Thompson Crim Outline
Civil v. Criminal Law
Since Criminal Law involves using the coercive power of the state against individuals, it has significantly stronger protections
for individual rights.
• Civil law covers disputes among private
parties. Criminal law is state v. citizen. Prosecutors have lots of discretion and represent
the state.
• Criminal Law has a much higher burden of
proof: beyond a reasonable doubt rather than
preponderence of evidence. Even if you can’t
get someone for a crime, you can often get
him in a civil suit.
• Civil law assesses compensatory damages,
rarely punitive. Criminal law is all about punishment. And lifelong stigma.
• Much of civil law comes from the common
law – judges’ decisions. Criminal law largely
doesn’t allow common law crimes.
• Civil law isn’t impacted that much by the
Constitution. But the bill of rights and habeas
corpus are huge in criminal law.
• No consent defense in criminal law.
• No comparative liability in criminal law.
• Causation isn’t central in criminal law.
• Unlike torts, Strict Liability is in decline.
• Criminal law isn’t ultimately about harm to
individuals, but rather harm to society.
Principle of Legality
For criminal liability, a reasonably specific
law making the conduct criminal must exist at the time of the conduct.
• If there isn’t notice, there’s a due process
issue. Also an ex post facto issue.
• Question of whether we allow common-law
(judicially created) crimes. Most states do not
allow this, though some do. Commonwealth
v. Mochan. UK does allow, but happens rarely. Shaw.
• Example of homicide statute in Keeler v.
Superior Ct. Didn’t clearly cover the unborn,
so can’t apply it to defendant.
Vagueness Doctrine
A law that renders certain acts criminal
must be reasonably specific.
• Has to be fair warning. Otherwise the potential for tyranny is too high. Due process
issue.
• Linked to principle of lenity – ambiguous
statutes interpreted in favor of the defendant.
Example of McBoyle v. US – whether an airplane counted as a “vehicle” under the Nat’l
Motor Vehicle Theft Act. Court says to apply
there would be too vague.
• Also the vagrancy statutes in Papachtistou
and Morales. So vague that they could cover
almost anything. Give too much discretion to
the police.
• That doesn’t mean everything has to be
clear. Law can force people to guess how a
jury would rule. Nash v. United States.
Free Speech Doctrine/Overbreadth Doctrine
Don’t want to criminalize protected speech
and political acts. If a statute could be
used to prohibit protected speech, can challenge Constitutionality.
Principle of Lenity
If a statute is unclear, then the ambiguity
must be resolved in favor of the defendant.
• Example of US v. Dauray, question of
whether individual loose photos of kiddie
porn count the same as a full magazine. It’s
unclear, so court decides no.
• If the statute is not clear, don’t want to give
state power on the margins.
• Only in a very close case. Still go through
the whole statutory interpretation process.
Purposes of the Criminal Law
Retribution
Reform/Rehabilitation
By
punishing
someone, you impress on him
People are moral actors and need to be
the wrongness of what he’s done and teach
punished based on the greviousness of their
him to be a better person.
deviations from morality.
• This idea evolved out of Quaker moral
• Strong retributivism – a culpable moral act
thought and led to the penitentiary system.
is necessary and sufficient for punishment. If
• Doesn’t work with retributivism well – if
there is no moral wrong, you can’t punish. If
the guy is reformed, do you let him out?
there is, you must punish. Kant.
• American prisons aren’t effective at reform
• Weak retributivism – The culpable moral
at all – they actually create criminals.
act is necessary but not sufficient. To deter• But once reform drops out as a rationale,
mine whether and how much to punish, you
discretionary sentencing is suspect.
can look at deterrence, reform, etc.
• Question of holding people to standards
they can’t meet – Dudley and Stephens.
Alternative Sentencing
• Hart was a weak retributivist. DAR studied
There are other penalties besides prison
under Hart.
and fines that could serve the purposes of
the criminal law.
• Example of shaming in Gementera, the
Deterrence
sandwich board case. Covers retribution and
By punishing crimes, we deter people from
deterrence.
committing future crimes.
• General deterrence – deterring others from
committing future crimes.
Harm Principle
• Specific deterrence – deterring the specific
J.S. Mill argues that an act may not be
criminal from doing something again.
criminalized unless it causes harm.
• Retribution constrains deterrence. With
• Uncertain about harm to self.
deterrence alone, you could punish innocent
• Devlin: society is based on shared moral
people to deter others (or not punish people
values. If you undermine those, it will disinand say you did.)
tegrate.
• Bentham – criminals make rational calcula• This has been vindicated over time. Wolftions. The law wants to make them decide
enden commission. Griswold. Lawrence.
not to commit crimes.
(Roe?).
• Two things necessary to deter – certainty
that the criminal will be caught, and severity
Right to Intimate Life
of the punishment. Certainty deters more, but
Richards views GriswoldRoeLawUS is better at severity than certainty.
rence as reflecting a “right to intimate life”
Incapacitation
By imprisoning a criminal, we keep him
from committing more crimes.
• Scientific evidence seems to find this the
aspect of our system that’s most successful.
• Idea of keeping “career criminals” out of
society until they grow out of it. But there’s a
false positive problem.
• What about crimes of passion? They won’t
do it again. Why punish at all?
in the Constitution that is protected from
criminalization. And reflects the harm
principle.
• In many of these cases there isn’t a compelling nonsecular justification for criminalization. Roe is the obvious exception.
Corporate Criminality
There are very real harms in areas like
products liability that have given rise to
calls for vicatious liability of corporations
and corporate executives. Does the harm
principle mean they should be liable?
Euthanasia
Passive Euthanasia is allowed because
there is a constitutional right to refuse
treatment. Cruzan. But active euthanasia
(helping someone to kill themselves) is not
protected by the Constitution and states
can prohibit it. Glucksberg.
• There is a constitutional right to refuse
treatment. At common law, forced medication was a battery. But there has to be “clear
and convincing evidence” that the person
wanted treatment stopped.
• But there are real concerns about active euthanasia – medical ethics, potential for exploitation (people encouraging the elderly to die)
and a slippery slope toward involuntary euthanasia. But the court left itself open to an
as-applied case.
Actus Reus
Acts
A person can only be held criminally liable
if there is a culpable voluntary act.
• Five exceptions: reflexes, unconsciousness,
sleepwalking, being physically carried.
• NY Penal law §15.10.
• No actus reus is a complete defense. If it’s
granted, the defendant walks free.
• In Martin v. State, a statute criminalized
anyone drunk on a highway. Martin is drunk,
but cops carry martin onto a highway, then
charge him. No actus reus.
• Example of People v. Newton. Newton
claimed he was in shock and didn’t remember
anything. Was entitled to raise that defense
(unconsciousness).
• Prior knowledge can get around an actus
reus issue. Decina case – defendant got behind the wheel knowing she had epilepsy.
Driving the car was the actus reus, knowledge
was the mens rea.
• There’s kind of a spectrum of voluntariness.
Alcoholism  Addiction  Insanity  Epilepsy.
Concurrence Requirement
To be liable, the defendant must have the
mens rea at the time he commits the actus
reus.
• If I want to kill you, get over it, then have a
non-negligent car accident later that day that
kills the person, no liability.
Status Crimes
The Constitution requires an actus reus for
criminal liability. Status crimes are unconstitutional.
• Example of Robinson v. California, where a
law making it illegal to be addicted to drugs
was struck down.
• But this isn’t the case for civil commitment.
There sickness is enough.
• Though there are limits to this and the actus
reus can be weak. In Powell v. Texas, the
court upholds an alcoholic’s conviction for
being drunk in public. He might not have
been able to control his drinking, but he acted
by going out in public. And prison with a defined term might be better than inefinite civil
commitment.
Omissions
There are four areas where an omission
counts as an actus reus: 1) statutory obligations, 2) status obligations (e.g., being a
parent), 3) Contractual obligations, and 4)
Going to help or creating a risk.
• Most cases do not extend status liability in a
family beyond parents or spouses.
• In Jones v. US, a baby gets left with Jones,
a family friend. Jones doesn’t care for it.
Baby dies. But Jones isn’t actually a parent,
so no liability.
• In Pope v. State, a non-mother sees a child
badly beaten, does nothing, baby dies. No
liability.
• Question: is there contract/risk creation?
• Reason for policy: want to encourage relationships.
• In much of Europe, there is duty to aid.
• Getting something defined as an omission
makes it easier to get off. Example of doctors
in Barber v. Superior Court who removed
feeding tube.
Mens Rea
INTENT
“A person acts intentionally…when his
conscious objective is to cause such result
or engage in such conduct.” NYPL §
15.05(1).
• Can’t impute intent from one act to another.
Regina v. Cunningham. One (BIG) exception: Felony Murder.
• Substantial certainty doctrine: if defendant
means to do everything up to an end and
knew with a substantial certainty that the end
would result, he is deemed to have intended
that end.
• Intent is different from motive. Intent
means to intend something to happen. Motive
is the reason for doing something. Motive
comes in on sentencing.
Deadly Weapon Doctrine
Use of a deadly weapon creates a rebuttable presumption of intent to kill.
KNOWLEDGE
“A person acts knowingly…when he is
aware that his conduct is of such nature or
that such circumstance exists.” NYPL §
15.05(2).
• “Ostrich instruction” – if someone is reasonably aware a crime is going on but is willfully blind, knowledge is imputed. US v.
Jewell.
RECKLESSNESS
“A person acts recklessly…when he is
aware of and consciously disregards a substantial risk that such result will occur or
such circumstance exists.” NYPL 15.05(3).
• In NY, voluntary intoxication counts as
recklessness, even if the defendant doesn’t
actually foresee the risk.
• In NY, Reckless homicide is Man 2.
Voluntary Intoxication
Under NYPL § 15.05(3), if the only reason
someone isn’t aware of the risk is voluntary
intoxication, he is reckless.
Specific vs. General Intent
Some crimes – that require intent,
knowledge, or recklessness – are specific
intent crimes. They require some sort of
actual mens rea. Negligence and strict liability are general intent – they require no
specific mental state.
• Easy way to keep track – if you’re Leningrad (blackout) drunk, incapable of meansends reasoning, you can’t be aware of a risk
or intend a consequence, but can still be guilty
of general intent crimes.
• Example: Assault is intent to commit a battery. If you’re Leningrad drunk, you can’t
intend the battery.
• This is a high standard. Mere disinhibition
does not mean no mens rea.
• Key distinction: can you use means/ends
reasoning?
• And again, in NY, voluntary intoxication
allows for recklessness, which is specific intent.
• Specific intent means mistakes of fact can
exculpate.
• Attempts are all specific intent crimes.
CRIMINAL NEGLIGENCE
“A person acts with criminal negligence…when he fails to perceive a substantial and unjustifiable risk that such result
will occur or that such circumstance exists.
The [negligence must] constitute a gross
deviation from the standard of care that a
reasonable person would observe. NYPL §
15.05(4).
• The standard is significantly higher than
tort negligence.
STRICT LIABILITY
Strict liability exists in criminal law, but
only in pockets, and they are controversial.
In general, strict liability is appropriate
only for “regulatory crimes” that are punished by fines. Prison or other penalties
require mens rea. Morrisette and Staples.
• Under NYPL §15.15(2), if a statute is unclear on mens rea, you never impute strict liability.
• Only strict liability crimes remaining: statutory rape, felony murder, and rape. All controversial.
Statutory Rape
In New York, statutory rape is strict liability. NYPL 130.25-35.
• In Regina v. Prince, formerly the leading
British case, the court said the act of statutory
rape was wrong in itself, so someone does it
at his own risk. Even if he didn’t know she
was 18 and no reasonable person would think
so, he is still strictly liable.
• In People v. Olsen, California establishes
strict liability for girls under 14, negligence
for girls 14-17.
• In B (a minor) v. Director of Public Prosecutions, Britain overrules Prince and establishes an intent standard.
• In America, there has been the same movement away from strict liability, but no desire
to make it a specific intent crime. Negligence
is usually what courts go for. But there are
plenty of states, including NY, that use a strict
liability standard.
Vicarious Liability
In certain circumstances, a superior can be
criminally liable for the a subordinate’s
acts, but not if prison is an option. State v.
Guminga.
∫• But is acceptable for regulatory offenses.
Example of vicarious liability for cruise control speeding in State v. Baker.
Corporate Vicarious Liability
In cases where only a fine is involved, there
can be a rebuttable presumption of strict
liability for the CEO for subordinates’ actions, but if prison is involved, there must
be a mens rea requirement.
• In Gordon v. US, SCOTUS strikes down a
law that imputes knowledge from an employee to a CEO.
• They walk back a little in US v. Park.
There Park received a letter informing him of
the violations, but did nothing. The court allows strict liability, but says you can’t hold
someone liable for something they would be
powerless to change.
• There is no liability if the defendant can
show he did everything possible to alleviate
the situation (hyper-reasonableness).
• So it’s sort of strict liability as a rebuttable
presumption. Negligence-esque. There’s
strict liability, but if you meet the standard,
you’re fine.
• Or is it a status crime?
• Park only involves a fine. In US v. MacDonald & Watson Waste Oil Co., the court
refuses to allow strict liability when jail is involved.
• Counterargument – only jail time actually
deters corporate criminals. They aren’t fazed
by fines, and corporations are often structured
in a way that shields executives from liability,
so we need strict liability if we’re ever going
to get them.
Individualization
We never individualize for IQ, Neuroses,
Excitability, Alcoholism and Prejudice
Ignorance of Law
In general, ignorance of the law is not an
excuse. NYPL § 15.20.
• But a mistake of fact can exculpate if it
negatives the mental state required for the
(specific intent) crime. For example, larceny
involves intending to take someone else’s
property. If you mistakenly think the property is yours, then you don’t have the required
mens rea.
• In US v. Cheek, SCOTUS decides as a matter of policy that a mistake of fact can exculpate when someone files taxes wrong.
• In Ansaldi, they decline to extend that to the
drug trade.
• NYPL §15.20(2)(d) says that reasonable
mistake can exculpate if it involves relying on
a legal interpretation made by a public official
that administers or enforces the law.
• Same when relying on a judicial decision.
NYPL §15.20(2)(c).
• While it’s assumed that people know the
law, there has to be some sort of fair notice
requirement. Example of registration requirement in Lambert.
• In general, relying on a lawyer’s advice is
not a defense.
• DAR looks to Lambert and Albertini to
show that if ignorance of law is prosecuted in
a way that is unfair, the Due Process clause
will protect citizens.
Proportionality
Three factors are relevant to determining if
a sentence is out of proportion with the
crime and violates the 8th Amendment: 1)
the gravity of the harm and the harshness
of the penalty, 2) the sentences imposed on
other criminals in the same jurisdiction,
and 3) the sentences imposed for the same
crime in other jurisdictions. Ewing v. Cali.
• In Ewing, O’Connor says for the majority
that only if the first principle is out of line do
you look at the other two. And that the first
principle is pretty flexible.
• Dissenting, Breyer says that to look at the
first principle, you look at 1) the length of the
prison term, 2) the crime that triggered the
term, and 3) the offender’s prior behavior.
And he thinks the Cali three-strikes law fails.
• Bentham has a forward-looking view where
proportionality ensures that there are incentives for low level criminals not to commit
more serious crimes. JF Stephen says that
proportionality ensures that legal penalties are
in line with underlying moral judgments.
Death Penalty
• Before Furman, the death penalty was left
completely up to juries. Very arbitrary.
• Furman banned it, but in Gregg the Court
allows it if there’s a bifurcated procedure
where the 2nd step looks at the full life of the
killer, all aggravating and mitigating factors.
DAR says this is to mitigate the effect of race.
• Atkins- can’t execute the retarded. Roper –
can’t execute juveniles. They are less culpable and less deterrable.
• Coker- can’t execute for rape. Emmundcan’t execute for accessorial liability (defendant doesn’t have the mens rea).
• In McClesky, the court ignores significant
statistical evidence about racial bias in death
penalty sentencing. They say there isn’t
enough evidence, and the argument could apply to all other sentencing too, so they won’t
touch it.
Rape
A Massive Social Shift
DAR says we are in the middle of a massive
social shift with respect to rape law.
Patriarchal
Consent based
No interspousal
rape
Rape is genderdefined (and
gays don’t exist).
A major emphasis on violence
(rather than absence of consent)
Suicidal resistance required.
Interspousal rape
forbidden
Not gender defined
Not available to
sexually active/free women
Available to everyone
Emphasis on
consent/lack of
consent.
No resistance requirement
Common Law Elements of Rape
• Force
• Lack of Consent
• Penetration
Force
• State v. Rusk shows the old idea of force.
Judge overturns verdict against defendant because the woman didn’t resist “to the utmost,”
even though defendant choked her. Similarly,
in People v. Warren, the defendant picked the
victim up and carried her away, again failure
to resist used to overturn conviction.
• The law has come to understand there can
be nonphysical force. MPC standard is real or
implied force – “threat that would prevent resistance by a woman of ordinary resolution.”
• NY requires physical force or a threat.
130.00 Cali includes psychological force.
• Can’t criminalize pressure – like economic
pressure in State v. Lovely (drifter case).
• But in State in the interest of MTS, penetration itself is enough for force. NJ only.
Deception
In New York, there must be force for rape.
In California, the distinction is between
fraud in the fact (rape) and fraud in the
inducement (seduction).
• Example of Boro v. Superior Court, where
the victim thought that having sex with an
anonymous donor was the only way to cure a
disease. She still consented to have sex (the
fact), even though she was induced to do so
by fraud. No liability.
Mens Rea
New York has a negligence standard for
Rape Three, NYPL §130.05(2)(d), and is
strict liability for Rape One and Two (but
there is a force requirement). 130.30, 35.
• If there was an intent standard it would be
nearly impossible to ever convict.
• Four possible conseptions of nonconsent.
1) Affirmative no plus other behavior that
makes unwillingness clear, 2) verbal resistance alone, 3) verbal resistance or passivity/silence, or 4) affirmative yes.
Corroboration
Many states used to require corroboration
for rape. Fear of false accusations.
Shield Laws
Prevent defendants from bringing up victims’ sexual histories.
• But sexual history can be relevant. Example of State v. DeLawder where the victim
thought that she was pregnant by someone
else and needed to make a story to explain it.)
Or Neeley v. Commonwealth, where defendant was convicted because of a black hair in
victim’s vagina, but wasn’t allowed to show
that the victim’s boyfriend was black.
• Kennedy Smith trial – prior sexual history
of alleged rapists is excluded because prejudicial. Shouldn’t the same be true of victims.
• Big issue of whether rape victims should be
allowed to be examined by psychiatrists.
Homicide (Life on the Street!)
Premeditation
• Largely abandoned. Traditionally the distinction between Murder One and Two. NY
does not have this.
• Commonwealth v. Carroll is an example of
how premeditation was found in a snap decision to kill. Use of a gun, deadly weapon
doctrine, rebuttable presumption of intent.
• And Anderson, the tremendously brutal
murder of a 10 year old girl, is the opposite.
Morally terrible, worse than Carroll, but no
premeditation.
• And cases like mercy killings where there is
premeditation, but we would want mitigation.
Voluntary Manslaughter Mitigation
A defendant can get a murder charge mitigated to manslaughter if he acted under the
influence of extreme emotional disturbance
for which there is a reasonable explanation
or excuse. NYPL §125.25(1)(a).
DAR: Murder can be mitigated down to voluntary manslaughter if: 1) there is reasonable
explanation or excuse, 2) there is causation
between the excuse and the act, 3) there is not
a reasonable cooling down period, and 4) the
defendant has not cooled down.
• Traditional rationales for manslaughter mitigation: extreme assault/battery, mutual combat, defendant’s illegal arrest, injury or serious abuse to a close relative, or sudden discovery of spouse’s infidelity.
• Plays a big role when the person doesn’t die
– VMM can be the difference between assault
with intent to kill and garden variety assault.
• VMM is based on a reasonable person
standard. But there are limits. In Casassa, a
NY court rules that the reasonable person
standard does not take neurosis into account.
• In NY, the standard is a reasonable person
in the defendant’s circumstances as he believed them to be.
• Because of difficulties with an individualized standard, Britain has gotten rid of VMM
and replaced it with diminished responsibility.
• Key: VMM mitigates, doesn’t exculpate.
Imperfect Self-Defense
• In some jurisdictions, if you think you’re
acting in self-defense (unreasonably), you get
mitigated down the gradations of murder.
Criminally Negligent Homicide
Criminally Negligent Homicide is a separate crime. NYPL 125.10. Key factors:
gravity of the risk, likelihood of the risk,
and the actor’s purpose in taking on the
risk.
• The standard of culpability is much higher
for criminal negligence than civil negligence.
• And the standard has to be individualized.
Example of the skier in Hall or the Indian
parents in Williams.
• The purpose of taking on the risk is taken
into account. Example of Hall, where the guy
was skiing like a crazy person just for fun.
• There is no contributory negligence on the
criminal side.
Intent to do Serious Bodily Harm Murder
Manslaughter. See NYPL § 125.20(1).
Depraved Heart
A defendant is guilty of depraved heart
murder if “under circumstances evincing a
depraved indifference to human life, he
recklessly engages in conduct which creates
a grave risk of death…and thereby causes
the death or another person.” NYPL §
125.25(2)
• Think of it as aggravated recklessness. Applies in cases with low moral purpose – e.g.,
drunk driving, drag racing, Russian Roulette.
• Gravity and probability of harm must be
high and purpose must be low.
Felony Murder
If a defendant is committing a felony, and
in the course of/in furtherance of/in flight
from that felony someone dies as a result,
he is liable for their murder. Terms and
condtions apply.
New York
• Felony Murder only applies to certain
enumerated felonies.
• It doesn’t matter who does the killing
(cops, victims, or felons).
• The predicate felony can be far removed
from the actual death, as long as it is in the
same causal chain.
• But no felony murder if the person who
dies is a cofelon.
• NY has an affirmative defense if you 1)
did not commit, cause, or aid the homicidal
act, 2) were not armed with a deadly weapon, 3) had no reasonable ground to believe
any other participant had a deadly weapon,
and 4) had no reasonable ground to believe
that any other participant would engage in
conduct likely to cause death or serious
harm.
California
• Felony Murder only applies to felonies
that are “inherently dangerous” in the abstract. So Arson, but not embezzlement.
• Merger doctrine – you can’t have Felony
Murder if the predicate felony merges into
the killing itself – example of assault, or
burglary with intent to assault/kill.
• Only applies to people killed by cofelons.
People killed by cops/victims don’t count.
• Armed robbery doesn’t merge. Burglary
sometimes does.
United Kingdom
The UK has no felony murder rule. You
have to go for depraved heart.
• MPC suggests that if someone dies in the
course of a felony, there is a rebuttable presumption of depraved heart. No jurisdiction
adopts this.
• But think about the pickpocket/handgrenade
example – here punishment and culpability
don’t match. Violates retributivism.
Misdemeanor Manslaughter
• California has a misdemeanor manslaughter
statute. If someone dies as a result of your
misdemeanor, it’s manslaughter.
Causation
In general we say causation ends when
someone else commits a crime intentionally, or is grossly reckless. Unless the original person created a situation in which the
action was not an unreasonable response.
• DAJR says that causation in criminal law is
closer to moral responsibility than any scientific definition of cause. In a tough fact pattern, ask who is morally responsible.
• Negligence does not break the causal chain.
• Nor does medical malpractice if the guy
would have died without help.
• And whenever you have depraved heart,
liability sticks with the defendant.
• California uses an “extraordinary result”
test, as shown in Acosta. There, two helicopters colliding was not a highly extraordinary
result (although depraved heart was negated
because they weren’t foreseeable.)
• In NY, the test is whether the action was a
“sufficiently direct cause” of the death, and
the ultimate harm is foreseeable. Arzon.
• Root and McFadden – no liability in drag
racing for the death of the other drag racer,
but liability is found for the death of a six
year old girl. Again, closer to moral responsibility than actual proximate causation.
• And if there’s depraved heart, courts will
imply causation.
Suicide and Causation
Typically, if it’s a free and rational act, suicide will break a causal chain. Campbell.
• In New York, assisting a suicide is second
degree manslaughter. NYPL § 125.15(3).
• But consider Stevenson (Indiana), where a
multiple rape victim who killed herself didn’t
shield the rapist from liability, because she
was still under his control.
Accessorial Liability
Accessorial Liability
In order to be liable as an accessory, a defendant must have causal significance to
the criminal act, and the SAME MENS
REA as the person who actually carries out
the act.
• It is no defense for the accessory if the principal did not have the necessary mens rea.
NYPL §20.05.
• Each person can be liable for a different
degree of the same offense. NYPL § 20.15.
• Mere presence is not enough. Have to have
same mens rea and causal significance. Hicks.
• Have to have an actual nexus between the
principal and the accessory. They need to
know and work with each other. Gladstone.
• California has the Luparello rule – intent is
imputed for all crimes that are reasonably
foreseeable. Guns and swords case.
• There can be accessorial liability for unintentional crimes if the same mens rea was
shared. Example of defective ship boiler in
McVay.
• You can have people working at odds who
create a dangerous situation and are thus accessories to each other. Example of drag racers or the Red Hook gang shootout in Russell.
• England is crazy liberal with accessorial
liability. Example of the music journalist
clapping and writing a positive review in Wilcox.
• Causal significance can be very weak. Example of the judge stopping a telegram in Tally. It wasn’t clear the telegram would have
stopped the murder.
• A victim can’t be an accessory. So a minor
isn’t an accessory to statutory rape. Tyrell.
• Can’t have accessorial liability for a crime
that doesn’t happen. The accessorial liability
is limited by the actual harm done. Richards.
• A principal can be eligible for defenses and
mitigation, but those defenses are not imputed
to accessories. Othello gets mitigation. Iago
doesn’t.
Criminal Facilitation
A defendant is guilty of criminal facilitation if he believes it probable that he his
helping someone to commit a crime, he acts
in a way that aids someone in committing a
crime. NYPL §115.00
• Way to get someone who helps a criminal,
but isn’t an accessory.
Inchoate Crimes
Attempt
Attempt requires only intent and proximity.
• Attempt merges. If it culminates, then you
become either an accessory or a principal.
• Stephen thinks you’re less blameworthy if
the crime doesn’t happen. Hart and Schulhofer think that you are exactly as culpable.
This seems to be gaining steam – penalties for
attempt are getting closer to those for the actual crime.
• Can’t have attempted negligence. Attempt
involves intent.
• Can’t have attempted felony murder. But
attempt can be a predicate felony.
• Proximity is the key question in attempt. If
there is a locus penitentiae – an opportunity to
repent, then no attempt.
• In the UK, attempt is only possible when
you take the “last step” of the crime. Everything before that is preparation. Eagleton.
• NY has the Rizzo rule, where the defendant
must be “so near to its accomplishment that in
all reasonable probability the crime itself
would have been committed but for timely
interference.”
• Federal courts have a “substantial step”
rule.
• If you make the proximity rule too tight,
you frustrate good police work. If you make
it too loose, you allow for massive violations
of civil liberties. Example of McQuirter, the
Alabama “attempted rape” case.
• Especially complicated in stalking statutes.
In NY, the stalkee has to tell the stalker to
stop.
Reckless Endangerment
Reckless Endangerment is when a defendant recklessly engages in conduct that creates a substantial risk of harm to others.
NYPL § 120.20.
• Also applies to many abortive crimes.
Solicitation
Solicitation requires only intent and solicitation.
• Solicitation merges. If the crime happens,
you’re an accessory.
• In US v. Church, a federal court holds that
soliciting a hitman amounts to attempted
murder. It’s a “substantial step.”
• Runs into free speech problems. In general,
public speech (think Black Panthers) is protected. Clandestine criminality isn’t.
Conspiracy
Conspiracy has three requirements: intent,
an agreement, and an overt act (NYPL §
105.20) to further the conspiracy. NYPL §
105.xx.
• Conspiracy DOES NOT MERGE. Even if
the act intended occurs, the conspirators are
still liable for the conspiracy itself.
• Recognizes that people are much more dangerous in groups, so special penalties.
• An exception to the hearsay rule. And venue advantages. And large conspiracies tried
together.
• Renunciation – to get out of a conspiracy,
you have to contact the police and actually
prevent it from succeeding. NYPL § 40.10(4)
• Pinkerton rule – once you have a conspiracy, intent is imputed for anything reasonably
in the scope of the conspiracy. CA has this.
But Alvarez says it doesn’t apply to minor
actors.
• In NY, you have to get the defendants via
accessorial liability.
• Mere gang membership is not enough for a
conspiracy. Garcia.
• A conspiracy can be inferred based on a
mutual understanding, even without an explicit agreement. Interstate Circuit.
• Wharton rule: Can’t have a conspiracy
when the crime is inherently conspiratorial.
• When knowledge becomes intent: when the
defendant has a stake in the venture, when
there is no legitimate use for services, when
the volume of business is disproportionate to
any legitimate demand. Lauria (CA) (prostitute phone line case).
• Kotteakos rule – no liability in spoke conspiracies. Has to be a “rim.” Concurrent
criminality is not enough.
• NY allows one person conspiracies. NYPL
§ 105.30. CA does not.
• Key takeaways – Overt act requirement,
target crime must be illegal, ignorance of law
is no excuse, can have a one party conspiracy,
can convict one party with reasonable doubt
as to the other, and renunciation requirements
are demanding.
RICO
RICO allows the imputation of a “rim” to a
spoke conspiracy, but there must be two or
more predicate crimes on each spoke (three
in NY) and some sort of criminal “enterprise.”
• Critical to going after large criminal organizations. Allows use of hearsay evidence
against low level operatives, which you can
then run up against the kingpin.
• Relies a lot on prosecutorial discretion.
DEFENSES
Justifications vs. Excuses
Key distinction – with justification, the act
done wasn’t wrong. With excuses the act
was wrong, but somehow forgiveable
Necessity Justification
• Balance of
evils
• Legitimacy of
means
Necessity Excuse
– coercion by circumstances
Self Defence
Mistake
Defense of third
party
Accident
Defense of
property
Arrest
Duress
Necessity
Insanity
Intoxication
Self-Defense
Common Law Requirements for self defense were 1) reasonable belief, 2) imminence, 3) necessity, and 4) proportional
force.
• Can only use deadly force if deadly force is
being used against you. Even an unjust aggressor has a right to life.
• Question of how much you individualize
the standard. If you do it too much, you get
Bernie Goetz. Key is reasonable belief that
you are being threatened.
• In other jurisdictions, there is a doctrine of
imperfect self-defense that mitigates.
• “No hit rule” – cannot use physical force to
resist arrest, even if unlawful. NYPL § 35.27.
• In general, can stand your ground if using
nondeadly force, but have to retreat before
using deadly force. Abbott.
• Initial aggressor rule. No right to self defense if you are the initial aggressor. NYPL §
35.15(1)(b). This applies if the crime comes
to a stop and you reignite it. Peterson.
• There’s no balance of evils requirement
with self defense – your act is privileged.
Battered Woman Syndrome
BWS Evidence is relevant on credibility. A
battered spouse is more likely to know
when her batterer actually intends to kill
her. Relevant to necessity, imminence,
proportionality. And it helps to explain
why she doesn’t leave.
• The knowledge/self defense prong is more
like a justification. The pathology/why she
can’t leave prong is more like an excuse.
• DAR says this allows juries to reasonably
evaluate the defendant, rather than ruling
from stereotypes.
• People v. Humphrey – Cali allows BWS
evidence in, but doesn’t want a “reasonable
battered woman” test. Question of how much
to individualize – does it negate women as
moral actors?
• Also some concerns with the validity of the
data on BWS.
• Imminence is key in cases like Norman
where a woman was brutally abused (whored
out in a truck stop, made to drink from a dog
bowl) and shot her husband. No self-defense
there.
• Contract killing may be different. No imminence.
• Cohen article. This is similar to tyrannicide, which is okay.
Defense of Others
In New York, you can use physical force if
you reasonably believe it necessary to protect a third person. Same rule as selfdefense. NYPL § 35.15(1)
Defense of Property
Defense of property is a murky subject, but
the key seems to be whether you reasonably believe force is necessary.
Compare the spring gun in Ceballos (CA), the
Japanese immigrant in the Halloween
cosrume in Hattori, and a robbery victim
shooting his fleeing robber in Sydnor.
Arrest
In New York, a policeman can use all necessary physical force to effect an arrest, but
can only use deadly force if the escapee has
a deadly weapon, or if the offense was a
felony with a deadly weapon, kidnapping,
arson, escape, or burglary. NYPL
§35.30(1). But he can’t do it recklessly.
NYPL §35.30(3). A citizen can use deadly
force only if he reasonably (and CORRECTLY) believes the escapee to have
committed murder, manslaughter 1, robbery, rape, or criminal sex act. §35.30(4).
Reasonableness is NOT enough.
• In Tennessee v. Garner, SCOTUS rules that
deadly force is only acceptable if the suspect
“poses a threat of serious physical harm, either to the officer or others. Found in fourth
amendment (unreasonable seizure). And it’s
a death penalty without due process.
Necessity
A necessity defense is available if there is 1)
legitimacy of means and 2) a favorable balance of evils (less harm done by committing
the crime than not committing the crime).
NYPL § 35.05 (2).
• Test for prison escape: People v. Loverkamp (CA) requires 1) a specific threat of
death/substantial injury/forceable sex, 2) no
time to complain, 3) no ability to resort to the
courts, 4) no force or violence toward prison
personnel, and 5) prisoner reports to authorities once he’s safe.
• Federal courts don’t allow necessity for indirect civil disobedience. Schoon. NY
doesn’t allow any civil disobedience case to
go to the jury on necessity. NYPL § 35.05(2)
• America doesn’t allow coercion by the circumstances (which is more duress).
• In Britain there is no necessity defense for
murder.
• Big issue of this on torture. Israel won’t
allow a blanket policy allowing torture in
times of necessity, but will allow defense in
individual cases.
Duress
Duress requires 1) an imminent threat to
yourself or others 2) that a reasonable person could not resist. NYPL § 40.00
• Toscano stands for the idea that the threat
doesn’t have to be immediate, just something
that would be irresistible to a person of ordinary firmness.
• Numbers don’t matter the same way they do
in necessity. It’s up to the jury.
• In New York, duress can be an excuse for
homicide. In Britain, it never can.
• In US v. Fleming, there is no duress for an
army officer who aided the Koreans under
threat of a death march.
• In US v. Contento-Pachon and Regina v.
Ruzic, duress is given to drug mules who
smuggle under threats to families at home.
• In Erdemovic, Duress is not allowed for a
Serbian officer ordered to kill civilians or be
killed himself. This is homicide, and the balance of evils was way against him.
Intoxication
Traditionally, intoxication negates intent,
but you have to be Leningrad drunk, not
just disinhibited. NYPL §15.25.
• In both NY and Cali, assault with a deadly
weapon gets defined as general intent. Cali in
Hood, NY in NYPL §120.00 (assault three).
• And don’t forget, voluntary intoxication
equals recklessness. NYPL § 15.05(3).
• And drunken failed assault can still be reckless endangerment.
• Involuntary intoxication seems like a complete defense, but it definitely doesn’t apply if
you’re merely disinhibited. Regina v. Kingston (pedophile case).
Entrapment
There is an affirmative defense if the defendant was “induced or encouraged” to
commit the crime by a public servant seeking to obtain evidence against him. NYPL
§ 40.05.
• Basically, the defendant lacked the mens
rea. The officer gave it to him.
Insanity
Under M’Naughten’s rule, a defendant is
exculpated if at the time of the crime he 1)
has a mental disease or defect that 2)
means he doesn’t understand the nature or
legality/morality of his act and 3) causes
the act.
• In M’Naughten’s case, he genuinely
thought the Prime Minister was trying to kill
him. Thought it was self-defense. Didn’t understand the legality/morality.
• Note that political and religious views, no
matter how whacky, do not qualify you as insane. Otherwise you could be committed for
having views the government sees as crazy.
• On the other hand, a deific decree does give
rise to insanity. Can’t resist God’s orders.
• People exculpated for insanity don’t go
free. They are civilly committed. Some
states have a post trial hearing, others have
automatic commitment – standard is whether
the person is a danger to themselves or others.
• America experimented with the irresistible
impulse rule and the Durham rule, where any
time a psychiatrist declared a defendant insane, they were exculpated.
The US ends up with the modified ALI
rule, where a defendant is exculpated if he
1) has a mental disease/defect that 2) means
he doesn’t understand OR APPRECIATE
the nature or legality/morality of his act
and 3) causes the act.
• The “or appreciate” language relaxes the
standard a bit. Covers people who are completely dissociated. Problems of empathy.
• Previously there was an exception for people who lacked a substantial capacity to conform to the law. Like Kleptomaniacs. But
this got thrown out after Hinckley.
• There’s a lot of debate about whether psychopathy (when someone knows what they’re
doing but is incapable of empathy) should exculpate.
• DAR says there is probably a Constitutional
right to an insanity defense.
Attempts to abolish insanity
• The Modified ALI standard could be lessened. Arizona got rid of the nature of the act
prong but kept the legality/morality prong.
Upheld in Clark v. Arizona.
• But knowledge about the nature might still
be admissible to negate mens rea. Clark
thought he was killing an alien – didn’t have
the intent to kill a human being. This is key –
prosecution has to prove mens rea beyond a
reasonable doubt. Defense just has to prove
insanity by clear and convincing evidence.
• And some states have a “guilty but mentally
ill” verdict where defendants get put in special prisons and on drugs.
Automatism
In the United States, automatism is a complete defense – no actus reus. The UK does
epilepsy, somnambulism, etc. as a mental disease/defect.
Diminished Responsibility
Germany and the UK allow for diminished
responsibility – diseases short of insanity
that can mean a defendant is less culpable.
It mitigates at sentencing. Covers cases
like Cassassa.
• NY doesn’t have this, but does have VMM.
Addiction as a Mental Disease
• SCOTUS declines to allow alcoholism to
exculpate in Powell. Being drunk may not be
a choice, but being drunk in public is.
• Marshall is concerned about indefinite
commitment for alcoholics/addicts.
• Court rejects the idea of drug addiction as a
mental disease in US v. Moore.
• DAR – we know incentives can get people
off drugs. There is some level of volitional
control that the criminal law can operate on.
• Although there is the harm issue with drugs.
• Judge Wright thinks addiction should be a
defense against possession.
• Judge Bazelon thinks addiction should be a
defense against all crimes. Armed robbery!
• And rotten social background question.
Reasonable Police Work
A policeman has a defense for any conduct
that is part of reasonable police work.
NYPL § 35.05(1).
Impossibility
Under NYPL § 110.10, a crime’s impossibility is no defense. As long as the crime
would have been possible under the circumstances as the defendant thought they
were, he is liable, but only for attempt.
• Overrules Jaffe, which made a complicated
(and senseless) factual/legal impossibility distinction. But that’s still valid in the federal
system.
• Think of Dlugash (shooting at a dead body,
thinking it was alive), or the voodoo hypo.
• Note that true legal impossibility is a defense. If what you thought was a crime isn’t
actually criminal, then you aren’t liable.