I. II. Purposes of Criminal Punishment a. Introduction i. Crime = act (conduct; actus rea) + intent (requisite state of mind; mens rea) – defense. ii. Retributivism 1. Presupposes that human actors are responsible moral agents who are capable of making choices for good and evil. People who make evil choices deserve to be punished and serving a criminal sentence is a way for offender to pay back to society for the harm he/she has incurred. 2. Focus is on the retrospective criminal act and the harm offender caused. Punishment is justified based on the moral culpability of persons who violate the criminal law. iii. Utilitarianism 1. Rests on the notion that human actions perform a calculus of pain and pleasure when choosing among alternative courses of conduct and if costs of crime are set high enough to assure that the gains aren’t profitable then rational person won’t commit crimes. 2. Punishment is justifiable if and only if it’s expected to result in a reduction in future crimes. 3. Special deterrence refers to steps taken to dissuade particular offenders from repeating their crimes and general deterrence refers to impact of criminal punishment on other persons. a. Utilitarianism is associated with goals of deterrence, incapacitation, and rehabilitation. iv. Mixed System/Proportionality 1. The general aim of the criminal law is to deter unwanted behavior but that retributive concepts should be applied in determining whether and how much to punish a particular person. a. For retributivist, punishment should be proportional to the harm caused on the present occasion, taking into consideration actor’s degree of culpability for causing the harm. b. For utilitarian, punishment is proportional if it involves infliction of no more pain than necessary to fulfill the law’s deterrent goal of reducing a greater amount of crime. The Criminal Act/Conduct Requirement a. Introduction i. Conduct in some form (an act, omission, or possession) remains accepted as an essential prerequisite of criminal conviction and punishment. ii. The act requirement serves as a critical evidentiary function in corroborating evil intent, limits the coercive power of the state, and preserves the liberty of the citizen by constraining penal liability. 1. COL: a voluntary act is muscular contraction or bodily movement that was controlled by the mind of the actor. 2. MPC 2.01: never defines voluntary but provides examples of involuntary actions: reflex/convulsion, bodily movement while unconscious or asleep, conduct during hypnosis, and/or a bodily movement that otherwise is not a product of the effort or determination of the actor, either conscious or habitual. iii. To be guilty of an offense, it’s sufficient that person’s conduct included a voluntary act and it’s not necessary that all aspects of his conduct be voluntary (see below). b. The Voluntary Act i. Voluntary act is a very limited doctrine; cases that fall into this category are limited to cases where there’s a true disconnect between the mind and the body, e.g. robbing a bank under coercion falls under duress and not involuntary act. 1. Martin v. State (AL COA 1944): appellant was convicted of being drunk on a public highway after officers arrested him at his home and took him onto the highway. a. Plain terms of the statute presupposes a voluntary appearance. b. Policy argument: we don’t want law enforcement agents to promote crime (there’s defense of entrapment that one committed the crime at the encouragement of law enforcement people). ii. MPC 2.01 on Voluntary Act (70). 1. Where there is an involuntary act embedded in an otherwise voluntary course of conduct, MPC requires that liability be based on conduct which includes a voluntary act (People v. Decina: seizure not a complete defense when there’s the voluntary act of driving with knowledge one was subjected to epileptic seizures; People v. Gastello: drug taken to jail because D was arrested and by coincidence had drugs on him; judge ruled that an involuntary act was not sustainable as basis for conviction of charges of bringing drugs to jail). c. Omissions as Criminal Conduct i. A person has no criminal law duty to act to prevent harms to another but sometimes omission of a duty to act serves as a legal substitute for a voluntary act when 1) the law defining the offense provides for it or 2) if the duty to act is otherwise imposed by law (common law). 1. Status relationship: a person may have a common law duty to prevent harm if she stands in a special relationship to the person in peril such as parents to children, married couples, and masters to servants 2. Contractual obligation: a duty to act may be created by implied or express contract 3. Creation of a risk: a person who wrongfully harms another or places a person or property in jeopardy of harm has a common law duty to aid the injured or endangered party III. 4. Voluntary assistance: one who commences assistance has a duty to continue to provide reasonable aid a. Includes voluntary assumption of responsibility that precludes aid from others. ii. No general duty to rescue. Why? 1. Line drawing problem (how much risks to take), chilling effect on social activities, undermine altruistic impulses, coordination and enforcement problem, problem of causation. 2. Proposed general duty statutes: requires minimal risk/expense, limit liability to only one potential rescuer, limit to potential categories of victims or types of injuries. iii. Billingslea v. State (Ct. of Criminal Appeals of Texas, 1989): appellant was charged with offense of injuring an elderly individual (failure to obtain medical care) after Adult Protection Services found appellant’s mother lying in bed suffering great deals of pain from bedsores. The doctor stated that the bedsores, burns, blisters, and loss of muscle resulted in serious bodily injury indicative of overall neglect of Mrs. Billingslea in the months prior to her death. 1. Indictment is fundamentally defective for failing to include a statutory duty imposing a punishable omission. Where other States may imply duties or derive them from common law, under the laws of Texas an offense based on omissions must rest on a specific statute. 2. Since the court didn’t recognize legal duties derived from the common law and since no one was assigned a statutory duty to care for an elderly person (statute didn’t create a specific duty on a specific category of people to protect elderly people from injury so it’s assumed by the court that there isn’t a statutory duty; the statute would have a very broad sweep if it were interpreted to duty to protect old people), the omissions toward elderly individuals under which the appellant was indicted is unenforceable. 3. Alternative theories of prosecution: parent-child relationship (not even well established in common law), excluding others can be deemed as a voluntary act (acts of isolation can create a basis for rescue but Texas court can say that since it’s not in a statute). iv. People v. Beardsley: a woman took morphine and D moved her to another room upon the expected return of his wife; court ruled that just because the woman was in D’s house created no such legal duty as exists in law that is due from a husband towards his wife. v. People v. Oliver: duty exists when D took the decedent from a public place where others might take care to prevent him from injuring himself to a private place where she alone could provide such care; D’s conduct created an unreasonable risk of harm for decedent. Criminal Act/Requirement that Offenses be Previously Defined a. Vagueness Doctrine i. Vague statutes are unacceptable because they deny a law abiding person fair notice and they provide police and prosecutors the opportunity to act in an arbitrary and discriminatory manner. 1. A statute isn’t invalid simply because it requires conformity to an imprecise normative standard such as not to act negligently or not to harm others by cruel or inhuman treatment. 2. Courts are much slower to hold that an ordinary criminal statute, one that doesn’t touch on fundamental constitutional rights, is unconstitutionally vague. ii. Judicial scrutiny of the vagueness doctrine however is most rigorous when the law in question impinges on constitutional rights such as freedom of speech and press. 1. Kolender v. Lawson (SCOTUS 1983): Lawson was detained roughly 15 times and convicted once under a California code barring loitering and sought a declaratory judgment that 647(e) is unconstitutional. a. O’Connor (Majority): the provision contains a vague enforcement standard that is susceptible to arbitrary enforcement and it fails to give fair and adequate notice of the type of conduct prohibited. Statute must establish minimal guidelines to govern law enforcement. b. Section 647(e) is presently drafted and construed by the state courts to contain no standard for determining what a suspect has to do in order to satisfy the requirement to provide a “credible and reliable” identification. It’s clear that the full discretion accorded to the police to determine when the suspect has provided a credible and reliable identification necessarily entrusts law-making to the moment to moment judgment of policeman and it furnishes a convenient tool for harsh and discriminatory enforcement by local officials against particular distasteful groups. c. Although due process doesn’t require impossible standards of clarity, this is not a case where further precision in the statutory language is either impossible or impractical. d. White (Dissent): the court’s narrowing of the credible and reliable identification to identification that carries reasonable assurance that the identification is authentic can’t be likened to the standardless statutes involved in other cases. i. If Lawson himself knew about the statute, it’s not vague as applied to him and he should be convicted. ii. In responding to a statute that is vague as applied to some cases but has a core of prohibited conduct, the role of the court is not to strike the statute down but to reverse unfair convictions. e. ES: key to this doctrine is not about specificity of language but need to look at subject matter and context in which law is enforced; vagueness doctrine focuses on a particular kind of law. 2. US v. Nash: Court upheld the Sherman Act against vagueness challenge and court interpreted the “restrains of trade” in the statute to mean undue restraint. Subject matter doesn’t involve the basic kinds of liberties that vagueness doctrine typically focus on and the case is not problematic especially given that context of enforcement is a business context where both parties are lawyered up already. b. Interpretation of Prohibited Conduct in Criminal Statutes i. Rule of lenity states that when a criminal statute is subject to conflicting reasonable interpretations, that statute should be interpreted strictly against the government. MPC doesn’t recognize the lenity principle and requires instead that criminal statutes be construed according to their fair import. ii. Keeler v. Superior Court of Amador County (SC of CA 1970): Petitioner kicked and killed a fetus in his ex-wife who was viable but not born yet so the question is whether an unborn but viable fetus is a human being is within the meaning of the California statute defining murder. 1. State urged the Court to adopt an evolving as opposed to a fixed meaning of the term human being; State argues that common law requirement of live birth to prove fetus had become a human being is no longer in accord with scientific fact since unborn but viable fetus is now fully capable of independent life. 2. Court disagreed and held that even though there was certainty that the fetus has developed to the stage of viability, extensive review of English cases and authorities revealed that an infant can’t be subject of homicide at common law unless it had been born alive. As early as 1797 it was held that child was born alive is necessary to support an indictment for murder. a. Chavez stood for the proposition that a viable fetus in the process of being born is a human being within the meaning of the homicide statutes but doesn’t hold that a fetus not in the process of being born is nevertheless a human being. 3. The court then discussed enactment in NY but not in CA statues specially directed against feticide and concluded that the omission is important in that CA didn’t intend fetus to be included within the meaning of human being. 4. Crime creation v. interpretation: unforeseeable state court construction of criminal statute applied retroactively to subject person to criminal liability for past conduct is to deprive him of due process of law in the sense of lack of fair warning that his contemplated conduct constitute a crime. 5. Dissent: homicide is the unlawful killing of a human being and these words need not be frozen in place as of any particular time but must be fairly and reasonably interpreted by the court to promote justice and carry out purposes of the legislature in adopting a homicide statute. a. Previous decision in Chavez that held that a viable fetus in the process of being born is a human being gave defendant sufficient notice that words human being could include a viable fetus. 6. Section 4 (purpose statement) was enacted with Sections 187 and 192 and provides that the lenity rule of the common law, that penal statutes be strictly construed, has no application to this code. All the provisions are to be construed according to the fair import of their terms, with a view to effect its objects and to promote justice. 7. ES: court is concerned that defining viability as a human being could have implications and this is very public policy centric issue. Legislature could have included in the definitional section by including fetus as a human being but separating the two (human being and fetus) for purposes of murder avoids political controversy. iii. People v. Davis (1994): California legislature amended the statute to include fetus as part of its homicide statute but didn’t include definition of a fetus. Davis killed the fetus that was likely not at the stages of viability but court interpreted the statute to apply to killing of any unborn offspring in the postembryonic period after major structures have been outlines. However, court held that interpretation could only be applied prospectively. iv. People v. Sobiek (CA COS 1973): Respondent was indicted for four counts of violation of CA Penal Code Section 487 (grand theft) but maintained that the code can’t apply to a member of a group on the theory that a partner may not steal nor embezzle the property of his partnership. 1. Court held that while it’s settled law that a general partner can’t be convicted of embezzling partnership property because the rule requires property be wholly that of another and a part interest by D prevents a conviction, the rule was based on misinterpretation and dicta. 2. The broad rule has been rejected by ALI and MPC 223.0(7). It’s both illogical and unreasonable to hold that a partner can’t steal from his partners merely because he has an undivided interest in the partnership property. 3. Respondent must have known his act was immoral and he was taking property of another so common social duty would have forewarned respondent that he was engaging in prohibited conduct. 4. ES: this was a mirror image of what the Keeler court did. Court sees this as not creation of a new crime but viewed it as closing a judicial loophole. IV. a. Keeler concerned political issues but Sobiek concerned a clearly wrong loophole. b. Court mostly apply rules of fair construction but subject to constraints of separations of powers (not defining new crimes) and fair notice. i. Ultimately the court should ask itself whether interpretation will settle the law or create more uncertainty. Mens Rea – The Guilty State of Mind a. The Common Law Approach i. Stage I focused on strict liability. Stage II focused on the moral blameworthiness. Stage III focused on cognitive state of wrongdoers. Stage IV is MPC that laid out culpability levels. ii. Regina v. Faulkner (1877): D poked a hole in a rum cask to drink but destroyed the ship by fire when he lit up a match to see where to plug the hole. He was indicted for arson on the charge that he feloniously, unlawfully, and maliciously set fire to the ship. 1. State’s argument is that malicious purpose to steal the rum is transferred to setting the fire (not saying there’s strict liability for all crimes but moral blameworthiness). 2. Court decided that in order to establish the charge, D had to intend to do the very act with which he is charged or that it was the necessary consequence of some other felonious or criminal act in which he was engaged, or that having a probable result which the D foresaw or ought to have foreseen he nevertheless persevered in such felonious or criminal act. 3. The prisoner didn’t intend to set fire to the ship and the fire wasn’t the necessary result of the felony he was committing. 4. Fitzgerald: necessary intent requires 1) he intended to do the very act he was charged, i.e. arson 2) harm of burning ship is a necessary consequence of another act (shooting pilot and passengers died) 3) D persevered in such criminal act even if it had the probable result which one saw (recklessness) or should have foreseen (negligence). 5. Minimum mens rea is negligence; shows transition between Stage II to Stage III revolution of mens rea. iii. Regina v. Cunningham (1957): Appellant stole a gas meter and the gas escaped and poisoned the neighbor; Cunningham is charged under a poison statute (using the same language of unlawfully and maliciously like Faulkner). 1. Court held that malice must be taken not in vague sense of wickedness in general but as requiring either an actual intention to do the particular kind of harm that in fact was done or recklessness as to whether such harm should occur or not (accused has foreseen that the particular kind of harm might be done and yet has gone on to take the risk of it). 2. Cunningham states then negligence isn’t enough and recklessness ought to be the standard here. iv. Directors of Public Prosecutions v. Smith (1960): Policeman was killed when Smith rapidly accelerated the car while the police grabbed onto it. 1. Smith wanted the Court to pose to the jury what the respondent himself intended as opposed to what a reasonable man intended. Court stated that the sole question is whether the unlawful and voluntary act was of such a kind that grievous bodily harm was the natural and probable result to an ordinary responsible man. 2. Convicted of capital murder even though he didn’t realize the risk. b. Criminal Negligence i. Criminal negligence is frequently described as an especially egregious sort of callousness, usually characterized by conduct that represents a gross deviation from the standard of reasonable care. ii. Criminal negligence involves inadvertent risk-taking that as a reasonable person should have been aware of the substantial and unjustifiable risk but recklessness implicates subjective fault and one’s consciously disregarding the substantial and unjustifiable risk. iii. If the mens rea is recklessness, prosecutors can tell juries to draw inferences from circumstances (almost incorporating a negligence standard). 1. If standard for particular offense is negligence then presumption is irrefutable (must conclude D foresaw the probable harm). Under reckless standard, D get the opportunity to say D didn’t foresee the consequences even if reasonable persons would have foreseen the risks. a. Defense strategies would be different: negligence (D align herself with reasonable person under circumstances) v. recklessness (reasonable person couldn’t have foreseen OR subjectively couldn’t have foreseen the risks of harm). c. Common Law Definitions: General and Specific Intent i. General intent crimes are everything but the specific intent crimes. 1. General intent crime (poison, arson, rape, assault) are crimes in which the harm of offense is contained in the conduct. 2. General intent crime has a standard of recklessness or negligence. ii. Specific intent crimes requires D engage in specified conduct with the intent to bring about a specified result that will occur in the future. 1. The paradigm example of a specific intent crime is an offense where definition describes specific behavior in which D must engage and further specifies a particular state of mind which must accompany that behavior. 2. Intentionally: it was her conscious object to cause the result or if she knew that the harm was virtually certain to occur as the result of her conduct. 3. Knowingly: aware of the fact, correctly believes it exists, suspects it exists and purposefully avoids learning if her suspicion is correct. 4. Recklessness: if she consciously disregards a substantial and unjustifiable risk of harm. 5. Criminal negligence: if she should be aware that her conduct creates a substantial and unjustifiable risk of harm. V. MPC a. Actus Reus i. The act elements are characterized as conduct, result, and circumstances. Most offenses are defined only in terms of conduct and circumstances. 1. Every offense must contain some conduct as so defined (can be act or omission). 2. Result elements are any consequences of D’s conduct that are incorporated in the definition of the offense. 3. Circumstance elements consists of external facts that must exist in order for crime to be committed. b. Mens Rea i. MPC removes the clutter of common law and statutory mens rea terms and replaces them with four carefully defined terms: purposely, knowingly, recklessly, and negligently. 1. 2.02(1) requires that a level of mens rea, purpose, knowledge, recklessness, or negligence be applied to each conduct, circumstance, and result element of the actus reus of an offense. 2. 2.02(3): if culpability isn’t prescribed, then 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 culpability without distinguishing among the material elements, such provision shall apply to all material elements, unless a contrary purpose plainly appears. ii. Purposely 1. Result or conduct: a person acts purposely if his conscious object to engage in conduct of that nature or to cause such a result. 2. Attendant circumstances: aware of the existence of such circumstances or believes or hopes they exist (knowledge that circumstances exist). iii. Knowingly 1. Result: if the actor is aware that it is practically certain that his conduct will cause such a result 2. Attendant circumstances and conduct: aware that his conduct is of that nature/kind or aware that such attendant circumstances exist (or if he is aware of high probability of its existence unless he actually believes that it doesn’t exist). iv. Recklessly VI. 1. When he consciously disregards a substantial and unjustifiable risk that the material element exists or will result from his conduct. 2. The risk must be of such a nature and degree that, considering the nature and purpose of the actor’s conduct and the circumstances known to him, his disregard involves a gross deviation from the standard of conduct that a law-abiding person would observe in the actor’s situation v. Negligently 1. When he should be aware of a substantial and unjustifiable risk that the material element exists or will result from his conduct. 2. The risk must be of such a nature and degree that, considering the nature and purpose of his conduct and the circumstances known to him, his failure to perceive it involves a gross deviation from the standard of care that a reasonable person would observe in the actor’s situation. Mistakes of Fact a. A mistake of fact is a defense for specific intent crime if it shows that the required specific intent didn’t exist, namely that it’s honestly made (regardless of reasonableness). A mistake of fact is a defense to general intent crime if it’s honest and reasonable, that is if the D actually made the mistake and if the mistake was reasonable under the circumstances. i. Green v. State (Texas 1949): D shot several hogs and carried them home but was charged with larceny; however, the key question is that despite committing the actus reus of taking and carrying away the personal property of another, whether D had the intent to permanently deprive the other of the property. If D honestly thought the hogs were his, he would be entitled to acquittal. ii. State v. Walker (NC 1978): D and his son abducted two children under the mistaken belief that they were D’s grandchildren but one of the children wasn’t. D was charged with child abduction and court held that in appropriate cases in order to negate criminal intent, the mistake under which D was acting must have been made in good faith and with due care. iii. US v. Oglivie (1990): Appellant thought he had divorced his wife when he married his second wife but the divorce wasn’t final. Court held that appellant wasn’t guilty of false statement offense (specific intent crime) because he had the defense of an honest mistake of fact. However, Court found that he was guilty of bigamy (general intent crime) because to constitute a defense a mistake of fact must be both honest and reasonable and appellant didn’t take the steps a reasonable man would have taken to determine the validity of his honest belief. iv. US v. Yermian (1984): D was charged under federal statements offense, a specific intent crime but his defense of mistake of fact was not related to the specific intent but rather to the elements of the offense (matters fall within jurisdiction of department or agency of US) so if mistake of fact was relevant to an element of the offense other than the specific intent, the courts followed the rule for general intent and the question was whether D VII. honestly and reasonably believed that the lies didn’t implicate the interests of the federal government. b. Grading i. Grading offense is seriousness of the crime but not to its criminality; e.g. theft is felony if value is above some amount ($500 for MPC) and lesser crime if below that value. 1. Strict liability to grading element so no defense of mistake of fact as the defense is for the innocent party. This is a vestige of Stage II mens rea. 2. Moral wrongs a. Regina v. Prince (1875): D thought the girl he took was 18 but she was only 14 and law forbids people to take an unmarried girl under the age of 16. Court convicted D even though D had a valid mistake of fact defense based on the fact that the conduct was morally wrong in itself. i. Rationale: he knew they were going off without father’s permission and it’s important to protect young women from men who take them away from the safety of their home; it would be a defense if he made an honest and reasonable mistake as to the permission of the father. ii. Sometimes a court will convict a D even though her mistake of fat was reasonable if her conduct violates the moral wrong doctrine (no exculpation for a mistake where if facts had been as the actor believed them to be, her conduct would be immoral albeit legal). By knowingly committing a morally wrong act, actor assumes the risk that facts are not as she believed them. c. Mistake of Fact under MPC i. If an offense requires a prescribed mental state for a given element, it’s a defense if D didn’t have that mental state (negates the mens rea). 1. First, figure out which element of offense is mistake related to, what culpability level is applied to that material element, and did mistake negate the required mens rea? a. Rape: submit by force and no mens rea so culpability required is recklessness. Negligent mistake is a defense under MPC but not common law. Mistake of Criminal Law a. Ignorance of the law excuses no one. Ignorance or mistake regarding criminality of one’s act is ordinarily no defense to criminal prosecution. MPC 2.02(9) continues this tradition. i. Three categories of mistake-of-law exceptions are recognized. The first two (reasonable reliance and fair notice) are excuse defenses and the third exception is failure of proof claim, namely that D didn’t have the requisite mens rea to be convicted of the offense to be charged because of mistake of law. ii. State v. Fox (SC of ID 1993): D bought ephedrine but didn’t know it was a controlled substance in Idaho. The statute in question doesn’t contain an intent element and Fox wants to argue the statute requires specific intent while State argues that it only requires general intent. 1. Court held that the statute doesn’t require any mental element, that only general intent is required and hence knowledge that one is in possession of substance is enough to uphold the conviction. Fox’s lack of knowledge that ephedrine was illegal is irrelevant. 2. Ignorance of the law isn’t a defense and there is no indication that D couldn’t have discovered what substances were listed in the schedules of controlled substances. iii. Application of the Maxim 1. People v. Marrero: D’s personal misunderstanding of the statutory definition of peace officer isn’t enough to excuse him from criminal liability for carrying a weapon (court rules that exception for peace officers only apply when possession is duty-related). 2. Hopkins v. State: D was convicted under anti-sign law even after receiving assurances from a state’s attorney that it wouldn’t violate the law. A person who commits an act which law declares to be criminal can’t be excused from punishment upon theory he misconstrued or applied the law. 3. State v. Striggles: D was convicted for installing a gambling machine even though the distributor got letter from county attorney and mayor that the machine isn’t a gambling device and there was a decree from lower court that it wasn’t a gambling machine. b. Reasonable Reliance i. One is never excused for relying on a person, even reasonable misreading of a statute and reliance on erroneous legal advice is not a defense either. 1. Cox v. Louisiana (entrapment): After receiving several reassurances from the highest police officials, D was nevertheless convicted of violating a statute that punishes one who pickets near a building. Court reversed and held that to sustain the conviction would be to sanction an indefensible sort of entrapment by the state. c. Fair Notice i. Court held in Lambert v. California that under very limited circumstances, a person who is unaware of a duly enacted and published criminal statute may assert a defense in mistake of law. Court’s concerned with statutes that punish an omission, the duty to act was imposed on the basis of status (as opposed to activity) and offense was malum prohibitum so there was therefore nothing to alert L or a reasonable person to the need to inquire into the law. 1. Lambert v. California: LA had a city ordinance that required all felons to register if they stay in LA for longer than 5 days and D failed to register. Violation of provisions is unaccompanied by any activity whatever, mere presence in the city being the test. a. Three factors: unknown offense criminalizes an omission (failure to register), duty to act based on status condition rather than conduct (presence of an ex-felon in LA), and offense is malum prohibitum in nature. d. MPC i. 2.04 states that belief that conduct doesn’t legally constitute an offense is a defense if the statute or other enactment defining offense isn’t known to the actor and hasn’t been published or otherwise reasonably made available prior to conduct alleged OR he acts in reasonable reliance upon an official statement of the law (statute, judicial decision, administrative order, official interpretation of the body charged). VIII. Mistake of Non-Criminal Law a. Sometimes D’s lack of knowledge or misunderstanding regarding the meaning or application of another law, typically a nonpenal law, will negate the mens rea element in the definition of criminal offense. A different law mistake is generally not a defense to general intent crime but is defense for specific intent crime. b. Common Law i. If the offense required a specific intent or some other special mental element, a mistake of the non-criminal law that negated the required mens rea is a defense (mistake of fact context). The usual rule is that no mistakes of law (criminal: marrying multiple wives and non-criminal: got a divorce in Nevada and returned to Vermont) are exculpatory for general intent crimes. ii. Long v. State: D obtained a divorce in Arkansas and moved back to Delaware and remarried after receiving several reassurances from his lawyer that he was free to do so. Court held that an honest mistake of law is usually not held to excuse the conduct but found an exception because D was a model citizen who diligently tried to follow the law. c. MPC i. In contrast to common law, MPC 2.04(1)(a) treats mistakes of noncriminal law the same as mistakes of fact throughout all levels of culpability. Both are defense if they negate a required mens rea element. Mistakes of fact or law is a defense if it negates the mens rea. 1. People v. Bray: D was convicted for possessing two concealed firearms but he didn’t know the offense he was convicted before was a felony or not, which would decide whether he could carry the weapons. Court decided that Bray was entitled to common law rule on mistake of fact for general intent offenses. IX. Intoxication a. Voluntary intoxication isn’t a defense to general intent crimes but is a defense to specific intent crimes (varies, see below). b. MPC: a person isn’t guilty of an offense if as the result of intoxication he lacked the state of mind required in respect to an element of the crime. Exception: for crimes defined in terms of recklessness, MPC 2.08(2). provides that if a person due to self-induced intoxication is unaware of risk which he would have been aware had he been sober, such unawareness is immaterial in a prosecution for which recklessness establishes criminal liability. So if D is charged with an offense for which recklessness suffices to convict, she can’t avoid conviction by proving that because of intoxication she was unaware of the riskiness of her conduct. So even if D’s actual culpability is that of negligence, she may be convicted of an offense requiring recklessness if the reason for her failure to perceive the risk is her self-induced intoxication. c. Specific Intent and Intoxication i. Restrictive Positions 1. No Defense: In at least 11 states, evidence of intoxication is not admissible in any or most specific intent crimes. a. VA held that voluntary drunkenness, where it hasn’t produced permanent insanity, is never an excuse for crime except where a party is charged with murder and accused too drunk to be capable of deliberating and premeditating.. 2. Factual Relevance v. Lack of Capacity a. California charge allows jury to consider his state of intoxication in determining if D had the specific intent whereas Ohio charge instruct juries to investigate whether D was capable of forming the intent (only extreme intoxication precludes intent) i. Burden of Persuasion 1. As many as half of the states adopt the Ohio charge and typically they also follow practice of placing burden of persuasion on D. 3. ES: intoxication tend to be introduced for specific intent crimes, but for general intent crimes intoxication isn’t relevant when negligence is standard and when it’s recklessness, there’s a special rule that ignores that. d. General Intent Crimes i. Director of Public Prosecutions v. Majewski (House of Lords 1976): Appellant was drunk and stoned and physically injured the landlord when he was asked to leave and hurled abuses at the police when it arrived. Lower court decided that whether D had taken drink or dugs was immaterial with regards to a general intent crime. 1. Judges have developed a rule for the purpose of protecting the community that in crimes of basic intent as distinct from crimes of specific intent, self-induced intoxication provides no defense and is irrelevant to offenses of basic intent such as assault. 2. This is consistent with MPC 2.08(2), unawareness in immaterial if it’s due to self-induced intoxication and recklessness establishes an element of offense. 3. A mind rendered self-induced insensible (through drink or drugs) to the nature of a prohibited act to probably consequences is as X. wrongful a mind as one which consciously contemplates the prohibited act and foresees its probable consequences. 4. ES: if not allowed to introduce evidence to show he wasn’t reckless, then recklessness reduced to negligence? a. This isn’t a SL rule: UVA case where D was successful in acquitting, he claimed an honest and reasonable person would have made the same mistake. Special MPC rule reduces mens rea from recklessness to negligence but an honest and reasonable defense will work for a D. Establishing the Appropriate Mens Rea Standard a. Strict liability offenses are crimes that don’t contain a mens rea requirement regarding one or more elements of the actus reus (statutory rape). i. Two lines of strict liability doctrines: one involving regulatory or public welfare offenses whereas another line involved crimes that concerned serious offenses which carried high moral stigma and high penalties. ii. Notwithstanding the presumption against strict criminal liability, courts frequently authorize it in the case of public welfare offenses because a single violation usually injure a great number of people to serve the collective interests and the penalty for violation is relatively minor, and the offense typically involve malum prohibitum conduct (conduct that is wrongful only because it is prohibited). iii. MPC abolishes strict liability except as to violations. b. US v. Dotterweich (SCOTUS 1943): D was president and GM of a company that shipped drugs under a new label and was convicted for misdemeanor for shipping adulterated and misbranded drugs. i. Hardship may be under a statute which penalizes the transaction though consciousness of wrongdoing be totally wanting but balancing relative hardships, Congress has preferred to place it upon those who have the opportunity of informing themselves of existence of conditions imposed for protection of consumers before sharing in illicit commerce than to throw the hazard on innocent public. ii. Law and economics, head of company was in a better position to avoid the harm than the public, least cost avoider. c. US v. Park (SCOTUS 1975): Park was CEO of Acme Markets, a national retain food chain and he was charged with five violations of FDA Act based on shipments of food that had been contaminated by rodents. Park maintained he was assured that appropriate company officials responsible for sanitation were dealing with the problems. i. Managerial officers’ liability didn’t depend on their knowledge or personal participation in the act made criminal by the statute. The responsibility placed on corporate agents are demanding but no more stringent than the public has a right to expect those who voluntarily assume positions of authority in business enterprises whose services and products affect the health and wellbeing of the public that supports them. ii. Court has reaffirmed the proposition that the public interest in the purity of its food is so great as to warrant the imposition of the highest standard of care on distributors. Place responsibility for federal executives to know or should know the (imputed notice) regulations themselves. iii. The theory upon which responsible corporate agents are held criminally accountable for causing violations of the Act permits a claim that a D was powerless to prevent or correct the violation to be raised defensively at a trial on the merits. d. United States v. Freed (SCOTUS 1971): Ds were indicted for possession of unregistered hand grenades in violation of a federal statute; unlawful to receive or possess a firearm that isn’t registered to the person charged. i. The presence of a vicious will or mens rea was long a requirement of criminal responsibility but the list of exceptions grew especially in expanding regulatory area involving activities affecting public health, safety, and welfare. ii. Act requires no specific intent that the hand grenades were unregistered. This is a regulatory measure in the interest of public safety, which may well be premised on the theory that one would hardly be surprised to learn that possession of hand grenades is not an innocent act. iii. Concurrence: while Court hold that no intent at all need to be proved in regard to one element of the offense (unregistered status of the grenades), knowledge must still be proved as to the other two elements (possession of items that are hand grenades). Without exception, the likelihood of governmental regulation of distribution of grenades is so great anyone must be presumed to be aware of it; it’s reasonable to conclude that Congress dispensed with requirement of intent with regards to the unregistered status of a weapon. iv. One way of framing the Freed rule is that it’s appropriate to use strict liability where potential social harm is great and context as known to D should give adequate notice that behavior is wrong. v. ES: majority opinion isn’t very convincing but the concurring opinion about Ds getting advance notice that government would be interested in regulating of certain behavior is more convincing. e. Staples v US (SCOTUS 1994): D was convicted for owning a machinegun but testified that the rifle had never fired automatically when it was in his possession and that the AR-15 only operated semi-automatically. i. Statute required that the D know the weapon was a machine gun, namely that it was capable of firing repeatedly with a single pull of the trigger. ii. Section 5861 is silent on the mens rea required for a violation and we must construe the statute in light of the background rules of common law in which some mens rea requirement is firmly embedded. iii. Despite their potential for harm, guns generally can be owned in perfect innocence. The potentially harsh penalty of up to 10 years of imprisonment confirm reading of the Act because imposing severe punishments for offenses that require no mens rea would seem incongruous. iv. We essentially have relied on the nature of the statute and particular character of the items regulated to determine whether congressional XI. silence concerning the mental element of offense should be interpreted as dispensing with conventional mens rea requirements. v. Dissent: public welfare offenses render criminal a type of conduct that a reasonable person should know is subject to stringent public regulation and may seriously threaten the community’s health or safety; character and nature of such a weapon is sufficiently hazardous to place possessor on notice of possibility of regulation. f. US v. Yermian (SCOTUS 1984): D lied about his employment history and criminal record on a security questionnaire and his defense was that although he had intentionally made false statements, he didn’t know his statements would be transmitted to a federal agency. i. Court classified the federal department language as a jurisdictional element and jurisdictional language need not contain the same culpability requirement as other elements of the offense. g. MPC i. The only exception to the requirement that some level of culpability is required for some elements of the offense is statutory rape. It’s not defense that D didn’t know the age and that D reasonably believed the girl to be over age of 10. MPC excludes even a non-negligent mistake which means SL applies to that element. ii. There are malum in se cases where there’s strict liability as to some element: Prince (taking young girl away from father; rationale is that the conduct is immoral and Prince knew he was doing something wrong). Attempt a. Actus Reus i. Attempt is defined chiefly by reference to the object offense such as attempt to commit murder rape, larceny or some other substantive offense. ii. Challenge is to determine when there’s enough conduct to convict the crime. Conduct fulfills evidentiary function, protective of autonomy that people should be allowed to daydream and only have they substantially moved towards completion of the crime should the law intervene. 1. Tests a. Physical proximity test: many courts have emphasized the physical proximity of the actor’s conduct to the completed offense. The focus is not on what has already been done but on what yet remains to be done. The actor’s separation from the criminal objective, whether in terms of time, distance, or necessary steps not yet taken becomes the critical factor. i. In People v. Rizzo, court in NY reversed conviction against Ds for robbery because they had not found or reached the presence of the person they intended to rob and therefore not very near to the accomplishment of the crime. b. Dangerous proximity test: Holmes’s standard isn’t satisfied unless conduct is so near to the result that the danger of success is very great. Three factors: nearness of the danger (probability that conduct would result in the intended offense), substantiality of the harm, and degree of apprehension felt. c. RIL (silent film) test: Salmond’s inquiry looks to what the actor has already done rather than what remains to be done. The inquiry isn’t to assess the dangerousness of the anticipatory conduct but on the dangerousness of the actor who engaged in it. i. RIL requires that the act speaks for itself and demands manifest evidence of the actor’s blameworthiness. Ask on the basis of conduct committed to see if conduct is sufficient to show unequivocally, unambiguously manifesting a criminal purpose. ii. RIL doesn’t allow the government to piggyback the conduct to the intent. d. MPC i. MPC 5.01(1)(c) states that conviction for attempt is allowed where actor engages in an act or omission constituting a substantial step in a course of conduct planned to culminate in his commission of the crime. Conduct shall not be held to constitute a substantial step unless it is strongly corroborative of the actor’s criminal purpose. ii. MPC broadens liability for attempt and MPC’s rationales for conduct requirement are the same as RIL as both standards seek to ensure that the existence and firmness of the actor’s criminal purpose are substantiated by objectively demonstrable conduct. iii. MPC includes a list of conduct that in each instance is precursor leading up to the crime and could be the basis of conviction of attempt; list of examples are cases where common law courts have found insufficient. iv. Conduct might be ambiguous standing alone but under MPC if conduct corroborates criminal intent, then conduct itself would be satisfied. 2. People v. Bowen and Rouse (COA of MI 1968): Ds were found in the rear of the house with the old lady’s bedroom drawers all drawn out and her jewelry found in various places of the house. Ds were charged with attempt to commit larceny in a building. a. The jury could convict the Ds of attempted larceny the elements of which are a felonious intent to commit larceny. The trial judge failed to charge the jury at all concerning necessity of finding an overt act and instead charged that jury could convict if it found that D went to lady’s house with intention to commit larceny. b. D’s coming to or entry of lady’s house was not an overt act under the circumstances that Ds had rightfully been in the house on prior occasions and were admitted to the house on the night in question. Where entry or attempted entry upon victim’s premises has been held an overt act, such entry has been without permission or D came armed with burglary tools. c. Conduct isn’t just to corroborate the criminal intent but must independently demonstrate the resolute commitment to the criminal purpose. d. His acts must be unequivocally referable to the commission of the specific crime. They must speak for themselves and if the acts taken by themselves are unambiguous and can’t in reason be pointing to any other tend than commission of specific crime, then that constitute a sufficient actus reus. 3. US v. Harper (9th Cir. 1994): Harper and company were found with weapons and robbery tools and were convicted with attempted bank robbery. Harper who had previously worked for BOA set a bill trap and waited for the technician to arrive so they can rob the vault. a. Court agreed there was sufficient evidence to find intent to rob BOA but Ds hadn’t taken a substantial step towards commission of the offense. b. The actual embarkation of the robbery lay as much as 90 minutes (the normal response time for ATM service technicians) away from the time when Harper left the money; there was no actual movement toward the bank and there’s a substantial difference between this cause, causing a bill trap, which will result in the appearance of potential victims, and moving toward such victims with gun and mask as in Moore. c. ES: court applies the proximity test and underscores the motion and claimed that waiting isn’t insufficient when it is supposed to apply the MPC. 4. US v. Gladish (7th Cir.): D is convicted for knowingly attempting to entice a person under 18 to negate in criminal sexual activity. a. D and an undercover agent had agreed in a chat room to have sex and in subsequent chat he discussed the possibility of traveling to meet her in a couple of weeks. b. The substantial step towards completion is the demonstration of dangerousness; you have to do something that makes it reasonably clear that had you not been interrupted or made a mistake you would have completed the crime. c. The substantial step can be making arrangements to meet the girl as by agreeing on a time and place; it can be taking other predatory steps such as making hotel reservation, purchasing a gift or buying a train ticket. d. In Goetzke, D was convicted but in that case given their prior relationship and what D knew of the victim and their circumstances, the most substantial steps realistically could be taken were to communicate his affections and carefullycrafted incentives for the victim. e. Here there was harmless banter and there was no indication D would travel to North Indiana nor did he invite her to meet him in southern Indiana; here D may thought that he was enacting a fantasy and treating obscene speech as the substantial step would abolish any requirement of a substantial step. f. ES: court applied MPC test and asked whether that conduct is substantial step that strongly corroborates his criminal intent. Judge Posner said no even though there were similar steps as in Goetzke because the latter case conformed with grooming prospective victims as opposed to a way to have fun in the chat room. Courts looking at the conduct but certainly looking at the intent too; the stronger the intent, the more likely a court is going to find the conduct corroborating the intent. 5. People v. Adami (Cal. 1973): D hired a hitman to get rid of his wife, gave the undercover agent $500 deposit and a picture of his wife as well as details about her and her possible whereabouts. a. Court refused to convict the D because neither the D nor the undercover agent had taken direct steps coming dangerously close to the commission of the contemplated crime, there was at most preparation and not a criminal attempt. Difficulty of securing attempt convictions in such situations led to the fairly widespread enactment of independent crimes of criminal solicitation (MPC 5.02). b. Mens Rea of Attempt i. State has to prove the purpose to commit that crime under common law and MPC rather than culpability for the object offense which may very well be recklessness. If the harm actually happens, then mens rea of recklessness will suffice under common law and MPC. 1. Attempt is a specific intent offense even if the target crime is general intent. Actor must commit the actus reus of an attempt with the specific intent to commit the target offense. ii. MPC complete attempts are 5.01(1)(a-b) and incomplete attempts are 5.01(1)(c). Conduct crimes are handled by 1a whereas results are considered in 1b. Mens rea is purpose, person not guilty of attempt unless he purposely engages in conduct that would constitute crime (a), acts with the purpose of causing or with the belief that it will cause (1b) or purposely does an act constituting a substantial step (1c). Purpose is required for conduct and result. Attendant circumstance: guilty of attempt if acts with the kind of culpability otherwise required for commission of the target crime. 1. MPC 5.01 that defines attempt departs from the common law position that a specific intent is required for all elements of the offense attempted. MPC requires a purpose to engage in the conduct and result elements of the object offense but the mens rea for the circumstance elements would be the same as would be required were the offense completed. iii. Majority Rule: 1. Thacker v. Commonwealth (1922): D passed around a tent and fired three shots at the light inside the tent with two shots that barely missed the lady sleeping inside. Court held that to do an act from general malevolence is not an attempt to commit a crime because there is no specific intent. To commit murder one need not intend to take life but to be guilty of an attempt to murder, he must so intend. iv. Minority Rule 1. People v. Thomas (SC of CO 1986): D was convicted of attempted reckless manslaughter after he fired shots at someone who allegedly raped D’s ex-gf. Object offense carries over. a. Lower court held that recklessness is a mental culpability which is incompatible with the concept of an intentional act. Attempted reckless manslaughter requires that the accused have the intent to commit the underlying offense of recklessness manslaughter. It’s the intent to engage in and complete the risk-producing act and doesn’t include intent that death occurs even though the underlying crime, reckless manslaughter, has death as an essential element. b. Culpability for criminal attempt rests primarily upon actor’s purpose to cause harmful consequence. Statute doesn’t require a conscious purpose to achieve proscribed results so criminal attempt is not a specific intent crime. Although a difference in degree of moral culpability of actor might be perceived between knowingly achieving a proscribed result and recklessly accomplishing it, we now conclude that the difference in potential for future danger isn’t significant enough to justify a different result (only requires recklessness for attempt to commit reckless manslaughter). c. Court is saying those who recklessly aim the gun very close to someone is as culpable as someone who aims at someone and missing. ES: overwhelmingly legislatures treat these two acts differently; if the harm isn’t caused the law tends to be quite forgiving, then perhaps the conduct isn’t as dangerous as it seemed. v. Grading 1. Common law: attempts were treated as minor crimes because common law was focused on the harm. 2. MPC and most modern statutes: attempt is the same level of offense as the object crime (burglary and attempted burglary are both second degree felonies). Trend is towards narrowing the gap between object offense and attempt. c. Impossibility i. Pure legal impossibility is a defense while factual impossibility and hybrid legal impossibility are not. Many states have followed MPC in abolishing the legal impossibility because the people who are acquitted on the ground of legal impossibility are just as dangerous and culpable and distinction between factual and hybrid is largely non-existent. ii. People v. Dlugash (COA of NY 1977): D shot at victim’s body after D’s friend fired shots into the body first. 1. Question centers on whether an individual should be liable for an attempt to commit a crime when unknown to him it was impossible to successfully complete the crime attempted. 2. The basic premise of MPC is that what was in the actor’s own mind should be the standard for determining his dangerousness to society. It is no defense that the crime was factually or legally impossible of commission. There is sufficient evidence in the record from which the jury could conclude that D believed victim to be alive at the time D fired shots. Jury convicted D of murder so necessarily they found that D intended to kill a live human being and jury necessarily found that D believed victim to be alive when D shot at him. NY abolished the impossibility defense following the MPC approach. 3. It’s not clear and the state can’t prove that D caused the death of the human being so he’s not charged with murder but charged with attempted murder. Legal impossibility (there’s some legal attribute of the situation that makes it impossible to commit the crime) is a defense whereas factual impossibility isn’t a defense (actor can’t complete the crime because of unknown physical or factual conditions). ES: distinctions don’t make a lot of sense. iii. MPC 5.01(1) is based on the premise that criminality should be judged from the circumstances as D viewed them. Provisions of 5.05(2) and 2.12 permit the grade of the offense to be reduced or in extreme cases the prosecution to be dismissed when the actor’s conduct is so inherently unlikely to result or culminate in the commission of a crime that neither such conduct nor the actor presents a public danger. This is defended on the ground that most Ds in impossibility situations have demonstrated XII. their readiness to violate the criminal law, have manifested the required culpability, and have posed sufficient social danger to justify the invocation of criminal sanctions. 1. Example: lady tried to avoid duty on a seemingly expensive but ordinary jewelry piece; suggests a category of cases where one might be concerned because there is no culpable conduct (important to have some culpable conduct). ES: we want to make sure that the conviction isn’t just resting on her confession and intent, there has to be some culpable conduct. 2. True legal impossibility: buying marijuana thinking it would be criminal when in fact it would be legal, there’s no culpable conduct, if the conduct isn’t a crime it won’t be turned into a crime just because D thinks it’s a crime. iv. ES: MPC expands the scope of liability for convicting attempts: requires substantial step (as opposed to proximity), grading of attempt as a much more serious crime, near abolishment of impossibility defense, treating mens rea of circumstance element as object offense as opposed to knowledge. d. Abandonment of Attempt i. CL doesn’t recognize abandonment of attempt but MPC recognizes it (voluntary and not because of increased probability of getting caught; delaying the criminal attempt into later time doesn’t count). 1. In MPC (substantial step), there seems to be some distance between the attempt of conduct and when conduct will be complete so there’s sufficient room for Ds to get cold feet and abandonment makes sense. But in CL (proximity test), attempt requires almost completing the attempt so there’s not much space between committing attempt and the object offense. ii. MPC recognizes abandonment as a defense if the conduct manifests a complete and voluntary renunciation of her criminal purpose. iii. Ross v. Mississippi (SC of MS 1992): D was attempting to rape and walked away after victim said she had a young daughter coming home from school. D argued that he made a voluntary and independent decision while the state claims that D panicked. 1. MS attempt statute requires that failure to consummate result from extraneous causes so D’s voluntary abandonment may negate a crime of attempt. 2. Abandonment occurs where with no physical resistance or external intervention, the perpetrator changes his mind. At the other end, perpetrator can’t claim he abandoned his attempt when he ceased efforts because the victim or a third party intervened or prevented him from furthering the attempt. 3. Here, D voluntarily abandoned his attempt and no evidence shows that D panicked and hastily drove away. Homicide a. Murder i. Early common law definition of murder was killing with malice forethought. By 18th century, murder was divided into FDM and SDM, and manslaughter divided into voluntary (heat of passion upon provocation) or involuntary (reckless or negligence). Intent to kill was not necessarily required (indifference to murder) and intentional killing could be manslaughter. ii. Common law definition of murder is a killing of human being by another human being with malice aforethought. Person acts with malice if she kills a person with any one of the four mental states: intention to kill a human being, intention to inflict grievous bodily injury on another, extremely reckless disregard for the value of human life (depraved heart murder) or intention to commit a felony during the commission or attempted commission of which the death results. iii. MPC: a homicide is murder if the actor intentionally takes a life or if she acts with extreme recklessness. MPC doesn’t divide murder into degrees, doesn’t require proof of premeditation and deliberation and abandons the felony murder rule but provides that reckless indifference to human life may be presumed if the person causes the death during commission of one of the felonies enumerated (robbery, arson, burglary, kidnapping, felonious escape, rape or deviate sexual intercourse by force or threat of force). iv. State v. Brown (SC of TN 1992): a four year old boy Eddie was allegedly beaten to death (suffered varying bruises, abrasion, intestinal, cranial and cerebral injuries) and the father was convicted of first degree murder. D argued that premeditation was not shown and court held that evidence introduced at trial wasn’t sufficient to support conviction for first degree murder and that D’s conviction must be reduced to second degree murder. 1. From the beginning, the statutory definition of first degree murder required the state to prove that the killing was done willfully, that is of purpose, with intent that the act by which the life of a party is taken should have that effect; deliberately, that is, with cool purpose; maliciously, that is with malice aforethought; and with premeditation, that is a design must be formed to kill before the act by which death is produced is performed. Because conviction of second degree murder also requires proof of intent and malice, two distinctive elements of first degree murder are deliberation and premeditation. 2. It’s true that purpose need not be deliberated upon any particular length of time but it’s enough if it precede the act but the purpose must be coolly formed and not in passion or if formed in passion, must be executed after the passion has had time to subside. 3. Even if intent (purpose to kill) and premeditation (design) may be formed in an instant, deliberation requires some period of reflection, during which the mind is free from the influence of excitement or passion. 4. There is proof here that D acted maliciously toward the child, in the heat of passion or anger, without adequate provocation, all of which would make him guilty of SDM but no evidence that D acted with premeditation and deliberation required to establish FDM. 5. Relevant circumstances recognized by other courts as creating an inference of premeditation and deliberation are: deadly weapon was used upon an unarmed victim, homicidal act was part of a conspiracy to kill persons of a particular class, killing was particularly cruel, weapons with which to commit the homicide were procured, D made declarations of his intent to kill the victim, preparations were made before the homicide for concealment of the crime such as digging a grave. 6. ES: Brown seems to accept that premeditation can be formed within seconds but focuses on deliberation which suggests a calm reflection of the act. Why punish acts with premeditation and deliberation more? More culpable because there’s more control and more preventable when compared with crimes of passion. In states without clarifications on premeditation and deliberation, juries decide the severity of the crime. Heinousness of the crime may be a better standard? v. People v. Anderson (Cal. 1968): D was convicted of FDM after a 10 year girl was found with 60 knife wounds in D’s girlfriend’s house and D had been drinking heavily. Court gave literal meaning of the words deliberation and meditation. 1. We have repeatedly pointed out that the legislative classification of murder into two degrees would be meaningless if deliberation and premeditation were construed as requiring no more than may be involved in mere formation of a specific intent to kill. 2. We have therefore required the killer act as a result of careful thought and weighing of considerations; as a deliberate judgment or plan; carried on coolly and steadily, especially according to a preconceived design. 3. Evidence of premeditation and deliberation usually fell into three patterns: evidence of planning activity, evidence of motive, and evidence as to the manner of the killing that showed a preconceived design to kill. Here there’s no evidence of planning and no evidence of motive. vi. People v. Roe (COA of NY 1989): D loaded a mix of live and dummy shells into a shotgun and killed the victim while playing Polish roulette. 1. Judgment affirmed that proof is legally sufficient to convict D of depraved indifference murder. Depraved indifference murder, like reckless manslaughter, is a nonintentional homicide. It must be shown that the actor’s reckless conduct is imminently dangerous and presents a grave risk of death; in manslaughter, the conduct need only present the lesser substantial risk of death. 2. Whether the risk is elevated into the very substantial risk present in murder depends upon the wantonness of D’s acts, whether they were committed evincing a depraved indifference to human life. This involves an objective assessment of the degree of risk presented by D’s reckless conduct. 3. Here, the shooter knowingly loaded the mix of live and dummy cartridges with no regard to the order of their insertion into the magazine. ES: seems to just look at gravity of the risk of death. 4. Dissent: the mathematical probabilities, the ambiguity in the evidence as to the operational order in the firing of the weapon, all render the risk of death uncertain and D’s grief and aid to the victim counter-indicate depravity, callousness, and indifference of the level fictionally equaling premeditated, intentional murder. 5. ES: arguing his crime was reckless manslaughter. Depraved murder carries 15-life whereas reckless manslaughter carries 4-15 years. Difference is that his reckless conduct shows malice, grave risk of death; objective determination whether the risk of death is so grave that D should be convicted of murder rather than manslaughter. a. Basically applying MPC analysis (in order to show recklessness, D doesn’t need to believe the risks were substantial), D has to be aware of the risks and the circumstances creating the risk but doesn’t have to be aware that it’s a grave risk. vii. Commonwealth v. Malone (PA 1946): D engaged in a game of Russian Roulette with a friend and killed the friend on the third shot after loading five bullets into the chamber. 1. Conviction for murder upheld and grand criterion which distinguished murder from other killing was malice and this malice was not malevolent to the deceased particularly but any evil design in general, the dictate of a wicked, depraved, and malignant heart. Here, D exhibits wickedness of disposition, hardness of heart, cruelty, recklessness of consequence, and a mind regardless of social duty which proved there was malice in his mind. viii. Nothington v. State (AL 1981): mother was convicted of murder for allowing her five month old daughter to starve to death and court reversed conviction because the statute required universal malice. 1. While D’s actions evidence an extreme indifference to the life of her child, there was nothing to show that the conduct displayed an extreme indifference to human life generally. b. Manslaughter i. Common Law Rules 1. At common law, Lord Holt discussed five types of provocation which had been legally sufficient to rebut the implication of malice to reduce the crime of murder: any striking of the accused, angry words followed by assault, sight of a friend or relative being beaten, sight of a citizen being unlawfully deprived of his liberty, and sight of a man in adultery with accused’s wife. The categories of provocation insufficient to reduce murder to manslaughter were words alone, affronting gestures, trespass to property, misconduct by child or servant, and breach of contract. a. ES: provocation applies only to intentional killing and provocation must come from the victim; takes intentional killing that is presumed to be done with malice and makes it a crime that doesn’t involve malice. It lowers the grade of the homicide but not a complete defense. 2. Common law defense has four elements: actor must have acted in heat of passion, the passion must have been the result of adequate provocation, actor must not have a reasonable opportunity to cool off, and there must be a causal link between provocation, the passion, and the homicide. a. Words alone don’t constitute adequate provocation but the trend is away from recognizing only a limited number of categories of adequate provocation. 3. Most jurisdictions have created a three stage analysis: D must have acted in a heat of passion based on sudden provocation, provoking event must have been legally adequate (courts continue to exclude certain events such as mere epithets), and provocation must also have been of a sufficient degree to have excited the passions of a reasonable person. 4. The traditional rationale for allowing provocation is that killing which is the result of temporary excitement is substantially less blameworthy than a killing which is the result of wickedness of heart or innate recklessness of disposition. a. Freddo v. State (SC of TN 1913): D struck the victim with a steel bar after victim continually used the phrases “son of a bitch” to him. D argued that he struck because of anger at the epithet and to defend himself and would not have struck but for victim’s movement. Charged with FDM and convicted with SDM so one of the elements must have been missing (premeditation or deliberation). i. D killed victim under impulse of sudden heat of passion but it wouldn’t reduce the grade of the crime from murder to voluntary manslaughter unless that passion were due to a provocation of such a character in the mind of an average reasonable man, stir resentment likely to cause violence, obscuring the reason, and leading to action from passion rather than judgment. ii. Law tests the adequacy of the provocation upon the basis of a mind ordinarily constituted, of the fair average mind and disposition and no epithet or language, however violent or offensive, is sufficient provocation for taking life. Assault with offensive language may be sufficient provocation. iii. ES: one bright line rule is that words are never enough. Principle is to ask the ordinary person whether he/she is so provoked that he/she might kill this person, kind of like a reasonable standard and assumption that an ordinary person would never kill another person just in response to verbal taunts. 5. Cooling Periods a. Traditional provocation doctrine includes requirement that killing occur before a sufficient interval has passed to permit the passions to cool and allow thought and reflection and reason to reassert itself. i. Three step analysis: D’s passion must not in fact have abated, passage of time sufficient for reason to be restored will preclude defense as a matter of law, and it’s a question for the jury whether a reasonable person would have cooled off in the interval between provocation and act of killing. ii. State v. Gounagias (WA 1915): deceased had sodomized D when D was drunk and spread the story widely. Upon being taunted for weeks, D took a gun and shot the deceased in the latter’s home while the deceased was sleeping. 1. Theory of cumulative effect of reminders of former wrongs, not of new acts of provocation by the deceased, is contrary to the idea of sudden anger as understood in the doctrine of mitigation. A provocation which doesn’t cause instant resentment, but which is only resented after being thought upon and brooded over, is not a provocation sufficient in law to reduce intentional killing from murder to manslaughter. iii. People v. Berry (CA 1976): D killed deceased who had taunted D about having sexual relations with another man. After ten days, deceased started taunting and screaming and D strangled her. 1. Verbal provocation may be sufficient and facts support a finding that D killed in wild desperation induced by long continued provocatory conduct. The long course of provocatory conduct reached its final culmination in the apartment when Rachel began screaming and D killed in a state of uncontrollable rage, of passion. 2. ES: controversial case and has come to symbolize that provocation defense reflects a male perception of the world. 6. Objective Standards a. Both sufficiency of provocation and passage of adequate time to cool down are measured by an objective standard. i. Bedder v. Director of Public Prosecutions (1954): D was sexually impotent and emotionally stressed and stabbed deceased to death after she laughed and punched him in the groin. 1. An unusually excitable or pugnacious individual, or drunken one or a man who is sexually impotent isn’t entitled to rely on provocation which wouldn’t have led an ordinary person to have acted in the way which was in fact carried out. ii. People v. Ogen (CA 1985): society has a strong interest in deterring violent and homicidal conduct by not allowing individuals to justify their acts by their own standard of conduct or else the rule would limit homicides to manslaughter upon any fancied slight so long as the perpetrator was sufficiently sensitive. iii. A man’s passion directed against another person is reasonable if he reasonably believes that he has been injured by the other and a reasonable man who actually has suffered such an injury would be put in a passion directed against the other. ii. MPC 1. 210.3(b) states that a homicide that would otherwise be murder “constitutes manslaughter when … [it] 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 actor’s situation under the circumstances as he believes them to be.” 2. Words alone can qualify and there is no reasonable cooling off period. Provocation doesn’t have to come from victim. EMED determined from the perspective of a person in the actor’s situation under the circumstances as he believes them to be so allows considerable subjectivization of the objective standard. a. Situation clearly would include personal handicaps so blindness, shock from traumatic injury, and extreme grief are all easily read into the term situation but idiosyncratic moral values are not part of the actor’s situation and ultimately the question is whether actor’s loss of selfcontrol can be understood in terms that arouse sympathy in the ordinary citizen. b. Jurisdictions that have MPC usually have much higher manslaughter sentences (basically a response to the criticism that we’re just letting people off). Those with common law traditional provocation defense, usually lower manslaughter sentence 3. People v. Casassa: D killed the deceased with whom he dated and alleged the defense that the course of the relationship combined with several personality attributes peculiar to D, he was under the influence of extreme emotional disturbance. a. Trial court properly concluded that the test was not to be applied solely from the viewpoint of D, and that the emotional reaction at the time of the commission of the crime was so peculiar to him that it couldn’t be considered reasonable so as to reduce the conviction to manslaughter in the first degree. b. Court made a sincere effort to understand D’s situation and the circumstances as D believed them to be but concluded that murder was the result of D’s malevolence rather than an understandable human response deserving of mercy. c. Felony Murder i. A person who commits any felony and all accomplices in that felony are guilty of murder if a death occurs during the commission or attempted commission of the felony. The killer’s malignant purpose is established by proof of the collateral felony. 1. Rationale: reduce deaths coming out of the course of those offense (be really careful that no one gets killed, encourage felons who pursue felonies to be careful so that no one gets killed). ii. MPC abolishes the felony murder rule; under 210.2.1(b): reckless indifference is presumed when actor commits a series of offenses (creates a presumption that death that happens in the course of dangerous felonies such as kidnapping represents condition of reckless indifference to human life). iii. Courts have used three devices for limiting the situations: requirement that felony be inherently dangerous (felony be malum in se rather than malum prohibitum), causation limitation usually expressed as requiring that death be a natural or probable result of the felonious conduct, and requirement that felony be independent of the homicide (merger rule to exclude lesser-included homicide and assault offenses from those felonies to which the rule applies). 1. The abstract inherently dangerous test is whether the crime by its very nature can’t be committed without creating a substantial risk that someone will be killed or carrying a high probability that death will result. Other jurisdictions consider the facts and circumstances of the particular case to determine if such felony was inherently dangerous in the manner and circumstances in which it was committed. 2. Modern merger rule is that a felony doesn’t merge if the assaultive behavior involves an independent felonious purpose or that a felony doesn’t merge with a homicide where the act causing death was committed with a collateral and independent felonious design separate from the intent to inflict the injury that caused death. iv. People v. Hansen (CA 1994): D paid for some meth but when the dealer didn’t return, D fired several shots into the dwelling of the dealer killing a young girl in the apt. 1. There are specific felonies that count as FDFM. SDFM requires dangerous felonies. SDM is unlawful killing of a human being with malice but without the additional elements that would support a FDM. Felony murder rule imputes the requisite malice for a murder conviction to those who commit a homicide during the perpetration of a felony inherently dangerous to human life. The doctrine operates to posit the existence of crucial mental state and render irrelevant evidence of actual malice. 2. In determining whether a felony is inherently dangerous, court looks to the elements of the felony in the abstract and not the particular facts of the case. Inherently dangerous felony is one by its very nature can’t be committed without creating a substantial risk that someone will be killed/offense carrying a high probability that death will result. In most states, judgment about whether felony is a dangerous felony will be made based on circumstances surrounding the offense. 3. Willful discharge of a firearm at an inhabited dwelling is an inherently dangerous felony for the purposes of the SDM because there will exist a significant likelihood that an occupant may be present and it would directly serve the fundamental rationale of deterring negligent or accidental killings in the course of the commission of dangerous felonies. 4. Merger doctrines had been developed for the conclusion that felony murder rule shouldn’t be applied in circumstances where the only underlying felony committed by D was assault because it would elevate every felonious assault to murder if death is involved, frustrating Legislature’s intent to punish certain felonious assaults (committed with malice forethought) more harshly than other felonious assaults (without malice aforethought). 5. The rule is that with respect to certain inherently dangerous felonies, their use as the predicate felony supporting application of the felony murder rule will not elevate felonious assaults to murder to otherwise subvert the legislative intent. Application of SD felony murder rule wouldn’t subvert legislative intent because most homicides don’t result from the felony involved here. 6. Concurrence: the merger rule should require us to determine whether the underlying felony was committed with a collateral and independent felonious design. This case supports the conclusion that D entertained a collateral and independent felonious design, namely to intimidate the dealer by firing shots into his house. 7. Dissent: prohibited conduct has resulted in death only in rare circumstances because activities often demand attendance outside so occupants may not be present and the rule can’t be a deterrent to someone who has decided to undertake an assault (though the felony here doesn’t bear the label of assault) and the merger rule should apply because there was no independent purpose other than to assault the dealer. 8. ES: two basis for appeal: wasn’t a dangerous felony and that offense had merged in the homicide and hence can’t be treated as a felony. Decided first issue of dangerous felonies in the abstract v. individualized approach. If not for the merger rule, then every homicide will be turned into a felony murder and would undermine legislative intent that grades different homicides based on requisite mens rea. Here, there was a single course of conduct that resulted someone’s death so discharging the firearm should have been excluded. Court rejected the integral test and endorsed “committed with collateral and independent felonious design” apart from intentional to cause injury. Here the intent was to scare and not to cause injury. v. Heacock v. Commonwealth (VA 1984): court upheld the felony murder conviction of a person who supplied cocaine to participants at a drug party. Court rejected the inherently dangerous felony limitation and concluded that statute applies to all felonious acts except those particularly named in the FD statute and evidence suggested that it was inherently dangerous anyway because of medical testimony that cocaine can cause violent reactions and that legislature classified cocaine distribution as very serious felony. ES: is selling drugs inherently dangerous (do a lot of people die)? vi. Clark County v. Morris (NV 1983): carefully limited circumstances that would support conviction of a drug seller for SDFM to those instances where the unauthorized sale and ingestion of a controlled substance involved are inherently dangerous in the abstract and there must be an immediate and causal relationship between the felonious conduct and death of the victim and would exclude sale with nonlethal dosage. ES: seller has to have involvement beyond selling; amount sold has to be dangerous in the abstract, there has to be immediate causal connection without intervening agency and there has to be some involvement by seller in the ingestion (encouragement). vii. Causation 1. Anytime that causation is part of the result element, there’s ambiguity as to whether the causation is too remote. Long lapse of time is sometimes a problem but there could be intervening factors that breaks the chain of events (refusing blood transfusion after getting shot). 2. State v. Sophophone (SC of KS 2001): D appeals felony murder conviction for the death of his co-felon during flight from an aggravated burglary in which both men participated. Can felon be held to FM if the murder was caused by co-defendant, victim, police officer, or bystander? Can D be convicted of murder if the immediate cause of his co-felon’s death was the police officer? a. Agency approach: majority rule is that felony murder doctrine doesn’t apply if the person who directly causes the death is a non-felon because it’s not possible to impute the acts of a non-felon or police officer to a co-felon on the basis of agency. But D can be charged with depraved and indifferent murder (for death of victims). b. Proximate causation: a felon may be responsible under felony murder for a killing committed by a non-felon if the felon set in motion the acts which resulted in the victim’s death. i. Standard is one of objective foreseeability. Foreseeable: killing by police officer, resistance by victim. Not foreseeable: reckless police conduct. c. ES: most courts have adopted the proximate causation approach and not agency approach. d. The overriding fact is that neither D nor any of his accomplices killed anyone. To impute the act of killing to defendant when the act was the lawful and courageous one of a law enforcement officer is contrary to the strict construction we are required to give criminal statutes. Felony murder must have been done by D or by someone acting in concert with him in furtherance of the felonious undertaking. e. Dissent: there are sound reasons to adopt the proximate cause approach as the intent behind the felony murder doctrine would be thwarted if we didn’t hold felons responsible for the foreseeable consequences of their actions. f. ES: under laws of complicity, any participant is liable for the other participants for the furtherance of the felony (3 robbers, 1 getaway guy, 1 planner at home; if robber is guilty of FM, then all of them are guilty). If getaway rapes someone, then only he’s guilty because it’s not part of their armed robbery. In general, any crime committed by one of the participants in furtherance of their offense will be imputed to all of the participants. 3. People v. Antick (Cal 1975): D and another was charged with burglary and murder. D walked away from a car and shortly after his accomplice was killed after initiating a gun battle with the police. a. As the immediate cause of death was the act of the officer it’s clear that felony murder rule doesn’t operate to convert the killing into a murder for which D may be liable by virtue of his participation. Nor may D be held legally accountable based on his vicarious liability for the crimes of his accomplice since his accomplice didn’t cause the death of another human being and that he acted with malice. viii. In many states for Sophophone situations, state applies the proximate causation theory. 1. If purpose of FM is super deterrent for engaging in felonies at all, then proximate causation would allow for more convictions for FM where third party would be immediately responsible. 2. If purpose of FM to promote care in the commission of felonies to reduce accidental deaths, agency theory fits with the rationale to choose co-felons carefully and control them; limits deaths controllable by felons. XIII. Justification and Excuse a. Necessity (necessary to commit the crime to prevent a greater harm from happening; often called the lesser of evils defense and committing the crime was the only way of avoiding the grave harm). i. Defense grounded in utilitarian consideration (preventing more harm) but can be justified from retributivist view (not a bad decision to choose action that avoids a larger loss). ii. Defense of Necessity is given in limited circumstances, don’t want people to decide for themselves. 1. ES: a good test to ask self: if the legislature had thought about this situation, would it have created the exception? iii. Common law requirements: actor must be faced with clear and imminent danger, D must expect that his action will be effective in abating the danger that he seeks to avoid, there must be no effective legal way to aver the harm, harm D will cause must be less serious than the harm he seeks to avoid, lawmakers must not have made a policy choice, and D must come to the situation with clean hands. iv. MPC 3.02 recognizes a choice of evils defense, a person’s conduct is justified if he believes his conduct is necessary to avoid harm to himself to another, the harm to be avoided is greater than that sought to be avoided and no legislative intent to exclude the conduct in such circumstances plainly exists. Code provides that defense is unavailable if the actor is prosecuted for a crime of recklessness or negligence and he acted reckless or negligently in bring about the emergency in evaluating the necessity of his conduct. Harm doesn’t need to be imminent and defense is available in homicide prosecutions. v. Commonwealth v. Markum (SC of PA 1988): Ds were part of an antiabortion demonstration and went into a clinic and damaged medical instruments. They were charged with trespass and alleged defense of justification to prevent murder (life begins at conception) through the lesser harm of trespass. 1. In PA, defense of justification is recognized by statute that conduct which the actor believes to be necessary to avoid a harm or evil to himself or to another is justifiable is: the harm or evil sought to be avoided is greater than that sought to be prevented by the law defining the offense charged (saving lives is more important than destruction of property); neither this title nor other law defining the offense provides exceptions or defenses dealing with the specific situation involved (if there was statute that dealt with trespass to abortion clinics then defense would be precluded), and a legislative purpose to exclude the justification claim doesn’t otherwise plainly appear. 2. Case law has held that D is able to make an offer of proof for justification only if: the actor was faced with a clear and imminent harm, not one which is debatable or speculative; that actor could reasonably expect that the actor’s actions would be effective in avoiding this greater harm, there was no legal alternative which will be effective in abating the harm, and the legislature hadn’t acted to preclude the defense by a clear and deliberate choice regarding the matter at issue. 3. Berrigan held additionally that defense of justification was not available in situations where conduct some perceive to engender public disaster has been specifically approved by legislation making it legal. Abortion has been specifically approve by the Legislature and a legally sanctioned activity can’t be termed a public disaster. 4. It’s unreasonable to believe that their brief occupation of once center would effectively put an end to the practice of abortion. 5. There are numerous means in a democratic society to express a point of view and appellants were free to peacefully demonstrate outside the center to prevent the harm. 6. Pennsylvania law is clearly to the contrary showing that there was legislative purpose to exclude the justification defense. 7. Concurrence: appellants complied with three out of the four conditions precedent to the presentation of defense of justification: the abortion would be completed in a very brief time so the danger was clear and imminent, appellants were able to prevent the women from entering the building and there was no legal vi. vii. viii. ix. alternative available. But appellants couldn’t establish the absence of a legislative purpose to exclude the defense of justification. 8. ES: NY statute (gambling, prostitution, criminal act may prevent injury that is measured by ordinary intelligence and morality so may allow a defense). Injury to be avoided must according to ordinary standards of intelligence and morality, clearly outweigh the injury. Common Law and Modern Statutory Formulation 1. MPC has been adopted in substance by 10 American jurisdictions and is the same as the Markum one. NY Penal Code stresses the desirability and urgency of avoiding such injury clearly outweigh the desirability of avoiding the injury sought to be prevented by the statute defining the offense. MPC eliminates the necessity defense whenever the legislature has specifically spoken on the topic so under MPC whatever is legal couldn’t be evil. 2. Most state statutes impose a similar limitation as does the MPC that the choice of evils defense is limited to where the necessity is occasioned or developed through no fault of the actor. Economic Necessity 1. State v Moe: Ds entered a local grocery store and helped themselves during the Depression. Court stated that economic necessity has never been accepted as a defense to a criminal charge. Medical Necessity 1. State v. Tate: D was a quadriplegic and used marijuana and court upheld the conviction because the legislation allowed marijuana to be prescribed in some circumstances so by making available this specific exception, legislature intended to exclude claims based on medical necessity. 2. State v. Diana: D used marijuana because of her MS symptoms. Court stated that necessity defense can be considered because legislature had recognized in some cases marijuana possess medicinal benefits that outweigh the harms its use inflicts so D should be given the opportunity to demonstrate that MS is another such case. Necessity as Justification for Homicide 1. Traditional common law bars this defense but most modern statutes including both MPC and NY provision seem to contemplate a defense of necessity or choice of evils may be raised where one innocent person is killed in order to save others. 2. Regina v. Dudley and Stephens: sailors killed one boy in order to escape starvation after being stranded at sea. Court held that there is no absolute or unqualified necessity to preserve one’s life and that if such a principle is once admitted, it might be made the legal cloak for unbridled passion and atrocious crime. a. The boy is innocent and the victim wasn’t an aggressor who created any sort of threat. b. ES: at common law this defense wasn’t available if the plain lesser evil involve killing someone. Many statutes and MPC allow this defense. It seems more culpable to be rational and plan things out than to be in urgent circumstances. b. Defense against Aggression (Self-Defense) i. COL: A non-aggressor is justified in using force upon another if He reasonably believes that such force is necessary to repel the imminent use of unlawful deadly force by the other person. 1. Self-defense contains a necessity component, proportionality requirement, and a reasonable belief rule that overlays the defense. 2. Deadly force is typically defined as force likely to cause or intended to cause death or serious bodily harm. a. Self-defense is limited to imminent threats and a person may not use deadly force in some jurisdictions if he knows that he has a completely safe avenue of retreat. b. Proportionate rule provides that a person isn’t justified in using force that’s excessive in relation to the harm threatened so never permitted to use deadly force to repel what he knows is a nondeadly attack. c. Self-defense claim has a subjective and an objective component. First jury must determine that D subjectively believed that he needed to use deadly force to repel an imminent unlawful attack. Second D’s belief in this regard must be one that a reasonable person in the same situation would have possessed. An increasing number of jurisdictions now permit an unreasonably mistaken actor to assert an imperfect claim of self-defense, which mitigates the offense to manslaughter. ii. MPC 3.04: person not justified in using deadly force against another unless she believes that such force is immediately necessary to protect herself against the exercise of unlawful deadly force, force likely to cause serious bodily harm, kidnapping, or sexual intercourse compelled by force or threat. 1. Each defense is defined solely in terms of D’s subjective belief in the necessity of using the force but it’s subject to the provisions of 3.09 which provides that when D is reckless or negligent in regard to facts relating to the justifiability of his conduct, defense is unavailable in a prosecution for an offense for which recklessness or negligence suffices to establish culpability. a. If actor’s subjective belief is reckless or negligent then the D may be convicted of a homicide offense based on recklessness or negligence (such as manslaughter or negligent homicide). 2. Compare with common law: repel imminent use of unlawful deadly force v. MPC immediately necessary to protect against herself. MPC follows the minority common law position that a non-aggressor must retreat if she knows she can thereby avoid need to use deadly force with complete safety to herself. iii. People v. Goetz (COA of NY 1986): D shot four youths who asked him for money on the train and alleged self-defense. 1. D claiming self-defense can’t be aggressor, threat must be immediate and his belief that he faced a serious bodily injury or death from these aggressor has to be reasonable. 2. Rationale: focuses on autonomy of individuals and right to be free from; aggressor interfering with victim’s autonomy and bodily integrity and victim has a right to respond (moral and legal right). 3. NY Penal Law states that a person may not use deadly physical force unless he reasonably believes that such other person is using or about to use deadly physical force or he reasonably believes that such other person is committing or attempting to commit a kidnaping, forcible rape, forcible sodomy or robbery. a. An objective standard can still incorporate the background and other relevant characteristics of a particular actor; they also necessarily bring in physical attributes of all persons involved and D’s circumstances encompass any prior experiences he had which could provide a reasonable basis for a belief. 4. NY COA in Goetz is to adopt an objective standard that requires the belief to be reasonable but in evaluating the reasonableness of the belief, fact finder is to base that judgment in D’s circumstances (includes a lot of factors that is subjective to the D; immediate context (subway, size of the aggressors, size and strength of victim); Court can consider prior experiences that shape one’s perception. 5. ES: looks like vigilante justice. iv. Stand Your Ground/Retreat Rule 1. MPC 3.04(2)(b)(2) states that deadly force isn’t justifiable if the actor knows that he can avoid the necessity of using such force with complete safety by retreating. Majority of states reject the retreat rule as well as upholding the right to stand one’s ground. Most jurisdictions endorse the SCOTUS’s view that the failure to retreat is a circumstance to be considered with all the others in order to determine whether the D went farther than he was justified in doing. MPC tells citizens that a part of duty to retreat is to turn over property to the aggressor. 2. Castle exception: even jurisdictions that have adopted the requirement of retreat recognize the exception that a person attacked in his or her own home need not retreat. MPC: there is no duty to retreat in home. Intrusion in home is particularly threatening infringement on autonomy and very little space. 3. Trayvon Martin a. Stand Your Ground removed the duty to retreat outside the home and he has the right to meet force with force. It also allows the use of deadly force even when the assailant is retreating and makes it easier for a person claiming selfdefense to prevail. b. Prosecutor’s argument: Zimmerman was the aggressor and expressed anger at young punks who always get away; disobeyed dispatcher’s order to not follow Martin. c. Zimmerman’s argument: Martin was reaching for his waistband, confronted Zimmerman. d. ES: most states have a SYG rule due to NRA’s lobbying efforts; there are states that have a retreat rule. Goal of selfdefense is to minimize harm and preserving human life is an important value so duty to retreat is good to minimize confrontation. Concerned about SYG because it promotes vigilante justice. v. Mistaken in Claims of Self-Defense 1. MPC endorses imperfect justification where an unreasonable belief in the existence of justificatory facts negates the mens rea required for murder but provides no defense to the lesser charge of manslaughter so it has a mitigation effect. A person who believes however unreasonably in the existence of justificatory facts has a defense to any crime requiring culpability of purpose or knowledge. 2. An objective standard of reasonableness requires the factfinder to view the circumstances surrounding the accused at the time he used force from standpoint of a hypothetical reasonable and prudent person whereas subjective standard inquires whether the circumstances are sufficient to induce in the accused an honest and reasonable belief that the must use force to defend himself against imminent harm. vi. Battered Women Syndrome 1. State v. Kelly (SC of NJ 1984): D was indicted for murder and claimed self-defense when she killed her abusing husband when a pair of scissors when he ran toward her. Trial court excluded the expert testimony about BWS and how it is relevant to her killing her husband with scissors. Kelly felt that her life was at risk. a. In addition to psychological impacts, external social and economic factors often make it difficult for some women to extricate themselves from battering relationships. b. A valid self-defense will not lie absent an honest belief on the part of D in the necessity of using force and if it’s found to have been unreasonable under the circumstances, such a belief can’t be held to constitute complete justification for a homicide. Expert testimony would have helped the jury to understand why D could have honestly feared that she would suffer serious bodily harm yet still remain with him which in turn will aim in supporting D’s testimony that she honestly feared serious bodily harm and under the circumstances whether a reasonable person would have believed there was imminent danger to her life. c. Expert could state that D had the battered woman’s syndrome, could explain that syndrome in detail, relating its characteristics to D, but only to enable the jury to better determine the honesty and reasonableness of D’s belief. d. ES: psycho-violence in three stages (arguments and minor incidents, one or more major battering incidents, contrite stage). Court isn’t ready to accept a capacious subjective belief but is ready to accept that expert testimony can help explain to the jury. 2. Some cases reflect jurors’ acceptance that a perception of future, inescapable danger could provide sufficient grounds for reasonable, self-defensive, life-taking action even when the source of the danger was asleep. But most appellate courts have held that the imminence element isn’t satisfied by a showing that the actor faced threats of future physical violence or harm (we declined to stretch the law of self-defense to fit the facts of this case because it would weaken our assurances that justification for the taking of human life remains firmly rooted in real or apparent necessity as opposed to purely subjective speculation that decedent probably will present a threat to life at a future time and that D wouldn’t be able to avoid the predicted threat). c. Duress i. Justification defense tends to focus on the wrongfulness of an act or a result whereas an excuse defense focuses on the actor. 1. There is voluntary conduct but based on moral blameworthiness, criminal law offers an excuse for the hard choice made under external coercion. Duress is a complete defense. ii. A person will be acquitted of any offense if another person threatened to kill or grievously injure the actor or a third party, the actor reasonably believed threat was genuine, threaten was imminent, there was no reasonable escape and actor wasn’t at fault in exposing herself to the threat (threat must come from a human being). iii. MPC: duress is an affirmative defense if she was compelling to commit the offense by the use or threatened use of unlawful force by the coercer upon her or another person and a person of reasonable firmness in her situation would have been unable to resist the coercion. 1. MPC: while no need for deadly threat nor imminency requirement, still require unlawful physical coercion so economic and reputational threats don’t qualify. iv. US v. Haney (10th Cir. 2002): A co-defendant received life threats and D persuaded him to attempt to escape so the co-D can be put in solitary confinement. D was convicted of possession of escape paraphernalia and wanted to raise the defense of duress towards third party. 1. Duress defense typically consists of three elements: D has a reasonable or well-grounded fear of threat of immediate/immediate infliction upon D of death or bodily harm, D’s well-grounded fear that the threat will be carried out, and D’s lack of a reasonable opportunity to otherwise avert the threatened harm. 2. The law should extend the defense to third parties without familiar relationship because it would create good incentives for behavior as actors might hesitate to violate the law in order to protect the safety of others. 3. Duress defense is defined not by nature of relationship between the law-breaker and beneficiary third party but by the nature of the crime committed and the benefit conferred upon the third party. 4. D presented sufficient evidence because numerous witnesses substantiated racial tension in the prison and that co-D received specific and credible threat and presented enough evidence to reach the jury on whether the D or co-D has a reasonable alternative. 5. ES: self-defense requires threat of imminent bodily harm and serious injury, same as duress. Duress: no reasonable alternative. Self-defense: duty to retreat. Court is ready to forgive a minor harm if it maximizes social welfare. 6. Necessity, threat could be anything (force of nature) but in duress, threat needs to be another person. Kind of threats: necessity (harm to property or person) v. duress (threat to person, threat to reputation or property isn’t sufficient to warrant response of committing a crime), sometimes duress defense is available in contexts where the necessity defense isn’t (kidnap someone or rape wife so equal evils). v. State v. Toscano (NJ 1977): D a chiropractor signed a false medical report for another person in order to protect himself from bodily harm threatened by the person. 1. Evidence of duress sufficient to go to the jury based on MPC 2.09/NJ statute both of which reject the common law requirement of a threat of imminent harm. The immediacy of the danger is one of the circumstances to be considered in determining whether the threatened use of force was such that a person of reasonable firmness in D’s situation would have unable to resist. 2. ES: modern courts tend to look at imminence to be one factor to look at how coercive the situation is. vi. Duress and BWS 1. State v. BH (NJ 2005): D admitted to having sex with her step-son but wanted to admit expert testimony to substantiate her defense of duress. a. Has to show that she honestly and reasonably feared the unlawful use of force and that a person of reasonable firmness would have been unable to resist. b. Evidence of BWS may be used to support some but not all of the elements of a duress defense. c. D is unavailable if the actor recklessly placed himself in a situation in which it was probable that he would be subjected to duress. D is unavailable if he was criminally negligent in placing himself in such a situation and criminal negligence would suffice to establish the culpability of the offense charged. Defense is only available to reduce the degree of murder to manslaughter. d. She loses defense of duress if she recklessly put herself in or recklessly stay in the relationship and testimony is helpful in explaining why she wasn’t able to leave freely and she was restricted by her own fear. e. The first component requires that D actually believe in and be frightened by the likelihood of the threatened harm so jury must assess the sincerity of D’s asserted perception of an imminent threat of harm. The second component is that D’s resistance must meet community standards of reasonableness. Jury must consider objectively such factors as the gravity of the threat, proximity of the impending harm, opportunities for escape, likely execution of the threat, and seriousness of the crime D committed. Finally D must not have recklessly placed himself in situation. f. Testimony was admissible and relevant to the recklessness aspect of the duress defense as syndrome directly address any lay misperception that D is reckless imply because she remained in the abusive relationship. Testimony is also relevant to the subjective question of whether D honestly had believed that she confronted an imminent threat of danger. g. However, testimony may not be used to support second component of duress which is determined by jury of the reasonableness of a D’s conduct. The issue is whether a person of reasonable firmness in her situation would have been able to resist the threat from her abuser. vii. Duress and Murder 1. Common law and many modern codes reject duress as defense to intentional homicide. MPC swept away this limitation. 2. British authorities first allowed accomplice to murder to rely on duress defense in Prosecution v. Lynch but refused to extend the doctrine to a principal in the first degree in Abbott. 3. Regina v. Howe (1987): Two young men killed two victims under the instructions of an older dominant and violent man. Court decided it is neither rational nor fair to make the defense dependent on whether the accused is the actual killer or took some other part in the murder so duress defense isn’t available to accomplices or principals to murder. viii. Duress and Contributory Action 1. MPC: no defense of duress if the actor recklessly placed himself in a situation in which it was probable that he would be subjected to duress. 2. Williams v. State (1994): D was accused of attempted robbery after others kidnapped him to find a stash of drug money. Court rejected a duress defense because D’s prior criminal conduct contributed mightily to the predicament in which he later found himself. Usually limited to criminal operations. 3. Incapacity defenses: infancy/incompetence (youths under age of 14), insanity. XIV. Rape a. Traditional Approach and Reform Movement i. Traditional rape statute is to provide that forcible rape is sexual intercourse by male with a female not his wife, by means of force or threat of force, against her will, and without her consent. Many states have reformed their law to sexual assault or sexual battery and would prohibit all forms of forcible sexual penetration and not just vaginal intercourse and tends to be gender neutral. 1. At common law prosecutor had to prove that male used force so there was a resistance requirement. If the male uses or threatens to use force likely to cause death or serious bodily injury then she is not required to resist. If the male uses only moderate force then female is required to resist to the utmost or until exhausted or overpowered. 2. NJ Supreme Court has gone so far as to hold that force inherently involved in sexual act itself is sufficient evidence of force to permit a forcible rape conviction. It also held that forcible rape is proven upon evidence of sexual intercourse unless victim reasonably appears to give permission for the intercourse so absence of yes (needs affirmative consent) also constitutes forcible rape. ii. MPC 213.1(1)(a): male who has sexual intercourse with female not his wife is guilty if he compels her to submit by force or by threat of imminent death, serious bodily injury, extreme pain or kidnapping, to be inflicted on anyone. MPC focuses on the action of the perpetration, his acts of compulsion and doesn’t include a resistance requirement. iii. MPC: rape if acting with mens rea he has sexual intercourse with a female under any of the circumstances: female is less than ten, female is unconscious, compels female to submit by force or by threatening her or another person with imminent death, grievous bodily harm, extreme pain or kidnapping, or administers drugs in a manner that substantially impair the female’s ability to appraise or control her conduct. MPC differs from common law because sexual intercourse includes genital, oral, and anal sex by the male of the female, defined in male’s acts of aggression rather than in negative terms of female’s lack of consent. iv. State v. Rusk (COA of MD 1981): D claimed her had consensual sex with the victim after they conversed at the bar whereas the victim claimed that D made threatening facial expressions and lightly choked her as they had sex. 1. Vaginal intercourse once established, remaining elements of rape in the second degree under MD law are force (actual or constructive) and lack of consent. 2. Force is an essential element of the crime and evidence must show that the victim resisted and her resistance was overcome by force or that she was prevented from resisting by threats to her safety (if the acts and threats of D were reasonably calculated to create in the mind of the victim a real apprehension of imminent bodily harm). 3. Lack of consent is generally established through proof of resistance or by proof that victim failed to resist because of fear. Hazel made it clear that lack of consent could be established through proof that victim submitted as result of fear of imminent death or serious bodily harm. If the actions and conduct of D were reasonably calculated to induce this fear, element of force is present. Therefore the same kind of evidence may be used to establish both force and nonconsent. 4. Vast majority of jurisdictions have required that victim’s fear be reasonably grounded in order to obviate the need to proof of actual force. Reasonableness of victim’s apprehension of fear was plainly a question of fact for the jury and where persuasion ends and force begins is essentially a factual issue. 5. Dissent: there was no conduct by D reasonably calculated to cause the victim to be so fearful that she should fail to resist and thus element of force is lacking. 6. Resistance: at common law the courts treated proof of resistance as a necessary component of rape with many courts demanding utmost resistance but some courts have rejected this standard and held that resistance must only be sufficient to establish that women’s lack of consent was honest and real. A substantial jurisdictions still require the women to do more than say no. 7. Affirmative Consent: NJ ruled in State in the Interest of MTS that a person is guilty of forcible sexual assault if he commits an act of sexual penetration in the absence of affirmative and freely given permission. MTS put the burden on the man to get affirmative response. 8. ES: for most courts verbal nonconsent wouldn’t be adequate because it’s not an adequate manifestation of her non-consent; girl being coy. Updates to MPC tends to see rape as violation of sexual autonomy. Criticism is that the prosecution is focused on the victim so there is effort to modernize the requirement to prove elements of defense. There’s a trend towards using verbal nonconsent rather than physical resistance. a. Problem with resistance: expose victim to danger, frozen fright response and puts the focus on what the complainant did. b. Nonconsent and Mens Rea i. At common law rape is general intent crime and general rule is that person isn’t guilty of rape if he entertained a genuine and reasonable belief that female consented to sex. This conforms with mistake of fact principles relating to general intent crimes. ii. State v. Smith (SC of CT 1989): victim claimed rape while D sought for the court to impose a requirement of mens rea or guilty intent as an essential element of the crime of sexual assault in the first degree. 1. D is arguing that he was honest and he should have a defense. Harm of rape is defined by the harm itself, no further harm needed to be convicted of crime. The court has held that sexual assault statute requires proof of only a general intent to perform the physical acts that constitute that crime. 2. Whether a complainant has consented to intercourse depends on her manifestations of such consent as reasonably construed. If the conduct should reasonably be viewed as indicating consent, D shouldn’t be found guilty because of disclosed mental reservation. 3. Rejected the position that state must prove an actual awareness on the part of D that complainant had not consented or a reckless disregard of her nonconsenting status. 4. ES: mistake has to be reasonable and reasonableness would be subjected to the judgment of the jury and the judge. Many rape cases are about credibility as jurisdiction move towards stricter standards about nonconsent (allowing verbal negations). Under MPC, mistake that negates culpability required for the element at issue would be a defense. If D shows that he was not aware of the risk that the woman was not consenting, then he has a defense because standard is recklessness (MPC rape provisions have been criticized). Negligent D gets a pass at MPC but not at common law. 5. Intoxication: Sexual intercourse with someone who is incompetent to consent to the act has long been punished as a form of rape. Incompetent actors include persons who are unconscious or asleep as well as persons who lack the mental capacity to consent to sexual relations. MPC limits liability to cases where a man has sex with a woman who is so drunk that she is unconscious or where he substantially impaired her power to appraise or control her conduct for the purpose of preventing resistance. a. D’s intoxication, standard rule for excluding evidence of intoxication for general intent crime applies, so only reasonable mistake is defense. b. Unconsciousness: rape to have sex with someone who is unable to give consent. c. MPC: woman who lacks capacity to express consent due to intoxication, then that’s not freely given consent, man can be convicted of lesser category of sex by imposition. If both are drunk, man could be convicted of crime of rape because a reasonable person would see that she couldn’t consent.