from "battered women's syndrome" (BWS) which affected the reasonability of her belief that harm from her sleeping husband was imminent. Under the NDCC, a claim of self defense must show that the actor had an actual and sincere reasonable belief that he would suffer imminent harm and that defensive action was necessary to protect one's self. (a) Held: the court did not correctly instruct the jury on self-defense; so long as the actor had an actual belief that she would suffer imminent harm, this would be enough. (b) RULE: An actor's belief that she is in danger need not be subjected to the "objective reasonable person" standard, but must be looked at as a reasonable person in her circumstances (which is very broad). (c) Rationale: Conduct which constitutes self-defense may be either justified or excused:

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1) A defense of justification is the product of societys determination that actual existence of

certain circumstances will operate to make proper and legal what otherwise would be criminal conduct a) A person who believes the force he uses is necessary to prevent imminent unlawful harm is justified in using such force if his belief is correct 2) A defense of excuse openly recognizes the criminality of the conduct but excuses it b/c the actor believed that circumstances actually existed which would justify his conduct when in fact they did not. a) A person who believes the force he uses is necessary to prevent imminent unlawful harm is excused in using such force if his belief is incorrect b) COURT THINKS THIS WAS EXCUSE 3) Because a correct belief corresponds with an actual state of affairs, it will always be a reasonable belief, but a reasonable belief will not always be a correct belief. a) Therefore, the decisive issue under the law of self defense is whether a persons belief is reasonable and thereby excused or justified. (d) Elements of Self-Defense: 1) A person must actually and sincerely believe that the conditions exist which give rise to a claim of self-defense a) actually believes he is in danger of death or suffering great bodily injury, i.e. I am afraid. b) actually believes that the danger is imminent, i.e. I am afraid now, and c) s belief is reasonable, i.e., a normal person in the same situation would be afraid, such that using the force he used is necessary. 2) A person must reasonably believe that circumstances exist which permit him to use defensive force. a) Once the fact-finder determines under a claim of self-defense that the actor honestly and sincerely held the belief that the use of defensive force was required to protect himself against imminent unlawful injury, the actor may not be convicted of more than the crime of recklessness or negligence. b) Court distinguishes b/t objective & subjective reasonableness: i. Objective = requires the fact finder to view the circumstances surrounding the accused at the time he used force from the standpoint of a hypothetical reasonable and prudent. ii. Subjective = whether the circumstances are sufficient to induce in the accused an honest and reasonable belief that he must use force to defend himself against imminent harm. Have to account for mental characteristics (e) argues BWS: 1) Its an answer to the question if shes being abused why didnt she leave? a) But answering it using BWS is very problematic b/c its stigmatized & too much psychobabble i. Its very unscientific ii. Battered Woman Syndrome: 1. Feeling of low self-esteem and learned helplessness the battered woman feels she cannot leave the abusive relationship 2. Does it establish a reasonable belief of necessity to use force possibly yes - the battered woman cannot leave so she believes that using force is her only option and therefore necessary 3. Does it establish a reasonable belief that harm to her is imminent? Not really, a person with low self-esteem may still know that a sleeping person is not an imminent attack b) Gruber says its BETTER to look at empirical evidence i. She cant leave b/c she doesnt have any alternatives; any options

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2) BWS plays into what element of self-defense? a) Whether it was reasonable for her to believe it was necessary to kill 3) What does imminent mean? It means NOW a) So how can they argue that a sleeping husband poses an imminent threat? b) Court here says that a battered woman believes an attack is always imminent i. GRUBER says ITS NOT TRUE b/c she knew that it was time to kill b/c the attack wasnt imminent 4) What would be a standard that would allow a battered woman to kill a sleeping husband? Standard of Immediate Necessity (HOWEVER, MOST JURISDICTIONS ARE IMMINENCE) a) Use battered women syndrome. A reasonable battered woman w/ syndrome has a belief she cant leave: learned helplessness. i. Could be relevant to belief in necessity non b.s. could pack bags and leave but b.s. believes she cant leave. ii. Imminent harm immediately right now does the syndrome prove anything regarding imminence? No. iii. So relax imminence in favor of necessity. Immediately necessary b/c only chance. Need to use the force is immediate. b) Hypo: Silence of the Lambs youre in Buffalo Bills place and he makes you put the lotion on. You take the dog, and he goes down to get the dog and you kill him. There isnt imminent harm b/c hes not gonna kill you at that moment but he will after your skin has loosened for a couple days. i. Can you argue self-defense? 1. Under Standard of Immediate Necessity standard yes, but the law doesnt apply that standard 2. Court doesnt want to apply this standard b/c it creates too much subjectivity c) If you cross Tony Montana, or the mob, youd better get to him before he gets to you b/c hes above the law (3) (Minority Rule) The Common Law Duty to Retreat: For a self-defense defense to a crime consisting of deadly force, the common law required that the defendant show she had no opportunity to retreat or that she unsuccessfully sought to use an available opportunitythis is the common law and minority rule in regards to retreat, however, the states that do follow this demand that: (a) A person only retreat where it appears available in complete safety. (b) The Castle Exception: in retreat jurisdictions, it is universally recognized that there is no duty to retreat from ones dwelling place. The idea is that the home is the natural sanctuary. 1) Retreat is not expected if a person is attacked in there own home. (4) The Majority/Modern Rule: has abandoned the common law rule and imposes no strict requirement of retreat before the use of deadly force in self-defense. (a) The majority does not see a duty to retreat, even if the avenue of escape is known, i.e., right should not give way to wrong. (b) Note: There are a few jurisdictions that hold that there is a duty to retreat from ones home when the aggressor is a co-dweller. In the majority of retreat jurisdictions, there is no duty here. (5) People v. Weiand: a battered woman case, stated the current rule, that there is a duty to retreat to the next room (within the residence to the extent reasonably possible), but not from the house. This is what the majority of retreat states now hold. (a) BWS says one thing woman who are battered stay in the relationship 1) It is psychological evidence that explains a relevant mental state of D 2) Gruber wrote about it a battered woman doesnt process the fact that hes sleeping, but it still doesnt mean that its reasonable (b) Two views of imminent: 1) That D believes its going to happen tomorrow 2) Imminent now

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(6) Model Penal Code: One may not use deadly force against an aggressor if he knows that he can avoid doing
so with complete safety by retreating. Retreat is not generally required in ones home or place of work. However, retreat from the home or office is required: (1) if the defendant was the initial aggressor, and wishes to regain his right of self-protection; or (2) even if he was not the aggressor, if he is attacked by a coworker in their place of work. However, the Code does not require retreat by a non-aggressor in the home, even if the assailant is a co-dweller. d.) Necessity

(1) The defense of necessity is available where the accused acted in the reasonable belief that perpetration of
the offense would prevent the occurrence of a greater harm or evil.

(2) Requirements of the Necessity Defense: Approximately one-half of states now statutorily recognize a
necessity defense. Generally speaking, a person is justified in violating a criminal law if the following six conditions are met: (a) The defendant must be faced with a clear and imminent danger (b) There must be a direct casual relationship between the action and the harm to be averted (c) There must be no effective legal way to avert the harm. (d) The harm that the defendant will cause by violating the law must be less serious than the harm he seeks to avoid. The defendants actions are evaluated in terms of the harm that was reasonably foreseeable at the time, rather than the harm that actually occurred. (e) There must be no legislative intent to penalize such conduct under the specific circumstances. (f) The defendant must come to the situation with clean hands, i.e., he must not have wrongfully placed himself in a situation in which he would be forced to commit the criminal conduct.

(3) Limitations on the rule: The availability of the necessity defense may be further limited to: (a) Emergencies created by natural forces; (b) non-homicide cases [see Regina v. Dudley and Stephens, 14 Q.B.D. 273 (1884)]
(c) Protection of persons and property only, excluding for example, the protection of reputation or economic interests.

(4) The Queen v. Dudley & Stephens: The s where in a plane crash and went nearly 20 days without eating
any real food, i.e. a turtle, and then decided to kill the small boy that was with them. Although some objected, the defendants did kill the boy without drawing lots and then killed him. (a) RULE: killing an innocent person to preserve your own life does not satisfy necessity. (b) Conflicting views: 1) Utilitarian this was the best action kill one to save two 2) Retributivist cannot justify the killing of an innocent under any circumstances. (c) Necessity is generally an excuse because the justification is doing something that was the right thing to do 1) Private necessity = is self defense 2) Private necessity and the necessity to kill when your starving a) Character of the victim is the difference i. Maybe the threat of death is the same or even more, however ii. The quality of the character being innocent. (d) MPC lesser of two evils defense called justifiable. MPC thinks it is a good thing to do. Its not just understandable, but a good thing to avoid greater harm. 1) MPC can be reasonable and wrong; if unreasonable can be reckless or negligent. 2) Hypo: Racing preg woman to hospital and run red light lesser evil? a) No, course has to be relevant to the evil. b) Does running red light bear a relationship to the evil intended to avoided.

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(5) People v. Unger: had been raped in jail, threatened at knife point, escapescaught and tried for: escape.
Instruction of trial court that Unger objects to: no excuse he can give is ok for an escape. He wants instruction for necessity and compulsion defense, but trial court wouldnt give. (a) Compulsion v. Necessity: 1) Compulsion: threat against your life combined with command that you perform a crime, i.e., I threaten to kill you unless you escape from Jolliet 2) Necessity: do the crime or something else really bad will happen to you. E.g. I threaten to kill you, and you escape from Jolliet to get away from me. a) In this case it was necessity b/c they didnt say escape or we will kill you, just we will kill you. (b) Necessity under Illinois law conduct which would otherwise be an offense is justifiable by reason of necessity if the accused was w/o blame in occasioning or developing the situation and reasonably believed such conduct was necessary to avoid a public injury greater than the injury which might reasonably result from his own conduct. Does Lovercamp allow plain old necessity? 1) Need 5 requirements: (not dispositive b/c not all reasonable people that have good reason to escape, will have good reason to not report and it might take away the defense of necessity) a) Prisoner is faced w/ a specific threat of death, forcible sexual attack of substantial bodily injury in the immediate future. b) There is no time for a complaint or there is a history of futile complaints. c) There is no time or opportunity to go to court d) There is no evidence of force or violence used toward prison personnel or other innocent persons during the escape. e) The prisoner immediately reports to the proper authorities when he has attained a position of safety from immediate threat. 2) Court rejects this b/c turning oneself in immediately might lead prisoner back to dangerous situation.

(6) MPC: The necessity defense is broader under the Code than under common law and many non-Code-based
statutes. (Lesser of 2 evils approach) (a) Under the Code, otherwise unlawful conduct is justified if: 1) The believes that his conduct is necessary to avoid harm to himself or another; 2) The harm to be avoided by his conduct is greater than that sought to be avoided by the law prohibiting his conduct; and 3) There is no legislative intent to exclude the conduct in such circumstances. [MPC 3.02(1)] (b) Unlike common law, the Code does not require that the harm be imminent or that the defendant approached the situation with clean hands. Furthermore, the common law limitations regarding natural forces, homicide cases, and property and personal are inapplicable to the Codes necessity defense. e.) Duress

(1) Generally speaking, a person may be acquitted of any offense except murder if the criminal act was
committed under the following circumstances: (a) Another person issued a specific threat to kill or grievously injure the defendant or a third party, particularly a near relative, unless he committed the offense; (b) The defendant reasonably believed that the threat was genuine; (c) The threat was present, imminent, and impending at the time of the criminal act; (d) There was no reasonable escape from the threat except through compliance with the demands of the coercer; and (e) The defendant was not at fault in exposing himself to the threat.

(2) Duress as a Defense to Homicide: The common law rule, expressly adopted by statute in some states, is
that duress is not a defense to an intentional killing. A very few states recognize an imperfect duress

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defense, which reduces the offense to manslaughter. Courts are split on the availability of the duress defense in felony-murder prosecutions.

(3) State v. Crawford: The defendant, Crawford, was told by Bateman to commit the robberies he is being
charged with in order to repay his debt to Bateman. Bateman was member of Moorish Americans and knew where the son lived inferred ability to kill son and mother of son. Crawford alleges argues that he did this under duress owed money and believed that dealer would hurt him and his son. (a) RULE: to assert duress defense, the cannot have willfully placed himself in a situation to be put under duress (b) Held: there was not duress in the instant case because the defendant could have escaped in the instant case and reported Bateman and his threats to the police and therefore there was no imminence. (c) Requirements for Duress: duress requires that there be 1) An imminent threat to the upon him, or upon his spouse, parent, children, brother or sister, and 2) A reasonable fear, and 3) No means of escaping or withdrawing from the coerced activity. (d) Rationale: Has to be a violent threat, a demand to perform conduct, and he cant place himself in position. 1) Judge instructed jury about nature of threat has to be imminent, threat of future injury is not enough and threat has to be continuous. a) Must be clear, not vague, now, and no opportunity to escape. 2) Crawford depends on his addiction and his psychological dependence distinguishes him from the cases cited in the case which seem more severe. a) He wants to say would a reasonable psychologically dependent junkie have responded this way? b) Did he willfully place himself in a situation to be put under duress? i. Being cracked out and 10k in debt makes it more willful.

(4) Model Penal Code 2.09: (a) Duress is an affirmative defense to unlawful conduct by the defendant if: 1) he was compelled to commit the offense by the use, or threatened use, of unlawful force by
the coercer upon his or another person; and 2) a person of reasonable firmness in his situation would have been unable to resist the coercion. [MPC 2.09(1)] What about if was reckless? The defense is unavailable if the defendant recklessly placed himself in a situation in which it was probable that he would be subjected to coercion. [MPC 2.09(2)] What if was negligent? If he negligently placed himself in such a situation, however, the defense is available to him for all offenses except those for which negligence suffices to establish culpability. [MPC 2.09(2)]. The Codes duress defense is broader than the common law in various respects. 1) It abandons the common law requirement that the defendants unlawful act be a response to an imminent deadly threat. 2) The defense is one of general applicability, so the defense may be raised in murder prosecutions. The Code defense is similar to the common law in two significant ways. 1) The defense is limited to threats or use of unlawful force; therefore, it does not apply to coercion emanating from natural sources. 2) In conformity with the common law, the Code does not recognize the defense when any interest other than bodily integrity is threatened.

(b) (c)
(d)

(e)

f.) Mental Illness as a Defense Insanity 62

(1) There is no medical definition of insanity (a) Insanity is the legal determination that youre not guilty b/c of a mental illness (b) Insanity is a total defense an excuse defense 1) The defense has the prima facie burden of proving insanity 2) Grubers rule of thumb = anything less than a life offense I wouldnt argue insanity a) You would be civilly committed b) Turns out to be indefinite (c) Insanity is different than competency 1) Competency = mental state at trial will he be able to assist in his own defense? a) Incompetent if lacks ability to consult with his lawyer OR b) Have a rational and factual understanding of the proceedings against him. 2) Can be insane and competent to stand trial. 3) Someone can be sane at time of crime and incompetent to stand trial. (d) Insanity concerns the Ds state of mind at the time of the crime 1) whether a D is not convictable because of insanity, however, does not depend solely upon the severity of the impairment or other medical conclusions 2) Instead, criminal liability turns upon whether as a result of the impairment the D met the applicable legal standard.

(2) People v. Serravo: He stabbed his wife while she was sleeping b/c God told him he had to build a sports
complex and his wife didnt encourage it. She was getting in the way of the divine plan (not supportive). After he stabbed her, he told her that someone stabbed you and ran out. His wife found letters he wrote admitting the stabbing, and saying that he had gone to be with Jehovah in heaven for 3 and days. She called him to confront him. He said, God had told him to stab her in order to sever the marriage bond. She called the cops and he was arrested. He was acquitted. There is no double jeopardy so how can the prosecution appeal it? Statute 16-12-102(1): prosecution gets to appeal a standard for future purposes, but cant apply to Serravos case b/c of double jeopardy (a) Held: if within his delusion the D did something that society can agree with, then he is insane and if society does not agree with the D then he is sane. (b) Rationale: Court wants to know how to determine the meaning of the phrase incapable of distinguishing right from wrong? 1) Insanity evidence: a) Prosecutions doctor said he was delusional, but that he was aware the act of stabbing was contrary to law and thus sane at the time of the stabbing. b) Serravos doctors: i. 1st one said he under psychotic delusion, believed it was a divine mission and thus he believe it was morally right ii. Another psych said he covered up b/c cops wouldnt be able to understand his reasoning, not because he knew diff from right and wrong. c) Prosecution says he needs to know morally and legally wrong. d) Appellate court said when you talk to God get insanity defense. 2) Trial judge in Instruction #5 said the standard it that its a moral right or wrong a) Court of appeals agreed its moral, however, disagreed that deific decree is an exception b) Prosecution wants it to be a legal right / wrong standard b/c they win b/c he covered it up and thus knew it was illegal 3) McNaghten Rule: to establish a defense on the ground of insanity, it must be clearly proved that the accused had a mental defect / defect of reasons at the time of the crime. a) 2 ways to satisfy the rule: i. Show he didnt know the nature or quality of the act (e.g. someone hallucinating thinking hes cutting up an orange and actually cutting up a person) Serravo knew the nature or quality of his act

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ii. Show that although he did know the nature or quality of the act, he didnt
know what he was doing was wrong (3 possibilities): Dont think your act is legally wrong, but think its morally wrong (Sane) o Rejected by MNaghten Dont think your act is morally wrong, but know its legally wrong. o What defense wanted & what the court held Dont think your act is legal and dont think its morally wrong o Want prosecution wants b) Why does the court reject the legal wrong/right standard? i. If God told you that you have to build the Sportcenter, then what would you do? is the moral choice here to stab? NO ii. Hypo = what if Joe says God told him to kill all the first borns of the city? is the moral choice here to kill? iii. What about Hannibal? killing people is morally right because I am a superior being and others are boring. iv. Problem = it is very difficult to analyze the objective morality of a persons choices. 4) Up to SC and use MNaghten rule: due to a mental defect party was laboring under defect of reason, as either not know nature and quality, or did not and didnt know what he was doing was wrong. a) Insanity is a moral or normative judgment of who is/isnt insane. b) Go into delusion and judge the sanity of it 5) MNaghten Rule: a D is to be acquitted using insanity if, and only if, at the time of the crime he either: a) Did not know the nature and quality of his acts (i.e., think that you are cutting an orange not a human), or b) Did not know that the act was wrong (3 possibilities) i. Dont think your act is legally wrong 1. This is rejected by MNaughten b/c it has to be legally wrong and you have to know that it is morally wrong. ii. Dont think your act is morally wrong (this is the defenses argument & courts holding) iii. Dont think your act is legally or morally wrong (this is the prosecutions argument)

(3) The Model Penal Code: (minority rule post-Hinckley; some jurisdictions have done away w/ it all together
only if it totally negates mens rea) (a) a person is not responsible for criminal conduct if at the time of such conduct as a result of mental disease or defect he lacks substantial capacity to either 1) appreciate the criminality of his conduct, or a) This prong reminds us MNaghten 2) conform his conduct to the requirements of the law a) if b/c of your mental defect, you cant conform to the law (b) The terms mental disease or defect do not include an abnormality manifested only by repeated criminal or otherwise antisocial conduct 1) so has to be more than just being a pedophile

(4) The Irresistible Impulse Test: Some jurisdictions allow acquittal on insanity grounds if the Ds
commission of the crime was caused by an impulsesomething that overcomes Ds will to not commit the crime.

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(5) The Durham Rule: Acquittal is required if the evidence proves that the crime was a product of an
impairment that the defendant had at the time (mentally ill + but-for causation) (a) Must determine: 1) Whether the D was suffering from a mental disease and 2) Whether the crime would have occurred but for the mental disease

(6) Smith v. State: The was an army private, who was released from the military (dishonorable discharge)
and then took an army vehicle at gunpoint and fled the base. D was chased by police and wounded officers and is claiming insanity. (Gruber says hes nuts b/c he did all of this b/c he wanted to get to airport and get out quickly, however, he was going the opposite way towards the frozen tundra!!). In Alaska, insanity is defined as (1) whether the D lacks the substantial capacity to appreciate wrongfulness OR (2) whether D can conform his conduct to the requirements of the law. One expert testified that while the D did have schizophrenia, the crime had not been a product of that illness. (a) Held: The court ruled that D knew what he did was illegal and immoral, therefore, he was legally sane and convicted him. (b) Rationale: used ALI rule b/c he admits he knows it is legally and morally wrong. 1) A fact-finder is free to give credence to one party's expert over the other. a) One doc says he is faking it. He had a goal and his actions supported the goal, lucid and rational plan so he could have made legal choices. i. Court agrees with this testimony ii. Dissent says rational behavior to do irrational plan is insane enough. 1. Its a spectrum of insanity meanings and this court went b/t 2+3 b) Another doc says the whole plan is nuts and thus he was insane the question is not whether you exercise any rational thought whatsoever, but if the totality of your actions are rational & he didnt (c) Smith possible insanity meanings: 1) Mental Disorder + a) The mental disorder is the but-for cause of the criminal conduct (i.e. but-for his mental disorder, he would have been able to conform) b) The mental order is the but-for cause of the criminal conduct + the criminal conduct was completely irrational. c) The mental disorder made the defendant an automaton.

(7) Approach to Insanity: (a) Whether at the time of the crime the D had a sufficient mental impairment to constitute insanity?
1) Mental illness or disease 2) Mental retardation 3) Involuntary intoxication a) If the answer is no, then the insanity defense is not available (b) If Yes, Did the impairment so affect the D as to meet the legal standard? 1) MNaghton Test 2) Irresistible Impulse Test 3) MPC 4) Durham Test 5) Mens Rea Approach a) If yes, then the insanity defense is available 8 - INCOHATE CRIMES & ACCESSORIAL LIABILITY An inchoate offense is the crime of preparing for or seeking to commit another crime A. ATTEMPT

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1.) At common law, it is a crime to attempt to commit any felony or misdemeanorrequires proof of certain
conduct, i.e., a sufficient step towards the attempted crime and the requisite intent. (a) Easiest way to think of attempt Specific intent to commit the crime (purpose or knowledge) plus an overt act (substantial step) toward the completion of the crime I shoot at somebody and I miss but it is still an attempt (b) Why would the court make a rule that you cant attempt a reckless homicide? It was a 2nd degree murder murder as implied kills how can you intend to kill and act recklessly at the same time?

2.) The Mens Rea and Actus Reus of Attempt: (a) Mens rea: specific intent to commit a crime (purpose or knowledge)
(1) Exceptions: some jurisdictions allow recklessness as to circumstances. Some allow attempted recklessness. (b) The Actus Reus of Attempt: overt act or substantial step that progresses towards the commission of an offense or beyond the intent to commit it (furtherance/substantial step). 3.) Questions: (a) Why cant you attempt recklessness? 1) Because recklessness is an intent but if you get recklessness (which is not purpose you were just reckless) plus it causes no harm you dont want to punish that person 2) E.g. reckless driving = they dont hurt anyone but you charge them with vehicular manslaughter a) Anything reckless would be punishable as attempted murder (b) What is an overt act (substantial step)? (c) Am I still guilty if I abandon the criminal plan? (d) What if I intended to do something illegal, but I actually did something completely legal (ie. sold oregano instead of marijuana)?

4.) State v. Lyerla: (to be guilty of attempt, you need specific intent to commit the acts constituting the offense) Girls
play car game with guy (). The fired 3 shots at a pickup truck carrying 3 teenage girls. One of the girls was killed. The trial court convicted the D of 2nd Degree Murder and 2 counts of attempted 2nd Degree Murder. The D appealed contending that as a result of the improper release of the pickup truck to the deceased parents evidence was lost. D also contends that it was a legal impossibility to attempt to commit murder in the second degree. (a) RULE: In order to attempt to commit a crime, there must exist in the mind of the perpetrator the specific intent to commit the acts constituting the offense. To attempt second degree murder one must intend to have a criminally reckless state of mind. (b) Rationale: He didnt intend to kill. Attempt requires intent to achieve the crime. Reckless murder couldnt have had intent. Makes no sense and dont accept it as law. 1) There is only example where it makes sense to have a reckless attempted homicide he meant to kill her b/c he recklessly thought she was going to kill him, and he missed. (c) Notes: Here is what courts do they go the Layerla majority way you must have specific intent 1) Only a few go the dissents way as long as you were reckless and as long as you almost killed someone, thats enough 2) MPC = middle ground if there are some circumstances which you are reckless to but purpose regarding the result then that might be enough for an attempted reckless murder 3) The main rule is that you need a specific intent or you get into a Welansky landand courts dont want to go there a) The problem with Lyerla was that it was a reckless murder and he had no intent to kill

5.) MPC 5.01 Criminal Attempt: (defines attempt as) when causing a particular result is an element of a crime,
doing or omitting to do anything with the purpose of causing or with the belief that it will cause such a result, without further conduct on his part. (a) Under MPC, an attempted reckless murder under the MPC is possible in the situation of unreasonable selfdefense like Goetz a substantial step in the course of conduct planned to culminate in his commission of the crime.

66

1) Would look something like this: unreasonable belief of danger + a disregard of a substantial risk of injury while attempting to defend himself with deadly force, but misses (b) Where the crime requires a result to be guilty of attempt (such as murder) you have to have the purpose to cause the result (in this case death) or know that your conduct can cause the result (death) 1) You have to do an overt act that is a substantial step toward the crime (c) Hypo: You think youre selling pot but you are selling oregano this can still be an attempt to sell pot

6.) People v. Murray: (to be guilty of attempt, you need more than mere preparation) The is charged with attempt
to contract an incestuous marriage with his niecethe and his niece where on the steps and where going to get married and sent for the preacher but they did not go through with it. Court found that he was only in preparation not in attempt. Court would have waited til very late to call it attempt. (a) Held: Not every step toward the commission of a crime is substantial what line did Murray need to cross here until he was about to take the vows it was not attempt no attempt until the preacher is there and they are about to say I do. (b) RULE: The preparation consists in devising or arranging the means or measures necessary for the commission of the offense; the attempt is the direct movement toward the commission after the preparations are made.

7.) Mere preparation will not suffice to show the actus reus necessary for attempt.
(a) Courts have developed a number of tests to determine the point at which a defendant passes beyond the preparation stage and consummates the criminal attempt. (1) Last act test an attempt occurs at least by the time of the last act but this test does not necessarily require that each and every act be performed on every occasion. (2) Physical proximity test the defendants conduct need not reach the last act but must be proximate to the completed crime. (3) Dangerous proximity test (variation of last act) an attempt occurs when the defendants conduct is in dangerous proximity to success, or when an act is so near to the result that the danger of success is very great. a) Sliding scale approach weighing gravity of offense, probability of offense, and proximity of act to offense (4) Indispensable element test an attempt occurs when the defendant has obtained control of an indispensable feature of the criminal plan. a) Certain parts of crime are indispensable. Without them, no attempt. (5) Probable desistance test an attempt occurs when the defendant has reached a point where it was unlikely he would have voluntarily desisted from his effort to commit the crime. a) In the natural course of events, without outside interruption, the crime will occur (6) Unequivocality test an attempt occurs when a persons conduct, standing alone, unambiguously manifests his criminal intent. a) Act is attempt when it manifests intent to commit crime. (7) Abnormal step approach: attempt is a step toward crime which goes beyond the point the normal citizen would go

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Pre paration vs. Atte mpt

W re do you draw the line he ?
With the inte to m rry his niece: nt a

Murra winks y a niece t during fa ily m re union

Murra y a niece nd go out on da te

Murra y a niece nd g et e ged nga

Murra a y nd niece go to church a nd wa for it ma gistra te

Murra a y nd nie a ce re a bout to ta the ke ir vows

Nie ce ha sa s id I do!

T1

Prepa tion ra

Attem pt

8.) What is a substantial step? 3) MPC 5.01 Rule = substantial steps must corroborate criminal purpose
(1) (2) (3) (4) (5) (6) Lying in wait, searching for victim Enticing victim to go to place of crime Reconnoitering place of crime Unlawful entry of place of crime Possession of criminal tools Soliciting of innocent agent to participate in crime

9.) People v. Rizzo: was arrested and convicted of attempted robbery in the 1st degree and sentenced to state prison
for attempting to rob Charles Rao. The and his friends made plans to rob Rao of $1,200 which he usually carried to the bank for the United Lathing Company. Rizzo and his friends got in a car to look for Rao. was suppose to point him out and his friends where suppose to hold him up. However, could not find Rao, and began looking in all of the United Lathing Co.,s buildings which drew the attention of 2 police officers who followed them and arrested and his friends when they jumped out of the car and entered one of the buildings. Neither Rao nor the other payroll carrier where present at the time of the arrest. (a) RULE: only those acts tending to the commission of the crime that are so near to its accomplishment that in all reasonable probability the crime itself would have been committed, but for timely interference. (b) Held: The D were not guilty of an attempt to commit robbery in the first degree when they had not found or reached the presence of the person they intended to rob. (c) Rationale: (1) The rule = An act done with intent to commit a crime, and tending but failing to effect its commission, is an attempt to commit that crime a) The court notes that tending is an indefinite word and defines it as means to exert activity in a particular direction. b) Notes that many acts in the way of preparation are too remote to constitute the crime of attempt. (2) Came up with new rule = considers those acts only tending to the commission of the crime that are so near to its accomplishment that in all reasonable probability the crime itself would have been committed, but for timely interference. a) 1st degree robbery = the unlawful taking of personal property from the person or in the presence of another against his will by means of force or violence or fear of injury immediate or future to his person 2120 of the Penal Law. b) Therefore, to constitute the crime of robbery, the money must have been taken from Rao by means of force or violence, or through fearplus, no attempt to rob him could be made if they could not find him.

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10.)

Abandonment a defense? (a) Many courts do not recognize the defense of abandonment. Where recognized, it applies only if the defendant voluntarily and completely renounces his criminal purpose. (1) Abandonment is not voluntary if the defendant: a) Is motivated by unexpected resistance, b) The absence of an instrumentality essential to the completion of the crime, c) Some other circumstance that increases the likelihood of arrest or unsuccessful consummation of the offense, OR d) If the defendant merely postpones the criminal endeavor until a better opportunity presents itself.

(b) People v. Staples: (when youve passed the point of breaking, abandonment is immaterial) , a
mathematician under an assumed name, rented an office on the second floor of a building which was over the mezzanine of a bank, under which was the vault of the bank which he planned to rob by drilling holes into the floor. D brought into the office drilling tools, two gas tanks, a blow touch, a blanket, and a rug and on Saturdays came in and began drilling, but stopped before the holes went through the floor. D placed the tools in a closet in the office, the landlord found the keys to the closet and turned the tools over to the police. The D was then charged in an information with attempted burglary. (1) Held: cant claim abandonment (2) Rule: Once defendant crosses line between preparation and attempt, he cannot abandon. (3) Rationale: D was aware that the landlord had resumed control over the office and had turned D's tools over to the police thereby making his abandonment non-voluntary a) Court thought the drilling was really important 1) Drilling was the breaking element of the crime showed that this was close to the crime / constituted an element of the crime (indispensable element test) Reason why it was so important = crosses the line b/t crazy but acceptable & crazy and unacceptable 2) His drilling activity clearly was an unequivocal and direct step toward the contemplated element and the defendant characterized the drilling as the commencement of his plan in his writing. (unequivocality test) b) D intended to commit a specific crime and committed an act that caused harm or sufficient danger of harm. Therefore, it is immaterial that for some collateral reason he changed mind 1) Court applied indispensable element and unequivocality test. His drilling activity clearly was an unequivocal and direct step toward the contemplated element and the defendant characterized the drilling as the commencement of his plan in his writing breaking element of the crime (indispensable element test). 2) Court notes that this was already an attempt and therefore abandonment does not count anymore. (4) What would the Murray court say about this? Was the drilling mere preparation? a) Gruber says that in burglary, once you go into a building with bad intent, youve committed the crime. 1) However, you could also argue that he was merely making preparations for the robbery. b) In Murray court thought is was important that he still had time to change your mind 1. Gruber says this seems bogus 2. Gruber thinks this may be found to be an attempted burglary but not an attempted theft b/c theft requires the taking of property. c) This reminds Clifford & her of the Shawshank Redemption. 1. In Rizzo no attempt b/c guy never showed (c) Review of Abandonment Rules: (1) Staples = once a defendant crosses line between preparation and attempt, he cannot abandon (2) MPC = Once D crosses line b/t preparation and attempt, he can still abandon, but motivation must be specific.

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a) Cannot be motivated by new fear of getting caught b) Cannot be motivated by hope to commit a better crime.

11.)

The Model Penal Codes Renunciation Rule: The Model Penal Code does permit a limited defense of abandonment in Section 5.01(4), but basically, once the D crosses the line between preparation and attempt, D can still abandon, but his motivations for doing so must be specific. (a) The model penal code explains that the D cannot be motivated by (1) new fear of getting caught, or (2) hope to commit a better crime Impossibility defense? (a) Booth v. State: Stanford a well known thief stole a cashmere coat from the inside of a car parked at the YMCA and then took the coat and then phoned Booth telling him that he had the coat he requested. The police caught Stanford and found the rightful owner of the coat. However, the cops wanted Stanford to try and still sell it to Booth, so when Booth came over and paid the 20 dollars for the jacket the cops arrested him charging him with the crime of Receiving Stolen Property and was found guilty of Attempt to Receive Stolen Property. (1) Held: a legal impossibility precludes D from being prosecuted from the crime of knowingly receiving stolen property. (2) RULE: Where there is a legal impossibility of completing the substantive crime, the accused cannot be successfully charged with an attempt (total defense), whereas in those cases in which the factual impossibility situation is involved, the accused may be convicted of an attempt.

12.)

(3) Gruber says this is a subliminally ridiculous & simply semantic distinction (4) What is a legal impossibility? (2 definitions): a) Where the act if completed would not be criminal a situation which is usually described as a
legal impossibility (NO LIABILITY). b) A legal impossibility is present if the Ds goal is illegal, but the offense is impossible due to a factual mistake (not a misunderstanding of law) regarding the legal status of an attendant circumstance that constitutes an element of the charged offense, e.g., receiving unstolen property under the belief that such property was stolen. Another example would be shooting a corpse believing it is alive. What is a factual impossibility? a) Where the basic or substantive crime is impossible of completion, simply because of some physical or factual condition unknown to the D, a situation which is usually described as a factual impossibility (LIABLE). b) E.g. a pickpocket putting his hand in the victims empty pocket; shooting into an empty bed where the intended victim customarily sleeps; or pulling the trigger of an unloaded gun aimed at a person. 3) Since the coat was no longer stolen property when Booth (D) received it, then no substantive crime could have been committed, an attempted threat could not have been either. Reversed. Was this a legal or factual impossibility? a) Legal impossibility: he had intent to get coat, and he took substantial step (bought it), but what he did would never have been a crime b/c it was not stolen property at the time he acquired it. Hypo: A shoots a blow up doll thinking it is his wife a) Booth court: Would probably say its legal impossibility (like shooting a stuffed deer). b) Defense attorney: Would argue that its legal impossibility and say that the act of shooting the doll is a completed (legal) act c) Prosecutor: Would argue that its factual impossibility because defendant was unable to complete the act of killing his wife do to unknown circumstances (she wasnt in the bed). d) MPC gives all the chips to prosecutor, but Booth doesnt According to the MPC, so long as thought it was a crime, it is a criminal attempt Hypo: B shoots an empty bed thinking his wife is in it

(5)

(6)

(7)

(8)
(9)

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a) Booth court: Would probably say its factual impossibility (they use shooting bed example). b) Defense attorney: Would argue that its legal impossibility and say that the act of shooting the empty bed is a completed (legal) act. c) Prosecutor: Would argue that its factual impossibility because defendant was unable to complete the act of killing his wife do to unknown circumstances (she wasnt in the bed). (10) Hypo: what if you think youre taking Ecstasy but in fact its Sudafed? a) Legal impossibility b/c completed act of possession a non-narcotic b) Factual could not complete act of possession b/c due to unknown conditions the ecstasy was Sudafed. (b) Fletchers Test (1) The Rational Motivation Test: mistaken beliefs are relevant to what actor is trying to do if they affect his incentive in acting. They affect his incentive if knowing of the mistake would give him a good reason for changing his course of conduct. a) Guilt turns on whether the mistake affects the Ds motivationif he knew the truth would he still have done the act? 1) If he would have, NOT GUILTY. 2) b) If he would not have, GUILTY. (2) Have an intent and be motivated by the intent.

(c) Review of Impossibility Rules: (1) Factual/Legal Impossibility Distinction: a) Guilt turns on whether act is completed b) Booth not guilty if crime is framed as a completed act of receiving non-stolen goods (2) MPC guilt turns on whether act would be crime if circumstances were as the D believed them to be a) Booth guilty b/c he believed the coat to be stolen (3) Under Fletcher was Booths mistake a motivation for his conduct? a) Booth not guilty b/c even if he knew that the goods werent stolen he still wouldve gone through with the purchase.

Impossibility and Mistake of Fact

Defendant is actually selling Pot Pot Defendant thinks he is selling Oregano Oregano

Guilty

potential Impossibility defense

Possible mistake of fact defense

Not Guilty

B. ACCESSORIAL LIABILITY

1.) There is no separate crime of being an accomplice. a.) Therefore, an accomplice (aider and abetter) is guilty of the same substantive crime as the principle. (1) E.g. if principle guilty of 1st degree murder, so is the accomplice. b.) Therefore, you can get a first degree murder through these theories: 71

(1) Felony Murder (2) Premeditation (3) Aiding and abetting

2.) State v. Ochoa: (the intent of the aider and abetter must be the same as the intent of the principle & there must be
an outward manifestation) s (Leandro Velarde, Manuel Avitia, and Juan Ochoa] were convicted of murder in the second degree for killing the Sheriff (Carmichael) when he was transporting a prisoner from the office of the local justice of the peace to the county jail. People were protesting. Ignacio Velarde and Solomon Esquibel drew weapons. Slew of shots dont know who shot who. Ignacio Velarde and Solomon Esquibel were killed. 1st shot hit the Sheriff went in through the left shoulder and through his chest died instantly. Dont know who shot, but it came from the rear of the crowd. 2nd shot hit the sheriff in the left side of the face and passed out of his body on the right side of his neck. Was fired by the decedent Ignacio Velarde. Beating of deputy Boggess started before the shots and continued after. Leandro not guilty, but the Avitia and Ochoa are. a.) Govn = 2 alternative theories of the case : (1) Appellants aided and abetted the person who killed Carmichael (2) One of the appellants were the shooters (3) Why were these alternative theories? b/c if they were aiding and abetting, they were doing that, not by shooting, but by beating the other officers away b.) Held: That even if it be assumed that these 2 Ds were without previous knowledge of the purpose of the slayer or slayers of deceased to make an attempt on his life, the evidence abundantly supports an inference that with the firing of the first shot they become apprised of that purpose. therefore, the intent to kill may be formed at the scene of the crime. So, Ochoa beat the deputy after they knew that deadly force was being used by the group, so they had the common purpose. c.) RULE: Before an accused may become liable as an aider and abettor, he must share the criminal intent of the principal. There must be a community of purpose, partnership in the unlawful undertaking the chief ingredient of which is always intent (No partnership in the act where there is no community of purpose or intent). d.) Rationale: There must be purpose to commit the crime. (1) Need to promote or assist act, encourage, etc. (very broad). (a) Presence and non-action not enough, (b) But no presence and helping is enough. (2) Evidence of intent: How do we know Ochoa wanted C to die? (a) Ochoa saw someone was gonna shoot C and knew it. (3) Parameters of Accomplice Liability (a) Mens Rea: accomplice must share intent of principal (purpose of principal). 1) There must be community of purpose. 2) Court seems to indicate its knowledge only. a) Cant be an aider and abetter of negligence. (b) Actus Reus: accomplice must display some outward manifestation of support for principals act. 1) Mere presence / approving thoughts are not enough. 2) There needs to be an outward manifestation of the intent. a) may be as broad and varied as are the means of communicating though from one individual to another; by acts, conduct, words, signs, or by any means sufficient to incite, encourage or instigate commission of the offense or calculated to make known that commission of an offense already undertaken has the aiders support or approval. (page 694) b) Hypo: if Leandro were giving principal shooter thumbs up and shooter didnt see him, is he guilty of aiding and abetting? 1. No b/c court here isnt saying shooter has to know there is an aider and abetter 2. The shooter may have no idea that the aider and abetter is doing anything and he is still an aider and abetter

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(c) Not Required 1) Evidence of prior or current agreement between principal and accomplice. a) But see conspiratorial liability. 2) Strict causal relationship between accomplices act and result. a) The omission to protect your child from being beaten is good enough to make one liable. (4) Application: What needs to be known in order to prove intent? (a) One possibility = that there was a plan to shoot Carmichael (not the case here (b) Second possibility = after 1st shot, they notice that Carmichael was being shot at, and formed the intent to stop the deputy and aided the shooting 1) This assumes that the first shot didnt kill Carmichael 2) Significance = they wouldnt have aided or abetted anything b/c crime had already happened (c) As a reasonable juror what do you need to know to find that they aided and abetted? 1) Was Carmichael alive after 1st shot? 2) How far away they were from the shooting? a) Could they even see the shooting or Carmichael falling? 3) Did they know a first shot was fired? (5) Gruber says that finding murder liability in these circumstances is a political holding: this kind of opinion highly discourages protest. (a) B/c you can be held liable for something done that you had nothing to do with

3.) Backun v. United States: One who sells a gun to another knowing that he is buying it to commit a murder, would
hardly escape conviction as an accessory to the murder by showing that he received full price for the gun. a.) May be important b/c lack of discount may indicate that you share his intent (evidence of my purpose b.) However, Court says this is irrelevant b/c all we require is knowledge (1) Hypo: I know Brad has a gun and hes gonna go kill his neighbor, but I dont want him to. Am I guilty of aiding and abetting if I knew he was going to do it and didnt say anything? (a) Under Ochoa & MPC, No 1) As defendant, prefer this (b) Under Backun, Yes 4.) People v. Jewel (avoidance of knowledge = willful ignorance) a.) Hypo: Brad wants to borrow my car. I know he has been talking about running someone over. I lend him the car & tell him I dont wanna know what youre going to do with it. He goes and runs someone 5.) United States v. Giovanetti: Posner changes mens rea from purpose to willful blindness 6.) MPC 2.06 Liability for Conduct of Another; Complicity: has adopted a purpose requirement a.) A person is an accomplice of another person in the commission of an offense if: with the purpose of promoting or facilitating the commission of the offense he: (1) solicits such other person to commit it; or (2) aids or agrees or attempts to aid such other person in planning or committing it

7.) Offense Culpability and Aid Culpability

a.) In case of a result crime, if the accomplice need only share the principles culpable mental state with respect to the harmful result, and need not act with potentially more culpable mental state of purpose, then we permit accomplice liability for crimes of negligence.

b.) State v. Etzweiler: The Defendant lent his car to a co-worker, Bailey, whom he knew was allegedly drunk.
Bailey drove away in the vehicle while Defendant was at work. Bailey was driving recklessly and crashed with a car being driven by Susan Beaulieu which resulted in the death of Kathryn and Nathan Beaulieu. On August 26, 1982 the Grand Jury handed down 2 indictments charging the Defendant with negligence homicide and then subsequently issued 2 indictments charging the Defendant with nelgient homicide as an accomplice. The Defendant then filed a motion to quash all indictments against him. (1) Govns theory as to why defendant was guilty of negligent homicide: (a) Initially, as a principal and later charged him as an accomplice

73

(b) Leaves jury with choice

(2) Held: an individual cannot be an accomplice to negligent homicide.

(3) Rule:

(a) For Negligent Homicide, RSA 630:3, I, The State must establish that the Defendant
failed to became aware of a substantial and unjustifiable risk that his or her conduct may cause the death of another human being. (Page 727) (b) For Negligent Homicide as an Accomplice, RSA 626:8, III, A person is an accomplice of another person in the commission of an offense if, (a) with the purpose of promoting of facilitating the commission of the offense, he aidssuch other person in planning or committing it. Furthermore, when causing a particular result is an element of the offense, the accomplice must act with the kind of culpability, if any, with respect to that result that is sufficient for the commission of the offense. (Page 727) (4) Rationale: (a) Problem = does defendant have the mens rea? 1) Sounds like purpose mens rea giving Bailey keys b/c want him to drive drunk and run over people. a) If there is a result in the crime, death, all you need is the mental state needed for Bailey negligent. I dont realize there is a risk, but a reasonable person would. (b) Court says guy needs purpose. A reasonable jury couldnt find purpose. Bailey didnt need to have this realization so makes no sense that guy should. (c) Alternative: guy has purpose intent to give key to car and let him drive and negligent regarding to death. (d) Prosecutors argument = purpose satisfied = that as long as he has purpose of promoting drunk driving 1) Arguing that anytime you are negligent and that inadvertently aids someone in committing a crime, we could hold several people liable: a) Bar tenders b) Psychiatrists (e) Grubers critique = youre not applying the mens rea to the actus reus of the crime 1) Court here agrees with Gruber a) Says that the purpose required is the purpose to facilitate the substance of the crime. b) Court has a hard time seeing how you can be purposeful in aiding someone in being unpurposeful 2) Why isnt he guilty as the principal? He was a but-for cause, but was it the proximate cause? (f) Consequences of Negligent Accessorial Liability 1) Possible Rule for Accessorial Liability: a) Mens Rea - negligence as to harm + purpose as to facilitating act. b) Actus reus An act which facilitates the crime. 2) Who could be liable for murder a) Person who gave B. the keys. b) Bartender who served B. his drinks. c) Wife who allowed B. to go drinking knowing he gets drunk. d) Psychiatrist who failed to refer B. to AA. e) Anyone else whos actions were negligent and was arguably a but-for cause of death. (g) So court also charges him w/ negligence homicide: 1) Death, causation, negligence 2) Issue here? Whether he was a proximate cause in light of the intervening cause. 3) Accessories are guilty of the crime.

c.) Not an Accomplice When: 74

(1) A person is not an accomplice in the commission of an offense if: (a) He is the victim of the offense; or (b) His conduct is inevitably incident to the commission of the offense; or (c) He terminates his participation before the crime is committed, and he: 1) Neutralizes his assistance; 2) Gives timely warning to the police of the impending offense; or 3) Attempts to prevent the commission. C. CONSPIRACY

1.) Has two very different aspects: (a) It is an inchoate crime, like attempt, it punishes anticipatory action that aims at, but does not necessarily
ever reach, a criminal object and

(b) It is a doctrine of accessorial liability that implicates all the coconspirators in each others actions.
2.) Mens Rea of Conspiracy (a) A common law conspiracy is a specific-intent offense (1) Requiring that: a) two or more persons b) intend to agree; and c) intend that the object of their agreement be achieved. (2) Common law conspiracy is complete upon formation of the unlawful agreement. No act in furtherance of the conspiracy need be proved a) Note: absence of either intent renders the defendants conduct nonconspiratorial. (3) However, courts are divided over the interpretation of intent. a) Some require that the parties have the unlawful result as their purpose and others allow conviction for conspiracy based on the parties mere knowledge that such result would occur from their conduct. 3.) Actus Reus of Conspiracy (a) Common Law conspiracy: agreement was the actus reus (b) Modern Law: today, many statutes require proof of the commission of an overt act in furtherance of the conspiracy. (1) In jurisdictions requiring an overt act, the act need not constitute an attempt to commit the target offense. a) Instead, any act (and perhaps an omission), no matter how trivial, is sufficient, if performed in pursuance of the conspiracy. b) Rule: a single overt act by any party to a conspiracy is sufficient basis to prosecute every member of the conspiracy, including those who may have joined in the agreement after the act was committed. (2) Most states apply the overt-act rule to all crimes. 4.) Nature and Agreement (a) State v. Verive: (how to tell whether conspiracy is a lesser offense of attempt) Woodall filed a false affidavit with a trial court in relation to a civil litigation and Lee Galvin filed an affidavit exposing Woodalls perjury. Upon learning of this, Woodall and Defendant agreed that the D would go to Galvins home and beat him up in an effort to dissuade him from becoming a witness against Woodall with the extra incentive of 900 dollars and a motorcycle. On December 3, 1973 D drove to Galvins home with a friend, both men were drunk, and beat him until his son rescued him. In 1978 after securing immunity from prosecution Woodall became willing to testify against the Defendant. was then charged with: (1) conspiracy of the second degree and (2) attempt to dissuade a witness.

(1) Rule: When each offense requires proof of a fact not required by the other, D can be charged with both. 75

(2) Conspiracy a crime in and of itself but the main complete crime didnt happen
a) Distinguishable from accessorial liability, where is guilty of the crime principle committed (3) Identical elements test after eliminating the evidence necessary to support one of the charges, the remaining evidence must be sufficient to support the remaining charge; court is okay with it a) Conspiracy requires an unlawful agreement with one or more persons to engage in the commission of a felony or to cause the commission of a felony 1) Essential for the second degree is proof of some overt act to affect the object of the conspiracy one must be alleged in the indictment and proved. b) The court notes that more than one overt act was alleged in the indictment and that either one of the them was sufficient to support the conspiracy charge 1) Since D went to Galvins house pursuant to the agreement he made with Woodall to dissuade Galvin from testifying. 2) Eliminating this evidence, the court notes that there is still enough remaining evidence of an overt act sufficient for a conviction of attempt. (Identical Element) (4) Blockburger Test Distinguishable Test relates to double jeopardy 5th Am cant be punished twice for the same crime or a lesser offense of the same crime; a) Distinguishable test where the same act or transaction constitutes a violation of two distinct statutory provisions, the test to be applied to determine whether there are two offenses or only one, is whether each provision requires proof of an additional fact which the other does not. b) Lesser included offenses? 1) Crime 1 contains elements A, B, and C o E.g. Assault with intent to kill elements: 1. a touching; 2. against the will of another; 3. with the intent to kill. 2) Crime 2 contains elements A, and B. o E.g. Assault elements: 1. a touching 2. against the will of another. 3) Crime 2 is a lesser included offense of crime 1 o Assault is a lesser included offense of assault with intent to kill When person convicted of assault with intent to kill, then cant be convicted with assault they merge together c) Separate Offenses? 1) Crime 1 contains elements A,B,C, and D 2) Crime 2 contains elements A,B,C, and E. 3) Crime 1 and Crime 2 are separate offenses Example: o Carrying a concealed weapon: 1. possession of a weapon; 2. carried on or about the person 3. in a concealed manner. o Possession of an unregistered firearm: 1. possession of a weapon 2. the weapon is unregistered. o The may be charged and convicted of both crimes d) Applying Blockburger Test to this scenario = conspiracy & attempt are separate offenses 1) Conspiracy elements: Intent to dissuade Overt act

76

 Agreement 2) Attempt elements : attempt to dissuade an Overt act 3) Application of Blockburger test Attempt is not a lesser included offense of conspiracy b/c the overt act required is for conspiracy is different from the over act from attempt Therefore, doesnt violate double jeopardy

Conspiracy & Attempt

Elements of Conspriacy Intent to dissuade Overt Act Agreement Elements of Attempt Intent to dissuade Overt Act

Attempt is NOT a lesser included offense of conspiracy because the overt acts are different.

Overt act attempt v. conspiracy

No agreement regarding the crime

Preparatory Acts
No crime Agreement regarding the crime

Substantial Steps
Attempt

Preparatory Acts

Substantial Steps
Attempt Conspiracy

(b) State v. Burleson: (when there 2 separate agreements, can be convicted of 2 separate conspiracies, so long
as one isnt the lesser included offense of another crime being charged) The and his ally, Brown, met on September 11 to plan a bank robbery for Sept. 13. When they got to the bank on the 13th they noticed that too many people where there so they decided to merely practice their approach to and escape from the bank and then decided to rob the bank on the 16th. On the 16th Burleson and Brown arrived at the bank wearing disguises and carrying shotguns and suitcase. As they approached the bank it was bolted from the inside and Burleson and Brown escaped by car but where later arrested. Burleson was convicted of conspiracy to commit armed robbery for his actions on the 13th and for both conspiracy and attempt for his actions on the 16th. (1) Held: The court did not rule the conduct in a singular senseinstead, the court notes that the conspirators actions originate in separate agreements or impulses to rob the bank on separate dates. (2) When they attempted to rob the back on the 13th the conspirators first agreement came to an end. The attempt on the 16th was not the result of the original agreement, but of a fresh agreement

77

(c)

(d)

(e)

(f)

(g)

which was entered into after. The court only reverses the Ds conviction for the conspiracy of September 16th because it is a lesser included offense of attempt. United States v. Shabani: (criminal agreement is the actus reus of a common law conspiracy) The court noted that whereas the general federal conspiracy law, 18 USC 371, requires that a conspirator do any act to effect the object of the conspiracy, Shabani was prosecuted under the more specific law proscribing conspiracy to distribute cocaine which does not require that an overt act be mentioned in the indictment or proved at trial. To the argument that without an overt act the legislature would be punishing mere thought the court responded that the criminal agreement itself is the actus reus. Rutledge v. United States: (cant be convicted for both a conspiracy and lesser included offense) the Supreme Court held: that the D could not suffer separate judgments for both general drug conspiracy under 846 and a continuing criminal enterprise arising from the same transaction even if the sentences were concurring because the 846 generic conspiracy was a lesser included offense of the 848 crime. [the 848 crime makes it a special continuing criminal enterprise crime for a person to commit any of several drug-related crimes in concert with five or more person with respect to whom such persons occupies a position of organizer, a supervisory position, or any other position of management.] Callanan v. United States: (when part of a conspiracy, you can be held liable for any crime one of the members commit, even if it was unrelated to the object of the conspiracy) the D was convicted of a conspiracy to obstruct commerce by extorting money, as well as the substantive offense of obstructing commerce by extortion, and was sentenced to constructive terms of 12 years on each count. The D is concerned with the punitive consequences of the choice open to the Government because it can indict D for both or either offense, but D believes he can only be punished for one. (1) RULE: Combination in crime makes more likely the commission of crimes unrelated to the original purpose for which the group was formed. In sum, the danger which a conspiracy generates is not confined to the substantive offense which is the immediate aim of the enterprise. Commonwealth v. Donoghue: (can be convicted of common law conspiracy even if the object of the conspiracy was not a crime itself, or even an unlawful act) the court upheld an indictment charging conspiracy to violate the usury laws, even though Kentuckys usury law was non-criminal and provided as its sole sanction that the leader remit the excessive interest: (1) RULE: Without the combination of men attempting to accomplish the objects. They had only the essence of crime, but by means of the conspiracy, an unfair and mischievous advantage of the aggressors is recognized, and the acts are presented in such definiteness that they can be taken hold of and punished. Griffin v. State: (evidence of a conspiracy doesnt have to be direct evidence) Griffins car overturned in a ditch and the police where called. When they arrived at the scene there was a crowd of people gathered there. Vines asked whether anyone was hurt and who was driving the car. Griffin responded claiming that he was and that he was not scaredtake me GD--- you, if you can and started toward Officer Vines with his fists. Vines sprayed Griffin with mace to no avail. Soon Griffin was hitting Vines and the crowd had joined in as well, some hitting Vines and the others hitting his partner Ederington. Vines fearing for his life and that of his partner fired his pistol at Griffin who then backed away. At some point Vines was supporting himself on a fence, telling those around Griffin to come get him if they did not want him to get shot again. At that time Griffin was still trying to approach Officer Vines. Griffin was then convicted of assisting in and conspiring to assault an officer. Government has no direct evidence, only circumstantial evidence. (1) Held: where the testimony shows a concert of action, between the persons alleged to have jointly committed a crime, or the person charged and another, it has been held sufficient to establish the necessary common object and intent of conspiracy. (2) RULE: It is not necessary that an unlawful combination, conspiracy or concert of action to commit an unlawful act be shown by direct evidence that it may be proved by circumstantial evidence. a) It may be inferred, even though no actual meeting among the parties is proved, if it be shown that 2 or more persons pursued by their acts the same unlawful object, each doing a part, so that the acts, though apparently independent, were in fact connectedwhere the testimony shows a concert of action, between the persons alleged to have jointly committed a crime, or the person charged and another, it has been held sufficient to establish the necessary common object and intent.

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(3) Evidence of Conspiracy:

a) Direct evidence b) Audio or video recordings of agreement c) Confession d) Witness testimony regarding agreement e) Circumstantial evidence f) Timing of communication between parties g) Possession of items involved in crime h) Presence and actions during the crime (4) Rationale: a) Find that it would be extremely hard, if not impossible to ever produce direct evidence of a conversation or meeting among the assaulters during the period intervening between the call and the alleged challenge provided by Griffin, unless one of the participants elected to tell of it. b) Therefore, the necessary assent of mind needs to be inferred from proof of facts and circumstances which taken together indicate that they where parts of a whole. (h) United States v. Cepeda: (mere possession of a drug alone is not evidence of conspiring with unknown others to distribute drugs) the D was convicted of conspiring with others unknown to distribute, or to possess with intent to distribute cocaine. The overt acts that they cite in the indictment to support the conspiracy charge is possession of .41 grams of cocaine, residue on two plastic bags, and a clear plastic bag containing 6.8 grams of Lactose, some scales, Ziploc bags, and a cardboard box inscribed Deering Grams Scale as well as 4 mental measuring spoons, $1,151 in cash, pictures, a beeper, telephone books in an apartment owned and lived in my Cepeda and her son. The sole witness for the prosecution testified that all of the evidence points to a cutting operation in which the cocaine is cut, repacked, and sold. Cepeda claims the money was from off the book jobs and gambling wins. After a 2 day jury trial she was convicted and sentenced to 2 years probation on the condition that she engage in drug or psychiatric counseling and 150 hours community service. (1) Overturned: The court notes that the court is making too many inferences because there is no evidence of a sale nor can Ds intent to enter into a conspiracy be inferred from the presence and her mere possession of paraphernalia usable, or inferably previously used, in drug-cuttingnotes what was found can be for personal use and the money has explanation as well. (i) People v. Colon: an undercover testified that: D passed a glassine envelope to a womanhe approached, said uno handed D a marked 10 dollar bill and was given a glassine envelope. Right after the sale a description of the seller was given to the officer who arrested himhowever, when they searched the D all they found was the 10 dollars in unmarked bills and neither drugs nor the marked money was recovered. When they took the case to court they had a third officer explain street-level narcotic transactions. (1) Held: the expert testimony was wrongly admitted and it could only be offered to the jury after the state otherwise established a factual basis for the conspiracy. (2) RULE: conspiracy has to be established before the experts testimony can be admitted and since no evidence of the conspiracy was found on the D, the testimony cannot be admitted. (j) U.S. v. Rahman: (criminal agreement is the actus reus of common law conspiracy) The government sought to prove that the Defendant and others where joined in a seditious conspiracy to wage a war of urban terrorism against the United States and took the following actions in furtherance of their cause: the attempted murder of the Egyptian President, providing assistance to the bombing of the WTC, and the campaign of attempted bombings of buildings and tunnels in NYC. The Defendant, a blind Islamic scholar and cleric was the leader of the conspiracy group and alleges that he has limited contacts with most of the other defendants and that he is physically incapable of participating in the operational aspects of the conspiracies due to his blindness and further, that there is little direct evidence of his knowledge of many of the events in question. (1) Held: The evidence shows that Defendant was in constant contact with the others, he was seen as the leader, and that he encouraged violent acts against the US which is enough to prove that he was a party to the illegal agreement thereby making the charge of conspiracy valid.

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(2) RULE: when conspiracy is charged, the government is not required to show that the Defendant
personally performed overt acts in its furtherance: it is sufficient for the D to join in the illegal agreement.

5.) Withdrawal (a) People v. Read: (withdrawal is not a complete defense to the crime of conspiracy) s were convicted of
conspiracy to commit securities fraud and mail fraud for artificially inflating their companys year-end inventory over a 5 year period. One of the Ds claims he withdrew from the conspiracy more than 5 years before the indictments were filed and hence the statute of limitations had run. (1) Held: If a successfully withdraws he is still liable for his previous acts in the conspiracy, but is not liable for those done in the future. Therefore, withdrawal is not a complete defense to the crime of conspiracy. a) Statute of Limitations: a s withdrawal from the conspiracy starts the running of the Statute of Limitations (SOL) as to him, so if the indictment is filed more than 5 years after a D withdraws, the SOL bars prosecution for his actual participation in the conspiracyso he cannot be held liable for acts or declarations committed in the 5 years preceding the indictment by the other conspirators because his withdraw ended his membership in the conspiracyso only a defense when combined with the SOL. b) Why would someone withdraw from a conspiracy? Can be held liable for any & all acts of co-conspirators (2) RULE: A defendant may withdraw by: (1) Notifying co-conspirators that he will no longer participate in the undertaking OR (2) Engaging in acts inconsistent with the objects of the conspiracy.

Withdrawal (Read)

Beginning of conspiracy

Withdrawal by Defendant

Statute of Limitations runs from last act of any co-conspirator.

Statute of Limitations runs from withdrawal of defendant even if conspiracy is on-going

(b) MPC: withdrawal is an affirmative defense only when the Defendant has thwarted the success of the
conspiracy, under the circumstances manifesting, a complete and voluntary renunciation of his criminal purpose and will have a complete defense. (1) Makes it difficult to withdraw (2) But if you withdraw, gives you a complete (affirmative) defense (3) Flipside to MPC: only by withdrawing can I get out of conspiracy and the Pinkerton rule problem is MPC makes it really hard to withdraw.

6.) The Pinkerton Rule (a) Pinkerton: 2 brothers where convicted of conspiracy to violate the Internal Revenue Code. Both were
convicted of a number of substantive offenses namely removing, depositing, and concealing a large quantity

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of distilled spirits without paying the appropriate tax. The Defendant contends that while some of the offenses where committed he was in the penitentiary and so he could not be implicated in the offenses. (4) Held: since his brother had committed these crimes in furtherance of the conspiracy of which the D was a member, the D was liable for them, especially since he made no effort to withdraw from the conspiracy. (5) Pinkerton Rule: a conspirator is liable for acts of any con-conspirator in furtherance of the conspiracy that are natural and foreseeable consequences of the conspiracy. a) The acts must occur prior to any withdrawal from the conspiracy b) If the acts are not foreseeable consequences of the conspiracy, D cannot be held liable

(b) United States v. Diaz: (if guilty of conspiracy, can also be guilty of something that the co-conspirator might
do) Perez was just beginning to deal in drugs and Rodriguez introduced him to Diaz who sold cocaine and agreed to supply Perez with some. On 2 occasions Perez sold drugs to an undercover agent of the DEA. However, Diaz was not present at either sale. On September 9, 1987, Perez, Rodriguez, and Diaz where suppose to meet with Agent Collins to sell one kilogram of cocaine. Mr. Diaz was late in arriving as was Peirallo who brought the drugs. The Agent was also late to the meeting. Once all of the players arrived there was much movement with the arrangement of the gun and such, i.e., the raising of the hood. Soon after, Perez got out of DEA agents car and was warned that Peirallo had a gun. When Perez took the Agent the drugs the arrest signal was given. Diaz was convicted of conspiracy to distribute cocaine, possession, and distribution of cocaine, and use of a firearm in relation to a drug trafficking crime. (1) Held: each conspirator may be liable for acts of every other conspirator done in furtherance of the conspiracy. a) I.e., under the Pinkerton Rule Diaz can be validly charged with carrying that firearm (2) Rationale: a) Conspiracy? 1) Overt act? Yes 2) Agreement? Yes 3) So yes, there is a conspiracy b) Applied the Pinkerton Rule 1) Using the Rule, the court determined that Periallos possession of a gun during the cocaine sale may be imputed on Mr. Diaz. 2) The court also noted that it was foreseeable that Periallo would bring a gun to a drug street transaction due to the dangerous violent business that is illegal drug dealing. 3) Does not have to do with the foreseeability of a consequence to the person, but of the conspiracy, so minor player or major player does not matter. (3) Hypo: What if Peirallo had shot someone? Could Diaz be guilty? a) Is it a reasonable consequence that in furtherance of a drug deal, a person could get shot? 1) Yes, therefore, Diaz can be guilty under Pinkerton (4) What if youre the guy whose job it was to unload the drugs onto the dock? 5 conspirators down the line, a cop gets shot. Are you guilty? a) Yes b/c this is a foreseeable consequence 1) Doesnt matter how you got involved in the conspiracy. (5) Grubers advice regarding conspiracies: a) First dont join in a conspiracy b/c you can be guilty for something you didnt even know was going on. b) 2nd piece of advice = if you are party of conspiracy get out!! (see Read for how to) a. Statute of Limitations Timeline: Beginning of conspiracy Statute of limitations runs from last act of any co-conspirator Withdrawal by Defendant Statute of limitations runs from withdrawal of defendant even if conspiracy is ongoing.

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b.

Read rule = Conspiracy lasts until the last act of the last co-conspirator UNLESS, you withdrew c. MPC makes it quite difficult to withdraw from a conspiracy a. You have to thwart success of the conspiracy i.e., you have to try to stop them b. What do you get if you withdraw MPC style? a Complete (Affirmative) Defense c. Flipside to MPC only by withdrawing can I get out of conspiracy and the Pinkerton rule problem is MPC makes it really hard to withdraw.

Withdrawal and Pinkerton

Beginning of conspiracy

Withdrawal by Defendant

Defendant liable for acts of coconspirators in furtherance of the conspiracy.

Defendant not liable for acts of co-conspirators.

COMMON LAW Mens Rea General Intent Specific Intent Strict Liability MPC STANDARDS Mens Rea Purposely Knowingly Recklessly Negligently State of Mind Required Conscious desire to engage in the conduct Awareness that the conduct is of a particular nature or that it will cause a particular result (Almost Certain is key!) Conscious disregard of a substantial or unjustifiable risk Failure to be aware of a substantial or unjustifiable risk State of Mind Required Intent to commit the act which constitutes the crime. Intent to do some further act or cause something additional No requirement of mens rea (or very little/limited)

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