ACT + INTENT (Mental State + Attendant Circumstances) + CAUSATION = CRIME 12/3/19 6:32 PM Page 1 of 46 I. INTRODUCTION 1. What is Criminal Law For? a) State of nature --> civilized society through rule of law Hypo: minority report clip – we don’t let victims or families go after perpetrators – government has exclusive right to enforce/inflict violence. b) Theories of punishment: Utilitarian Theories: Forward looking, justification lies in useful purpose of punishment. - Deterrence: We need to punish people to deter future crimes. Target repeat offenders. (1) Probability of conviction + (2) Amount of punishment If (1) is low, increase (2), and vice versa - Incapacitation: Target repeat offenders, keep dangerous people away from society, keep them from committing more crimes. - Rehabilitation: Try to rehabilitate/reform. Retribution Punishment: Backward looking, attribute importance to offender’s past behavior/blameworthiness. - Vengeance --> but the state has a monopoly on violence. 2. Limits on Punishment: a) Proportionality: Differentiate on reasonable grounds between serious and minor offenses (§1.02(1)) Ewing v. California: “3 Strikes” (SCOTUS, 2003) “3 Strikes You’re Out” Facts: Ewing (∆) sentenced to 25 years to life under CA “Three Strikes” law for stealing 3 golf clubs because he had “violent” priors. Argued that sentence was grossly disproportionate to the crime and violated Eighth Amendment ban on cruel and unusual punishment. Court: Theory of Three Strikes is to isolate repeat offenders to protect society (incapacitation) and deter crime by increasing severity of punishment (deterrence); not the job of courts to second-guess state’s policy choices. Deterrence – life sentence for child porn (SR 1-2): low probability of detection --> high amount of punishment Incapacitation – “Sentencing by the Numbers” (SR 3-5) – predict repeat offenders based on race, sex, employment status, married/single. Rehabilitation – Judge Sentences Man to Sixty Days for Assault on Young Girl” (SR 6-7)– rehabilitation over retribution for very serious crime. Retribution – “41 Years Later, Ex-Klansman... 60 Years” (SR 8-10) – old man gets huge sentence to pay for the terrible things he did – vengeance. b) Culpability: Safeguard conduct that is without fault from condemnation as criminal (§1.02(1)) Trial By Jury: 6th Amendment protects against arbitrary law enforcement; only ∆ can appeal if jury says not guilty; jury nullification is powerful. - many v. one, peers v. gov. officials, ordinary v. professional 12/3/19 6:32 PM Page 2 of 46 Trial By Jury: Duncan v. Louisiana (SCOTUS, 1968) Facts: Duncan (∆), black youth, convicted on disputed evidence, without a jury, of simple battery on white youth. Request for jury trial denied. ∆ claimed denial of due process under Sixth and Fourteenth Amendments. Rule: Trial by jury is fundamental to American scheme of justice. 14th Amendment guarantees right of jury trial in all criminal cases which, were they to be tried in federal court, could come within Sixth Amendment’s guarantee. Check against government power, reduces unfairness. Presumption of innocence: Government must choose cases carefully, cases that will result in conviction. Limits power of government to interfere with lives. Proof Beyond a Reasonable Doubt: Stronger than preponderance of evidence. Makes it harder to convict, controls government power. Downside – forced to acquit people who might be guilty. Proof Beyond a Reasonable Doubt: In re Winship (SCOTUS, 1970) 12-year-old boy found guilty by preponderance of evidence to have committed an act that if done by an adult would be a crime, supporting charge of juvenile delinquency. Rule: Proof beyond a reasonable doubt is among essentials of due process when a juvenile is charged with an act that would be a crime if committed by an adult. c) Principle of Legality: Give fair warning of nature and conduct that constitutes an offense (§1.02(1)) Nulla poena sine lege - no punishment without law …one cannot be punished for doing something that is not prohibited by law Policy issues: Fair notice - gov't must provide fair notice and specific warnings about what constitutes a crime Requirements - (1) No retroactivity - (2) Warning must be specific enough to know what exactly is being prohibited; - (3) Based on a rule that is codified by state legislature - no common law crimes! Commonwealth v. Mochan (1955, PA) Mochan (∆) made series of obscene calls to a stranger. Found guilty for intending to debauch, corrupt, and vilify. Conduct not prohibited by statute. ∆ appealed, arguing that he could not be indicted for acts that did not constitute a statutory crime. Holding: A person may be prosecuted for committing CL crime, even if it hasn’t been enacted in legislation. Nearly all jurisdictions have statutorily abolished CL offenses. Some states, like RI still authorize prosecution. Problems: vagueness, retroactivity (don’t give fair notice), judicial lawmaking Very clear lines between private/public in criminal law --> important to know when government becomes interested in what you are doing. 3. Sources of Criminal Law a) Old CL crimes: After American Revolution, most states continued to apply CL of England (developed by courts). More penal laws then enacted, some states made new legislation and abrogated CL crimes not recognized by statutes. Others said CL applied in the absence of legislation (Mochan). b) MPC – 1960s – statutes adopting CL definitions were replaced in most states by modern codifications inspired by MPS. In about a third of states, “CL crimes” remain in force – initially judge-made, not have been solidified by legislatures. 4) HOW TO INTERPRET STATUTES…Canons of Statutory interpretation: Start with plain meaning of text. If unclear/ambiguous, then: 12/3/19 6:32 PM Page 3 of 46 Canons of Construction – rules of interpretation: Statutory structure – consider in all parts when construing any of them Purpose Avoid absurdity Legislative history Rule of Lenity – Criminal statutes must be strictly construed against the prosecution. If there are two reasonable interpretations, the one most favorable to ∆ applies. (Doctrine of last resort) For MPC, use “travel rule”, otherwise default is recklessly. MPC Travel rule: mens rea (purposely, knowingly, etc.) should travel to each material element of the crime - 12/3/19 6:32 PM Page 4 of 46 II. BASIC ELEMENTS OF CRIMES 1. Actus Reus: Act (or omission) 2. Mens Rea: state of mind when committing act 3. Attendant Circumstances: special factors that must be present in some but not all crimes. Must be present when actor performs prohibited conduct /causes prohibited result that constitutes social harm of the offense --> found in definition of a crime o Example: Burglary (entering a “dwelling”) Statutory Rape (“underage”) 4. Causation: link between act and result (for results crimes) o “but for” (Actual) + Proximate Cause 5. Result: ultimate harm (for crimes that require it) 6. Affirmative defenses: justifications and excuses, ∆ bears the burden of proof for affirmative defenses. 1. Actus Reus – for there to be a crime, there has to be an act a) Voluntary Acts CL: - Unless otherwise specified, you must actually do something. State cannot deter involuntary acts and we want to keep people from being prosecuted for inaction. - No punishment for involuntary acts Sleepwalkers, sleep sexers, epilepsy, unconsciousness, hypnosis Habits generally considered voluntary under MPC MPC: 1.13, 2.01 - (2): “act” or “action” means bodily movement whether voluntary or involuntary. - (3) “voluntary meaning specified in §2.01: - 2.01(1): A person is not guilty of an offense unless his liability is based on conduct which includes a voluntary act or the omission to perform an act of which he is physically capable. - 2.01(2): NOT voluntary acts: (a) reflex or convulsion (b) bodily movement during unconsciousness or sleep (c) conduct during hypnosis or resulting from hypnotic suggestion (d) bodily movement that otherwise is not a product of the effort or determination of the actor, either conscious or habitual. Martin v. State (Alabama, 1944) – drunk on highway - Facts: Martin (∆) is arrested at his home while drunk, taken by police to highway, and charged with being drunk on the highway. - Rule: Criminal liability must be based on conduct that includes a voluntary act or omission from committing an act that was physically possible to have been performed. Being involuntarily and forcibly brought into a public place when drunk is not a voluntary act. Introduces concept of actus reus – for conduct to be wrongful is must either be a voluntary act or omission to act – essential element for liability to arise. - Modern applications (courts agree on applying Martin, disagree on application): People v. Low, court upheld conviction where man is taken to jail and brought drugs with him. Court distinguished by saying he had a “clear opportunity to avoid the prohibited conduct”. State v. Barnes, court said that necessary voluntary act occurs when ∆ possesses the substance, even though he was arrested for something else. Other courts disagree on this application, saying voluntary element is vital. 12/3/19 6:32 PM Page 5 of 46 People v. Newton, (CA, 1970) – gunshot wound --> unconsciousness - Facts: Newton (∆) involved in altercation with police officer following his arrest. He was shot and possibly acted unconsciously in shooting the officer while in a state of shock resulting from his own gunshot. - Rule: Where not self-induced, unconsciousness is a complete defense to a charge of criminal homicide. Court said it was an error to not instruct jury on unconsciousness. Somnambulism: The Cogden Case – sleepwalking woman dreams that her house is full of spiders crawling all over her daughter --> kills daughter. Jury acquits her based on the idea that the killing was not her act at all. Epilepsy: People v. Decina (1956) – Driver knew that he had epilepsy, stopped taking meds, drove and killed someone. Court held him liable for negligence because he knowingly drove the vehicle with knowledge that he was prone to these fits. Voluntary act is operation of the vehicle while not taking medication. b) Thoughts No punishment for thoughts alone. - People change their minds - Most bad thoughts do not result in harm - Practical issue: difference between daydream and intention - Issue – if government wants to catch someone before the act occurs – when to intervene between plan and action. c) Omission CL: - Moral obligation is insufficient. No punishment for omission except when there is legal duty to act (Jones): Statute imposes duty (ex. Good Samaritan Laws in VT/RI/MN --> give reasonable assistance as long as it does not interfere with your life) Status relationship (family – but no duty for siblings or to parents) Contractual (K) – examples: lifeguard, nurse. Voluntary Undertaking – you can’t stop midway through helping someone Creation of Peril – you put that person in danger MPC: 1.13(4), 2.01(3) - 1.13(4): “omission” means a failure to act; - 2.01(3): Liability for the commission of an offense may not be based on an omission unaccompanied by action unless: (a) the omission is expressly made sufficient by the law defining the offense; or (b) a duty to perform the omitted act is otherwise imposed by law People v. Beardsley (MI, 1907) – mistress dies in basement after bender - ∆ has affair with woman on drug & drinking bender, she dies in his basement, ∆ is drunk and had asked to have her moved to another room. - Court held that he only had moral obligation to save her – not legal obligation. Kitty Genovese (SR 24-25) – 37 people saw murder, didn’t call police Mother Rages Against Indifference (SR 26-28): 7-year-old raped in bathroom dies, witness saw and did not intervene. After Fatal Subway Shove, Asking, Were There No Heroes? (SR 29-31) – Someone pushed into subway, no one helped. 12/3/19 6:32 PM Page 6 of 46 Jones v. United States (DC, 1962) – baby dies, malnutrition, duty of care - Jones (∆) was caring for 10-month-old baby of family friend. Convicted of voluntary manslaughter after baby died in his care. Baby was shockingly neglected. Court of Appeals reversed and remanded: jury must find BARD that duty was owed. - Rule: Under some circumstances, the omission of a legal duty owed by one individual to another, where such omission results in the death of the one to whom the duty is owed, will make the other chargeable with manslaughter. Court: Breach of legal duty can arise in 4 situations: (1) where a statute imposes the duty; (2) where one is in a certain status relationship to another (Parent to child); (3) where one has assumed a contractual duty to care for another; and (4) where one has voluntarily assumed the care of another. Issue on (3) and (4). Pope v. State (Maryland, 1979) – child abuse, ∆ didn’t intervene - Pope (∆) let woman from church and her child stay with her. Woman savagely attacked her child for several hours, Pope did not intervene. Child died. - Rule: One is not criminally liable for failing to intervene when a person staying in one’s dwelling abuses her child. Court: Responsibility for the child remains with the parent. II) Why is there such a broad rule for no punishment for omission? 1) The law is not going to tell you how to spend your day/interfere with your life 2) Duty to rescue situations can be dangerous 3) Sometimes people who have no business to rescue will try to rescue and make matters worse III) Unless a penal statute specifically requires a particular action to be performed, criminal liability for omission arises only when the law of torts or some other law imposes a duty to act IV) La Brie to Serve 8-10 Years in Prison (SR 32-33) – Mother withheld cancer medication from her disabled son. Duty of care. V) Self-Defense – if you hurt an attacker in self-defense, you must rescue him/her/ Because you created the peril. 1) Mens Rea a) Basic Concepts Broad sense: mens rea is synonymous with moral fault, having a will to commit a crime; blameworthiness. o Defenses to criminal liability (involuntary act, duress, legal insanity, accident, mistake) can be considered mens rea defenses under this framework. Narrow sense: formal requirement, which refers to the kind of awareness of intention that must accompany the prohibited act under terms of the statute that define the offense. o Mens rea element is crucial to the description of the criminal conduct. o Legislatures often have left mental element undefined/ambiguous, leaving the courts to figure out what proper mental state should be. CL: Malice - Traditional CL: proof that ∆ acted “willfully, intentionally, maliciously, corruptly, wantonly, recklessly, negligently, or with scienter (knowledge)” --> terms defined differently by courts Intent: purposely or knowingly Malice: Default rule in non-MPC jurisdictions. Foresight of the prohibited consequence (Cunningham) Awareness that actions posed substantial risk of causing prohibited harm. Leaves out situations where ∆ was going to do something bad but was unaware of the consequences (negligence) Wantonly: intentional conduct with high degree of likelihood to harm another (Welansky – fire in club) - Recklessness or Negligence: Recklessly: heightened criminal negligence or conscious disregard of substantial and unjustifiable risk. 12/3/19 6:32 PM Page 7 of 46 - Negligence: ∆ should have been aware that conduct created substantial and unjustifiable risk of harm. Regina v. Cunningham: Malice (CL) ∆ intentionally stole gas meter out of house (meant to steal money). Woman in the house became ill. Issue: Can ∆ be said to have maliciously done some harm where he did not intend to do the particular kind of harm or did not foresee that harm might be done? Rule: No. “Malice” in a statutory crime means foresight of the consequences and requires 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. Malice does not require wickedness. Issue of malice should have been left to the jury. Transferred intent doctrine: When a perpetrator acts with the intent to commit a crime against one person, and instead commits that crime against another person, the perpetrator's intent is transferred to the actual victim for the purposes of liability. Only applicable within the limits of the same crime: Intention to cause one type of crime cannot substitute for the required intention in another type of crime. Ex. throwing a rock with intention to hit someone, but unintentionally breaking a window --> not guilty of malicious destruction of property. However, such ∆ might be convicted for having acted recklessly or negligently. o Regina v. Faulkner (UK, 1877) (CL): rum on the ship Sailor goes to steal rum, lights a match to see better. Ship catches on fire. Court overturns his conviction under Malicious Damage Act for “maliciously setting fire to the ship”. Act required that he did it intentionally or willfully, which could also be proven if he knew that injury would probably result (reckless). Jury was not instructed on this – conviction overturned. CL: General v. Specific Intent - General Intent: desired to commit the act, actor’s vicious will or moral culpability for causing social harm. - Specific Intent: actions that must be done with some specified purpose in mind. ex. burglary requires break and enter with intent to commit felony inside a dwelling ex. assault with intent to rape Another usage of specific intent: crime that requires ∆ to have actual knowledge of some fact or circumstance in addition to knowledge of conduct – attendant circumstance Ex. Bigamy – do you have to know that you are still married to another? In a jurisdiction that does not require proof that he knew he was still married, it would be general intent. Jurisdiction that requires proof would be specific intent. - People v. Stark (CA Appeals, 1994): (CL) General Intent (construction guy) ∆ supposed to build medical complex for doctors, used money from doctors for other projects, was supposed to pay them back, promised but didn’t for a long time. Convicted of willful diversion of construction funds. Rule: Willful diversion of funds is a general intent crime – statute defines crime only by describing the particular act without reference to intent to do further act or achieve further consequence. Therefore, only necessary to ask whether ∆ intended to do the act. - State v. Morris (Supreme Court of Iowa, 2004): (CL) Specific Intent (car theft) Charged with 2nd degree theft of truck (to permanently deprive), apprehended 30 minutes later, fled on foot, convicted of lesser offense of “operating a vehicle without owner’s consent. Specific intent crime --> must show further intent to permanently deprive the owner. 12/3/19 6:32 PM Page 8 of 46 - General intent v. specific intent, malicious intent --> ways that mens rea was deemed insufficient by MPC writers... MPC 1.13(9)-(16), 2.02(1)-(8): Eliminates use of general/specific intent - §1.13 (12): intentionally means purposely (trying to depart from CL usage of intent) - Applying the MPC: 1. Break down the elements: Nature of the Conduct: what you’re doing (act) Attendant Circumstances (2.02(2)(a)(ii) & 2.02(2)(b)(i)): purposefully and knowingly - NOTE: To act knowingly ∆ must be aware of AC, but ∆ can act purposely even if they think AC are unlikely, as long as they hope the AC exist. Results of the Conduct: result or non result crime? 2. Identify material v. nonmaterial elements of the offense: 1.13(9): “element of an offense” = conduct, AC, or result of conduct that (a) is included in the definition of the offense, or (b) establishes required culpability, or (c) negatives an excuse or justification, or (d) negatives a defense under SOL, or (e) establishes jurisdiction or venue. 1.13(10): “material element of an offense” = does not relate exclusively to statute of limitations, jurisdiction, venue, or other matter similarly unconnected with (i) harm or evil of conduct sought to be prevented, (ii) existence of a justification or excuse for conduct. Basically things you are trying to prohibit 3. Determine mens rea for each material element 2.02(2)(a): PURPOSELY - (i) Conduct or result of conduct: A person acts purposefully (intentionally) if he acts with the intent that his action causes a certain result. In other words, the defendant undertakes his action either intending for, or hoping that, a certain result will follow. - (ii) AC: aware of existence of such circumstances or believes or hopes they exist. 2.02(2)(b): KNOWINGLY - (i) Conduct or AC: aware that his conduct will result in certain consequences - (ii) Result of conduct: aware that it is practically certain that his conduct will cause such a result. 2.02(2)(c): RECKLESSLY - conscious risk creation - Consciously disregards substantial and unjustifiable risk that the material element exists/will result from conduct --> to apply to any material element 2.02(2)(d): NEGLIGENTLY – does not require state of awareness - Should be aware of substantial and unjustifiable risk. - Gross deviation from standard of care that a reasonable person would observe. §1.13(16): reasonable belief --> actor is not reckless or negligent in holding it 4. If terms of statute are ambiguous, use DEFAULT RULES of MPC (2.02(3-10)): MPC DOES NOT LIKE STRICT LIABILITY (3): If statute is silent with respect to culpability for any material element, material element is established if person acts purposely, knowingly, or recklessly (at the very least). (4): If statute doesn’t distinguish culpability among material elements, travel rule applies: Culpability (mens rea) applies to all material elements unless contrary purpose plainly appears. Substitution Rule (5): negligently satisfied if acted recklessly, knowingly, or purposely, recklessly satisfied if acted knowingly or purposely, etc. - (8) Willfulness satisfied by acting knowingly, unless purpose to impose further requirement appears. - (10) If crime lists several MR, lowest one establishes culpability. Conditional Intent (6): Requirement of purpose is satisfied if purpose is conditional 12/3/19 6:32 PM Page 9 of 46 Example: stealing a car with the intent to kill. It’s not required to actually kill. It’s enough that there is an intent accompanied by car theft. This is an attempt to capture people before the condition is satisfied (7) When knowledge of existence of particular fact is an element of the offense, knowledge is established if the person is aware of high probability of the existence, unless he actually believes it does not exist. (9) Mistake of Law: you are culpable unless statute specifically says you aren’t. - 12/3/19 6:32 PM Page 10 of 46 b) Strict Liability Mala Prohibita: Crimes that were inherently bad before the law said so (ex: murder)…NOT SL Mala in Se: Crimes that exist only b/c the state says so (ex: traffic rules)…STRICT LIABILITY No culpable mental state must be shown with respect to at least one of the material elements of the offense. CL - Figure out if it falls into public welfare offenses (strict liability) or traditional crimes (MR required) – mala prohibitum (bad because law says it is bad), mala in se (morally wrong) More likely to be strict liability when: - Risk Regulation – Social Betterment: Risk punishing innocent people for benefit of public. - Least cost avoidance – Burden on people who are in a better position to prevent harm, protect lives of people who are beyond self-protection (Dotterweich-mislabeling medication is strict liability) More likely to require mens rea when: - Goal of law = punishment --> don’t want to punish innocent people - Large stigma – ensure it is blameworthy (Morissette-you m) - Notice problem – don’t want to surprise people MPC 1.04(5), 2.02(1), 2.05(1): - 1.04(5) Violations: An offense defined by this Code or by any other statute of this State constitutes a violation if it is so designated in this Code or in the law defining the offense or if no other sentence than a fine, or fine and forfeiture or other civil penalty is authorized upon conviction or if it is defined by a statute other than this Code which now provides that the offense shall not constitute a crime. A violation does not constitute a crime and conviction of a violation shall not give rise to any disability or legal disadvantage based on conviction of a criminal offense. - 2.02(1): Minimum Requirements of Culpability. Except as provided in Section 2.05, a person is not guilty of an offense unless he acted purposely, knowingly, recklessly or negligently, as the law may require, with respect to each material element of the offense. - 2.05(1): When Culpability Requirements Are Inapplicable to Violations and to Offenses Defined by Other Statutes; Effect of Absolute Liability in Reducing Grade of Offense to Violation Culpability requirements don’t apply to (a) violations (b) statutes other than the Code, legislative purpose to impose liability Strict liability for public welfare and child sex offenses are exceptions to the MPC (b) – legislative purpose – has not been very influential. More commonly we see fights about whether it is strict liability or not. Approach: - Public Welfare Offenses: strict liability – mens rea not required Policy reasons for strict liability: They’re designed to make responsible parties responsible for their actions and to protect the innocent injured person MR Not Required: Regulations US v. Balint (1922) drugs without order form - ∆s indicted for violating Narcotic Act – sold derivatives of opium and coca without order forms. SCOTUS held that mens rea (knowledge that they were selling prohibited drugs) wasn’t required by statute. - Holding Public policy – for particular acts, State may provide that “he who shall do them shall do them at his peril” – emphasis on social betterment, people who are in a position to know. US v. Dotterweich (SCOTUS 1943) – shipping drugs/labels - Buffalo Pharmaceutical Company (defendant) purchased drugs from manufacturers, repackaged them, and shipped them to physicians and others under its own labels. On at least two occasions, the drug manufacturer’s labels were incorrect. 12/3/19 6:32 PM Page 11 of 46 - - MR Not Required: Statutory Rape - Issue: Does Federal Food, Drug, and Cosmetic Act, which prohibits the shipment of misbranded or adulterated products in interstate commerce, require MR to be proven at trial? Holding: No. One of the main purposes of the Federal Food, Drug, and Cosmetic Act is to ensure some measure of societal protection against illicit or impure food and drugs within interstate commerce. Regulation, not punishment. Burden is placed on those in best position to know. People v. Olsen (California, 1984) – sex with 13-year-old he thought was 16 - Guy had sex with a 13 year old girl. He claims to have believed she was over 14. The charge is “Lewd of lascivious conduct with a child under the age of 14”. He claims he did not have the mens rea necessary to commit this crime (she lied about her age, said she was 16). - Holding: Mistake of age is NOT valid defense for statutory rape. It is a strict liability crime – strong public policy to protect children of tender years. Length of punishment is not a predictor of strict liability – matter of great public importance. Good faith mistake is inadmissible in statutory rape MR Required: Traditional Crimes US v. Morissette (SCOTUS 1952) – converted shell casings ∆ found spent military shell casings in “Bombing Range”, converted them into scrap metal. Convicted of unlawful conversion of government property – court said this is mala in se crime, and requires MR. Rule: Crimes that are mala in se (bad in themselves necessarily include the element of mens rea, and no statutory strict liability version of them is permissible. Omission of MR from statutory definition does not justify abandonment. - Court: Purpose of exempting regulatory crimes: no evil purpose can exist to do an act which is not evil in itself. CL crimes/mala in se crimes excluded from strict liability. Staples v. US (SCOTUS 1994) – registering an automatic weapon When Staples (D) was convicted because he had not registered in the National Firearms Registration and Transfer Record a rifle that had been modified to be capable of fully automatic fire, he claimed he did not know of the rifle's automatic firing capability. Rule: Some indication of congressional intent, express or implied, is required to dispense with mens rea requirement. - Court: offenses that don’t require MR are generally disfavored. Must have some indication of congressional intent, generally not punishable by imprisonment. Cannot criminalize innocent conduct. Importance of distinguishing “normal” activities from other activities. People who pick things up and take them home are innocent (Morissette) and people who possess guns are innocent (Staples). A) People who pick things up and take them B) Thieves Though the conduct is the same in both groups A and B, group B had knowledge that what they were doing is wrong. We do not want to surprise group A with the label criminal, when they had no criminal intent 12/3/19 6:32 PM Page 12 of 46 c) Defense: Mistake of Fact MPC 2.04 Ignorance or Mistake - (1) Ignorance or mistake as to a matter of fact or law is a defense if: (a) the ignorance or mistake negatives the purpose, knowledge, belief, recklessness or negligence required to establish a material element of the offense; or (b) the law provides that the state of mind established by such ignorance or mistake constitutes a defense. - (2) Although ignorance or mistake would otherwise afford a defense to the offense charged, the defense is not available if the defendant would be guilty of another offense had the situation been as he supposed. In such case, however, the ignorance or mistake of the defendant shall reduce the grade and degree of the offense of which he may be convicted to those of the offense of which he would be guilty had the situation been as he supposed. Ex. Man thinks he had sex with 16 yr old, but really had sex with 14 yr old. Mistake defense would reduce his guilt to whatever the crime is for having sex with a 16 yr old. CL: - Strict liability, Moral Wrong Approach, Legal Wrong Approach, Reasonable Belief, Honest belief. 12/3/19 6:32 PM Page 13 of 46 - Specific Intent: Not Guilty if negates SP portion SI: not guilty if mistake of fact negates specific intent portion of the crime (whether reasonable or unreasonable). Specific intent taken very eriously. People v. Navarro – took wooden beams ∆ took wooden beams, honestly believed he had right to do so. Court said honest belief was all that was necessary for specific intent crime. - General Intent: NG if reasonable not guilty if mistake is reasonable, non-negligent, shows actor committed actus reus with morally blameless mind. - Moral Wrong Approach If you are committing a moral wrong, you are guilty of subsequent legal wrong Regina v. Prince (1875) – taking girl under 16 from her father Prince (∆), under reasonable belief that girl was 18, convicted of taking or causing to be taken an unmarried girl under 16 out of possession and against the will of her father. Mistake of fact for age is not a defense because it was morally wrong. If act is morally wrong, you “run the risk” of your act falling within realm of legal wrong. If the defense was that D thought the father gave him permission to take the girl, than that mistake would exculpate D…also if he thought girl had no family (owners) he’d be exculpated - Legal Wrong Approach substitute “immoral” for “illegal” If you actually intended a legal wrong, you will be liable for all resulting wrongs. Different from MPC because you are liable for higher crime. (See Olsen) Mens rea for lesser crime gets translated to larger crime. - Honest and Reasonable Belief Approach (USA) If mistake was honest and reasonable, then no guilty mind. - Honest Belief Approach (UK) No guilty mind as long as belief is honest. Emphasizes the gravity of the crime – higher the gravity, higher the requirement for mens rea. B (a Minor) v. Director of Pub. Pros. (UK, 2000) – oral, boy (15) thought girl (13) was over 14 Honest Belief CL 15-year-old boy badgered 13-year-old to have oral sex with him. He honestly believed she was over 14. Holding: Where Parliament does not specify MR requirement, objective standard no longer governs --> only honest belief. 12/3/19 6:32 PM Page 14 of 46 d) Defense: Mistake of Law Much overlap between MPC and CL NO General: MOL is not a defense, but mistake as to some collateral fact may negate the mens rea: - (1) Fair Notice, (2) Reasonable reliance, (3) Express exception, (4) Mistake of different law MPC 2.02(9), 2.04(1)(a), 2.04(3) - 2.02(9): Express exception: no MOL defense unless it is an element of the crime - Culpability as to Illegality of Conduct. Neither knowledge nor recklessness or negligence as to whether conduct constitutes an offense or as to the existence, meaning or application of the law determining the elements of an offense is an element of such offense, unless the definition of the offense or the Code so provides. - 2.04(1)(a): MOL defense if it negates the mental state required to establish any element of the offense. Unless crime definition says it is, ignorance of the law is not an excuse. - 2.04(3) A belief that conduct does not legally constitute an offense is a defense to a prosecution for that offense based upon such conduct when: Notice problem: (a) the statute or other enactment defining the offense is not known to the actor and has not been published or otherwise reasonably made available prior to the conduct alleged; or Reliance: (b) he acts in reasonable reliance upon an official statement of the law, afterward determined to be invalid or erroneous, contained in (i) a statute or other enactment; (ii) a judicial decision, opinion or judgment; (iii) an administrative order or grant of permission; or (iv) an official interpretation of the public officer or body charged by law with responsibility for the interpretation, administration or enforcement of the law defining the offense. We allow reliance defense because to do otherwise would result in entrapment 1. Fair Notice problem CL Notice Problem: Mistake must be reasonable and honest - Traditional/mala in se - People v Marrero (NY, 1987) – Notice, peace officer Traditional view: CL was mala in se crimes, people had fair warning and were doing moral wrong Marrero (∆) was corrections officer in federal prison charged with illegal firearms possession – argued that he mistakenly believed himself to be exempt from the ambit of the statute proscribing possession -> mistake of law, or ignorance interpreting the law. – YJL thinks this is bad/hard case Rule: Ignorance/good-faith mistaken belief as to the meaning of a statute is no excuse – would encourage willful ignorance, incentivize not knowing the law. 12/3/19 6:32 PM Page 15 of 46 - Public welfare/mala prohibitum: Lambert v. CA (SCOTUS, 1957) – Notice, felony registration Mala prohibitum/public welfare crimes: Ignorance of law might be a mistake Lambert (∆) convicted of violating statute that required previously convicted felons to register if staying more than 5 days in LA. Rule: Failure to act may not be punishable under a criminal statute unless it is shown that the ∆ knew or should have known of the duty established by the statute and penalty for failure to comply with statute. Court: violation is passive, failure to act was innocent, she was given no chance to comply. 2. Reasonable reliance was there reliance on an official statement? CL Reliance: Traditional view doesn’t care – reasonableness of ∆ mistake is irrelevant, must be official interpretation only. Otherwise, people can say, oh my attorney said it was okay! - Hopkins v. State: billboards/state attorney ∆ convicted of violating state statute re: billboards even though State Attorney advised him that he could put them up without violation. Court said this was no an official interpretation of the law by an official officer. 3. Express Exception Law expressly states that knowledge of the law is an element CL Express Exception: Cheek v. US (SCOTUS, 1991) – willful tax evasion Cheek (∆) charged with willfully failing to file a federal income tax return and willfully attempting to evade his income tax, he argued that because he sincerely believed that the tax laws were invalid, he had acted without the willfulness required for conviction. Rule: Any person who willfully attempts to evade or defeat requirement of paying taxes will be guilty of a felony where it can be shown that he knows and understands the law. Here, “willfully” is included in definition of crime – knowledge of the law is an expressly stated element. The law expressly states that mental state is required in order to be found liable…Here even though unreasonably believed he did not have to pay taxes, tax evasion is a specific intent crime. must have willfully violated the law in order to be found guilty. He did not. MPC: 2.02(9): “unless the definition of the offense of the Code so provides” - 2.04(1)(b) – if law provides that state of mind established by such ignorance or mistake constitutes a defense, than MOL is an excuse. - 4. Different Law CL : Does the material element mistaken look like criminal or civil law? - Regina v. Smith (UK, 1974) – Different law, destroyed property in apartment ∆ installed the property (stereo) he destroyed, mistakenly thought that it was his. His mistake was about property law, not criminal law. Court acquits based on MOL. Court: Mistake of law is a defense if it negates a material element (property belonging to another) ∆ didn’t know it belonged to another (mistake of property law) State v. Varszegi (Conn Court of Appeals, 1993) – landlord seized computers Landlord seized computers from renter when renter defaults on rent. Charged with larceny. Court held that larceny is specific intent crime, requires a certain element of willfully taking what is not yours. MPC: 2.04(1)(a) Different Law - Ignorance is a defense if it negates purpose, knowledge, belief, recklessness or negligence required to establish material element of the offense. - 12/3/19 6:32 PM Page 16 of 46 3. Causation Not every crime has a causation component Two components of causation element: Actual cause/ “but for” cause - But for ∆ conduct, the result would not have occurred - For 2 + ∆s: Substantial factor test – was ∆ conduct a substantial factor in bringing about the result? Could be a substantial factor even without being a but-for cause Proximate cause - Without proximate cause, a lot more people would be in trouble --> ex. your baby grows up to be serial killer. - Distance between act and consequence must be close - Cause doesn’t have to be excusive - Foreseeability: Ordinary v. Extraordinary Was the risk so extraordinary it is unfair to say that ∆ caused it? Is outcome the reason we don’t want people doing it in the first place? (Acosta, McFadden) NOTE: Omissions, not just actions: When it’s established that a person has a duty to rescue and chooses not to, that person’s omission is seen as a legal cause of the injury Atencio: failed to stop friend from playing russian roulette Welansky: failed to provide exits from the club - DEFENSE: Intervention of autonomous actor: cuts off proximate cause chain if another actor causes ultimate harm, 1st actor no longer cause of ultimate harm. Who caused ultimate harm? (Campbell) The more autonomous the other person is, the more likely her acts will cut off chain of causation, so less likely that ∆ will be held accountable (Stephenson, Valade, Preslar) Transfer of Intent: If ∆ shoots at A intending to kill him, but misses and strikes B, ∆ is guilty of murdering B --> intent to kill is transferred. Issue: using up intent – if bullet goes through A and kills him, then kills B, are you guilty of both? Courts are divided. If you try to hit the wife but hit the child instead, you are guilty of assault on the child. Some say we don’t need transferred intent, we can just get the killer on reckless murder. 12/3/19 6:32 PM Page 17 of 46 a) Foreseeability/highly extraordinary standard People v Acosta (CA, 1991) – foreseeable: helicopter collision - ∆ steals care and leads police on wild chase, police helicopters monitoring crash, 3 people die. - Actual cause clear --> but for him, no helicopters would be in the air - Proximate cause: Foreseeability – deaths resulting from collision of helicopters during high-speed ground chase is reasonable foreseeable. Highly extraordinary result standard: extremely remarkable or unusual results are excluded from purview of proximate cause. Despite expert witness who said that helicopter pilots were being reckless, it is foreseeable that pilots would be reckless under the circumstances. HYPO: Same facts as Acosta, but the helicopter was filled with journalists not policemen - Probable Rule: No proximate cause because the journalists would have had more of a choice than the cops to follow (i.e. they did not have a legal duty to follow . Here, autonomy matters. People v. Arzon (NY, 1978) – foreseeable: death of fireman fireman died from injuries sustained when he attempted to evacuate a building under hazardous conditions created by ∆’s fire and smoke from another fire. - Rule: A ∆’s conduct can support charge of homicide only if it was sufficiently direct cause of the death and the ultimate harm was something which should have been foreseen as being reasonably related to his acts. Here, the death of the fireman was reasonably foreseeable People v. Kibbe (NY, 1974) – rob and leave man in road D robs drunk man, leaves him on the side of a highway, he’s hit by a car and dies - ∆ found liable because the ultimate harm was something that should have been foreseen as reasonably related to ∆’s acts. Idea of what is foreseeable is highly susceptible to manipulation: - ∆ wants narrow definition of foreseeable, prosecutor wants broad definition (if broad definition, basically anything could be foreseeable - a tree falling on victim, a tiger eating victim, etc.) If truck driver saw victim in road and decided to run over him, he might be seen as intervening actor, which would take blame off of ∆. 12/3/19 6:32 PM Page 18 of 46 b) Intervening Causes Intervening human actors: Foreseeability test does not apply in cases of causation where human action is involved. Human action is treated differently because of assumption of free will. “Intervening human actor creates new chapter” - Qualifications and Exceptions: Only actions chosen freely are treated outside of causation. Involuntary actions don’t count (Stephenson) Deception does not count. Duty, duress or emergency precipitated by the actor does not count. Intervening Causes – Assisted Suicide - Conviction of murder is proper only if the defendant participates in the overt act that causes death. It does not count in acts leading up. - Old Common law: Assisted suicide was murder. Few jurisdictions if any still retain this. - People v. Campbell (MI, 1983) – gave friend gun for suicide Gave gun for suicide, autonomous actor pulled the trigger: ∆ angry at victim for sleeping with his wife, encouraged him to kill himself and then gave him his gun and left. It’s foreseeable that the person will kill himself. There’s proximate and foreseeable cause but no intention to kill. Rule: Hope alone is not enough to create murder charge. Autonomous actor pulled the trigger. - People v. Kevorkian (MI, 1994) – gas masks Δ helps two terminally ill women kill themselves. In one case, he gave her a gas mask and shows her how to turn the screw to kill herself. In another, he hooked her up to a suicide machine and she administered chemicals. Differentiates between participating in a suicide and merely being involved in events preceding a suicide: ∆ may be convicted of murder if he participates in the final overt acts that result in death. A majority of states now have separate crimes for assisting suicide, though, generally, prevailing American law is that successfully urging another to commit suicide is not murder, as long as deceased was mentally responsible and not forced, deceived, or otherwise subject to pressures that rendered action partly involuntary. Intervening Cases: Autonomous Actors vs. Non-Autonomous - Whether intervening acts violate proximate cause turns on evaluating mental state and how autonomous the actors were. Factors: Was the other person fully capable of choosing? Were the person’s options largely determined by defendant’s conduct? Were final results intended or merely risked? Joint activity? Particularly heinous acts, court may rule against defendant even if not foreseeable. Autonomous Not autonomous No Proximate Cause Foreseeable Proximate cause No Proximate Cause No Proximate Cause Not Foreseeable - Stephenson v. State (IN, 1932) – KKK kidnap, not autonomous Woman was kidnapped by KKK member and brutally assaulted. During her kidnapping she purchased poison. She took poison, and was taken back to her parents house. Later she got medical help, but she died due to a combination of poison and injuries sustained --> she was not autonomous RULE: If an accused committed a felony such as rape or attempted rape and inflicted on the victim both mental and physical injuries as a result of which the victim was rendered mentally 12/3/19 6:32 PM Page 19 of 46 irresponsible and suicide followed, the accused would be guilty of murder. caused mental irresponsibility of the victim - State v. Preslar – wife dies in cold, autonomous Husband and wife fight. Wife runs outside into the cold, dies in the cold. Issue: Was the wife an autonomous actor? Holding: Yes because of the time that elapsed between her leaving her husband’s sphere of influence and dying in the cold. - Rex v. Valade – young woman jumps out window, not autonomous Valade “seduced” young girl and raped her in a hotel room. She subsequently jumped out of a window to escape and died. Issue: Did she have enough autonomy to be a superseding cause? Holding: After abuse, she was not of the mind to have that sort of autonomy “rendered irresponsible by the wound and is a natural result of it” Control doesn’t have to be physical – control and dominion was absolute and complete. Intervening Causes: Joint Activity - Courts use this as a way around the intervening autonomous actor idea. Would not be superseding because the activity was joint. - Commonwealth v. Root – drag racing truck crash, autonomous actor, not guilty Root (∆) was engaged in a drag race in which the other driver was killed when he ran into a truck. Forseeable? Yes. Did the autonomy of the other driver intervene? Majority: Yes Legal theory which makes guilt or innocence of criminal homicide depend on accidental and fortuitous circumstances as now embraced by modern tort law of proximate cause would be too harsh to be just. Decedent chose to participate in the activity and also chose to swerve. - State v. McFadden – drag racing accident, joint enterprise, guilty McFadden (∆) was participating in a drag race. His competitor collided with another car, resulting in the competitor's death and the death of a passenger in the other car. Issue: May the acts and omissions of two or more persons work concurrently as the efficient cause of injury, and in such case, may each of the participating reckless acts or omissions be regarded in law as a proximate cause? Holding: The acts and omissions of two or more persons may work concurrently as the efficient cause of injury and in such a case each of the participating reckless acts or omissions is regarded in law as a proximate cause which is a theory applicable in a criminal case. OPPOSITE of Root – says that acts of 2+ people can work concurrently to cause an injury. they jointly produced the result. Unlike Root, this court does not require the same direct causal connection. - Commonwealth v. Atencio – russian roulette, joint enterprise, guilty Atencio (D) and Marshall (D) played Russian roulette with the deceased, who was killed when the gun discharged. Rule: Direct causation may be established by wanton and reckless conduct found in a joint enterprise – they were not under a duty to prevent the deceased from playing Russian roulette, but they were under a duty not to participate in reckless conduct that could lead to a death of one of the participants. All the participants were bound together by mutual encouragement, without any chance of controlling the outcome. 12/3/19 6:32 PM Page 20 of 46 III. HOMICIDE a) CL Homicide: the killing of a human being by another Unlawful: murder, manslaughter, suicide, infanticide b) MPC Criminal Homicide 210.1: (1) – purposely, knowingly, recklessly or negligently causes the death of another human being. (2) – murder, manslaughter or negligent homicide. 12/3/19 6:32 PM Page 21 of 46 1. Intentional Killing a) Premeditation-Deliberation CL: Elements required for murder – willful, deliberate, premeditated: - Malice aforethought: intention to kill, intent to inflict grievous bodily injury +/ Premeditated – planned before the actual act Willful – specific intent to kill Deliberate – free from influence of excitement or passion MPC 210.2(1)(a): murder – committed purposely or knowingly Differences between CL and MPC: - Some states require malice along with premeditated, willful, deliberate. - MPC collapses everything into specific intent to murder - CL – degrees of murder, MPC – doesn’t do degrees Length of premeditation: - State v. Guthrie (Virginia, 1995): time matters (minority)- ∆ stabbed coworker making fun of him. Rule: There must be some evidence that the defendant considered and weighed his decision to kill in order for the state to establish premeditation and deliberation under the West Virginia firstdegree murder statute. Court – jury instructions confused premeditation with intent to kill. - Premeditation - There must be some period between the formation of intent to kill and the actual killing, which indicates that the killing is by prior calculation and design. Commonwealth v. Carroll (PA, 1963) – “no time is too short” (majority) Carroll's (∆) wife fractured skull while attempting to leave his car during an argument. Allegedly led to her mental disorder - schizoid personality type. ∆ decided to go to electronics school requiring him to be absent for nine days - couple had a violent argument. Later that night he shot her in the back of the head. ∆ pled guilty to a murder indictment. He was found guilty of firstdegree murder – appealed. Holding: “No time is too short for a wicked man to frame in his mind the scheme for murder”. Any length of time is sufficient for premeditation. Premeditation and deliberation may be formed while the murder is taking place NOTE: It is hard to come up with a formula for who the worst killers are. - Sweden penal code: Section 1 – person who takes the life of another shall be sentenced for murder to imprisonment for ten years or for life. Section 2 – if circumstances make it less grave, manslaughter 6-10 years Section 7 – carelessly causing the death of another – at most two years, pay a fine Gross – six months to 4 years Why don’t we do it this way? The Swedish way leaves it up to judges/juries, fair notice problem. Counter argument – there are inconsistencies with more specific rules. - 12/3/19 6:32 PM Page 22 of 46 b) Provocation (partial excuse/mitigation) Murder --> voluntary manslaughter Differences between CL and MPC: - MPC – words can be enough - MPC – no cooling off rule - MPC - No limitation that person killed must be provoker CL - Actus reus killing committed: When acting in the heat of passion Passion is result of provocation Without time to cool off Result of excitement, not wickedness - Adequate provocation – aggravated assault/battery, mutual combat, commission of a serious crime against a close relative of ∆, illegal arrest, observation of a spouse committing adultery. NOT adequate: trivial battery, learning of adultery, observation of unfaithfulness of non-marital partner. Types of provocation: Misdirected reaction: A provokes B, B mistakenly kills C – jurisdictions are split on whether they allow this as a defense. Non-provoking victim: A provokes B, B intentionally kills C – generally doesn’t count Defendant elicits provocation: no uniform view, some jurisdictions deny defense to initial provokers. Minority view: Whether there was provocation should be a jury question – question of fact - Cooling time: If there is sufficient time between provocation and act, it is no longer applicable, and ∆ is deprived of voluntary manslaughter reduction. However it may sometimes be rekindled after cooling period. MPC: 210.3(1)(b) - Manslaughter a homicide which would otherwise be murder is committed under the influence of extreme mental or emotional disturbance for which there is a reasonable explanation or excuse – Heat of Passion: must result from provocation which prevented defendant form reflecting upon his actions. Heat of passion reaction must be immediate 12/3/19 6:32 PM Page 23 of 46 Extreme Emotional Disturbance (EED) test. Replaced Heat of Passion defense. Not necessarily spontaneously undertaken. Rather, it may be that a significant mental trauma has affected D’s mind for a substantial period of time, simmering in the unknowing subconscious and the inexplicably coming to the fore. Reasonableness of excuse: Determined from the POV of a person in the actor’s situation under the circumstances as he believes them to be. - Girouard v. State (MD, 1991), stabs wife, words alone aren’t sufficient Girouard (∆) stabbed and killed his wife after an argument in which his wife ridiculed his sexual ability, told him that she did not love him, and demanded a divorce. She also told him that she had filed charges against him and that he would likely be court-martialed. After this, ∆ lunged at his wife with a kitchen knife and stabbed her nineteen times. Convicted of 2nd degree murder. Rule: Words alone do not constitute adequate provocation to mitigate murder to manslaughter – no matter how taunting. Except: This view has been relaxed when words disclose facts that could be sufficient if ∆ had observed them directly. Court gives categories for adequate/reasonable provocation - extreme assault or battery upon the defendant; mutual combat; defendant's illegal arrest; injury or serious abuse of a close relative of the defendant; or the sudden discovery of a spouse's adultery. - Maher v. People (1862), sex in the woods, words are enough, q of fact (Minority view) Maher (∆) was charged with an assault with an intent to kill Hunt. Lower court rejected ∆’s offered evidence that he saw his wife and Hunt go into the woods half an hour before he assaulted Hunt. On his way to do so, a friend informed him that Hunt and ∆’s wife had had sex in the woods the day before. ∆ was charged with assault with intent to kill. Rule: If a killing, though intentional, is committed in the heat of passion produced by a reasonable provocation before a reasonable time has lapsed for the passion to cool (COOL DOWN PERIOD) and is the result of temporary excitement rather than one's personal depravity, it is manslaughter rather than murder. Court: Reasonable provocation standard is essentially a question of fact for the jury. - People v. Casassa, (NY Court of Appeals, 1980) – obsessed neighbor, EED (MPC language) Casassa (∆) became romantically obsessed with a neighbor. After she consistently rejected his advances, he confronted her with a knife, stabbing her to death. Charged with murder. ∆ argued that whether he was under extreme emotional disturbance (EED) sufficient to mitigate murder to manslaughter should be viewed from entirely subjective viewpoint. Trial court: ∆’s reaction was so peculiar to him it would be unreasonable to mitigate the crime. Convicted of second degree murder --> he appealed. Rule: Whether a defendant was so emotionally disturbed as to lessen murder to manslaughter involves both an objective and subjective analysis. Subjective: whether the ∆ was in fact under EED. Objective: whether or not disturbance was reasonable. Final thoughts on provocation: - Is it about empathy? Focusing too much on empathy is too individual – everyone will have a different metric MPC takes seriously idea of empathy – you end up with something that doesn’t look like original provocation doctrine – flexible enough to include: SR 51-54 – Gigi Jordan Convicted of Manslaughter, not Murder, in Son’s Killing – EED test - Is it about vengeance? People aren’t comfortable with endorsing vengeance – this route gets rid of reasonableness problem. Maher dissent – “innocent as well as the guilty might suffer” 12/3/19 6:32 PM Page 24 of 46 2. Unintentional Killing a) Civil or Criminal? Why do we want to punish negligence? Deterrence, high degree of harm caused, adults can work on carefulness and should be held accountable. Criminal = aware of risk Not criminal = unaware of risk CL: “wanton or reckless conduct” - Commonwealth v. Welansky (MA, 1944) – fire in club, “wanton/reckless” omission, duty to act Welansky (∆) owned a nightclub. Access limited, few emergency exits were either blocked or barred to prevent patrons from leaving without paying. Fire broke out, escape was impossible for many, dozens killed. ∆ convicted of involuntary manslaughter, he appealed. Rule: A manslaughter conviction may be based on omissions as well as affirmative acts. Involuntary manslaughter = wanton or reckless conduct resulting in a homicide. Where one has a duty to act, recklessness may exist in failure to perform the duty. ∆’s failure to provide safety for patrons went beyond mere negligence into recklessness. MPC: Manslaughter (210.3) and negligent homicide (210.4) - Distinguished by whether ∆ was aware of unwarranted risk. Manslaughter requires recklessness (consciously disregarded a substantial and unjustifiable risk, involving gross deviation from standard of care). Negligent homicide requires negligence (should have been aware of the risk). - Reckless: People v. Hall (Supreme Court of Colorado, 2000) – skiers collide Hall (∆) was an employee of the ski resort, collided with an killed another skier. Court: Probable cause to charge felony reckless manslaughter where a death caused by a experienced skier occurred while the defendant was clearly skiing too fast for the circumstances. Reckless = consciously disregard substantial and unjustifiable risk, involving gross deviation from standard of care. - Substantial: ∆’s clearly excessive speed, lack of control, and bad technique constitute the rare but substantial risk that death would result from skiing – even less-than-50percent risk of death can be sufficiently substantial if the circumstances so warrant. - Unjustifiable: Because ∆’s fast skiing served no purpose but his own pleasure, the substantial risk of death was not justified. - Gross deviation: ∆’s extreme violation of his statutory duty of care while skiing could constitute the gross deviation from the standard of care required for the charge. - Consciously: ∆’s experience and training could support a reasonable inference that he consciously disregarded the substantial risk of death. Custom – what people are expecting in a situation - ∆ was taking a risk that was much higher than the other participants were expecting. - Negligent: State v. Williams, abscessed tooth Native American couple with low IQ and education have a child who has a tooth infection. They do not take the child to a doctor because they are scared the child will be taken away. The child dies two weeks later, after not eating, of pneumonia. Convicted of negligent manslaughter. Issue: Should the parents have been aware of the “substantial and unjustifiable” risk? Holding: Yes, the parents were charged with manslaughter by failing to supply the child medical attention, which they had the duty to do. Counter Claim: there was a substantial risk that their child would be taken away from them if they saw a doctor (b/c of racism) What about education level? The symptoms were such that any reasonable parent would have sought medical attention. MPC on individualization for reasonableness standard: If someone is blind, just suffered heart attack, etc – these would be considered. 12/3/19 6:32 PM Page 25 of 46 Heredity, intelligence or temperament wouldn’t be considered. b) Murder or Manslaughter? MPC 2.08(2), 210.2(1)(b) Murder: 210.2(1)(b): committed recklessly under circumstances manifesting extreme indifference to the value of human life. - Manslaughter: 210.3(1)(a) – committed recklessly 2.08(2) – intoxication doesn’t matter for recklessness. CL: malice: “willful and wanton disregard” - separates murder from manslaughter Inferring malice from recklessness: - Commonwealth v. Malone (PA, 1946) – Russian poker, recklessness & malice Malone (∆), age 17, obtained a gun. His friend, Long, age 13, obtained a cartridge. ∆ suggested they play “Russian poker” and Long consented. ∆put the gun to Long's head, fired three times, and killed him. They were on friendly terms at the time, and ∆ testified he had no intention of harming Long. ∆ contended he was only guilty of ary manslaughter. Rule: When an individual commits an act of gross recklessness for which he must reasonably anticipate that death to another is likely to result, he exhibits that wickedness of disposition and cruelty that constitutes the malice required for a charge of second-degree murder. Court: malice is not necessarily malevolent to the deceased. Affirmed murder conviction. United States v. Fleming (1984) – drunk driver, intent not required for second degree murder Fleming (∆), with a blood alcohol level of over .30, drove for several miles at speeds of over 50 mph in excess of the posted limit, at times driving on the wrong side of the road to avoid traffic. He lost control of his vehicle and hit another vehicle head-on, killing the occupant. He was tried and convicted of second-degree murder. He appealed, contending that the record could support only a manslaughter conviction. Rule: second-degree murder does not require intent to kill. Court: mental state required is malice aforethought – may be satisfied by wanton conduct grossly deviating from a reasonable standard of care, so that it may be inferred that ∆ was aware of a serious risk of death or serious bodily harm. MPC 2.08(2) – doesn’t care about intoxication. 12/3/19 6:32 PM Page 26 of 46 c) Felony Murder CL - Killing during the commission of a felony or attempted commission of a felony. - Still need causation requirement. MPC: 210.2(1)(b)… MPC isn’t crazy about Felony Murder, and instead covers it under recklessness with extreme indifference - Recklessness and indifference for murder are presumed if: Engaged in or accomplice in the commission of, attempt to commit, or flight after committing or attempting to commit: Robbery, rape or deviate sexual intercourse by force or threat of force, arson, burglary, kidnapping or felonious escape. STRICT LIABILITY --> no mens rea Statutory reform: - Minority (one state, Michigan) abolished felony murder. - Majority follows traditional CL, but limits list of felonies, and allows defenses (co-felon not intending to kill). Some jurisdictions say it matters who caused the death. Regina v. Serne (1887) – NOT the standard, set house on fire “act known to be dangerous” - It was alleged that Serné (∆) deliberately set his house on fire to collect insurance on it. ∆, his wife, two daughters, two sons, and a servant were in the house at the time of the fire. One son burned to death. Indicted for murder. - Rule: Any act known to be dangerous to life and likely, in itself, to cause death, done for the purpose of committing a felony, and which causes death, is murder. Court says that the felony murder law should be narrowed. More reasonable if it is an act known to be dangerous People v. Stamp (1969)- gunpoint robbery heart attack, no foreseeability necessary - ∆ tries to rob somebody at gunpoint, who has a heart attack and dies. - Issue: In California, may a defendant may be convicted of murder if, during the attempt or actual commission of an inherently dangerous crime, a killing occurs? - Holding: Yes, if it is a direct cause, even if there was no foreseeability. - Majority/US view – as long as homicide is direct causal result, felony murder rule applies whether or not death was a natural or probable consequence of the robbery. King v. Commonwealth (1988) – marijuana plane crash, causation problem - plane crashed while carrying 500 pounds of marijuana. - Court held that drug-distribution crime was not proximate cause of death – causation problem 12/3/19 6:32 PM Page 27 of 46 IV. RAPE 1. Rape Actus Reus a) Actus Reus: Force Traditional Rape Law: Resistance needed Why? o Courts want to be hyper-protective of . Otherwise it would be very easy to destroy a man’s life. There must be evidence BARD to convict of rape. Usually evidence is only he said/she said. - Resistance Requirement: Brown v. State (WI, 1906) Facts: ∆ grabbed victim (neighbor) in a field between their homes and they had sex. Victim said that she tried as hard as she could to get away, and only requested once that he let her go. She didn’t have bruises or ripped clothing. Rule: To uphold a rape claim, the victim must show utmost resistance to the sexual act alleged. Court: Must be “most vehement exercise of every physical power to resist” the act. - No evidence that she used force to push him off her. - Threat of Force: State v. Alston (1984) ∆ and victim had been in a consensual sexual relationship, which was abusive. The victim left the defendant to live with her mother. D approached V at school, he made threats about fixing her face. D took V to his friends house and asked if she was ready. V replied that she wasn’t going to have sex with him. D told her to lie on the bed, he pushed her legs apart and had sex with her. The victim did not push him away. Holding: D was found not guilty because there was a lack of evidence showing force or threat of force. Threat of force needs to happen soon before sex to show that it applied. Court: Second degree rape requires that the defendant obtain sexual intercourse both by force and without the victim’s consent. - Force is demonstrated by actual force or by threats that are intended to overcome the will of the victim to resist. Resistance doesn’t need to be shown if there is threat of force. Threats of bodily harm sufficient to reasonably induce fear are enough. 12/3/19 6:32 PM Page 28 of 46 Modern Rape Law: - Commonwealth v. Berkowitz (PA, 1992) Force = more than what is intrinsic in sex College friends: Victim went to ∆’s room to look for his roommate. ∆ was sleeping in the room, but woke up when the victim entered. He urged the victim to hang out for a while, she complied, sat on the floor and he sat next to her. ∆ began making sexual advances such as kissing and fondling. The victim said no but never resisted or screamed. ∆ then had sex with the victim, he said that though she repeatedly said no, she moaned passionately. ∆ locked the door but it was locked from the inside. Rule: Verbal resistance alone is insufficient to show that sexual intercourse was obtained by force. Forcible compulsion can be physical or mental coercion. Whether force is sufficient to prove rape depends on relevant factors: - Age of victim, physical sizes, mental conditions, atmosphere where incident takes place, whether ∆ had control or dominance over the victim, whether victim was under duress. Court said there was no mental coercion (similar ages, daytime, they knew each other), and that there was no threat of forcible compulsion (never threatened her) Court also said no actual force because she could have left the room. Court only relies on verbal resistance when combined with forcible compulsion or threat of forcible compulsion. - State v Rusk (MD, 1981) – Genuine, reasonably grounded fear Facts: Victim met ∆ at a bar, she drove him back to his house. This was in a neighborhood at night that she was unfamiliar with. He took her keys away and told her to accompany him to his room. She told him she wanted her keys back and wanted to leave, he pulled her onto the bed and had intercourse with her. There was like choking on behalf of the D and the victim pointed a look in his eyes. She asked him “If I do what you want, will you let me live?” he replied “Yes” Rule: The lack of consent element essential to a rape conviction can be established by proof of resistance or by proof that the victim failed to resist because of a genuine, reasonably grounded fear. Here, the jury could rationally find that essential elements of second-degree rape had been established – conviction affirmed. Reasonably grounded fear obviates the need to prove resistance. Kind of fear: - “fear of death or serious bodily harm, or a fear so extreme as to preclude resistance, or a fear which would well nigh render her mind incapable of continuing to resist, or a fear that so overpowers her that she does not dare resist.” 12/3/19 6:32 PM Page 29 of 46 Threat of force can be explicit or implicit, intended or unintended, as long as there is reasonably grounded fear. - State v. Burke , a police officer was convicted of two counts of first degree sexual assault after he picked up an alcoholic woman while she was hitchhiking. never orally threatened the victim with violence if she did not perform oral sex on him. Rule: coerced his victim to submit by threatening to us force or violence on her that the victim reasonably believed that the accused held the present ability to execute. This case is special because was an armed policeman (man of authority) The threat was implied from the onset. - State v. DiPetrillo (RI, 2007) – Implied threat (power imbalance) 19 year old employee was pulled onto the lap of the 30 year old boss where he started kissing him. At first she kissed him back, but then she declined. She tried to avoid the situation both verbally and with physical resistance. ∆ continued to pull Jane’s pants down and digitally penetrated her vagina. She was then able to stand up and walk away. ∆ was convicted of first and second degree sexual assault, requiring force or coercion Holding: The application of some minimal force in addition to the psychological pressure of authority did not satisfy the force and coercion elements beyond a reasonable doubt. Court did not want to extend the Burke analysis of implied threat to the facts in this case. MTS Sex without Consent = Force=Rape State in the Interest of M.T.S (NJ, 1992) – Minority view, force = sex without consent - Facts: M.T.S. (∆), a 17-year-old boy, engaged in sexual penetration of a 15-year-old girl to which she did not consent, but there was no evidence of unusual or extra force or threats to accomplish the act of penetration. - Rule: The element of “physical force” in the crime of sexual assault is met simply by an act of nonconsensual penetration involving no more force than necessary to accomplish that result. NJ is one of few states that hold nonconsent as sufficient to prove sexual assault. b) Actus Reus: Consent Traditional Common Law: subjective unwillingness + external refusal - Victim has to establish both subjective unwillingness and external refusal. - Today if physical force is not necessary how is non-consent proven? 12/3/19 6:32 PM Page 30 of 46 - Totality of the Circumstances Approach: Verbal resistance (saying no) plus additional behavior that make unwillingness clear Defective consent - Maturity: statutory rape is a strict liability crime. Below a certain age, victim does not have the capacity to consent to sex - Pressure and threats can violate consent (student, principal, employer, employee) as can positions of authority or trust (teacher, doctor, lawyer?) - Incapacity (Drugs/Alcohol) Drugs etc – particularly if the victim was unconscious. Nearly all states impose liability for drugging, however some don’t impose liability if a 3rd party drugged a victim or one who is short of complete unconsciousness. MPC: 213 (1)(b) - A male who has sexual intercourse with a female not his wife is guilty of rape if: he has substantially impaired her power to appraise or control her conduct by administering or employing without her knowledge drugs, intoxicants or other means for the purpose of preventing resistance In many states the barrier to liability is higher if the victim has freely chosen to take intoxicants. - Intellectual Disability MPC imposes liability when D knows the person consenting to sex suffers from a mental disease or defect which renders her incapable of appraising the nature of her conduct State v. Haddock (N.C. Ct. App 2008) Woman got drunk, accompanied the defendant to his apartment, collapsed on his bed. The court held that the statute was not intended for the protection of alleged victims who voluntarily ingested intoxicating substances through their own actions. People V. Giardino (Cal 2000) 16 year old girl gets drunk and actively participates in many sex acts. The court held that intoxication could invalidate consent even when it was not physically incapacitating. The focus should be on the effect of the intoxicants on the victim’s powers of judgement rather than on the victim’s power of resistance State v. Al-Hamdani (Wash 2001) The court convicted the defendant on the basis of expert testimony that a BAC of .15 was sufficient to render the victim incapable of giving consent. 12/3/19 6:32 PM Page 31 of 46 Consent Questions: - Were the parties capable of giving consent? Was consent given voluntarily? Do the parties know what they are consenting to? 2. Rape Mens Rea Mens rea becomes more important once you take out the force requirement – did ∆ know there was a lack of consent? Possibilities for MR: - Purposely: person knows there’s no consent (not on the table) - Recklessness: consciously aware of risk there is no consent but disregards it - Negligence: have to be very careful. If a reasonable person would have realized there’s no consent, not realizing it make it rape. - Strict liability: Just show no consent and don’t even worry about what rapist is thinking. Forces people to be very careful Modified strict liability: If there’s evidence a partner said no, after that the ∆ assumes the risk there was no consent. Does strict liability standard lead to unfair outcomes? CL MR for non-consent: - Majority: Mistakes are defenses if the error is honest and reasonable. Negligence and Recklessness is enough for conviction. - Minority: In the absence of consent, ∆ is strictly liable. Focuses on the culpability of use of force. - 2nd min view: in absence of resistance, prosecution must prove that ∆ is reckless. a) Commonwealth v. Fischer (PA, 1998), ∆’s subjective belief is not a defense Facts: ∆ was convicted of raping a fellow college student with whom hours before the rape he had consensual sexual intercourse. ∆ argued at trial that in light of the prior encounter, he reasonably believed the actions were consensual. The sex before had been rough sex. Holding: A defendant's subjective belief that a victim consented to sexual conduct is not a defense to the crime of rape. - Notes that courts elsewhere have provided jury instructions regarding the reasonableness of ∆’s belief. b) Deception: Fraud in the factum: The majority view is that it violates consent. This is a rare case and works mostly when a victim consents to sex with someone who they think is their husband, and the lights are off…that person turns out not to be who they say they are. - Doctor says, “I need to use an instrument on you, inserts penis. Fraud in the inducement: “my dog just died” The majority view is that in most case, the consent is effective – does not invalidate consent. You run into 1st amendment issues. This policy reveals paranoia of convicting the innocent. However it can work if the fraud “changes the essential nature of the act” People v. Evans: Man pretends to be a psychologist doing a magazine article. He seduces a young woman at the airport and brings her home. He told her she’s stupid for coming to a strangers home and said he could “rape” or “kill” her. Ruling: this is a case of fraud in inducement. This man’s actions, though morally reprehensible do not rise to the level of rape. There was no threat of force here, according to the court. Boro v. Superior Court: Dr. tricked woman into having sex with him by saying she needed a certain man’s sperm in order to be cured of a life threatening illness. Ruling: This is fraud in factum. Victim did not even know that she was consenting to sex. Consent not given to sex here. It was given to the cure for her fake disease. 12/3/19 6:32 PM Page 32 of 46 Sexual Intercourse + /Intoxicated Under Age/ Prison Guard Prisoner/ Other Status Based Categories 3. Rape Shield Laws: Limit the admissibility of evidence bearing on a rape complainant’s prior sexual behavior. Some states will only permit prior sexual history when it involved Defendant a) This law exists because we don’t want to retraumatize the victim through the legal process. b) Traditionally, if something is relevant, it’s allowed in as evidence. But if it’s prejudicial, it shouldn’t come in. Prejudicial aspects > probative value…then it can be barred from evidence c) In practice: no past sexual history evidence of victim allowed, unless it was with the ∆. Varies by jurisdiction. d) Why should anything besides what happened that day be relevant? We want ∆ to be able to put together a defense (due process rights). e) But even if it’s unfair for ∆, it’s good for deterrence. But might we be convicting the innocent? But overdeterrence is bad as a policy. We want people to have sex. 12/3/19 6:32 PM Page 33 of 46 V. ATTEMPT Why do we punish for attempt? o We shouldn’t reward evil people who have bad luck (in that they failed to commit crimes) o Deterrence: convince people not to try to commit crimes because they will face harsh penalties o Criticisms: legal system should treat attempts differently At what point along the spectrum of actions/thoughts are we punishing people? o Intent-focus – cons: People change their minds Criminalizing thought Intent --> subjective o Conduct-Focus – cons: Interventions come too late a) Intent Focus: McQuirter v. State (1953), “attempted rape” McQuirter (∆), a black man, followed a white woman down the street and then up the street. Convicted of attempt to commit an assault with intent to commit rape. Holding: Attempt to commit an assualt with intent to rape is just an attempt to rape that hasn’t proceeded far enough – jury just needs to find that ∆ actually intended to rape the victim. - Court: jury may look at all circumstances, including social conditions and customs founded upon racial differences. (victim was white and ∆ was black) This is intent-focused. 12/3/19 6:32 PM Page 34 of 46 1. Attempt Mens Rea CL: Results Crimes and Conduct Crimes a. Results Crimes: Requires purpose (specific intent) to produce the proscribed result, even when recklessness or some lesser MR would suffice for conviction of the completed offense. i. Example: Attempted murder requires specific intent to kill, but it is sufficient for murder that ∆ engages in conduct knowing high probability that doing so will kill someone. b. Conduct Crimes: MR is the same as needed for the complete crime – NO causation requirement. MPC: 5.01(1) (definition of attempt) 5.01(2) (substantial step) o (1) A person is guilty of an attempt to commit a crime if, acting with the kind of culpability otherwise required for the commission of the crime, he: (a) purposely engages in conduct which would constitute the crime if the attendant circumstances were as he believes them to be; or (b) when causing a particular result is an element of the crime, does or omits to do anything with the purpose of causing or with the belief that it will cause such result without further conduct on his part; or (c) purposely does or omits to do anything which, under the circumstances as he believes them to be, is an act or omission constituting a substantial step in a course of conduct planned to culminate in his commission of the crime. People v. Gentry (IL, 1987), gasoline on gf, specific intent to kill o Gentry had a fight with his gf, poured gasoline on her. She went near the stove and caught on fire. D smothered the flames with a coat but the victim was badly burned. Issue: Did the court err in the instruction of murder because the crime of attempted murder requires specific intent to kill? Must there be specific intent to commit the attempt crime? Holding: Yes, specific intent to kill is the pivotal element of that offense, the intent to do bodily harm or knowledge that it may lead to death is not enough. Smallwood v. State, (MD, 1996) – HIV, natural and probable result o Smallwood (∆) was convicted of three counts of assault with intent to murder his rape victims based on the awareness that despite the fact that he knew he was HIV positive he did not use a condom in any of his attacks. o Rule: NO INTENT. Before intent to kill may be inferred based solely on the defendant's exposure of a victim to a risk of death, it must be shown that the victim's death would have been a natural and probable result of the defendant's conduct. Court said that HIV was not the same as firing a deadly weapon. Though trier of fact may determine intent to kill based on circumstantial evidence, death is not a probable consequence of exposing someone to HIV virus Conduct Crime: Regina v. Khan o ∆ convicted of attempted rape, intent is the same. o MR is identical, intent to have intercourse + knowledge of/recklessness to woman’s lack of consent. Strict Liability: Commonwealth v. Dunne o Intent to commit statutory rape does not require a mens rea for the child’s age. It is a strict liability crime, so the attempt to have sex, if the child is underaged is enough for conviction. 12/3/19 6:32 PM Page 35 of 46 2. Attempt Actus Reus: Preparation or Attempt? Last Act Test o Must have taken the last possible step – not used anywhere. o Problems with Last Act Test: Intervention will usually be too late When it looks like the person is culpable enough from a moral perspective, we still can’t charge the person with attempt because they haven’t completed the last act Dangerous Proximity Test o Cases where a person comes dangerously close to successfully committing the crime he intended to commit-looks at actions left to be taken, the distance to consummation must be short. o The acts must come or advance very near to accomplishment (Rizzo) o People v. Rizzo (NY, 1927) - driving looking for person to rob…dangerous proximity test Rizzo (∆) and three others were arrested while they were driving around New York City looking for a payroll messenger they intended to rob. Appeal from conviction of attempted robbery. Rule: Attempt is committed when an act is performed which is so physically close to the contemplated victim or scene of the crime that the completion of the offense is very likely but for timely interference. Court – probability of completion can only occur when ∆’s actions bring him in close proximity to the victim or place of the crime. ∆’s actions never brought him near the person he attempted to rob. Equivocality Test o Not how far ∆ has gone, but how clearly his acts bespeak his intent. This test may be applied if many actions are left to be taken. o Question to consider: Have you done things suspicious enough where we can conclude unequivocally that you were attempting to commit the criminal act?...if yes, then you are guilty of attempt o This solves the issue of the dumb thief (ex. Man who tries to rob a bank but spelled “money” wrong)…Under the other tests, he’d probably not be guilty. Under equivocality test, he would be. Substantial Step Test (MPC 5.01(2)) o 50% of jurisdictions use this test – diluted version of dangerous proximity test --> dangerous proximity + equivocality. 12/3/19 6:32 PM Page 36 of 46 o You need a substantial step that is strongly corroborative of the actor’s criminal intention. o United States v. Jackson (1977) – bank robbery 3 people intended to rob a bank. The police caught one and he told them of the plan. Installing fake cameras, changing license plates, guns etc. The police on that date catch the rest of them with the things he said they had. Court cites MPC 5.01 Rule: To prove an “attempt,” it must be shown that the defendant acted with criminal purpose and that he engaged in conduct constituting a substantial step toward commission of the target crime. MPC 5.01(2) – Conduct which may be held to constitute substantial step – must be strongly corroborative of actor’s criminal purpose: (2) Conduct Which May Be Held Substantial Step Under Subsection (1)(c). Conduct shall not be held to constitute a substantial step under Subsection (1)(c) of this Section unless it is strongly corroborative of the actor’s criminal purpose. Without negativing the sufficiency of other conduct, the following, if strongly corroborative of the actor’s criminal purpose, shall not be held insufficient as a matter of law: (a) lying in wait, searching for or following the contemplated victim of the crime;(b) enticing or seeking to entice the contemplated victim of the crime to go to the place contemplated for its commission;(c) surveying the place contemplated for the commission of the crime;(d) unlawful entry of a structure, vehicle or enclosure in which it is contemplated that the crime will be committed;(e) possession of materials to be employed in the commission of the crime, which are specially designed for such unlawful use or which can serve no lawful purpose of the actor under the circumstances o o 3. Crimes of Preparation i. Substantive crimes of preparation – sometimes preparation or certain crimes is a crime itself. This allows law to get involved earlier but there is concern about going overboard. 1. Burglary, assault, mere preparation... stalking – see p. 661-663 12/3/19 6:32 PM Page 37 of 46 4. Attempt Defense: Impossibility a) MPC-No Impossibility Defense If the attendant circumstances were as believed them to be and thing was trying to do was criminal, then he is guilty of attempt o Ex: If circumstances in Berrigan were as believed (i.e. delivering the letters was illegal), then he’d be guilty of attempt b) Factual Impossibility – traditionally NOT a defense 1. State v. Smith (NJ, 1993) – HIV case HIV positive inmate, spat on officer and bit his hand saying that now he had HIV and would die. Holding: The court held that impossibility was irrelevant so long as ∆ believed that it was possible to infect and kill the officer. c) Legal Impossibility – traditionally a valid defense 1. People v. Jaffe (NY, 1906) – not stolen goods A man offered to buy goods that he thought were stolen, but the goods in fact had been previously returned to their rightful owner so that they were no longer stolen property. Holding: Belief of nonexistent fact is not enough – no matter what his motive was, act intended was not a crime. 2. United States v. Berrigan (UC 3rd Circuit 1973) – letters in jail Illegal to send an unauthorized letter out of jail. D thinks he’s doing it w/o permission, but warden actually knows, and is ok about it. Holding: Attempting to do that which is not a crime is not attempting to commit a crime. 3. People v. Duglash (NY 1977) –shooting dead guy D shoots victim 5 times after he had already been shot and is dead. D does not know that this man is dead. Factual impossibility argument: Trying to kill someone who’s already dead is factually impossible Legal impossibility argument: Shoot a dead person is nothing remotely like homicide MPC approach: Mental State: Sufficient evidence to believe D thought actor was alive at the time he shot him. Court Holding: The murder conviction cannot stand, because there is not enough evidence that the victim was alive. But they did find intent to kill a person, and the conviction can therefore rest on the lesser crime of offense. It is no defense that the crime was factually or legally impossible provided that the crime would have been possible had the circumstances been as D believed them to be. 12/3/19 6:32 PM Page 38 of 46 4. United States v. Oviedo (1976) – fake drug sting a. Drug dealing sting. They find more of what looks to be the drug at the guys house, it turns out just to be a legal substance. At trial, D stated that he knew the substance was not the drug and was trying to rip the agent off. b. Holding: In order for ∆ to be guilty of a criminal attempt, the objective acts performed without any reliance on the accompanying mens rea, mark the ∆’s conduct as criminal in nature.” The court held that the objective acts were consistent for a non-criminal enterprise and overturned. 5. Hypo: Man solicits sex from a person who he believes is underage Rule 1: Statutory rape is a strict liability crime…Even if the victim was not a minor, would still be held strictly liable Rule 2: Even if statutory rape is not a strict liability crime, the fact that the victim is not a minor is a factual impossibility. That is, intended to commit a crime (i.e. statutory rape). That the victim is not a minor does not exculpate of his attempt because had the circumstances been as believed, it would have been statutory rape 6. Attempt Defense: Abandonment a. People v. McNeal – kidnaps woman lets her go i. ∆ kidnaps a woman and tries to rape her, she pleads with him to let her go, he does. The court holds that this was not voluntary and was in fact in response to her resistance. 12/3/19 6:32 PM Page 39 of 46 VI. DEFENSES: JUSTIFICATION 1. Defense: Self-Defense Defining feature: presence of an aggressor Requirements: Actual Belief: There must have been a threat, actual or apparent, of the use of deadly force against the defender. Imminence: The defender must have believed that he was in imminent peril of death or serious bodily harm. o The threat must have been unlawful and immediate. Necessity: His response was necessary to save himself therefrom. o Duty to retreat Reasonable Belief: These beliefs must not only have been honestly entertained, but also objectively reasonable in light of the surrounding circumstances. o Why Require Reasonable Belief? Otherwise, people would be able to set their own standards for permissible use of force no matter how aberrational or bizarre the belief Proportionality requirement: Manner of defense must be proportionate to the threat o Ex: If I come at you threatening to tickle you, you cannot then shoot me a. Reasonable Belief Requirement i. Elements: actual + reasonable belief Actual belief of imminent death or serious bodily harm. – you don’t have to fear it. Reasonable belief of imminent death or serious bodily harm o Need an objective standard Based on the circumstances and the ∆’s background. This is where battered wife can also play a role. ii. People v. Goetz (NY, 1986) – subway shooting Goetz shoots 4 black kids that come up to him on subway even though they were unarmed and demonstrated no weapons. One of the kids ends up permanently paralyzed. They told him to give him $5. They did have screwdrivers in their pockets. Goetz was mugged in the past. Holding: A justification of self-defense may be permitted when the defendant’s belief was mistaken, but only if there was an objectively reasonable basis for the belief in the first place. In this case, Goetz argued that that an objective element would take away the jury’s ability to consider the circumstances. Courts may consider the situation, including the defendant’s knowledge and prior experience, in determining whether the belief was reasonable. The prosecutor’s instructions were sufficient for a grand jury, and the charges are reinstated. iii. State v. Kelly – battered women’s syndrome testimony Kelly (∆) appealed from a decision affirming her conviction of reckless manslaughter, contending that the trial court erred in ruling that expert testimony concerning the “battered-woman's syndrome” was inadmissible on the issue of self-defense. Rule: battered women’s syndrome is appropriate subject for expert witness testimony on the issue of selfdefense. o Goes to her state of mind – her experience was common among women in similar relationships – that she believed she was in imminent danger. o NOT for the objective reasonableness of the belief. Cycle of abuse: tension building -> battering -> honeymoon stage Idea of necessity -> if you admit battered women’s syndrome, does it take away idea of reasonableness? b. Imminent Danger Requirement Must have reasonable belief that harm is about to occur imminently. The actor cannot act preemptively. 12/3/19 6:32 PM Page 40 of 46 Can’t do preemptive strike and cant do retaliation – courts worried about people taking law into their own hands, losing the “monopoly on violence”. i. State v. Norman – kills husband in sleep – no “homicidal self-help” a. Battered wife, husband threatens to kill her she kills him in his sleep. She tried to get help, but he just dragged her back. b. Holding: The courts understand why she did this, but during sleep there was no imminent danger. The courts disfavor the “homicidal self help”. She is convicted of voluntary manslaughter. ii. Commonwealth v. Sands – shoots husband watching tv c. Battered wife, husband threatens to kill her and her children. While he is in bed watching TV she pulls a gun and shoots him 5 times. d. Holding: The court held that though she believed she was in danger of harm and death, she didn’t get the defense because there was no imminent danger. iii. State v. Schroeder – stabbed cell mate e. Stabbed cell-mate in his sleep. ∆ was convicted of assault with intent to inflict bodily harm. ∆ incurred large debt to cellmate who threatened to “collect” the money owed in his sleeps. f. Holding: There was no reason for him to think it an imminent danger, other than the threat. g. Dissent: Could not be expected to stay awake all night every night waiting for the attack. The jury could have reasonably found that the use of force was necessary to protect him against attack on the present occasion. iv. Ha v. Alaska – hammer guy, inevitable v. imminent h. The victim Buu, beat ∆ severely and was pulled away by bystanders. Buu left, but came back with a hammer and tried again. Before leaving he shouted that he would kill ∆. ∆ spent sleepless nights thinking about the threat and the reputation. ∆ got a rifle and killed him. Judge withheld the selfdefense issue. i. Holding: There was reasonable fear, but there is a difference between inevitable and imminent. Thus the trial court did not err. c. Initial Aggressor If you start the conflict, you don’t get to claim self-defense (unless there has been a cooling off period) May regain right to self-defense if withdrawal from aggression communicated expressly or impliedly or, in some jurisdictions, when non-lethal aggressor is met with grossly excessive response provided he exhausts every alternative before using deadly force. Mutual combat: both get aggressor status i. State v. Peterson (1973) – windshield wipers “self –generated” People come to steal windshield wipers form Peterson, but they were on the way out when he comes back with a gun. They start moving forward towards him, and he kills them. o Holding: Not a defense if you are the aggressor. o Self-generated necessity to kill d. Retreat (necessity) Traditional CL: True man doctrine - not obligated to flee Current CL: Law is mixed, sometimes requires retreat where possible. “Castle” Exception: Dwelling - Do not have to retreat if you are being attacked in your own home. BUT if being attacked by someone you live with, must retreat (creates issues for victims of domestic abuse) State v. Abbott (NJ, 1961) – driveway fight o Abbott and Scarano share a driveway. Sarano’s son got into a fight with Abbott, soon after the dad and mom cane outside with weapons, one of them being a hatchet. Abbott intentionally inflicted the blows on them, which all of them got o Holding: The Model Penal Code says that the use of deadly force is not justifiable if the actor knows he can avoid the use of such force by retreating with complete safety. 12/3/19 6:32 PM Page 41 of 46 o Thus, the issue is whether Abbott knew the opportunity to retreat with complete safety was present during the altercation with the Scaranos. The judgment of conviction is reversed due to instructions. e. Defense of Another Pretty much the same as self-defense – some that don’t apply, some differences 2. Defense of Property Actual + reasonably belief of: o imminent loss of property o necessity of force o Proportionality (amount of force) --> different for property than for self-defense Defense of Habitation Exception o Different jurisdictions have difference rules o Actual + reasonable belief still applies o Same as defense of property except deadly force is allowed to prevent unlawful entry of his dwelling by the person unlawful entry of his dwelling by the person with intent to commit a felony unlawful entry of his dwelling by the person with intent to commit a felony that inflicts serious bodily harm People v. Ceballos – automatic rifle o Set up rifle to automatically shoot at garage door if opened after a few thefts. o Ceballos (∆) was convicted of assault with a deadly weapon when a trap gun he set up in his garage fired into the face of a teenage boy who broke open the garage door. o ∆ said shooting would have been justified if he were present. o Court: Deadly device lacks discretion to determine whether deadly force is necessary. Character and manner of burglary must create reasonable fear of bodily harm. 12/3/19 6:32 PM Page 42 of 46 3. Defense: Necessity Defining feature is choice of evils a. Differences between CL and MPC (3.02) NOTE – MPC approach not very popular CL Same as MPC: Lesser evil chosen Reasonable belief of causal efficacy of conduct to avoid harm o Slightly different – MPC: “necessity of conduct to avoid harm” No legislative purpose to exclude the justification Different from MPC: In order to prevent imminent harm No legal alternative to prevent harm For non-homicide offenses only ∆ must be faultless in creating the emergency to get the defense. o Ex. Arsonist destroys a house to prevent burning further houses down. He doesn’t get necessity defense for the second house. MPC MPC: 3.02. Justification Generally: Choice of Evils Reasonable Belief of Necessity: (1) Conduct which the actor believes to be necessary to avoid a harm or evil to himself or to another is justifiable, provided that: o Lesser evil: (a) the harm or evil sought to be avoided by such conduct is greater than that sought to be prevented by the law defining the offense charged; and o (b) neither the Code nor other law defining the offense provides exceptions or defenses dealing with the specific situation involved; and o Legislative purpose: (c) a legislative purpose to exclude the justification claimed does not otherwise plainly appear. No defense for recklessness or negligence: (2) When the actor was reckless or negligent in bringing about the situation requiring a choice of harms or evils or in appraising the necessity for his conduct, the justification afforded by this section is unavailable in a prosecution for any offense for which recklessness or negligence, as the case may be, suffices to establish culpability. Available for homicide – MPC cares more about saving multiple human lives. b. Lesser Evils Borough of Southwark v. Williams – evils: trespass > homelessness o Homeless families took shelter in abandoned houses. o Violation of people’s property rights by providing the homeless with a necessity defense is greater evil than homelessness Commonwealth v. Hutchins – evils: marijuana > extreme physical pain o ∆ convicted of possession of marijuana, necessary because progressive sclerosis o - no necessity available because public policy issues outweigh an individual’s claim of necessity Fontes – evils: stealing ~$450 > starving children o ∆ forged check to buy food for starving kids; economic necessity is not sufficient evil avoided for necessity Regina v. Dudley & Stephens – stranded at sea o stranded at sea, 3 men eat cabin boy; killing to save from starvation is not justified 12/3/19 6:32 PM Page 43 of 46 c. Causal Link United States v. Schoon – protest of IRS o ∆ protested involvement in El Salvador by occupying IRS building o Indirect protest of government policy with a violation of the law does not constitute the necessary causal link between the choice of evils d. Torture and Necessity Public Committee Against Torture v. State of Israel o Is torture justifiable? o Necessity defense available to officers who use physical interrogation means when there’s an extraordinary circumstance (when it is necessary to save lives) Bybee Memorandum o On use of torture by US government against terrorists Posits that a necessity defense may be available for the torture of these terrorists because the benefit of the possibility that many more lives will be saved outweighs the evil of torture itself Imminence problem MPC values saving multiple lives more than CL. 12/3/19 6:32 PM Page 44 of 46 VII. DEFENSES: EXCUSE You aren’t being held accountable for things that should NOT have been done. a. Duress Defense Defining feature is coercion a. Policy behind Duress Deterrence: You can’t deter people in these situations o Counter: the more tempting it is to commit a crime, the higher the punishment should be. Retribution: there is only so much the government should expect from people. o Being cowardly is ok sometimes. 1. MPC: 2.09 - Duress (1) It is an affirmative defense that the actor engaged in the conduct charged to constitute an offense because he was coerced to do so by the use of, or a threat to use, unlawful force against his person or the person of another, which a person of reasonable firmness in his situation would have been unable to resist. (2) The defense provided by this Section is unavailable if the actor recklessly placed himself in a situation in which it was probable that he would be subjected to duress. (also for negligently if negligence is culpability) (3) It is not a defense that a woman acted on the command of her husband, unless she acted under such coercion as would establish a defense under this Section. (4) When the conduct of the actor would otherwise be justifiable under Section 3.02, this Section does not preclude such defense. 2. CL Criminal act is excused if: o Committed in response to threat of present, imminent, and impending death or serious bodily harm of ∆ or another, where that threat is of such a nature as to induce a reasonable fear of such injury. o Not available for homicide 3. Differences between CL and MPC: o MPC No imminence requirement Note - the less effective law enforcement is, the more “tempted” courts will be to play around with imminence standard. o MPC No bodily harm requirement o MPC Available for homicide i. Imminence Requirement (CL) State v. Toscano (1977) – chiropractor insurance fraud o Chiropractor conspiring to obtain $ from insurance, claimed acted under duress; threat of future harm to wife - threat of physical violence to ∆/wife induced reasonable fear; o The trial judge decided that Toscano's (∆) claims that he engaged in certain illegal acts because of fear that another party would harm himself or his wife in the future were, even if true, insufficient to constitute a defense of duress— and he so instructed the jury. o Rule: Duress is a defense to a crime (other than murder) if the defendant engaged in conduct because he was coerced to do so by the use of, or threat to use, unlawful force against his person or the person of another, which a person of reasonable firmness in his situation would have been unable to resist. Reasonable standard Does not have to be immediate or aimed at the accused Fleming – Korean War propaganda/death march Duress not available because court says no imminence of harm Possibility he could have escaped from the march Threat of bodily harm was not immediate 12/3/19 6:32 PM Page 45 of 46 Maybe higher standard for military trained people Regina v. Ruzic – Canada drug case Court rejects immediacy requirement. US immediacy requirement: o More about preventing fraudulent acquittals than carrying monopoly of violence Contento-Pachon – heroin balloons ∆ said he didn’t trust law enforcement Court says there was no reasonable alternative for him to take o If he tried to cooperate, consequences would be immediate and harsh b. Insanity Defense MPC 4.01. Mental Disease or Defect Excluding Responsibility o (1) A person is not responsible for criminal conduct if at the time of such conduct as a result of mental disease or defect he lacks substantial capacity either to appreciate the criminality [wrongfulness] of his conduct or to conform his conduct to the requirements of law. o (2) As used in this Article, the terms “mental disease or defect” do not include an abnormality manifested only by repeated criminal or otherwise anti-social conduct. CL o M’Naughten Test At the time, the ∆ was laboring under such a defect of reason, from disease of the mind, as not to know the nature and quality of the act he was doing, or if he did know, he did not know he was doing wrong. o “Irresistible Impulse Standard” By “insane impulse, irresistibly driven to commit a crime.” Differences between MPC and CL o Combines two CL tests – “softer” than M’Naughten: “appreciate” instead of “know” o “Conform his conduct to the requirements of the law” – irresistible impulse Policy o Deterrence: You can’t deter the insane Counter: we should be so tough to deter the sane 12/3/19 6:32 PM Page 46 of 46
