The Modern Role of Criminal Statutes
nullum crimen sine lege, nulla poena sine lege, or
“no crime without law, no punishment without law.”
“Sin indeed was in the world before the law was given,
but sin is not counted where there is no law.” Romans 5:13
In other words, a person may not be convicted and punished unless her conduct was defined as
criminal (today, in the United States, by statute rather than by judges). This prohibition on
retroactive criminal lawmaking constitutes the essence of the principle of legality, a principle
that has been characterized as the first principle of American criminal law.
The Modern Role of Criminal Statutes
This chapter also covers three interrelated corollaries of the legality principle:
1) criminal statutes should be understandable to reasonable law-abiding persons.
2) criminal statutes should be crafted so that they do not “delegate[ ] basic policy matters to
policemen, judges, and juries for resolution on an ad hoc and subjective basis.”
3) Judicial interpretation of ambiguous statutes should “be biased in favor of the accused,” a
concept that has come to be known as the lenity doctrine.
1. The Requirement of Previously Defined Conduct
Commonwealth v. Mochan
There is no doubt that the common law is a part of the law of this Commonwealth, and we
punish many acts under the common law.
But after nearly two hundred years of constitutional government in which the legislature and not
the courts have been charged by the people with the responsibility of deciding which acts do and
which do not injure the public to the extent which requires punishment, it seems to me we are
making an unwarranted invasion of the legislative field when we arrogate that responsibility to
ourselves by declaring now, for the first time, that certain acts are a crime.
When the legislature invades either the judicial or the executive fields, or the executive invades
either the judicial or legislative fields, the courts stand ready to stop them. But in matters of this
type there is nothing to prevent our invasion of the legislative field except our own self restraint.
***
1. The Requirement of Previously Defined Conduct
Commonwealth v. Mochan
NOTES AND QUESTIONS
4. Nearly all states have abolished common law offenses, including now Pennsylvania. 18 Pa.
Cons. Stat. Ann. § 107(b) (2011) (but see R.I. Gen. Law. § 11–1–1 (2011), which authorizes the
prosecution of common law offenses).
Nonetheless, as the following materials suggest, even in states that have abolished common law
offenses, common law doctrine retains significance.
1. The Requirement of Previously Defined Conduct
Commonwealth v. Mochan
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NOTES AND QUESTIONS
4. “Reception Statutes” (almost completely abandoned)
“[S]uch parts of the common law of England, and of the statute law of England and Great
Britain, and of the acts of the legislature of the colony of New York, as together did form the law
of the said colony on the 19th day of April, in the year of our Lord one thousand seven hundred
and seventy-five, shall be and continue the law of this State, subject to such alterations and
provisions as the legislature of this State shall, from time to time, make concerning the same.”
1. The Requirement of Previously Defined Conduct
Keeler v. Superior Court
Procedural Stance:
Comes before the California Supreme Court on a Writ of Prohibition:
A writ of prohibition “arrests the proceedings of any tribunal * * *, when such proceedings are
without or in excess of the jurisdiction of such tribunal * * *.” Cal. Civ. Proc. Code § 1102
(2011).
In criminal proceedings, a defendant who has been committed for trial may petition to the
superior court for a writ of prohibition, in this case on the ground that his conduct, even if
proven, does not constitute the offense charged. See Cal. Penal Code § 999a (2011).
1. The Requirement of Previously Defined Conduct
Keeler v. Superior Court
Where does the court begin its analysis of whether a fetus was a “human being” for purposes of §
187
Section 187 was enacted as part of the Penal Code of 1872.
Inasmuch as the provision has not been amended since that date, we must determine the intent of
the Legislature at the time of its enactment.
Note, then, reference to earlier code and common law implied here . . .
It will be presumed, of course, that in enacting a statute the Legislature was familiar with the
relevant rules of the common law, and, when it couches its enactment in common law language,
that its intent was to continue those rules in statutory form.
Keeler v. Superior Court
The dispositive question is whether the fetus which petitioner is accused of killing was, on
February 23, 1969, a “human being” within the meaning of § 187.
If it was not, petitioner cannot be charged with “murder”
Coke, in mid-17th century: “If a woman be quick with childe, and by a potion or otherwise
killeth it in her wombe, or if a man beat her, whereby the childe dyeth in her body, and she is
delivered of a dead childe, this is a great misprision [i.e., misdemeanor], and no murder; but if
the childe be born alive and dyeth of the potion, battery, or other cause, this is murder; for in law
it is accounted a reasonable creature, in rerum natura, when it is born alive.” (3 Coke, Institutes
*58 (1648).) * * * In the 18th century * * * Coke’s requirement that an infant be born alive in
order to be the subject of homicide was reiterated * * * by both Blackstone and Hale. * * *
From that inquiry it appears that by the year 1850—the date with which we are concerned—an
infant could not be the subject of homicide at common law unless it had been born alive.
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1. The Requirement of Previously Defined Conduct
Keeler v. Superior Court
Court’s response to the State’s arguments:
“Constitutional Argument” Argument
This requirement of fair warning is reflected in the constitutional prohibition against the
enactment of ex post facto laws (U.S. Const., art. I, §§ 9, 10; Cal. Const., art. I, § 16). (Limits
on Congress: “No . . . ex post facto Law shall be passed.”)
When a new penal statute is applied retrospectively to make punishable an act which was not
criminal at the time it was performed, the defendant has been given no advance notice consistent
with due process. And precisely the same effect occurs when such an act is made punishable
under a preexisting statute but by means of an unforeseeable judicial enlargement thereof.
(Bouie v. City of Columbia (1964) 378 U.S. 347, 84 S.Ct. 1697, 12 L.Ed.2d 894.)
1. The Requirement of Previously Defined Conduct
Keeler v. Superior Court
Note 1:
In response to Keeler, the California legislature amended its murder statute to read: “Murder is
the unlawful killing of a human being, or a fetus, with malice aforethought.” Cal. Penal Code §
187(a). (Therapeutic abortions, as defined by state law, are expressly excluded from the scope of
the statute. Section 187(b).)
Note 2: When a new penal statute is applied retrospectively to make punishable an act which was
not criminal at the time it was performed, the defendant has been given no advance notice
consistent with due process. And precisely the same effect occurs when such an act is made
punishable under a preexisting statute but by means of an unforeseeable judicial enlargement
thereof.
The United States Supreme Court recently stated that “a judicial alteration of a common law
doctrine of criminal law violates the principle of fair warning * * * only where it is ‘unexpected
and indefensible by reference to the law which had been expressed prior to the conduct in
issue.’ ” Rogers v. Tennessee, 532 U.S. 451, 121 S.Ct. 1693, 149 L.Ed.2d 697 (2001).
Note 3. Ex post facto legislation and due process.
The ex post facto clause of the Constitution prohibits retroactive application of new criminal
legislation and legislative expansion of existing statutes. The due process clause similarly
prohibits retroactive application of judicial lawmaking. Both constitutional provisions “safeguard
common interests—in particular, the interests in fundamental fairness (through notice and fair
warning) and the prevention of the arbitrary and vindictive use of the laws.”
Note 4. Desuetude
[J]just as the Constitution bars retroactive application of new criminal laws, the common law
recognized a doctrine called “desuetude,” which deals with existing offenses:
According to that concept, laws that are hardly ever enforced are said, by courts, to have lapsed,
simply because they lack public support. The rationale here is that unenforced laws lack support
in public convictions, and they may not be brought to bear, in what will inevitably be an
unpredictable and essentially arbitrary way, against private citizens.
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2. The Values of Statutory Clarity:
In Re Banks
The intent of the legislature controls the interpretation of a statute. When the language of a
statute is clear and unambiguous, there is no room for judicial construction and the courts must
give the statute its plain and definite meaning, and are without power to interpolate, or
superimpose, provisions and limitations not contained therein.
On the subject of the constitutional challenge of a statute for indefiniteness, the United States
Supreme Court has said, in Boyce Motor Lines v. United States, 342 U.S. 337, 72 S.Ct. 329, 96
L.Ed. 367 (1952):
“A criminal statute must be sufficiently definite to give notice of the required conduct to one
who would avoid its penalties, and to guide the judge in its application and the lawyer in
defending one charged with its violation.
But few words possess the precision of mathematical symbols, most statutes must deal with
untold and unforeseen variations in factual situations, and the practical necessities of discharging
the business of government inevitably limit the specificity with which legislators can spell out
prohibitions. Consequently, no more than a reasonable degree of certainty can be demanded. Nor
is it unfair to require that one who deliberately goes perilously close to an area of proscribed
conduct shall take the risk that he may cross the line.”
But where a statute is ambiguous or unclear in its meaning, resort must be had to judicial
construction to ascertain the legislative will, and the courts will interpret the language to give
effect to the legislative intent.
As this Court said in State v. Partlow, 91 N.C. 550 (1884), the legislative intent “ * * * is to be
ascertained by appropriate means and indicia, such as the purposes appearing from the statute
taken as a whole, the phraseology, the words ordinary or technical, the law as it prevailed before
the statute, the mischief to be remedied, the remedy, the end to be accomplished, statutes in pari
materia, the preamble, the title, and other like means. * * * ” Other indicia considered by this
Court in determining legislative intent are the legislative history of an act and the circumstances
surrounding its adoption; earlier statutes on the same subject; the common law as it was
understood at the time of the enactment of the statute; and previous interpretations of the same or
similar statutes, . . .
In State v. Banks, supra, the Court * * * indicated that the word “secretly” as used in G.S. 14–
202 conveys the definite idea of spying upon another with the “intention of invading her
privacy.”
Hence, giving the language of the statute its meaning as interpreted by this Court, G.S. 14–202
prohibits the wrongful spying into a room upon a female with the intent of violating the female’s
legitimate expectation of privacy.
This is sufficient to inform a person of ordinary intelligence, with reasonable precision, of those
acts the statute intends to prohibit, so that he may know what acts he should avoid in order that
he may not bring himself within its provisions.
We hold, therefore, that G.S. 14–202 is sufficiently definite to give an individual fair notice of
the conduct prohibited, and to guide a judge in its application and a lawyer in defending one
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charged with its violation, and that this statute violates neither [the state constitution] nor the Due
Process Clause of the Federal Constitution by reason of vagueness and uncertainty.
Respondent next argues that G.S. 14–202 is unconstitutional because it prohibits innocent
conduct, and is therefore overly broad.
In speaking to a similar contention, Mr. Justice Brennan, for the Supreme Court of the United
States, in Zwickler v. Koota, [Cite omitted] stated:
“[H]is constitutional attack is that the statute, although lacking neither clarity nor precision, is
void for ‘overbreadth,’ that is, that it offends the constitutional principle that ‘a governmental
purpose to control or prevent activities constitutionally subject to state regulation may not be
achieved by means which sweep unnecessarily broadly and thereby invade the area of protected
freedoms.’ [Citations omitted.]” * * * * * *
[T] he Court indicated that the doctrine of overbreadth has not and will not be invoked when a
limiting construction has been or could be placed on the challenged statute. . .
Our statute, G.S. 14–202, is sufficiently narrowed by judicial interpretation to require that the act
condemned must be a spying for the wrongful purpose of invading the privacy of the female
occupant of the room, . . .
thereby omitting from its scope those persons who have a legitimate purpose upon another’s
property and those who only inadvertently glance in the window of another. Thus, the statute is
not so overbroad as to proscribe legitimate conduct.
We hold, therefore, that the statute is not unconstitutional for overbreadth.
Note 7. The lenity doctrine. The lenity principle provides that if a statute can reasonably be
interpreted favorably to the government and equally reasonably be interpreted favorably to the
defendant’s interests, it should be read in the light more favorable to the individual. In essence,
the doctrine serves as a sort of tie-breaker: if all reasonable means of interpreting the statute
leave us unable to determine its true meaning, it should be construed against the government.
The Supreme Court has explained the reason for the lenity doctrine this way: This venerable rule
not only vindicates the fundamental principle that no citizen should be held accountable for a
violation of a statute whose commands are uncertain or subjected to punishment that is not
clearly prescribed. It also places the weight of inertia upon the party that can best induce [the
legislature] to speak more clearly and keep courts from making criminal law in [the legislature’s]
stead.
Desertrain v. City of Los Angeles
754 F.3d 1147 (9th Cir. 2014)
Facts
Courts discussion of Section 85.02 as Unconstitutionally Vague:
1) Fails to provide adequate notice of the conduct it criminalizes
1) Vagueness
2) (can also include) Overbreadth.
1) Promotes arbitrary enforcement
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Targets the homeless.
“Vagueness may invalidate a criminal law for either of two independent reasons. First, it may
fail to provide the kind of notice that will enable ordinary people to understand what conduct it
prohibits; second, it may authorize and even encourage arbitrary and discriminatory
enforcement.”
City of Chicago v. Morales, 527 U.S. 41, 119 S.Ct. 1849, 144 L.Ed.2d 67 (1999).
Yates v. United States
135 S.Ct. 1074 (2015)
Part B.
Familiar interpretive guides aid our construction of the words “tangible object” as they appear in
§ 1519
1. Caption of § 1519: “Destruction, alteration, or falsification of records in Federal
investigations and bankruptcy.”
2. § 1519’s Position within Title 18 further signals is was not meant to be a “cross-theboard” ban on the destruction of physical evidence of every kind.
§ 1516, § 1517, and § 1518 (each prohibiting obstructive acts in specific contexts)
See § 1516 (audits of recipients of federal funds); § 1517 (federal examinations of
financial institutions); § 1518 (criminal investigations of federal health care offenses).
4. Enactment of § 1512(c)(1) after § 1519 would render the government’s interpretation of §
1512(c)(1)’s meaning superfluous:
§ 1512(c)(1): Whoever corruptly—
(1) alters, destroys, mutilates, or conceals a record, document, or other object, or attempts to
do so, with the intent to impair the objects integrity or availability for use in an official
proceeding . . . Shall be fined under this title or imprisoned not more than 20 years or
both.
If “tangible object” in § 1519 means what the government says it means, what independent
function would “or other object” in§ 1512(c)(1) serve?
“We resist a reading of § 1519 that would render superfluous an entire provision passed in
proximity as part of the same Act”
4. Noscitur a Sociis: (it is known by its companions”) and Eiusdem generis.
§1519
“Whoever knowingly alters, destroys, mutilates, conceals, covers up, falsifies, or makes a false
entry in any record, document, or tangible object with the intent to impede, obstruct of influence
the investigation or proper administration of any matter within the jurisdiction of any department
of agency of the United States or any case filed under title 11, or in relation to or contemplation
of any such matter or any such case, shall be fined under this title, imprisoned not more than 20
years of both.”
The noscitur a sociis canon [that a word is known by the company it keeps] operates * * * here.
“Tangible object” is the last in a list of terms that begins “any record [or] document.” The term is
therefore appropriately read to refer, not to any tangible object, but specifically to the subset of
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tangible objects involving records and documents, i.e., objects used to record or preserve
information.
NOSCITUR A SOCIIS?
A latin term for ‘it is known by the company it keeps’, it is the concept that the intended
meaning of an ambiguous word depends on the context in which it is used.
EJUSDEM GENERIS?
“Of the same kind, class, or nature.: In statutory construction, the “ejusdem generis rule” is that
where general words follow an enumeration of persons or things, by words of a particular and
specific meaning, such general words are not to be construed in their widest extent, but are to be
held as applying only to persons or things of the same general kind or class as those specifically
mentioned.
Highly improbable that Congress would have buried a general spoliation statute covering
objects of any and every kind in a provision targeting fraud in financial record-keeping.
5. Ambiguity about the meaning of “tangible object” in § 1519 calls for application of the
rule of lenity. “We would invoke the rule that “ambiguity concerning the ambit of
criminal statutes should be resolved in favor of lenity.”
Interpret in favor of defendant. “Tangible object” in the context of § 1519’s language does not
include “fish”.
Chapter 4
Actus Reus
In general, a crime contains two components, an actus reus and the mens reus. The actus reus is
the physical or external part of the crime; and mens rea is the mental or internal ingredient.
In general, a crime contains two components: an “actus reus” and the “mens rea.” The “actus
reus” is the physical or external part of the crime; the “mens rea” is the mental or internal
ingredient.
The term “actus reus” has no universally accepted definition. Courts and criminal lawyers use
the term in various ways. Consider a hypothetical statutory offense of first-degree murder,
defined as “killing another person by means of explosive device.” Assume the following simple
facts: A throws a hand grenade into B’s house, killing B.
What is the actus reus—the physical component—of this offense? Some might say that the actus
reus was A’s conduct (throwing the hand grenade into the house). Others would say that the
actus reus was not the conduct, but was instead the result, i.e., B’s death.
But, the most common definition of the term would include both the conduct and the harmful
result:
[A]ctus reus is to be interpreted as the comprehensive notion of act, harm, and its connecting
link, causation, with actus expressing the voluntary physical movement in the sense of conduct
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and reus expressing the fact that this conduct results in a certain proscribed harm, i.e., that it
“causes” an injury to the legal interest protected in that crime. . . .
Murder is a so-called “result crime”: that is, its ultimate purpose is to prevent or punish a
harmful result, namely, the death of another human being.
Some offenses, however, are defined in terms of conduct, such as the crime of driving an
automobile while intoxicated. No ultimate result—
no death or injury to person or property—is required to be guilty of this offense.
As you will see in Part C. of this chapter, however, the term “harm” may be defined broadly
enough that lawyers can say, at least metaphorically, that every crime—including so-called
conduct crimes—involves harm to others.
A. VOLUNTARY ACT
Martin v. State
17 So.2d 427 (1944)
The pertinent provisions of our statute are: “Any person who, while intoxicated or drunk, appears
in any public place where one or more persons are present, * * * and manifests a drunken
condition by boisterous or indecent conduct, or loud and profane discourse, shall, on conviction,
be fined”, Code 1940, Title 14, § 120.
2.01 Requirement of Voluntary Act . . .
(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) The following are not voluntary acts within the meaning of this Section:
(a) a reflex or convulsion;
(b) a bodily movement during unconsciousness or sleep;
(c) conduct during hypnosis or resulting from hypnotic suggestion;
(d) a bodily movement that otherwise is not a product of the effort or determination of the actor,
either conscious or habitual.
State v. Utter
4 Wash. App. 137 (1971)
ISSUE?
The major issue presented on appeal is whether it was error for he trial court to instruct the jury
to disregard the evidence on conditioned response
In the present case, the appellant was charged with second degree murder and found guilty of
manslaughter. The actus reus of both is the same-homicide. Thus, in order to establish either, the
fact of homicide must first be established.
“There are two components of every crime. One is objective-the actus reus; the other subjectivethe mens rea. The actus reus is the culpable act itself, the mens rea is the criminal intent with
which one performs the criminal act.
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However, the mens rea does not encompass the entire mental process of one accused of a crime.
There is a certain minimal mental element required in order to establish the actus reus itself. This
is the element of volition. . . .
Appellant contends that his evidence was presented for the purpose of determining whether in
fact a homicide had been committed. He argues that his evidence, if believed, establishes that no
‘act’ was committed within the definition of homicide
Homicide is the killing of a human being by the act, procurement or omission of another and is
if oeither (1) murder, (2) manslaughter, (3) excusable homicide or (4) justifiable homicide.
What is the meaning of the word ‘act’ as used in this statute?
It is sometimes said that no crime has been committed unless the harmful result was brought
about by a ‘voluntary act.’ Analysis of such a statement will disclose, however, that as so used
the phrase ‘voluntary act’ means no more than the mere word ‘act.’ An act must be a willed
movement or the omission of a possible and legally-required performance. This is essential to the
Actus Reus rather than to the Mens Rea. ‘A spasm is not an act.’
(A) n ‘act’ involves an exercise of the will. It signifies something done voluntarily. It necessarily
implies intention. We find these statements abundantly sustained by the text-writers and
decisions of our courts.
§ 2.01. Requirement of Voluntary Act; Omission as Basis of Liability; Possession as an Act.
• (1) A person is not guilty of an offense unless his liability is based on conduct that
includes a voluntary act or the omission to perform an act of which he is physically
capable.
• (2) The following are not voluntary acts within the meaning of this Section:
• (a) a reflex or convulsion;
• (b) a bodily movement during unconsciousness or sleep;
• (c) conduct during hypnosis or resulting from hypnotic suggestion;
• (d) a bodily movement that otherwise is not a product of the effort or determination of the
actor, either conscious or habitual.
“Voluntary act” versus “mens rea.” It is important to distinguish between the actus reus and
mens rea components of a crime. As Utter shows, although the doctrines of “voluntary act” and
“mens rea” are related, they should not be confused. As developed more fully in the next chapter,
the term “mens rea” signifies the actor’s state of mind regarding the social harm of the offense,
whereas the element of voluntariness applies to the act that caused the social harm.
In this regard, keep this example in mind: Carl, standing on a target range, aims his gun at the
target and pulls the trigger, at which instant Dorothy unforeseeably walks in front of the target, is
struck by a bullet from Carl’s gun, and dies as a result. On these facts, Carl lacks any
blameworthy state of mind (mens rea) regarding Dorothy’s death (the social harm of “criminal
homicide”), i.e., Carl did not intentionally, recklessly, or negligently kill Dorothy. Nonetheless,
Carl’s act of pulling the trigger was voluntary. Put simply, “voluntary” is not a synonym for
“intentional.” Rogers v. State, 105 S.W.3d 630 (Tex. Crim. App. 2003).
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•
•
Note 8:
A plants drugs in B’s purse in order to avoid detection during an airport security search.
In light of the voluntary act requirement, how would the Model Penal Code deal with a
prosecution of B for possession of the drugs?
§ 2.01. Requirement of Voluntary Act; Omission as Basis of Liability; Possession as an Act.
• (4) Possession is an act, within the meaning of this Section, if the possessor knowingly
procured or received the thing possessed or was aware of his control thereof for a
sufficient period to have been able to terminate his possession.
People v. Beardsley
150 Mich. 206(Sup. Ct. 1907)
ISSUE:
Whether respondent was under a legal duty towards Blanche Burns at the time of her death,
knowing her to be in peril of her life, which required him to make all reasonable and proper
effort to save her, the omission to perform which duty would make him responsible for her death.
This is the important and determining question in this case.
Is there a duty to help your neighbor?
The law recognizes that under some circumstances the omission of a duty owed by one
individual to another, where such omission results in the death of the one to whom the duty is
owing, will make the other chargeable with manslaughter. . . .
This rule of law is always based upon the proposition that the duty neglected must be a legal
duty, and not a mere moral obligation. It must be a duty imposed by law or by contract, and the
omission to perform the duty must be the immediate and direct cause of death.
One authority has briefly and correctly stated the rule, which the prosecution claims should be
applied to the case at bar, as follows: ‘If a person who sustains to another the legal relation of
protector, as husband to wife, parent to child, master to seaman, etc., knowing such person to be
in peril, willfully and negligently fails to make such reasonable and proper efforts to rescue him
as he might have done, without jeopardizing his own life, or the lives of others, he is guilty of
manslaughter at least, if by reason of his omission of duty the dependent person dies.’
‘So one who from domestic relationship, public duty, voluntary choice, or otherwise, has the
custody and care of a human being, helpless either from imprisonment, infancy, sickness, age,
imbecility, or other incapacity of mind or body is bound to execute the charge with proper
diligence, and will be held guilty of manslaughter, if by culpable negligence he lets the helpless
creature die.
The cases cited and digested establish that no such legal duty is created based upon a mere moral
obligation. The fact that this woman was in his house created no such legal duty as exists in law
and is due from a husband towards his wife, as seems to be intimated by the prosecutor's brief.
Such an inference would be very repugnant to our moral sense. Respondent had assumed either
in fact or by implication no care or control over his companion.
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Note 2: There are at least four situations in which the failure to act may constitute breach of a
legal duty. One can be held criminally liable:
first, where a statute imposes a duty * * *;
second, where one stands in a certain status relationship to another;
third, where one has assumed a contractual duty to care for another;
fourth, where one has voluntarily assumed the care of another and so secluded the helpless
person as to prevent others from rendering aid.
Failure to act may also constitute a breach of duty in a fifth situation: when a person creates a
risk of harm to another. For example, if an automobile driver by negligence (or, perhaps, even
innocently) strikes and injures a pedestrian, the driver has a legal duty to make sure that the
victim receives medical care. If the driver fails to assist, he may be held criminally responsible
for the additional harm resulting from his omission, such as the pedestrian’s death.
The court held that, indeed, the victim of aggression does have a duty to summon aid for the
aggressor they justifiably injured, but only after the victim has fully exercised her right to seek
and secure safety from personal harm, and only then may a legal duty be imposed.
The court made clear, as well, that:
(1) the duty only exists if the self-defender has a duty to the other and is capable of
safely calling for aid;
(2) the fact that there is a duty to aid does not necessarily prove that she acted
negligently in her failure.
(3) To prove negligent homicide the failure to summon aid must be the cause-in-fact of the
death, not the justified defense of deadly force.
Note 4 Rationale for No Duty Rule
First, “non-doings” (omissions) are inherently more ambiguous than wrongdoings (acts). It is
harder to determine why a person fails to act.
Punishing ommitters, therefore, increases the risk of convicting morally innocent persons.
Third, well-meaning bystanders often make matters worse by intervening in ongoing events.
2. Distinguishing Acts from Omissions
Barber v. Superior Court
147 Cal App. 3d 1006 (1983)
Facts
Issue
The precise issue for determination by this court is whether the evidence presented before the
magistrate was sufficient to support his determination that petitioners should not be held to
answer to the charges of murder (Pen. Code, § 187) and conspiracy to commit murder (Pen.
Code, § 182).
Murder is the unlawful killing of a human being, ... with malice aforethought. “ (Pen. Code, §
187, italics added.)
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Malice may be express or implied. It is express when there is an intent unlawfully to take any
life. It is implied when the circumstances show an abandoned and malignant heart. (Pen. Code, §
188.)
The use of the term ”unlawful“ in defining a criminal homicide is generally to distinguish a
criminal homicide from those homicides which society has determined to be “justifiable“ or
“excusable.“ Euthanasia, of course, is neither justifiable nor excusable in California.
Was Mr. Herbert dead at the time of defendants’ conduct?
Definition of death in California:
Historically, death has been defined in terms of cessation of heart and respiratory function.
Health and Safety Code section 7180, subdivision (a)(2) now provides for an alternative
definition in terms of irreversible cessation of all brain function.
Herbert was not dead under these standards at the time of defendants’ conduct.
So how did the court get Dr. Barber out of this pickle?
“As a predicate to our analysis of whether the petitioners' conduct amounted to an “unlawful
killing,” we conclude that the cessation of “heroic” life support measures is not an affirmative act
but rather a withdrawal or omission of further treatment.”
How does treating Mr. Barber’s death as a result of the physician’s omission to provide medical
treatment rather than affirmative act solve the issue?
There is no criminal liability for failure to act unless there is a legal duty to act.
Thus the critical issue becomes one of determining the duties owed by a physician to a patient
who has been reliably diagnosed as in a comatose state from which any meaningful recovery of
cognitive brain function is exceedingly unlikely.
What sort of a duty does a doctor have with respect to providing life- sustaining treatment?
A physician has no duty to continue treatment, once it has proved to be ineffective. Although
there may be a duty to provide life-sustaining machinery in the immediate aftermath of a cardiorespiratory arrest, there is no duty to continue its use once it has become futile in the opinion of
qualified medical personnel.
“A physician is authorized under the standards of medical practice to discontinue a form of
therapy which in his medical judgment is useless ..... If the treating physicians have determined
that continued use of a respirator is useless, then they may decide to discontinue it without fear
of civil or criminal liability. By useless is meant that the continued use of the therapy cannot and
does not improve the prognosis for recovery.”
No precise guidelines as to when or how these decisions should be made can be provided by this
court since this determination is essentially a medical one to be made at a time and on the basis
of facts which will be unique to each case . . .
Of course the patient's interests and desires are the key ingredients of the decision-making
process. When dealing with patients for whom the possibility of full recovery is virtually
nonexistent, and who are incapable of expressing their desires, there is also something of a
consensus on the standard to be applied.
When the patient, however, is incapable of deciding for himself, because of his medical
condition or for other reasons, there is no clear authority on the issue of who and under what
12
procedure is to make the final decision. * * * Under the circumstances of this case, the wife was
the proper person to act as a surrogate for the patient with the authority to decide issues
regarding further treatment, and would have so qualified had judicial approval been sought.
In summary we conclude that the petitioners’ omission to continue treatment under the
circumstances, though intentional and with knowledge that the patient would die, was not an
unlawful failure to perform a legal duty.
Importance of Advanced Directives.
C. SOCIAL HARM
If you look at the actus reus elements of some criminal offenses, you will find both conduct (or
“nature of conduct”) elements, as well as result (or “result of conduct”) elements.
“operating a vehicle in a reckless or culpably negligent manner, causing the death of another
person.”
Notice that the actus reus of this offense (“operating a vehicle in a * * * manner causing the
death of another person”) includes conduct (“operating a vehicle”) and a result (“causing the
death of another person”).
Offenses also contain “attendant circumstance” elements. Such elements constitute a part of the
actus reus of every offense. An attendant circumstance is a condition that must be present, in
conjunction with the prohibited conduct or result, in order to constitute the crime.
Assume that a statute provides that “it is an offense to drive an automobile in an intoxicated
condition.”
Note 1. Look again at the hypothetical driving-while-intoxicated statute immediately above.
There is another “attendant circumstance” element in it. What is it?
2. A lawyer must sometimes distinguish between the various components—conduct elements,
result elements, and attendant circumstances—of the actus reus of a crime, so familiarity with the
concepts is helpful.
Consider, for example, Model Penal Code § 210.1,
which provides that a person is guilty of criminal homicide if “he purposely, knowingly,
recklessly, or negligently causes the death of another human being.”
Break down the actus reus into its nature-of-conduct, result and/or attendant circumstance
Mens rea: purposely, knowingly, recklessly, or negligently
Actus reus: causes the death [nature of conduct and result] of another human being [nature of
conduct and result]
Common law offense of burglary:
“Breaking and entering a dwelling house of another at nighttime with the intent to commit a
felony therein.”
breaking [nature of conduct]
entering [nature of conduct]
dwelling house [attendant circumstance]
of another [attendant circumstance]
at nighttime [attendant circumstance]
Mens rea: with the intent to commit a felony therein
13
Chapter 5
Mens Rea
A. The Nature of “Mens Rea”
United States v. Cordoba-Hincapie
825 F.Supp (E.D. NY 1993)
The term, “mens rea,” meaning “a guilty mind; a guilty or wrongful purpose; a criminal intent,”
is shorthand for a broad network of concepts encompassing much of the relationship between the
individual and the criminal law.
United States v. Cordoba-Hincapie
825 F.Supp (E.D. NY 1993)
These doctrines of criminal responsibility and the theories that support them are deeply rooted in
our legal tradition as one of our first principles of law. * * * Western * * * nations have long
looked to the wrongdoer’s mind to determine both the propriety and the grading of punishment.
“For hundreds of years the books have repeated with unbroken cadence that Actus non facit reum
nisi mens sit rea.” [See] Black’s Law Dictionary 55 (4th ed. 1968) (defining the actus non rule:
“An act does not make [the doer of it] guilty, unless the mind be guilty; that is, unless the intent
be criminal.”). This is the criminal law’s mantra
Note 1:
The two meanings of “mens rea.” Oliver Wendell Holmes observed that, “I have always thought
that most of the difficulties as to the mens rea was due to having no precise understanding what
the mens rea is.”
Part of the difficulty in understanding “what the mens rea is” stems from the fact that the term
has both a broad and a narrow meaning.
The modern trend is to use the term in its narrow context, but both meanings retain significance.
Broadly speaking, “mens rea” means “guilty mind,” “vicious will,” “immorality of motive,” or,
simply, “morally culpable state of mind.”
This can be characterized as the “culpability” meaning of “mens rea.” In this sense, a
defendant is guilty of a crime if she commits the social harm of the offense with any morally
blameworthy state of mind; it is not significant whether she caused the social harm intentionally
or, instead, with some other blameworthy mental state (e.g., recklessly) .
[More narrowly, “mens rea” refers to the mental state the defendant must have had with regard
to the “social harm” elements set out in the definition of the offense. This is the “elemental”
meaning of mens rea.
Using this meaning, a defendant is not guilty of an offense, even if she has a culpable frame of
mind, if she lacks any mental state specified in the definition of the crime.
For example, an offense may be structured as follows: “A person is guilty of [name of offense] if
she intentionally does X [e.g., robs a bank, takes a human life, or injures another—the social
harm element(s) of the offense].”
Here, a defendant is not guilty of the offense if she does X recklessly, even though recklessness
is a morally blameworthy state of mind (and, thus, the defendant has a “mens rea” in the
14
culpability sense of the term), because the defendant does not have the specific state of mind
required for this offense (“to do X intentionally”).
B. General Issues in Proving Culpability
“INTENT”
People v. Conley
187 Ill.App.3d 234 (1989)
FACTS
Defendant William J. Conley was convicted of aggravated battery based on permanent disability.
Section 12–4(a) of the Illinois Criminal Code of 1961 defined this offense as follows:
“[a] person who, in committing a battery, intentionally or knowingly causes great bodily harm,
or permanent disability or disfigurement commits aggravated battery.”
Mens Rea of Section 12–4(a)
For proper resolution of this issue, it is best to return to the statutory language. Section 12–4(a)
employs the terms “intentionally or knowingly” to describe the required mental state. The
relevant statutes state:
“4–4. Intent. A person intends, or acts intentionally or with intent, to accomplish a result or
engage in conduct described by the statute defining the offense, when his conscious objective or
purpose is to accomplish that result or engage in that conduct.”
“4–5. Knowledge. A person knows or acts knowingly or with knowledge of: (b) The result of his
conduct, described by the statute defining the offense, when he is consciously aware that such
result is practically certain to be caused by his conduct.”
Meaning of Intent
§ 12-4(a) How to prove Conley intended to cause “great bodily harm, or permanent disability or
disfigurement.”
Problems of proof are alleviated [by] the ordinary presumption that one intends the natural and
probable consequences of his actions * * *. * * *
Intent can be inferred from the surrounding circumstances, the offender’s words, the weapon
used, and the force of the blow. * * *
Note 2. A warning as to the meaning of the term “intent.”
The Illinois definition of “intent” is one that many, but not all, states apply today. Some courts
still apply the common law definition of the term.
In the context of result crimes, e.g., battery and murder, the term “intent” is defined at common
law to include not only those results that are the conscious objective of the actor—what he wants
to occur—but also those results that the actor knows are virtually certain to occur from his
conduct, even if he does not want them to arise.
Note then that Illinois law does not follow the common law, intent and knowledge (as practically
certainty) are distinguished from one another. If the statute requires one mens rea, the other will
not suffice.
Note 3. Proving Intent.
15
When a prosecutor alleges that a defendant intended certain harm, juries are being asked, in
essence, to look into the mind of a person to determine (as the last Note teaches) his purpose for
acting or, at least, to determine whether he knew that the result was virtually certain to occur.
Short of a confession, how does a prosecutor prove this internal state of mind?
The legalistic version of this message is the one set out in Conley: the “ordinary presumption” is
that a person “intends the natural and probable consequences of his actions.”
This presumption is more accurately characterized as an inference.
That is, a juror, like anyone else, can often reasonably infer that a person ordinarily intends the
foreseeable consequences of his actions.
4. Transferred intent (the basics).
When a defendant intends to cause harm to one person but accidentally causes the same harm to
another, courts typically rely on a legal fiction known as “transferred intent” doctrine.
The common law doctrine of transferred intent was applied in England as early as the 16th
century. The doctrine became part of the common law in many American jurisdictions, * * * and
is typically invoked in the criminal law context when assigning criminal liability to a defendant
who attempts to kill one person but accidentally kills another instead.
Under the classic formulation of the common law doctrine of transferred intent, the defendant’s
guilt is thus “exactly what it would have been had the blow fallen upon the intended victim
instead of the bystander.”
“We conclude that transferred intent applies even when the person kills the intended target.
Intent to kill is not limited to the specific target but extends to everyone actually killed.” People
v. Bland, 28 Cal.4th 313, 317 (Cal.,2002)
6. Motive v. intent.
Under federal law, “[w]hoever, in [circumstances providing for federal jurisdiction], willfully
causes bodily injury to any person . . . because of the actual or perceived religion, national origin,
gender, sexual orientation, gender identity, or disability of any person—shall be imprisoned not
more than 10 years ........ ” 18 U.S.C. § 249(a)(2) (emphasis added).
Note 7: “Specific Intent” and “General intent” offenses:
Occasionally, a court will denominate an offense as “general intent” when no particular mental
state is set out in the definition of the crime, in which case the prosecutor need only prove that
the social harm of the offense was performed with a morally blameworthy state of mind.
In contrast, a “specific intent” offense is one in which a mental state is expressly set out in the
definition of the crime.
Thus, according to this version of the distinction, “general intent” and “specific intent” restate
respectively the “culpability” and “elemental” definitions of mens rea set out earlier in this
casebook ( p. 158 Note 1)
16
More often, the term “specific intent” is used to denote an offense that contains in its definition
the mens rea element of “intent”; “general intent” is then reserved for crimes that permit
conviction on the basis of a less culpable mental state, such as “knowledge,” “recklessness” or
“negligence.”
There is a third usage—perhaps the most common—of the term “specific intent.”
As one court put it, a “specific intent” crime is one that contains in its definition “a special
mental element * * * above and beyond any mental state required with respect to the actus reus
of the crime.” State v. Bridgeforth, 156 Ariz. 60, 62, 750 P.2d 3, 5 (1988).
According to this usage, a “specific intent” offense will contain one of three types of special
mental elements.
First, to be guilty of some offenses, the State must prove an intention by the actor to commit
some future act, separate from the actus reus of the offense (e.g., “possession of marijuana with
intent to sell”).
Second, an offense may require proof of a special motive or purpose for committing the actus
reus (e.g., “offensive contact upon another with the intent to cause humiliation”).
Third, some offenses require proof of the actor’s awareness of an attendant circumstance (e.g.,
“intentional sale of obscene literature to a person known to be under the age of 18 years”).,
In contrast, an offense that does not contain in its definition one of these three types of special
mental states—that is, one that only contains a mental state that relates solely to the actus reus of
the offense—is denominated as “general intent.” For example, if state law defines battery as “an
intentional application of force upon another,” this offense would be considered “general intent”
because the mental state contained in the definition (“intentional”) pertains exclusively to the
state of mind the actor must possess regarding the social harm of the offense (“application of
force upon another”).
A. Common law larceny: “Trespassory taking and carrying away of the personal property
of another with the intent to steal.”
Specific intent
This offense includes a Aspecial motive or purpose@ mens rea term (the Aintent to steal,@
which means Aintent to permanently deprive the owner of his property@).
Note 7: B. Common law rape: “Sexual intercourse by a male with a female not his wife,
without her consent.”
Common law rape, as defined here, is a general intent offense.
Some may believe that it is a strict liability offense.
A requirement of mens rea is a deeply embedded concept in the common law. Only rarely does
the law dispense with a requirement of mens rea. (We will cover strict liability soon)
Therefore, even if no wrongful state of mind is expressed, the presumption is that some mens rea
is required. More specifically, the actus reus must be committed in a morally blameworthy
fashion. That is the general intent.
Note 7: C. “Intentional receipt of stolen property, with knowledge that it is stolen.”
Notice that this offense, as defined here, contains two mens rea terms.
17
The first mens rea term, however, is a general intent -- the intent to commit the actus reus (more
precisely, social harm) of the offense (receive stolen property).
The second mens rea term, the specific intent of awareness of the attendant circumstance
(knowledge that the property was stolen).
It is still referred to as a specific intent crime because of the existence of the specific-intent
portion of the crime relating to knowledge of the attendant circumstance.
Note 7. D. Common law burglary: “Breaking and entering the dwelling house of another at
night with the intent to commit a felony therein.”
D. Burglary is specific intent, as it involves an intent by the actor to
commit some future act (a felony) that is not part of the social harm , as defined in the offense.
Read this material carefully and review Model of Penal Code § 2.02(1) - (3)
Page 170 B top of page
The purpose of articulating these distinctions in detail is to advance the clarity of draftsmanship
in the delineation of the definitions of specific crimes, to provide a distinct framework against
which those definitions may be tested, and to dispel the obscurity with which the culpability
requirement is often treated when such concepts as “general criminal intent,” “mens rea,”
“presumed intent,” “malice,” “wilfulness,” “scienter” and the like have been employed. What
Justice Jackson called “the variety, disparity and confusion” of judicial definitions of “the
requisite but elusive mental element” in crime should, insofar as possible, be rationalized by a
criminal code.
§ 2.02. General Requirements of Culpability.§ 2.02. General Requirements of Culpability.
(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.
MPC § 1.13. General Definitions
(10) “material element of an offense” means an element that does not relate exclusively to the
statute of limitations, jurisdiction, venue, or to any other matter similarly unconnected with (i)
the harm or evil, incident to conduct, sought to be prevented by the law defining the offense, or
(ii) the existence of a justification or excuse for such conduct;
§ 2.02. General Requirements of Culpability (2) Kinds of Culpability Defined.
(a) Purposely.
A person acts purposely with respect to a material element of an offense when:
(i)
if the element involves the nature of his conduct or a result thereof, it is his conscious
object to engage in conduct of that nature or to cause such a result; and
(ii) if the element involves the attendant circumstances, he is aware of the existence of such
circumstances or he believes or hopes that they exist.
(b) Knowingly.
A person acts knowingly with respect to a material element of an offense when:
(i) if the element involves the nature of his conduct or the attendant circumstances, he is
aware that his conduct is of that nature or that such circumstances exist; and
(ii)
if the element involves a result of his conduct, he is aware that it is practically
certain that his conduct will cause such a result.
18
§ 2.02.(2)(c)
(c) Recklessly.
A person acts recklessly with respect to a material element of an offense when he consciously
disregards a substantial and unjustifiable risk that the material element exists or will result from
his conduct. The risk must be of such a nature and degree that, considering the nature and
purpose of the actor's conduct and the circumstances known to him, its disregard involves a gross
deviation from the standard of conduct that a law-abiding person would observe in the actor's
situation.
. . . An important discrimination is drawn between acting either purposely or knowingly and
acting recklessly. As the Code uses the term, recklessness involves conscious risk creation.
It resembles acting knowingly in that a state of awareness is involved, but the awareness is of
risk, that is of a probability less than substantial certainty; the matter is contingent from the
actor’s point of view.
Whether the risk relates to the nature of the actor’s conduct, or to the existence of the requisite
attendant circumstances, or to the result that may ensue, is immaterial; the concept is the same,
and is thus defined to apply to any material element.
§ 2.02.(2)(c)
(c) Recklessly.
A person acts recklessly with respect to a material element of an offense when he consciously
disregards a substantial and unjustifiable risk that the material element exists or will result from
his conduct. The risk must be of such a nature and degree that, considering the nature and
purpose of the actor's conduct and the circumstances known to him, its disregard involves a gross
deviation from the standard of conduct that a law-abiding person would observe in the actor's
situation.
The risk of which the actor is aware must of course be substantial in order for the recklessness
judgment to be made. The risk must also be unjustifiable.
Even substantial risks, it is clear, may be created without recklessness when the actor is seeking
to serve a proper purpose, . . .
as when a surgeon performs an operation that he knows is very likely to be fatal but reasonably
thinks to be necessary because the patient has no other, safer chance.
Some principle must, therefore, be articulated to indicate the nature of the final judgment to be
made after everything has been weighed.
§ 2.02.(2)(c) Recklessly
Some principle must, therefore, be articulated to indicate the nature of the final judgment to be
made after everything has been weighed. Describing the risk as “substantial” and “unjustifiable”
is useful but not sufficient, for these are terms of degree, and the acceptability of a risk in a given
case depends on a great many variables.
Some standard is needed for determining how substantial and how unjustifiable the risk must be
in order to warrant a finding of culpability.
There is no way to state this value judgment that does not beg the question in the last analysis;
the point is that the jury must evaluate the actor’s conduct and determine whether it should be
condemned. The Code proposes, therefore, that this difficulty be accepted frankly, and that the
19
jury be asked to measure the substantiality and unjustifiability of the risk by asking whether its
disregard, given the actor’s perceptions, . . . .
involved a gross deviation from the standard of conduct that a law-abiding person in the
actor’s situation would observe.
§ 2.02.(2)(c)
(c) Recklessly.
A person acts recklessly with respect to a material element of an offense when he consciously
disregards a substantial and unjustifiable risk that the material element exists or will result from
his conduct. The risk must be of such a nature and degree that, considering the nature and
purpose of the actor's conduct and the circumstances known to him, its disregard involves a
gross deviation from the standard of conduct that a law-abiding person would observe in the
actor's situation.15
§ 2.02. General Requirements of Culpability (2) Kinds of Culpability Defined.
(d) Negligently.
A person acts negligently with respect to a material element of an offense when he should be
aware of a substantial and unjustifiable risk that the material element exists or will result from
his conduct. The risk must be of such a nature and degree that the actor's failure to perceive it,
considering the nature and purpose of his conduct and the circumstances known to him, involves
gross deviation from the care that would be exercised by a reasonable person in his situation.
The fourth kind of culpability is negligence. It is distinguished from purposeful, knowing or
reckless action in that it does not involve a state of awareness.
A person acts negligently under this subsection when he inadvertently creates a substantial and
unjustifiable risk of which he ought to be aware. He is liable if given the nature and degree of the
risk, his failure to perceive it is, considering the nature and purpose of the actor’s conduct and
the circumstances known to him, a gross deviation from the care that would be exercised by a
reasonable person in his situation.
Recklessness: In each instance, the question is asked from the point of view of the actor’s
perceptions, i.e., to what extent he was aware of risk, of factors relating to its substantiality and
of factors relating to its unjustifiability. Second, the jury is to make the culpability judgment in
terms of whether the defendant’s conscious disregard of the risk justifies condemnation.
Considering the nature and purpose of his conduct and the circumstances known to him, the
question is whether the defendant’s disregard of the risk involved a gross deviation from the
standards of conduct that a law-abiding person would have observed in the actor’s situation.
Negligence: As with recklessness, the jury is asked to perform two distinct functions. First, it is
to examine the risk and the factors that are relevant to its substantiality and justifiability. In the
case of negligence, these questions are asked not in terms of what the actor’s perceptions
actually were, but in terms of an objective view of the situation as it actually existed. Second, the
jury is to make the culpability judgment, this time in terms of whether the failure of the
defendant to perceive the risk justifies condemnation. *
§ 2.03 Causal Relationship Between Conduct and Result; Divergence Between Result
Designed or Contemplated and Actual Result or Between Probable and Actual Result
20
(2) When purposely or knowingly causing a particular result is an element of an offense, the
element is not established if the actual result is not within the purpose or the contemplation of
the actor unless:
(a) the actual result differs from that designed or contemplated, as the case may be, only in the
respect that a different person or different property is injured or affected or that the injury or
harm designed or contemplated would have been more serious or more extensive than that
caused;
§ 2.03. (3)(a) . . .
(3) When recklessly or negligently causing a particular result is an element of an offense, the
element is not established if the actual result is not within the risk of which the actor is aware or,
in the case of negligence, of which he should be aware unless:
(a) the actual result differs from the probable result only in the respect that a different person
or different property is injured or affected or that the probable injury or harm would have
been more serious or more extensive than that caused
(b) the actual result involves the same kind of injury or harm as the probable result and is
not too remote or accidental in its occurrence to have a [just] bearing on the actor's
liability or on the gravity of his offense.
Model Penal Code § 222.1(1) defines robbery, in part, as follows: “A person is guilty of robbery
if, in the course of committing a theft, he: (a) inflicts serious bodily injury upon another * * *.”
Is Toby guilty of robbery if, while committing a theft, he negligently inflicts serious bodily
injury upon Ursula? Look carefully at all of § 2.02 for the answer.
Section 2.02. General Requirements of Culpability.
(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.
Section 2.05. 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.
(1) The requirements of culpability prescribed by Sections 2.01 and 2.02 do not apply to:
(a) offenses which constitute violations, unless the requirement involved is included in the
definition of the offense or the Court determines that its application is consistent with effective
enforcement of the law defining the offense
§ 1.04. Classes of Crimes; Violations., Model Penal Code
(5) 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 that 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. General Requirements of Culpability (2) Kinds of Culpability Defined.
21
(3) Culpability Required Unless Otherwise Provided. When the culpability sufficient to
establish a material element of an offense is not prescribed by law, such element is established if
a person acts purposely, knowingly or recklessly with respect thereto.
Commentary:
This accepts as the basic norm what usually is regarded as the common law position. More
importantly, it represents the most convenient norm for drafting purposes. When purpose or
knowledge is required, it is conventional to be explicit. And since negligence is an exceptional
basis of liability, it should be excluded as a basis unless explicitly prescribed.
How do §§ 2.02(1) and (3) relate?
§ 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.
§ 2.02(3) Culpability Required Unless Otherwise Provided.
When the culpability sufficient to establish a material element of an offense is not prescribed by
law, such element is established if a person acts purposely, knowingly or recklessly with respect
thereto.
3. Knowledge of Attendant Circumstances (The “wilful blindness” problem).
State v. Nations
676 S.W. 2d 282 (1984)
FACTS
Who said what?
ISSUE
Did Sandra Nations “knowingly encourage a child less than seventeen years old to engage in
conduct tending to injure the child’s welfare?
“Knowingly” is a term of art, whose meaning is limited to the definition given to it by our
present Criminal Code.
So read, this definition of “knowingly” or “knowledge” excludes those cases in which “the fact
[in issue] would have been known had not the person wilfully ‘shut his eyes’ in order to avoid
knowing.”
Similar or different from the MPC definition?
Discussion of MPC § 2.02(7). Not relevant to this case.
“Our legislature, however, did not enact this proposed definition of “knowingly””. “The Model
Penal Code's proposed expanded definition of “knowingly”, encompassing wilful blindness of a
fact, is absent from our Criminal Code.
Consequence of this Missouri’s definition of “knowing”:
. . . [I]n the instant case, the state’s burden was to show defendant actually was aware the child
was under seventeen, a heavier burden than showing there was a “high probability” that
defendant was aware the child was under seventeen. In short, the state’s burden was to prove
defendant acted “knowingly,” not just “recklessly.” The state proved, however, that defendant
acted “recklessly,” not “knowingly.”
22
Consequence of this Missouri’s definition of “knowing”:
This does not prove that defendant knew the child was less than seventeen years old. At best, it
proves defendant did not know or refused to learn the child's age. The latter is the best case for
the state.
But defendant's refusal to learn the age of this “young” child who was “dancing” . . . in her disco
bar simply proves that defendant was “aware of a high probability” that the child was under
seventeen, or, stated otherwise, in the definitional language of our Criminal Code, proves that
defendant was conscious of “a substantial and unjustifiable risk” that the child was under
seventeen and that defendant's disregard of the risk was a “gross deviation” from the norm. This,
however, is not “knowledge” under our Criminal Code. It is “recklessness”, nothing more.
Having failed to prove defendant knew the child's age was less than seventeen, the state failed to
make a submissible case.
What would the result have been under MPC §2.02.(7)?
(7) Requirement of Knowledge Satisfied by Knowledge of High Probability. When knowledge
of the existence of a particular fact in in element on an offense, such knowledge is established if
a person is aware of a high probability of its existence, unless he actually believes that it does not
exist.
Would Nations have been convicted under MPC §2.02.(7)?
But defendant’s refusal to learn the age of this “young” child . . . in her disco bar simply proves
that defendant was “aware of a high probability” that the child was under seventeen, or, stated
otherwise, in the definitional language of our Criminal Code, proves that defendant was
conscious of “a substantial and unjustifiable risk” that the child was under seventeen and that
defendant’s disregard of the risk was a “gross deviation” from the norm.
This, however, is not “knowledge” under our Criminal Code. It is “recklessness,” nothing more.
Having failed to prove defendant knew the child’s age was less than seventeen, the state failed to
make a submissible case.
4. PROBLEMS IN STATUTORY INTERPRETATION
Flores-Figueroa v. United States
556 U.S. 646 (2009)
FACTS
18 U.S. Code § 1028A - Aggravated identity theft
(a) Offenses.—
(1)In general.—
Whoever, during and in relation to any felony violation enumerated in (c), knowingly transfers,
possesses, or uses, without lawful authority, a means of identification of another person shall, in
addition to the punishment provided for such felony, be sentenced to a term of imprisonment of 2
years.
ISSUE
Whether the statute requires the Government to show that the defendant knew that the means of
identification he or she unlawfully transferred, possessed, or used, in fact, belonged to “another
person.”
ANALYSIS
23
“Whoever, during and in relation to any felony violation enumerated in (c), knowingly transfers,
possesses, or uses, without lawful authority, a means of identification of another person
shall . . .”.
As a matter of ordinary English grammar, it seems natural to read the statute’s word
“knowingly” as applying to all the subsequently listed elements of the crime.......... In ordinary
English, where a transitive verb has an object, listeners in most contexts assume that an adverb
(such as knowingly) that modifies the transitive verb tells the listener how the subject performed
the entire action, including the object as set forth in the sentence.
C. STRICT LIABILITY OFFENSES
Morissette v. United States
342 U.S. 246 (1952)
FACTS
Morissette was indicted and convicted of violating a federal statute that provided:
“[w]hoever ....... steals, purloins, or knowingly converts to his use or the use of another, or
without authority, sells, conveys or disposes of any ..... thing of value of the United States * * *
shall be fined not more than $10,000 or imprisoned not more than ten years, or both.” 18 USC §
641
ISSUE
Does §641 contain any mens rea requirement?
So what is going on?
ANALYSYS
What does the Supreme Court say about the Common Law Tradition:
Crime, as a compound concept, generally constituted only from concurrence of an evil-meaning
mind with an evil-doing hand, was congenial to an intense individualism and took deep and early
root in American soil. As the state codified the common law of crimes, even if their enactments
were silent on the subject, their courts assumed that the omission did not signify disapproval of
the principle but merely recognized that intent was so inherent in the idea of the offense that it
required no statutory affirmation.
The Court discusses a different kind of offense:
However, [various] ....... offenses belong to a category of another character, with very different
antecedents and origins. The[se] crimes * * * depend on no mental element but consist only of
forbidden acts or omissions. This, while not expressed by the Court, is made clear from
examination of a century-old but accelerating tendency, discernible both here and in England, to
call into existence new duties and crimes which disregard any ingredient of intent.
This has confronted the courts with a multitude of prosecutions, based on statutes or
administrative regulations, for what have been aptly called “public welfare offenses.” These
cases do not fit neatly into any of such accepted classifications of common-law offenses, such as
those against the state, the person, property, or public morals.
Hence, legislation applicable to such offenses, as a matter of policy, does not specify intent as a
necessary element.
24
The accused, if he does not will the violation, usually is in a position to prevent it with no more
care than society might reasonably expect and no more exertion than it might reasonably exact
from one who assumed his responsibilities. Also, penalties commonly are relatively small, and
conviction does not do grave damage to an offender’s reputation. Under such considerations,
courts have turned to construing statutes and regulations which make no mention of intent as
dispensing with it and holding that the guilty act alone makes out the crime
How does the Supreme Court argue it is not a “public welfare statute”
[W]here Congress borrows terms of art in which are accumulated the legal tradition and meaning
of centuries of practice, it presumably knows and adopts the cluster of ideas that were attached to
each borrowed word in the body of learning from which it was taken and the meaning its use will
convey to the judicial mind unless otherwise instructed. In such case, absence of contrary
direction may be taken as satisfaction with widely accepted definitions, not as a departure from
them.
A collection of statutes none of which have been held to be a crime without intention:
The section with which we are here concerned was enacted in 1948, as a consolidation of four
former [penal] sections . . ., as adopted in 1940, which in turn were derived from two sections f
the Revised Statutes ......... [From a survey of legislative history, we] find no other purpose in the
1948 re-enactment than to collect from scattered sources crimes so kindred as to belong in one
category. Not one of these had been interpreted to be a crime without intention and no purpose to
differentiate between them in the matter of intent is disclosed.
Congress, by the language of this section, has been at pains to incriminate only “knowing”
conversions.
Had the statute applied to conversions without qualification, it would have made crimes of all
unwitting, inadvertent and unintended conversions. Knowledge, of course, is not identical with
intent and may not have been the most apt words of limitation. But knowing conversion requires
more than knowledge that defendant was taking the property into his possession. He must have
had knowledge of the facts, though not necessarily the law, that made the taking a conversion.
We find no grounds for inferring any affirmative instruction from Congress to eliminate intent
from any offense with which this defendant was charged. Reversed.
Staples v. United States
511 U.S. 600 (1994)
26 U.S. Code § 5861 - Prohibited acts
It shall be unlawful for any person—
. . .(d) to receive or possess a firearm which is not registered to him in the National Firearms
Registration and Transfer Record;
26 U.S. Code § 5871 – Penalties
Any person who violates or fails to comply with any provisions of this chapter shall, upon
conviction, be fined not more than $10,000, or be imprisoned not more than ten years, or both.
25
26 U.S. Code § 5861 - Prohibited acts
It shall be unlawful for any person—
. . .(d) to receive or possess a firearm which is not registered to him in the National Firearms
Registration and Transfer Record;
What is Staples arguing?
That he didn’t know the definition of a firearm?
That he didn’t know that firearms had to be registered?
That he didn’t receive or possess a firearm?
Government’s response to Court’s statement about the presumption of mens rea.
According to the Government,. . . the nature and purpose of the Act suggest that the
presumption favoring mens rea does not apply to this case.
The Government argues that Congress intended the Act to regulate and restrict the circulation of
dangerous weapons.
Consequently, in the Government's view, this case fits in a line of precedent concerning what we
have termed “public welfare” or “regulatory” offenses, in which we have understood Congress to
impose a form of strict criminal liability through statutes that do not require the defendant to
know the facts that make his conduct illegal.
In construing such statutes, we have inferred from silence that Congress did not intend to require
proof of mens rea to establish an offense.
In glossing over the distinction between grenades and guns, the Government ignores the
particular care we have taken to avoid construing a statute to dispense with mens rea where
doing so would “criminalize a broad range of apparently innocent conduct.”
Neither, in our view, can all guns be compared to hand grenades. Although the contrast is
certainly not as stark as that presented in Liparota, the fact remains that there is a long tradition
of widespread lawful gun ownership by private individuals in this country. Such a tradition did
not apply to the possession of hand grenades in Freed or to the selling of dangerous drugs
Here, the Government essentially suggests that we should interpret the section under the
altogether different assumption that “one would hardly be surprised to learn that owning a gun is
not an innocent act.” That proposition is simply not supported by common experience. Guns in
general are not “deleterious devices or products or obnoxious waste materials,” that put their
owners on notice that they stand “in responsible relation to a public danger,”
The Government protests that guns, unlike food stamps, but like grenades and narcotics, are
potentially harmful devices . . . But that an item is “dangerous,” in some general sense, does not
necessarily suggest, as the Government seems to assume, that it is not also entirely innocent.
We concur in the Fifth Circuit's conclusion on this point: “It is unthinkable to us that Congress
intended to subject such law-abiding, well-intentioned citizens to a possible ten-year term of
imprisonment if ... what they genuinely and reasonably believed was a conventional semiautomatic [weapon] turns out to have worn down into or been secretly modified to be a fully
automatic weapon.”
The potentially harsh penalty attached to violation of § 5861(d)—up to 10 years' imprisonment—
confirms our reading of the Act.
26
Historically, the penalty imposed under a statute has been a significant consideration in
determining whether the statute should be construed as dispensing with mens rea. Certainly, the
cases that first defined the concept of the public welfare offense almost uniformly involved
statutes that provided for only light penalties such as fines or short jail sentences, not
imprisonment in the state penitentiary.
As commentators have pointed out, the small penalties attached to such offenses logically
complemented the absence of a mens rea requirement: In a system that generally requires a
“vicious will” to establish a crime, 4 W. Blackstone, Commentaries, imposing severe
punishments for offenses that require no mens rea would seem incongruous.
Garnett v. State (1993)
Art. 27, § 463 : Maryland's “statutory rape” law prohibiting sexual intercourse with an underage
person
“Second degree rape.
(a) What constitutes.—A person is guilty of rape in the second degree if the person engages
in vaginal intercourse with another person:
(1) By force or threat of force against the will and without the consent of the other person; or
(2) Who is mentally defective, mentally incapacitated, or physically helpless, and the person
performing the act knows or should reasonably know the other person is mentally defective,
mentally incapacitated, or physically helpless; or
(3) Who is under 14 years of age and the person performing the act is at least four years older
than the victim.
(b) Penalty.—Any person violating the provisions of this section is guilty of a felony and upon
conviction is subject to imprisonment for a period of not more than 20 years.”
Issue
“Should the court “engraft onto subsection (a)(3)
an implicit mens rea requirement”
Conscious of the disfavor in which strict criminal liability resides, the Model Penal Code states
generally as a minimum requirement of culpability that a person is not guilty of a criminal
offense unless he acts purposely, knowingly, recklessly, or negligently, i.e., with some degree of
mens rea. Model Penal Code § 2.02.
The Code allows generally for a defense of ignorance or mistake of fact negating mens rea. §
2.04.
The Model Penal Code generally recognizes strict liability for offenses deemed “violations,”
defined as wrongs subject only to a fine, forfeiture, or other civil penalty upon conviction, and
not giving rise to any legal disability. Id. at §§ 1.04, 2.05.
Contrary to this precedent and common legal theory: : the Court holds that § 463(a)(3) is a strict
liability offense
1. “Plain Language”
The Maryland Legislature knew how to introduce a mens rea element in §463(a)(2):
(a) What constitutes.—A person is guilty of rape in the second degree if the person
engages in vaginal intercourse with another person:. . *
*
*
27
(2) Who is mentally defective, mentally incapacitated, or physically helpless, and the person
performing the act knows or should reasonably know the other person is mentally defective,
mentally incapacitated, or physically helpless; or
(3) Who is under 14 years of age and the person performing the act is at least four years older
than the victim.
Contrary to this precedent and common legal theory: : the Court holds that § 463(a)(3) is a strict
liability offense
2. Legislative History
. . . [T]he Legislature explicitly raised, considered, and then explicitly jettisoned any notion of
a mens rea element with respect to the complainant's age in enacting the law that formed the
basis of current
§ 463(a)(3). In the light of such legislative action, we must inevitably
conclude that the current law imposes strict liability on its violators.
Any change in the law should come from the legislature
Neither the statutory language nor the legislative history of
§ 463(a)(3), or of the other
provisions of the 1976 and 1977 sexual offense statutes, indicate that the General Assembly
intended § 463(a)(3) to define a pure strict liability offense where criminal liability is imposed
regardless of the defendant's mental state.
The penalty provision for a violation of § 463(a)(3), namely making the offense a felony
punishable by a maximum of 20 years imprisonment ( § 463(b)), is strong evidence that the
General Assembly did not intend to create a pure strict liability offense.
MPC § 2.02(2)(c) Recklessly:
A person acts recklessly with respect to a material element of an offense when he consciously
disregards a substantial and unjustifiable risk that the material element exists or will result from
his conduct. The risk must be of such a nature and degree that, considering the nature and
purpose of the actor's conduct and the circumstances known to him, its disregard involves a gross
deviation from the standard of conduct that a law-abiding person would observe in the actor's
situation.
Language of the Dissent:
“The ordinary defendant in such case is or ought to be aware that there is a risk that the young
person is not above the age of consent.”
“The ordinary defendant in such case is or ought to be aware that there is a risk that the young
person is not above the age of consent.
MPC § 2.02(2)(d) Negligently
(d) Negligently.
A person acts negligently with respect to a material element of an offense when he should be
aware of a substantial and unjustifiable risk that the material element exists or will result from
his conduct. The risk must be of such a nature and degree that the actor's failure to perceive it,
considering the nature and purpose of his conduct and the circumstances known to him, involves
a gross deviation from the standard of care that a reasonable person would observe in the actor's
situation.
28
Application of dissent’s analysis to this case:
There is no indication that the General Assembly intended that criminal liability attach to one
who, because of his or her mental impairment, was unable to appreciate that risk.
Strict Liability under the MPC?
This section [§ 2.05] makes a frontal attack on absolute or strict liability in the penal law * * *.
The method used is not to abrogate strict liability completely, but to provide that when
conviction rests upon that basis the grade of the offense is reduced to a violation, which is not a
“crime” [under Section 1.04] and under Sections 1.04(5) and 6.02(4) may result in no sentence
other than a fine, or a fine and forfeiture or other authorized civil penalty. * * *
MPC § 2.05 (1) The requirements of culpability prescribed by Sections 2.01 and 2.02 do not
apply to:
(a) offenses that constitute violations, unless the requirement involved is included in the
definition of the offense or the Court determines that its application is consistent with
effective enforcement of the law defining the offense; or
(b) offenses defined by statutes other than the Code, insofar as a legislative purpose to
impose absolute liability for such offenses or with respect to any material element thereof
plainly appears.
MPC § 1.04(5) 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 that 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.
D. MISTAKE AND MENS REA
1. MISTAKE OF FACT
People v. Navarro
99 Cal.App.3d Supp (1979)
FACTS
Under state law, “[e]very person who shall feloniously steal . . . the personal property of
another . . . is guilty of theft.” Cal.Pen.Code § 484(a).
ISSUE
Whether the defendant should be acquitted if there is a reasonable doubt that he had a good faith
belief that the property had been abandoned or that he had the permission of the owner to take
the property, or whether that belief must be a reasonable one as well as being held in good faith.
In People v. Wetmore (1978) 22 Cal.3d 318, 149 Cal.Rptr. 265, 583 P.2d 1308, defendant was
charged with burglary, like theft a specific intent crime. The Supreme Court held that the trial
court had erroneously refused to consider the * * * evidence that, because of mental illness,
defendant was incapable of forming the specific intent required for conviction of the crime * * *.
***
29
. . .[W]here a felonious intent must be proven it can be done only by proving what the accused
knew. One cannot intend to steal property which he believes to be his own. He may be careless,
and omit to make an effort to ascertain that the property which he thinks his own belongs to
another; but so long as he believes it to be his own he cannot feloniously steal it. [citing People
v. Devine]
. . . .Cases in other jurisdictions also hold that where the law requires a specific criminal intent, it
is not enough merely to prove that a reasonable man would have had that intent, without meeting
the burden of proof that the defendant himself also entertained it.
“If no specific intent or other special mental element is required for guilt of the offense charged,
a mistake of fact will not be recognized as an excuse unless it was based upon reasonable
grounds.
[On the other hand, b]ecause of the requirement of a specific intent to steal there is no such thing
as larceny by negligence. One does not commit this offense by carrying away the chattel of
another in the mistaken belief that it is his own, no matter how great may have been the fault
leading to this belief, if the belief itself is genuine.
[A]n honest mistake of fact or law is a defense when it negates a required mental element of the
crime .......”
As an example they refer to the crime of [knowingly] receiving stolen property, stating “ ....... if
the defendant by a mistake of either fact or law did not know the goods were stolen, even though
the circumstances would have led a prudent man to believe they were stolen, he does not have
the required mental state and thus may not be convicted of the crime.
Holding:
In the instant case the trial court in effect instructed the jury that even though defendant in good
faith believed he had the right to take the beams, and thus lacked the specific intent required for
the crime of theft, he should be convicted unless such belief was reasonable. In doing so it erred.
It is true that if the jury thought the defendant’s belief to be unreasonable, it might infer that he
did not in good faith hold such belief.
If, however, it concluded that defendant in good faith believed that he had the right to take the
beams, even though such belief was unreasonable as measured by the objective standard of a
hypothetical reasonable man, defendant was entitled to an acquittal since the specific intent
required to be proved as an element of the offense had not been established.
Note 3. How would Navarro be analyzed under Model Penal Code § 2.04?
§ 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.
Under state law, “[e]very person who shall feloniously steal ....... the personal property of
another....... is guilty of theft.” Cal.Pen.Code § 484(a).
Look at MPC 2.02(2) and note MPC 2.02(7)! (relating to a material fact)
30
Broadly speaking, “mens rea” means “guilty mind,” “vicious will,” “immorality of motive,” or,
simply, “morally culpable state of mind.” This can be characterized as the “culpability” meaning
of “mens rea.”
In this sense, a defendant is guilty of a crime if she commits the social harm of the offense with
any morally blameworthy state of mind; it is not significant whether she caused the social harm
intentionally or, instead, with some other blameworthy mental state (e.g., recklessly)
More narrowly, “mens rea” refers to the mental state the defendant must have had with regard to
the “social harm” elements set out in the definition of the offense. This is the “elemental”
meaning of mens rea. Using this meaning, a defendant is not guilty of an offense, even if she has
a culpable frame of mind, if she lacks any mental state specified in the definition of the crime.
For example, an offense may be structured as follows:
Summary of Common Law approach to mistake:
The common law distinction between the two alternative meanings of mens rea:
(1) The elemental meaning; and (2) the culpability meaning
correlate with the common law concepts of specific intent and general intent.
With a specific intent crime, {elemental] a mistake whether reasonable or unreasonable is a
defense whenever it negates the specific intent required by the offense.
With a general intent crime, [culpability] if the mistake is reasonable, it provides a defense. If
the mistake was unreasonable, then at common the defendant would be culpable and therefore
liable.
If it is a general intent crime, and the mistake is reasonable, some courts will still impose liability
under the “moral wrong” doctrine or the “legal wrong doctrine”.
2.04. Ignorance or Mistake.§ 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. interpretation, administration or enforcement of the law defining the offense.
(4) The defendant must prove a defense arising under Subsection (3) of this Section by a
preponderance of evidence.
Note 5: “moral wrong” doctrine:
As Navarro teaches, at common law, a reasonable mistake of fact, but not an unreasonable one,
ordinarily exculpates a defendant prosecuted for a general intent crime. The reasonableness of
the mistake negates the culpability required for the offense.
Infrequently, however, a court applying common law mistake doctrine to a general intent crime
will still permit conviction of an actor whose mistake of fact was reasonable, if the defendant
was culpable according to the “moral wrong” doctrine.
This view seems is in principle exemplified by the dissent’s view in Garnett (text p. 203):
“In the typical situation [statutory rape situation] involving an older person’s engaging in
consensual sexual activities with a teenager who is in fact below the age of consent, . . .the
defendant knows and intends that he or she is engagFing in sexual activity with a young person.
31
[T]the defendant knows that the activity is regarded as immoral and/or improper by large
segments of society. Moreover, the defendant is aware that “consent” by persons who are too
young is ineffective. Although in a particular case the defendant may honestly but mistakenly
believe, because of representations or appearances, that the other person is above the age of
consent, the ordinary defendant in such case is or ought to be aware that there is a risk that the
young person is not above the age of consent.”
“Legal wrong” doctrine. As an alternative to the moral wrong doctrine, some courts apply what
may be characterized as a “legal wrong” doctrine.
It works in the same manner, except that the term “illegal” substitutes for “immoral.”
If a defendant’s conduct, based on the facts as he believes them to be, constitutes a crime—not
simply an immorality—he may be convicted of the more serious offense that his conduct
establishes. For example,
Statute 1 provides that it is a felony to furnish particular contraband (e.g., child pornography) to
a person under the age of eighteen;
Statute 2 provides that it is a misdemeanor to furnish the same contraband to a person age
eighteen or older.
D furnishes the item to a seventeen-year-old (the actus reus of felony Statute 1) whom he
reasonably believes is eighteen years old (the mens rea of misdemeanor Statute 2), the legal
wrong doctrine provides that D may be convicted of the greater offense, a felony, and punished
accordingly.
2. MISTAKE (OR IGNORANCE OF LAW)
People v. Marrero
69 N.Y.2d 282 (1987)
FACTS
. . . . arrested in a New York social club in possession of an unlicensed loaded .38 caliber
automatic pistol, in alleged violation of New York Law:
Penal Law § 265.02:
A person is guilty of criminal possession of a weapon . . . when:
(6) Such person knowingly possesses any disguised gun
Marrero moved to dismiss his indictment on the ground that, under New York Penal Law §
265.20(a)(1), peace officers were exempt from criminal liability under the firearm possession
statute.
The term “peace officer,” . . . Included any official or guard “of any state correctional facility or
of any penal correctional institution.”
ISSUE
Whether defendant’s personal misreading or misunderstanding of a statute may excuse criminal
conduct in the circumstances of this case.
Common Law Rule:
The common-law rule on mistake of law was clearly articulated in Gardner v. People (62 N.Y.
299).
32
In Gardner, the defendants misread a statute and mistakenly believed that their conduct was
legal.
The court insisted, however, that the “mistake of law” did not relieve the defendants of criminal
liability.
Subject to the mistake statute, the instant case, of course, falls within the Gardner rationale
because the weapons possession statute violated by this defendant imposes liability irrespective
of one’s intent.
Policy of the “no mistake of law” defense:
The desirability of the Gardner-type outcome, which was to encourage the societal benefit of
individuals’ knowledge of and respect for the law, is underscored by Justice Holmes’ statement:
“It is no doubt true that there are many cases in which the criminal could not have known that he
was breaking the law, but to admit the excuse at all would be to encourage ignorance where the
law-maker has determined to make men know and obey, and justice to the individual is rightly
outweighed by the larger interests on the other side of the scales”
The prosecution . . . counters defendant’s argument by asserting that one cannot claim the
protection of mistake of law under section 15.20(2)(a) simply by misconstruing the meaning of a
statute but must instead establish that the statute relied on actually permitted the conduct in
question and was only later found to be erroneous.
What does this mean?
In order for sec. 15.20(2)(a) to work, the defendant’s interpretation of the law in a way which
would permit his conduct had to have been at some prior time an accepted interpretation of the
law. Then if later, the law was changed and the conduct was found to be unlawful . . . the
defendant would be allowed to rely on the law as first interpreted, if he is unware of the later
modification.
In support for this interpretation of 15.20(2)(a) the court cites MPC:
Section 2.04. Ignorance or Mistake ....... (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........ (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”
Does that work for Marrero?
No:
In the case before us, the underlying statute never in fact authorized the defendant’s conduct; the
defendant only thought that the statutory exemptions permitted his conduct when, in fact, the
primary statute clearly forbade his conduct. * * *
Policy argument against allowing Marrero his defense based on his subjective but good-faith
misunderstanding of the statute:
If defendant’s argument were accepted, the exception would “swallow the rule.”
Mistakes about the law would be encouraged, rather than respect for and adherence to law. There
would be an infinite number of mistake of law defenses which could be devised from a good-
33
faith, perhaps reasonable but mistaken, interpretation of criminal statutes, many of which are
concededly complex.
. . . Our holding comports with a statutory scheme which was not designed to allow false and
diversionary stratagems to be provided for many more cases than the statutes contemplated. This
would not serve the ends of justice but rather would serve game playing and evasion from
properly imposed criminal responsibility.
Accordingly, the order of the Appellate Division should be affirmed.
The maxim “ignorantia legis neminem excusat” finds its roots in Medieval law when the
“actor’s intent was irrelevant since the law punished the act itself.” . . . Although the common
law has gradually evolved from its origins in Anglo-Germanic tribal law (adding the element of
intent [mens rea] and recognizing defenses based on the actor’s mental state * * *) . . . The
utilitarian arguments for retaining the rule have been drawn into serious question; but the
fundamental objection is that it is simply wrong to punish someone who, in good-faith reliance
on the wording of a statute, believed that what he was doing was lawful.
This basic objection to the maxim “ignorantia legis neminem excusat” may have had less force
in ancient times when most crimes consisted of acts which by their very nature were recognized
as evil (malum in se). In modern times, however, with the profusion of legislation making
otherwise lawful conduct criminal (malum prohibitum), the “common law fiction that every
man is presumed to know the law has become indefensible in fact or logic.”
N.Y. Stat§ 15.20. Effect of ignorance or mistake upon liability.
“2. A person is not relieved of criminal liability for conduct because he engages in such conduct
under a mistaken belief that it does not, as a matter of law, constitute an offense, unless such
mistaken belief is founded upon an official statement of the law contained in (a) a statute or other
enactment . (d) an interpretation of the statute or law relating to the offense, officially made or
issued by a public servant, agency, or body legally charged or empowered with the responsibility
or privilege of administering, enforcing or interpreting such statute or law.”
MPC Section 2.04. Ignorance or Mistake ....... (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 ....... (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”
Note 2. Exception to no excuse rule: Entrapment by estoppel:
MPC § 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:
(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
(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;
34
(iii)
(iv)
an administrative order or grant of permission; or
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.
In Lambert v. California, 355 U.S. 225, 78 (1957), a Los Angeles ordinance provided that it was
unlawful for “any convicted person” to remain in the city for more than five days without
registering as a convicted person. The ordinance defined “any convicted person” as follows:
“Any person who * * * has been or hereafter is convicted of an offense punishable as a felony in
the State of California, or who has been or who is hereafter convicted of any offense in any place
other than the State of California, which offense, if committed in the State of California, would
have been punishable as a felony.”
At the time of her arrest, L had been a resident of Los Angeles for seven years. She previously
had been convicted of forgery while she lived in the city, but she failed to register. She claimed
that she did not do so because she was unaware of the ordinance. The Supreme Court held, 5–4,
that L’s due process rights were violated:
Registration laws are common and their range is wide. Many such laws are akin to licensing
statutes in that they pertain to the regulation of business activities. But the present ordinance is
entirely different. Violation of its provisions is unaccompanied by any activity whatever, mere
presence in the city being the test. Moreover, circumstances which might move one to inquire as
to the necessity of registration are completely lacking. * * * We believe that actual knowledge of
the duty to register or proof of the probability of such knowledge and subsequent failure to
comply are necessary before a conviction under the ordinance can stand.
Types of special mental elements: a “specific” intent offense requires . . .
First, . . . an intention by the actor to commit some future act, separate from the actus reus of the
offense (e.g., “possession of marijuana with intent to sell”).
Second, . . . proof of a special motive or purpose for committing the actus reus. (e.g., “offensive
contact upon another with the intent to cause humiliation”).
Third, some offenses require proof of the actor’s awareness of an attendant circumstance
(e.g., “intentional sale of obscene literature to a person known to be under the age of 18 years”).
Cheek v. United Staes
498 U.S. 192 (1991)
FACTS
26 U.S.C. § 7201:[A]ny person “who willfully attempts in any manner to evade or defeat any tax
imposed by this title or the payment thereof” shall be guilty of a felony.
26 U.S.C. § 7203: [a]ny person required under this title . . . or by regulations made under
authority thereof to make a return . . . who willfully fails to . . . make such return” shall be
guilty of a misdemeanor.
In the course of its instructions, the trial court advised the jury that to prove “willfulness” the
Government must prove the voluntary and intentional violation of a known legal duty, a burden
that could not be proved by showing mistake, ignorance, or negligence.
The court further advised the jury that an objectively reasonable good-faith misunderstanding of
the law would negate willfulness but mere disagreement with the law would not.
35
The court described Cheek’s beliefs about the income tax system and instructed the jury that if it
found that Cheek “honestly and reasonably believed that he was not required to pay income
taxes or to file tax returns,” a not guilty verdict should be returned. * * *
At the end of the first day of deliberation, the jury sent out [a] note saying that it could not reach
a verdict because:
“ ‘[w]e are divided on the issue as to if Mr. Cheek honestly & reasonably believed that he was
not required to pay income tax.
When the jury resumed its deliberations, the district Judge gave the jury an additional instruction.
This instruction stated in part that:
“[a]n honest but unreasonable belief is not a defense and does not negate willfulness.” * * *
Petitioner appealed his convictions, arguing that the District Court erred by instructing the jury
that only an objectively reasonable misunderstanding of the law negates the statutory willfulness
requirement. The United States Court of Appeals for the Seventh Circuit rejected that contention
and affirmed the convictions
Whether the district court erred [and the 7th Circuit in affirming the district court] in its
instructions to the jury regarding the meaning of “willfully” as used in §§ 7201 and 7203
Cheek’s Defense?
Petitioner’s defense was that, based on the indoctrination he received . . . and from his own
study, he sincerely believed that the tax laws were being unconstitutionally enforced and that his
actions during the 1980–1986 period were lawful. He therefore argued that he had acted without
the willfulness required for conviction of the various offenses with which he was charged
Willfulness, as construed by our prior decisions in criminal tax cases, requires the Government to
prove that the law imposed a duty on the defendant, that the defendant knew of this duty, and
that he voluntarily and intentionally violated that duty.
Holding?
It was . . . error to instruct the jury to disregard evidence of Cheek’s understanding that, within
the meaning of the tax laws, he was not a person required to file a return or to pay income taxes
and that wages are not taxable income, as incredible as such misunderstandings of and beliefs
about the law might be.
In this case, if Cheek asserted that he truly believed that the Internal Revenue Code did not
purport to treat wages as income, and the jury believed him, the Government would not have
carried its burden to prove willfulness, however unreasonable a court might deem such a belief.
Of course, in deciding whether to credit Cheek’s good-faith belief claim, the jury would be free
to consider any admissible evidence from any source showing that Cheek was aware of his duty
to file a return and to treat wages as income, including . . .
evidence showing his awareness of the relevant provisions of the Code or regulations, of court
decisions rejecting his interpretation of the tax law, of authoritative rulings of the Internal
Revenue Service, or of any contents of the personal income tax return forms and accompanying
instructions that made it plain that wages should be returned as income.
36
In Cheek we have a situation where knowledge “as to the existence, meaning of application of
the law” is an element of the offense.
MPC § 2.02(9) Culpability as to Illegality of Conduct. Neither knowledge nor recklessness or
negligence as to whether conduct constitutes an offense or as to the existence, meaning or
application of the law determining the elements of an offense is an element of such offense,
unless the definition of the offense or the Code so provides.
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.
Summary of MPC Mistake of Law
Look at Model Penal Code § 2.02(9): this codifies, more or less, the common law idea
that generally knowledge of a law’s existence and understanding of its meaning is not a required
material element of an offense, unless the statute itself so provides.
Put this together with § 2.02(1): and there must be proof of mens rea as to each material element
of the crime or offense. § 2.02(9) is an exception to this general rule that , usually, you don’t
have to prove that the defendant understood the law.
What are the exceptions? § 2.04(1) says that if the statute explicitly includes reference to the
knowledge of the law, you must prove that the defendant knowingly violated it.
§ 2.04(3) further says that you may have a limited defense on the basis of your reliance on
an official statement of the law from an appropriate source. This is a very limited exception,
though.
§ 2.04(3) does not permit a defense based on your personal albeit reasonable misunderstanding
of the law. Rather, the defendant must reasonably rely on an official statement of the law (from
an appropriate, specified source) that is afterward determined to be invalid.
Actual Cause (Cause-in-fact)
Oxendine v. State
528 A.2d 870 (Del. 1987)
FACTS
ISSUE
Whether the trial court erred by denying Mr. Oxendine’s motion for a judgment of acquittal on
the issue of causation.
§ 632. Manslaughter; class B felony
A person is guilty of manslaughter when:
(1) The person recklessly causes the death of another person; or
(2) With intent to cause serious physical injury to another person the person causes the death of
such person, employing means which would to a reasonable person in the defendant's situation,
knowing the facts known to the defendant, seem likely to cause death; or
37
(3) The person intentionally causes the death of another person under circumstances which do
not constitute murder because the person acts under the influence of extreme emotional
disturbance; or
In order to convict Oxendine of manslaughter, the State had to show, among other things, that his
conduct caused Jeffrey’s death.
§ 261 defines causation as the “antecedent but for which the result in question would not have
occurred.”
In this case, the evidence established that Oxendine inflicted a nonlethal injury upon Jeffrey after
his son had, twenty-four hours earlier, sustained a lethal injury from a previous beating inflicted
by Tyree.
So how could Oxendine be charged with manslaughter?
For Oxendine to be convicted of manslaughter in this factual context, the State was required to
show for purposes of causation under 11 Del.C. § 261 that Oxendine’s conduct hastened or
accelerated the child’s death.
Thus, in terms of section 261, and as applied to defendant, the relevant inquiry is: but for his
infliction of the second injury, would the victim have died when he died? If the second injury
caused his son to die any sooner, then defendant, who inflicted the second injury, would be
deemed to have caused his son’s death within the definition of section 261.
Both of the State’s expert witnesses, Dr. Inguito and Dr. Hameli, were unable to state with any
degree of medical certainty that the second injury contributed to the death of the child.
A finding of medical causation may not be based on speculation or conjecture. A doctor’s
testimony that a certain thing is possible is no evidence at all. His opinion as to what is possible
is no more valid than the jury’s own speculation as to what is or is not possible. Almost anything
is possible, and it is improper to allow a jury to consider and base a verdict upon a “possible”
cause of death.
Therefore, a doctor’s testimony can only be considered evidence when his conclusions are based
on reasonable medical certainty that a fact is true or untrue.
Take-away: Proof a mere possibility of something causing an effect does not satisfy either
“but-for” causation or “proximate causation”.
Issues of proximate causation generally arise when an intervening force exists, i.e., when some
but-for causal agent comes into play after the defendant’s voluntary act or omission and
before the social harm occurs.
Typically, an intervening cause will be:
(1) “an act of God,” i.e., an event that cannot be traced back to any human intermediary;
(2) an act of an independent third party; or
(3) an act or omission of the victim that assists in bringing about the outcome.
An intervening cause that “breaks the causal chain” is sometimes described as a superseding
cause or novus actus interveniens (“new intervening act”).
Moreover, “[m]ost states that have addressed the question agree that [proximate] causation is
defined more narrowly in criminal law than it is in tort law,” because criminal liability results in
38
punishment, whereas tort liability generally results only in an obligation to compensate the
injured party.
A critical matter to keep in mind is this: Proximate causation analysis is not a matter of applying
hard and fast rules leading to some scientifically “correct” outcome; instead, it is an effort by the
factfinder to determine, based on policy considerations or matters of fairness, whether holding
the defendant(s) criminally responsible for a prohibited result is proper. Consequently, although
courts sometimes act as if a foolproof way exits to identify the “proximate cause” of social harm,
thinking in terms of factors that potentially affect causal responsibility is more accurate. The
materials that follow relate to those factors.
People v. Rideout
272 Mich. App. 602 (2006)
FACTS
Defendant was convicted, following a jury trial, of operating a motor vehicle while “intoxicated
(OWI) or while visibly impaired (OWVI) and thereby causing death.”
He was sentenced to serve 3 to 15 years in prison. He now appeals and we reverse and remand.
ISSUE
1) Whether the trial court improperly instructed the jury on causation; and,
2) Whether there was also insufficient evidence of causation to establish defendant
Rideout’s guilt on the “causing death” charge?
A superseding intervening cause does not need to be the only cause. . . .
The effect of the trial court’s instructions was that the jury could convict defendant if they found
him to be a factual cause of the accident and that the jury could find the existence of a
superseding intervening cause only if that superseding intervening cause was the only cause of
the second accident.
Holding on Issue 1:
The jury was not adequately instructed on the issues of proximate and intervening causes.
For a defendant’s conduct to be regarded as a proximate cause, the victim’s injury must be a
“direct and natural result” of the defendant’s actions. In making this determination, it is
necessary to examine whether there was an intervening cause that superseded the defendant’s
conduct such that the causal link between the defendant’s conduct and the victim’s injury was
broken.
If an intervening cause did indeed supersede the defendant’s act as a legally significant causal
factor, then the defendant’s conduct will not be deemed a proximate cause of the victim’s injury.
The standard by which to gauge whether an intervening cause supersedes, and thus severs the
causal link, is generally one of reasonable foreseeability.
For example, suppose that a defendant stabs a victim and the victim is then taken to a nearby
hospital for treatment.
If the physician is negligent in providing medical care to the victim and the victim later dies, the
defendant is still considered to have proximately caused the victim’s death because it is
reasonably foreseeable that negligent medical care might be provided.
39
At the same time, gross negligence or intentional misconduct by a treating physician is not
reasonably foreseeable, and would thus break the causal chain between the defendant and the
victim.
The troubling aspect of this case is that the second accident only occurred after Keiser had
reached a position of safety (the side of the road) and then chose to reenter the roadway with
Reichelt to check on the car.
While foreseeability is the linchpin of the superseding causation analysis, and it is at least
arguably foreseeable that a person involved in an accident would check on his or her vehicle
even if it remains on the road, the analysis does not end there.
First, there is the “apparent-safety doctrine,” which Dressler describes as follows: One scholar
has observed that when a “defendant’s active force has come to rest in a position of apparent
safety, the court will follow it no longer.”
State v. Preslar [48 N.C. 421 (1856)]
Similarly, in the case at bar, Keiser had reached a position of apparent safety: he had gotten out
of the vehicle and was alongside the road, off the pavement. Had the second accident occurred
before Keiser could extricate himself from the Reichelt vehicle and get to the side of the road,
then the causal chain would have been intact.
But he was able to get out of harm’s way and to a relatively safe position at the side of the road.
[Second]
He then made the choice to return to the roadway and place himself in a more dangerous
position.
And that decision, like the decision in Preslar, ended the initial causal chain and started a new
one, one for which defendant was not responsible.
The free, deliberate and informed intervention of a second person, who I intends to exploit the
situation created by the first . . . Is normally held to relieve the first actor of criminal
responsibility.
Similarly, in the case at bar, Keiser made the voluntary decision to return to the vehicle on the
roadway, despite the danger that it posed. He could have chosen to remain on the side of the
road.
He chose instead to reenter the roadway, with the danger of standing in the roadway next to an
unlit vehicle in the middle of the night being readily apparent.
Holding of the court:
In sum, we conclude that the prosecution failed to present sufficient evidence to establish that
defendant’s actions were a proximate cause of Keiser’s death. Therefore, we vacate defendant’s
conviction for OWI/OWVI causing death.
The Michigan Supreme Court disagreed on that score, partially reversing the Court of Appeals
and stating that a “reasonable jury could find that the actions of the decedent were foreseeable
based on an objective standard of reasonableness.” It ordered a retrial.
40
Takeaway: The “apparent safety doctrine” won’t always save a defendant. Foreseeability could
be enough to hold Rideout culpable.
So the question is not simply whether Welch’s killing of Keiser was coincidental, but whether
Keiser’s entering the roadway was responsive and foreseeable.
And then, if that was foreseeable, was it foreseeable that he might be hit by an oncoming driver?
The Michigan Supreme Court stated that it was.
So Welch’s decision to leave a safe spot and Keiser’s being hit is a not as a matter of law a
superseding intervening cause.
Superseding Cause: Some, but not all, intervening causes are sufficient to prevent the original
actor’s [conduct] from being held to be the proximate cause of the injury. Intervening causes that
are sufficient to prevent the original actor from being negligent are called "superseding causes”,
since they supersede or the original actor’s liability.
A superseding cause is an act of a third person or other force which by its intervention
prevents the original actor from being liable for harm to another which his antecedent conduct
was a “cause in fact” in bringing about.
Issues of proximate causation generally arise when an intervening force exists, i.e., when some
but-for causal agent comes into play after the defendant’s voluntary act or omission and before
the social harm occurs.
Typically, an intervening cause will be:
(1) “an act of God,” i.e., an event that cannot be traced back to any human intermediary;
(2) an act of an independent third party; and/or
(3) an act or omission of the victim that assists in bringing about the outcome.
An intervening cause that “breaks the causal chain” is sometimes described as a superseding
cause or novus actus interveniens (“new intervening act”).
Moreover, “[m]ost states that have addressed the question agree that [proximate] causation is
defined more narrowly in criminal law than it is in tort law,” because criminal liability results in
punishment, whereas tort liability generally results only in an obligation to compensate the
injured party.
Section 2.03. Causal Relationship Between Conduct and Result; Divergence Between
Result Designed or Contemplated and Actual Result or Between Probable and Actual
Result.
(1) Conduct is the cause of a result when:
(a) it is an antecedent but for which the result in question would not have occurred; and
(b) the relationship between the conduct and result satisfies any additional causal requirements
imposed by the Code or by the law defining the offense.
(2) When purposely or knowingly causing a particular result is an element of an offense, the
element is not established if the actual result is not within the purpose or the contemplation of the
actor unless:
(a) the actual result differs from that designed or contemplated, as the case may be, only in the
respect that a different person or different property is injured or affected or that the injury or
harm designed or contemplated would have been more serious or more extensive than that
caused; or
41
(b) the actual result involves the same kind of injury or harm as that designed or contemplated
and is not too remote or accidental in its occurrence to have a [just] bearing on the actor's
liability or on the gravity of his offense.
(3) When recklessly or negligently causing a particular result is an element of an offense, the
element is not established if the actual result is not within the risk of which the actor is aware or,
in the case of negligence, of which he should be aware unless:
(a) the actual result differs from the probable result only in the respect that a different person or
different property is injured or affected or that the probable injury or harm would have been
more serious or more extensive than that caused; or
(b) the actual result involves the same kind of injury or harm as the probable result and is not
too remote or accidental in its occurrence to have a [just] bearing on the actor's liability or on the
gravity of his offense.
(4) When causing a particular result is a material element of an offense for which absolute
liability is imposed by law, the element is not established unless the actual result is a probable
consequence of the actor's conduct.
In order to apply the MPC approach to “proximate cause,” under sec. 2.03.(2) ask yourself the
following questions (which assume the crime charged requires purpose with respect to the
prohibited result): 1) What was the “actual result”? 2) Was the actual result “within the purpose
of the actor”? If it was, then the actor’s conduct is a “proximate cause.” If it was not, 3) did the
“actual result involve the same kind of injury or harm as that designed”? If it did not, then the
actor’s conduct is not a “proximate cause.” If it did, 4) was the “actual result too remote or
accidental in its occurrence to have a [just] bearing on the actor’s liability”? If it was, then the
actor’s conduct is not a “proximate cause.” If it was not, then the actor’s conduct is a “proximate
cause.”
(2) When purposely or knowingly causing a particular result is an element of an offense, the
element is not established if the actual result is not within the purpose or the contemplation of the
actor unless:
(a) the actual result differs from that designed or contemplated, as the case may be, only in the
respect that a different person or different property is injured or affected or that the injury or
harm designed or contemplated would have been more serious or more extensive than that
caused; or
(b) the actual result involves the same kind of injury or harm as that designed or contemplated
and is not too remote or accidental in its occurrence to have a [just] bearing on the actor's
liability or on the gravity of his offense.
Chapter 6
CAUSATION
Velazquez v. State
561 So.2d 347 (1990)
FACTS
ISSUE
The sole issue presented for review is whether a defendant driver of a motor vehicle who
participates in a reckless and illegal “drag race” on a public road may be properly convicted of
vehicular homicide for the death of one of the co-participant drivers suffered in the course of the
“drag race”—when the sole basis for imposing liability is the defendant’s participation in said
race.
42
Even where a defendant’s conduct is a cause-in-fact of a prohibited result, . . .
Florida and other courts throughout the country have for good reason declined to impose
criminal liability
(1) where the prohibited result of the defendant’s conduct is beyond the scope of any fair
assessment of the danger created by the defendant’s conduct, or
(2) where it would otherwise be unjust, based on fairness and policy considerations, to hold the
defendant criminally responsible for the prohibited result.
Was Velazquez’s conduct a but for cause of Adalberto’death?
, it is clear that the defendant’s reckless operation of a motor vehicle in participating in the “drag
race” with the deceased was, technically speaking, a cause-in-fact of the deceased’s death under
the “but for” test.
But for the defendant’s participation in the subject race, the deceased would not have recklessly
raced his vehicle at all and thus would not have been killed.
The undisputed facts in this case demonstrate that the “drag race” was, in effect, over when the
defendant and the deceased had completed the agreed-upon one-quarter mile course and had
crossed the finish line. Unexpectedly, however, the deceased suddenly whirled his vehicle
around and headed back toward the starting line and the canal which ran perpendicular to the
road on which he was travelling; although the defendant then followed, it is plain that it was the
deceased's sole decision to return to the starting line, as apparently this had not previously been
agreed upon.
Clearly, the deceased was on a near-suicide mission when, on his own hook, he returned to the
starting line of the race after the race was apparently over, attaining a murderous speed of 123
m.p.h., vaulted a canal, and killed himself. This being so, it would be unjust to hold the
defendant criminally responsible for the deceased's unexpected and near-suicidal conduct.
C. Concurrence of the Elements
State v. Rose
311 A.2d 281 (R.I. 1973)
FACTS
These are two indictments:
(No. 70–573) charging the defendant, Henry Rose, with leaving the scene of an accident, death
resulting, in violation of G.L.1956 § 31–26–11
(No. 70–572) charging the defendant with [negligent] manslaughter.
The defendant was tried on both indictments . . . , and a verdict of guilty was returned in each
case. Thereafter the defendant’s motions for a new trial were denied
ISSUE
Whether the trial court erred in denying his motion for a directed verdict of acquittal in each
case?
(No. 70–572) charging the defendant with [negligent] manslaughter:
Rose’s argument?
43
The evidence [does not] exclude any reasonable hypothesis or theory of the innocence of
defendant.
In so arguing in case No. 70–572, charging defendant with manslaughter, defendant directs our
attention to the fact that the court charged the jury that there was no evidence in the case of
culpable negligence on the part of defendant up to and including the time at which Mr. McEnery
was struck by the station wagon.
He further charged the jury that, in order to find defendant guilty of manslaughter, it would be
necessary to find that McEnery was alive immediately after the impact and that the conduct of
defendant following the impact constituted culpable negligence.
What is the point of this argument argument?
(No. 70–572) charging the defendant with [negligent] manslaughter:
Court’s response:
. . . [T]he evidence is such that death could have occurred after defendant had driven away with
McEnery’s body lodged under his car and, therefore, be consistent with guilt.
On the other hand, the medical testimony is equally consistent with a finding that McEnery could
have died instantly upon impact and, therefore, be consistent with a reasonable conclusion other
than the guilt of defendant.
. . . [T]he testimony of the medical examiner lacking any reasonable medical certainty as to the
time of the death of McEnery, we are unable to conclude that on such evidence defendant was
guilty of manslaughter beyond a reasonable doubt.
Therefore, we conclude, with respect to Indictment No. 70–572, that it was error to deny
defendant’s motion for a directed verdict of acquittal.
CONCURRENCE OF MENTAL FAULT WITH PHYSICAL ACT REQUIRED
The defendant must have had the intent necessary for the crime at the time he committed the act
constituting the crime. In addition, the intent must have prompted the act.
Example: A decides to kill B. While driving to the store to purchase a gun for this purpose, A
negligently runs over B and kills him. Is A guilty of murder?
No, because although at the time A caused B’s death he had the intent to do so, this intent did not
prompt the act resulting in B’s death (i.e., A’s poor driving).
The defendant must have had the intent necessary for the crime at the time he committed the act
constituting the crime. In addition, the intent must have prompted the act.
Compare: With the intent to kill B, A strangles B to the point of unconsciousness, but does not
actually kill B. Thinking B is dead, A buries B, and B dies as a result.
Is A guilty of murder, even though the death-causing act of burying B was done without the
intent to murder?
Yes, in a majority of jurisdictions. Most courts would find that the two acts were part of a single
transaction with a common intent.
Common-Law Background. At common law, murder was defined as the unlawful killing of
another human being with “malice aforethought.”
Whatever the original meaning of that phrase, it became over time an “arbitrary symbol” used by
judges to signify any of a number of mental states deemed sufficient to support liability for
murder.
44
Successive generations added new content to “malice aforethought” until it encompassed a
variety of mental attitudes bearing no predictable relation to the ordinary sense of the two words.
Even today, judges find in the elasticity of this ancient formula a convenient vehicle for
announcing new departures in the law of homicide.
1) “Intent to kill”: the notion of intent to kill includes awareness that the death of another
would result from one’s actions, even if the actor had no particular desire to achieve such
a consequence. Thus, intentional or knowing homicide was murder unless the actor killed
in the heat of passion engendered by adequate provocation, in which case the crime was
manslaughter.
2) “Intent to cause grievous bodily harm”: Knowledge that conduct would cause serious
bodily injury was generally assimilated to intent and was deemed sufficient for murder if
death of another actually resulted.
3) “Depraved-heart murder”: This label derived from decisions and statutes condemning
as murder unintentional homicide under circumstances evincing a “depraved mind” or an
“abandoned and malignant heart.” . . . the essential concept was one of extreme
recklessness regarding homicidal risk.
4) “Intent to commit a felony.” This is the origin of the felony-murder rule, which
assigns strict liability for homicide committed during the commission of a felony. These
four states of mind exhausted the meaning of “malice aforethought”; the phrase had no
residual content
Common-Law Background. Initially, the common law did not distinguish murder from
manslaughter.
Early statutes, however, sought to differentiate among criminal homicides . . .
This led to the division of criminal homicides into:
1) murder, which retained its status as a capital crime, and
2) the lesser offense of manslaughter.
The courts defined murder in terms of the evolving concept of “malice aforethought” and treated
manslaughter as a residual category for all other criminal homicides.
Virtually every state recognized the crime of manslaughter at the time the MPC was drafted. The
largest number contained no explicit definition of the offense and hence determined its content
by reference to the common law.
There were also a few states, typified by Florida, that carried forward the substance of the
common-law offense by defining manslaughter as “the killing of a human being by the act,
procurement or culpable negligence of another where such killing shall not be justifiable or
excusable homicide nor murder.”
A more common variation was reflected in the federal manslaughter provision:
Manslaughter is the unlawful killing of a human being without malice. It is of two kinds:
Voluntary—Upon a sudden quarrel or heat of passion.
Involuntary—In the commission of an unlawful act not amounting to a felony, or in the
commission in an unlawful manner, or without due caution and circumspection, of a lawful act
which might produce death.
45
“Year and a day rule.” At common law, a defendant could not be prosecuted for murder unless
the victim died within a year and a day of the act inflicting injury. 4 Blackstone, Commentaries
on the Law of England *197 (1769).
In light of advances in the medical field, which make causal attributions far more reliable, as
well as the ability of doctors to prolong life indefinitely on life support machinery, most
legislatures and courts that have recently considered the issue have concluded that the year-anda-day rule is “an outdated relic of the common law.” Id.
Chapter 7
B. INTENTIONAL KILLINGS
1. DEGREES OF MURDER: DELIBERATION-PREMEDITATION FORMULA
State v. Guthrie
461 So.E 2d (1995)
FACTS
“Murder by poison, lying in wait, imprisonment, starving, or by any willful, deliberate and
premeditated killing, or in the commission of, or attempt to commit, arson, kidnapping, sexual
assault, robbery, burglary, breaking and entering, escape from lawful custody ... is murder of the
first degree. All other murder is murder of the second degree.” W.Va.Code, § 61–2–1
ISSUE
Whether the trial court's instructions regarding the elements of first degree murder were
improper because the terms wilful, deliberate, and premeditated were equated with a mere intent
to kill.
The jury was instructed that in order to find the defendant guilty of murder it had to find five
elements beyond a reasonable doubt: “The Court further instructs the jury that murder in the first
degree is when one person kills another person unlawfully, willfully, maliciously, deliberately
and premeditatedly[.]”
In its effort to define these terms, the trial court gave three instructions. State's Instruction No. 8,
commonly referred to as the Clifford instruction, stated:
“The Court instructs the jury that to constitute a willful, deliberate and premeditated killing, it is
not necessary that the intention to kill should exist for any particular length of time prior to the
actual killing; it is only necessary that such intention should have come into existence for the
first time at the time of such killing, or at any time previously.”
State's Instruction No. 10 stated:
. . .“The Court instructs the jury that in order to constitute a ‘premeditated’ murder an intent to
kill need exist only for an instant.”
State's Instruction No. 12 stated:
“The Court instructs the jury that what is meant by the language willful, deliberate and
premeditated is that the killing be intentional.”
Problem with these instructions:
The linchpin of the problems that flow from these instructions is the failure adequately to inform
the jury of the difference between first and second degree murder. Of particular concern is the
lack of guidance to the jury as to what constitutes premeditation and the manner in which the
instructions infuse premeditation with the intent to kill.* * *
46
In Schrader, we stated:
“Hence, when the West Virginia Legislature adopted the Virginia murder statute in 1868, the
meaning of ‘premeditated’ as used in the statute was essentially ‘knowing’ and ‘intentional.’
Since then, courts have consistently recognized that the mental process necessary to constitute
‘willful, deliberate and premeditated’ murder can be accomplished very quickly or even in the
proverbial ‘twinkling of an eye.’ * * * The achievement of a mental state contemplated in a
statute such as ours can immediately precede the act of killing. Hence, what is really meant by
the language ‘willful, deliberate and premeditated’ * * * is that the killing be intentional.”
(Emphasis added)
We believe within the parameters of our current homicide statutes [these instructtions’] definition of premeditation and deliberation is confusing, if not meaningless.
To allow the State to prove premeditation and deliberation by only showing that the intention
came “into existence for the first time at the time of such killing” completely eliminates the
distinction between the two degrees of murder (1st Degree murder v. Manslaughter].
“Murder by poison, lying in wait, imprisonment, starving, or by any willful, deliberate and
premeditated killing, or in the commission of, or attempt to commit, arson, kidnapping, sexual
assault, robbery, burglary, breaking and entering, escape from lawful custody ... is murder of the
first degree. All other murder is murder of the second degree.” W.Va.Code, § 61–2–1
Finally, we feel obligated to discuss what instruction defining premeditation is now
acceptable: . . .
“ ‘The jury is instructed that murder in the first degree consists of an intentional, deliberate and
premeditated killing which means that the killing is done after a period of time for prior
consideration. The duration of that period cannot be arbitrarily fixed. The time in which to form
a deliberate and premeditated design varies as the minds and temperaments of people differ, and
according to the circumstances in which they may be placed. Any interval of time between the
forming of the intent to kill and the execution of that intent, which is of sufficient duration for the
accused to be fully conscious of what he intended, is sufficient to support a conviction for first
degree murder.’ ”
Conviction is reversed and remanded for a new trial.
Midgett v. State
292 Ark. 278 (1987)
FACTS
ISSUE
The sole issue on appeal is whether the state's evidence was sufficient to sustain the conviction
on first degree murder.
The conclusion of the medical examiner who performed the autopsy was that Ronnie Jr. died as
the result of intra-abdominal hemorrhage caused by a blunt force trauma consistent with having
been delivered by a human fist.
The appellant argues that in spite of all this evidence of child abuse, there is no evidence that he
killed Ronnie Jr. having premeditated and deliberated causing his death. We must agree.
47
The [defendant] was shown to have caused his son's death by delivering a blow to his abdomen
or chest “... with the purpose of causing serious physical injury ... ”
The better view, however, is that to “speak of premeditation and deliberation which are
instantaneous, or which take no appreciable time,.....destroys the statutory distinction between
first and second degree murder,” and ........this view is growing in popularity.
This is not to say, however, that premeditation and deliberation cannot exist when the act of
killing follows immediately after the formation of the intent. The intention may be finally formed
only as a conclusion of prior premeditation and deliberation, while in other cases the intention
may be formed without prior thought so that premeditation and deliberation occurs only with the
passage of additional time for “further thought, and a turning over in the mind.”
The evidence in this case supports only the conclusion that the appellant intended not to kill his
son but to further abuse him or that his intent, if it was to kill the child, was developed in a
drunken, heated, rage while disciplining the child. Neither of those supports a finding of
premeditation or deliberation.
How do some other states treat this situation:
Perhaps because they wish to punish more severely child abusers who kill their children, other
states' legislatures have created laws permitting them to go beyond second degree murder. For
example, Illinois has made aggravated battery one of the felonies qualifying for “felony
murder,” and a child abuser can be convicted of murder if the child dies as a result of
aggravated battery. Georgia makes “cruelty to children” a felony, and homicide in the course of
cruelty to children is “felony murder.” Idaho has made murder by torture a first degree offense,
regardless of intent of the perpetrator to kill the victim, and the offense is punishable by the death
penalty.
Unless our law is changed to permit conviction of first degree murder for something like child
abuse or torture resulting in death, our duty is to give those accused of first degree murder the
benefit of the requirement that they be shown by substantial evidence to have premeditated and
deliberated the killing, no matter how heinous the facts may otherwise be.
However, we find the evidence was sufficient to sustain a conviction of second degree murder,
described in Ark.Stat.Ann. § 41–1503(1)(c) (Repl.1977), as the appellant was shown to have
caused his son's death by delivering a blow to his abdomen or chest “ ... with the purpose of
causing serious physical injury. .. ”
48
The conviction is thus modified from one of first degree murder to one of second degree murder
and affirmed.
Footnote 1: Shortly after Midgett was decided, the Arkansas legislature responded by amending
its criminal code to permit a verdict of first-degree capital murder when, “[u]nder circumstances
manifesting extreme indifference to the value of human life,” a person “knowingly causes the
death of a person fourteen (14) years of age or younger.” Ark. Code Ann. 5–10–101(a)(9).
State v. Forrest
362 S.E.2d 252 (1987)
FACTS
Defendant's father was found in his hospital bed, with several raised spots and blood on the right
side of his head. Blood and brain tissue were found on the bed, the floor, and the wall. Though
defendant's father had been near death as a result of his medical condition, the exact cause of the
deceased's death was determined to be the four point-blank bullet wounds to his head.
Defendant's pistol was a single-action .22-calibre five-shot revolver. The weapon, which had to
be cocked each time it was fired, contained four empty shells and one live round.
ISSUE
Whether . . . the trial court committed reversible error in denying his motion for directed verdict
as to the first-degree murder charge. Specifically, defendant argues that the trial court's
submission of the first-degree murder charge was improper because there was insufficient
evidence of premeditation and deliberation presented at trial.
We hold in the present case that there was substantial evidence that the killing was premeditated
and deliberate and that the trial court did not err in submitting to the jury the question of
defendant's guilt of first-degree murder based upon premeditation and deliberation.
Premeditation means that the act was thought out beforehand for some length of time, however
short, but no particular amount of time is necessary for the mental process of
49
premeditation. Deliberation means an intent to kill, carried out in a cool state of blood, in
furtherance of a fixed design for revenge or to accomplish an unlawful purpose and not under the
influence of a violent passion, suddenly aroused by lawful or just cause or legal provocation. The
phrase “cool state of blood” means that the defendant's anger or emotion must not have been
such as to overcome his reason.
Premeditation and deliberation relate to mental processes and ordinarily are not readily
susceptible to proof by direct evidence. Instead, they usually must be proved by circumstantial
evidence. Among other circumstances to be considered in determining whether a killing was
with premeditation and deliberation are:
(1) want of provocation on the part of the deceased;
(2) the conduct and statements of the defendant before and after the killing;
(3) threats and declarations of the defendant before and during the course of the occurrence
giving rise to the death of the deceased;
(4) ill-will or previous difficulty between the parties;
5) the dealing of lethal blows after the deceased has been felled and rendered helpless; and
(6) evidence that the killing was done in a brutal manner. We have also held that the nature and
number of the victim's wounds is a circumstance from which premeditation and deliberation can
be inferred.
Girouard v. State
321 Md. 532 (199187)
FACTS
ISSUE
Whether words alone are provocation adequate to justify a conviction of manslaughter rather
than one of second degree murder.
Ultimate issue in the case:
whether the taunting words uttered by Joyce were enough to inflame the passion of a reasonable
man so that that man would be sufficiently infuriated so as to strike out in hot-blooded blind
passion to kill her.
Initially, we note that the difference between murder and manslaughter is the presence or
absence of malice. Voluntary manslaughter has been defined as “an intentional homicide, done
in a sudden heat of passion, caused by adequate provocation, before there has been a reasonable
opportunity for the passion to cool”
What does Girouard want?
Second degree murder charge reduced to Voluntary Manslaughter
Why not Murder in the first degree?
2-201. Murder in the first degree
In general
(a) A murder is in the first degree if it is:
(1) a deliberate, premeditated, and willful killing;
2-204. Murder in the second degree
In general
(a) A murder that is not in the first degree under § 2-201 of this subtitle is in the second degree.
50
Voluntary manslaughter is a killing that would otherwise be second degree murder, but for the
presence of a mitigating circumstance.
A mitigating circumstance may be “a sudden heat of passion caused by adequate provocation,
before there has been a reasonable opportunity for the passion to cool,”
Other types of defenses that mitigate murder to manslaughter . . . Commonly regarded as falling
within this group are killings stemming from a heat of passion, such as (1) discovering a spouse
in the act of sexual intercourse with another; (2) mutual combat; and (3) assault and battery. . .
These acts, because they create passion in the defendant and are not the product of a free will,
negate malice and thus mitigate a homicide to manslaughter.
State v. Faulkner (Md.,1984)
Words spoken by the victim, no matter how abusive or taunting, fall into a category society
should not accept as adequate provocation. According to the State, if abusive words alone could
mitigate murder to manslaughter, nearly every domestic argument ending in the death of one
party could be mitigated to manslaughter. This, the State avers, is not an acceptable outcome.
Thus, the State argues that the courts below were correct in holding that the taunting words by
Joyce Girouard were not provocation adequate to reduce Steven’s second degree murder charge
to voluntary manslaughter.
In order to determine whether murder should be mitigated to manslaughter we look to the
circumstances surrounding the homicide and try to discover if it was provoked by the victim.
Over the facts of the case we lay the template of the so-called “Rule of Provocation.” The courts
of this State have repeatedly set forth the requirements of the Rule of Provocation:
1. There must have been adequate provocation;
2. The killing must have been in the heat of passion;
3. It must have been a sudden heat of passion—that is, the killing must have followed the
provocation before there had been a reasonable opportunity for the passion to cool;
4. There must have been a causal connection between the provocation, the passion, and the
fatal act.
We shall assume without deciding that the second, third, and fourth of the criteria listed above
were met in this case.
We focus our attention on an examination of the ultimate issue in this case, that is, whether the
provocation of Steven by Joyce was enough in the eyes of the law so that the murder charge
against Steven should have been mitigated to voluntary manslaughter.
For provocation to be “adequate,” it must be “ ‘calculated to inflame the passion of a reasonable
man and tend to cause him to act for the moment from passion rather than reason.’ ”
The issue we must resolve, then, is whether the taunting words uttered by Joyce were enough to
inflame the passion of a reasonable man so that that man would be sufficiently infuriated so as to
strike out in hot-blooded blind passion to kill her. Although we agree with the trial judge that
there was needless provocation by Joyce, we also agree with him that the provocation was not
adequate to mitigate second degree murder to voluntary manslaughter.
51
Although there are few Maryland cases discussing the issue at bar, those that do hold that words
alone are not adequate provocation....... [W]ords can constitute adequate provocation if they are
accompanied by conduct indicating a present intention and ability to cause the defendant bodily
harm.
Clearly, no such conduct was exhibited by Joyce in this case. While Joyce did step on Steven’s
back and pull his hair, he could not reasonably have feared bodily harm at her hands.
Thus, with no reservation, we hold that the provocation in this case was not enough to cause a
reasonable man to stab his provoker 19 times.
. . . The standard is one of reasonableness; it does not and should not focus on the peculiar
frailties of mind of the Petitioner. That standard of reasonableness has not been met here.
Note 1: Compare the standard for adequate provocation in Girouard With Maher
In Girouard: For provocation to be “adequate,”:
The situation ‘calculated to inflame the passion of a reasonable man and tend to cause him to act
for the moment from passion rather than reason.’ ”
Justice Christiancy of the Michigan Supreme Court in Maher v. People explained the concept
this way:
The principle involved in the question [of what constitutes “adequate provocation”], and which I
think clearly deducible from the majority of well considered cases, would seem to suggest as the
true general rule: that reason should, at the time of the act, be disturbed or obscured by passion
to an extent which might render ordinary men, of fair average disposition, liable to act rashly or
without due deliberation or reflection, and from passion, rather than judgment.
Note 2: Words as provocation. At common law, “words alone” do not constitute adequate
provocation. Is the reason that, as an empirical matter, ordinary people do not act violently in
response to verbal assaults? If that isn’t the reason, what is the explanation for the rule? Should it
be the rule?
* * * Thus, with no reservation, we hold that the provocation in this case was not enough to
cause a reasonable man to stab his provoker 19 times. * * * The standard is one of
reasonableness; it does not and should not focus on the peculiar frailties of mind of the
Petitioner. That standard of reasonableness has not been met here. We cannot in good conscience
countenance holding that a verbal domestic argument ending in the death of one spouse can
result in a conviction of manslaughter.
We agree with the trial judge that social necessity dictates our holding.
Note 5: “Cooling off time.” The provocation defense is unavailable to a defendant who kills the
victim after he has a “reasonable opportunity for the passion to cool,” i.e., after a reasonable
person in the defendant’s situation would have calmed down. Originally, this element of the
defense was determined by the judge, but it, too, is now ordinarily a question of fact for the jury.
How does the “cooling off time” prong of the defense play out in Girouard?
How long between the time Steven fetched the knive and stabbed Joyce?
Short estimates?
Long estimates?
Elapse of some 60 to 90 seconds between “altercation” in which defendant's passions were
roused to the boiling point and the stabbing was not sufficient as a matter of law for a “hot
52
blooded” passion to subside and allow for “cool deliberation” so as to preclude manslaughter
conviction under the rule of provocation.
Carter v. State, 66 Md.App. 567 (Md.App.,1986)
Justification Defense: With a justification, society indicates its approval of the actor’s conduct *
* *. With homicide, for example, the existence of a justification [such as self-defense] implies
that under the circumstances * * * society * * * does not believe that the death of the human
being was undesirable, or that it at least represents a lesser harm than if the defendant had not
acted as he did. * * *
A defendant asserting an excuse admits to wrongdoing, but asserts that he should not be
punished because he is not morally blameworthy for the harm. Thus, [whereas justifications
focus on the act,] excuses focus on the actor * * *. * * * The insane killer, for example, avoids
punishment, not because there was no harm in the killing, but because his mental disease renders
his conduct in some fashion morally blameless. * * *
•
•
Common Law
• All forms of adequate provocation involve unlawful acts.
• Lawful conduct, no matter how provocative, is never adequate
provocation.
• as justification based, by contending that it is the unlawfulness of the
provocation which makes the response (killing) less socially undesirable.
As Aristotle said, “it is apparent injustice that occasions rage.” The typical
victim in a heat of passion case is someone who has “asked for it.” The
attacker is, in a way, only “restor[ing] the balance of justice.”
• Not applicable to lover caught in IN FLAGRANTE DELICTO: ]while the
crime is blazing, {That would be murder]
There is substantial basis, then, for the claim that heat of passion is, at least at times,
viewed as a partial justification * * *.c
•
: The provocation must be so serious that we are prepared to say that an ordinary
person in the actor’s circumstances, even an ordinarily law-abiding person of
reasonable temperament, might become sufficiently upset by the provocation [and
suffer such an emotional outburst as] to experience substantial impairment of his
capacity for self-control * * *.
•
Instead the defense is based on our common experience that when we become
exceptionally angry—remembering that we are not blaming the person for his
anger—our ability to conform our conduct to the dictates of the law is seriously
undermined, hence making law-abiding behavior far more difficult than in
nonprovocative circumstances. It is this understandably greater difficulty to control
conduct that appropriately mitigates a provoked actor’s blameworthiness, and
therefore, his responsibility for a homicide
Model Penal Code and Beyond
53
People v. Casassa
49 NY2d 668 (1980)
FACTS
ISSUE
Whether the trial court erred in concluding that the defendant, in a murder prosecution, failed to
establish the affirmative defense of “extreme emotional disturbance” which would have reduced
the crime to manslaughter in the first degree.
The defendant did not contest the underlying facts of the crime. Instead, the sole issue presented
to the trial court was whether the defendant, at the time of the killing, had acted under the
influence of “extreme emotional disturbance.” (Penal Law, § 125.25, subd. 1, par. [a].)
Again, what did Casassa want?
He wanted to have his second degree murder charge lowered to manslaughter.
How did he try and prove his “extreme emotional disturbance” ?
§ 125.25 Murder in the second degree.
A person is guilty of murder in the second degree when
1. With intent to cause the death of another person, he causes the death of such person or of
a third person; except that in any prosecution under this subdivision, it is an affirmative
defense that:
2. (a) The defendant acted under the influence of extreme emotional disturbance for which
there was a reasonable explanation or excuse, the reasonableness of which is to be
determined from the viewpoint of a person in the defendant's situation under the
circumstances as the defendant believed them to be. Nothing contained in this paragraph
shall constitute a defense to a prosecution for, or preclude a conviction of, manslaughter
in the first degree or any other crime
The defense presented only one witness, a psychiatrist, who testified, in essence, that the
defendant had become obsessed with Miss Lo Consolo and that the course which their
relationship had taken, combined with several personality attributes peculiar to defendant, caused
him to be under the influence of extreme emotional disturbance at the time of the killing.
In rebuttal, the People produced several witnesses. Among these witnesses was a psychiatrist
who testified that although the defendant was emotionally disturbed, he was not under the
influence of “extreme emotional disturbance” * * * because his disturbed state was not the
product of external factors but rather was “a stress he created from within himself, dealing
mostly with a fantasy, a refusal to accept the reality of the situation.”
The trial court in resolving this issue noted that the affirmative defense of extreme emotional
disturbance may be based upon a series of events, rather than a single precipitating cause. In
order to be entitled to the defense, the court held,
. . . .a defendant must show that his reaction to such events was reasonable.
In determining whether defendant’s emotional reaction was reasonable, the court considered the
appropriate test to be whether in the totality of the circumstances the finder of fact could
understand how a person might have his reason overcome.
54
Concluding that the test was not to be applied solely from the viewpoint of defendant, the court
found that defendant’s emotional reaction at the time of the commission of the crime was so
peculiar to him that it could not be considered reasonable so as to reduce the conviction to
manslaughter in the first degree. Accordingly, the trial court found defendant guilty of the crime
of murder in the second degree. . . .
On this appeal defendant contends that the trial court erred in failing to afford him the benefit of
the affirmative defense of “extreme emotional disturbance.”
It is argued that the defendant established that he suffered from a mental infirmity not arising to
the level of insanity which disoriented his reason to the extent that his emotional reaction, from
his own subjective point of view, was supported by a reasonable explanation or excuse.
Defendant asserts that by refusing to apply a wholly subjective standard the trial court
misconstrued section 125.25 of the Penal Law. We cannot agree.
Section 125.25 (subd. 1, par. [a]) of the Penal Law provides that it is an affirmative defense to
the crime of murder in the second degree where “[t]he defendant acted under the influence of
extreme emotional disturbance for which there was a reasonable explanation or excuse.”
This defense allows a defendant charged with the commission of acts which would otherwise
constitute murder to demonstrate the existence of mitigating factors which indicate that, although
he is not free from responsibility for his crime, he ought to be punished less severely by reducing
the crime upon conviction to manslaughter in the first degree.
This defense allows a defendant charged with the commission of acts which would otherwise
constitute murder to demonstrate the existence of mitigating factors which indicate that, although
he is not free from responsibility for his crime, he ought to be punished less severely by reducing
the crime upon conviction to manslaughter in the first degree.
Proposed MPC Commentary:
“An emotional disturbance is excusable “if it is occasioned y any provocation, event or situation
for which the offender was not culpably responsible.” Under this formulation, extreme
emotional disturbance will not reduce murder to manslaughter, if the actor has intentionally,
knowingly, recklessly, or negligently about his own mental disturbance.
The thrust of defendant’s claim, however, concerns a question arising out of [a] perceived
distinction between “heat of passion” and “extreme emotional disturbance” . . ., to wit: whether,
assuming that the defense is applicable to a broader range of circumstances, the standard by
which the reasonableness of defendant’s emotional reaction is to be tested must be an entirely
subjective one. * * *
Consideration of the Comments to the Model Penal Code, from which the New York statute was
drawn, are instructive. The defense of “extreme emotional disturbance” has two principal
components—
§ 210.3. Manslaughter.
(1) Criminal homicide constitutes manslaughter when:
...
55
(b) a homicide which would otherwise be murder is committed under the influence of extreme
mental or emotional disturbance for which there is reasonable explanation or excuse. The
reasonableness of such explanation or excuse shall be determined from the viewpoint of a person
in the actor's situation under the circumstances as he believes them to be.
Consideration of the Comments to the Model Penal Code, from which the New York statute was
drawn, are instructive. The defense of “extreme emotional disturbance” has two principal
components—
(1) the particular defendant must have “acted under the influence of extreme emotional
disturbance,” and
(2) there must have been “a reasonable explanation or excuse” for such extreme emotional
disturbance, “the reasonableness of which is to be determined from the viewpoint of a person in
the defendant’s situation under the circumstances as the defendant believed them to be.”
Discussion of the MPC commentary on § 210.3(1)(b)
The first requirement is wholly subjective—i.e., it involves a determination that the particular
defendant did in fact act under extreme emotional disturbance, that the claimed explanation as to
the cause of his action is not contrived or sham.
The second component is more difficult to describe—i.e., whether there was a reasonable
explanation or excuse for the emotional disturbance.
It was designed to sweep away “the rigid rules that have developed with respect to the
sufficiency of particular types of provocation, such as the rule that words alone can never be
enough,” and “avoids a merely arbitrary limitation on the nature of the antecedent circumstances
that may justify a mitigation.”
“The ultimate test, however, is objective; there must be ‘reasonable’ explanation or excuse for
the actor’s disturbance.” In light of these comments and the necessity of articulating the defense
in terms comprehensible to jurors, we conclude that the determination whether there was
reasonable explanation or excuse for a particular emotional disturbance should be made by
viewing the subjective, internal situation in which the defendant found himself. and the external
circumstances as he perceived them at the time, however inaccurate that perception may have
been, and assessing from that standpoint whether the explanation or excuse for his emotional
disturbance was reasonable, so as to entitle him to a reduction of the crime charged from murder
in the second degree to manslaughter in the first degree.
Footnote 2
We emphasize that this test is to be applied to determine whether defendant’s emotional
disturbance, and not the act of killing, was supported by a reasonable explanation or
excuse.
The Model Code endorses a formulation that affords sufficient flexibility to differentiate in
particular cases between those special aspects of the actor’s situation that should be deemed
56
material for purpose of grading and those that should be ignored. There thus will be room for
interpretation of the word “situation,” and that is precisely the flexibility desired. * * * In the
end, the question is whether the actor’s loss of self-control can be understood in terms that
arouse sympathy in the ordinary citizen. Section 210.3 faces this issue squarely and leaves the
ultimate judgment to the ordinary citizen in the function of a juror assigned to resolve the
specific case.
MPC 210.3(1)(b) – Manslaughter
(1) Criminal homicide constitutes manslaughter when: (b) a homicide which would
otherwise be murder is committed under the influence of extreme mental or emotional
disturbance for which there is reasonable explanation or excuse. The reasonableness of
such explanation or excuse shall be determined from the viewpoint of a person in the
actor's situation under the circumstances as he believes them to be.
2. COMMON LAW ORIGINS AND STATUTORY REFORM
Common-Law Background. At common law, murder was defined as the unlawful killing of
another human being with “malice aforethought.”
Whatever the original meaning of that phrase, it became over time an “arbitrary symbol” used by
judges to signify any of a number of mental states deemed sufficient to support liability for
murder.
Successive generations added new content to “malice aforethought” until it encompassed a
variety of mental attitudes bearing no predictable relation to the ordinary sense of the two words.
Even today, judges find in the elasticity of this ancient formula a convenient vehicle for
announcing new departures in the law of homicide.
Summary of definitions of common law “malice aforethought” which converge on four
constituent states of mind.
1) “Intent to kill”: the notion of intent to kill includes awareness that the death of another
would result from one’s actions, even if the actor had no particular desire to achieve such
a consequence. Thus, intentional or knowing homicide was murder unless the actor killed
in the heat of passion engendered by adequate provocation, in which case the crime was
manslaughter.
2) “Intent to cause grievous bodily harm”: Knowledge that conduct would cause serious
bodily injury was generally assimilated to intent and was deemed sufficient for murder if
death of another actually resulted.
3) “Depraved-heart murder”: This label derived from decisions and statutes condemning
as murder unintentional homicide under circumstances evincing a “depraved mind” or an
“abandoned and malignant heart.” . . .the essential concept was one of extreme
recklessness regarding homicidal risk.
4) “Intent to commit a felony.” This is the origin of the felony-murder rule, which
assigns strict liability for homicide committed during the commission of a felony. These
57
four states of mind exhausted the meaning of “malice aforethought”; the phrase had no
residual content
Common-Law Background. Initially, the common law did not distinguish murder from
manslaughter.
Early statutes, however, sought to differentiate among criminal homicides . . .
This led to the division of criminal homicides into:
1) murder, which retained its status as a capital crime, and
2) the lesser offense of manslaughter.
The courts defined murder in terms of the evolving concept of “malice aforethought” and treated
manslaughter as a residual category for all other criminal homicides.
C. UNINTENTIONAL KILLINGS: UNJUSTIFIED RISK-TAKING
INTRODUCTION: A ROAD MAP
The last section considered intentional killings. An intentional killing may constitute murder or
manslaughter (typically, “voluntary manslaughter”)
Murder:
1st Degree: premeditated and deliberated
2nd Degree every other type of intentional killing without adequate
provocation.
(Think Guthrie without delib. and premedit)
Voluntary Manslaughter, murder except committed in heat of
passion or adequate
provocation.
Now we turn to unintentional killings that result from unjustified risk-taking. As with intentional
homicides, some deaths resulting from unjustified risk-taking are classified as murder; others are
classified as manslaughter.
At the bottom end of the culpability scale is mere civil liability for a wrongful death, where there
may be uncontestable fault and perhaps heavy civil liability but still something less than
criminality. [i.e., simple civil negligence]* * *
Higher up the ascending scale of blameworthy negligence are those more “gross deviations”
from the standard of care used by an ordinary person where the negligent conduct can reasonably
be said to manifest “a wanton or reckless disregard of human life.” That level of fault constitutes
involuntary manslaughter of the gross negligence variety.
Yet higher still on the culpability ladder are those acts of a life-endangering nature so reckless
that they manifest a wanton indifference to human life. That level of blameworthiness
constitutes . . . murder of the depraved-heart variety ....... “[O]ur cases have not drawn a precise
line between depraved heart murder and involuntary manslaughter.” As an abstract matter,
however, we know that there is—somewhere—such a line. There must be or else there is no
legally cognizable distinction between murder and manslaughter.
PEOPLE V. KNOLLER
§ 187. “Murder” defined
(a) murder is the unlawful killing of a human being, or a fetus, with malice aforethought.
58
§ 188. Malice, express malice, and implied malice defined
Such malice may be express or implied. It is express when there is manifested a deliberate
intention unlawfully to take away the life of a fellow creature. It is implied, when no
considerable provocation appears, or when the circumstances attending the killing show an
abandoned and malignant heart.
§ 189. Murder; degrees
All murder which is perpetrated by means of a destructive device or explosive, a weapon of mass
destruction, knowing use of ammunition designed primarily to penetrate metal or armor, poison,
lying in wait, torture, or by any other kind of willful, deliberate, and premeditated killing, . . . , or
any murder which is perpetrated by means of discharging a firearm from a motor vehicle,
intentionally at another person outside of the vehicle with the intent to inflict death, is murder of
the first degree. All other kinds of murders are of the second degree.
The statutory definition of implied malice, a killing by one with an “abandoned and malignant
heart” (§ 188), is far from clear in its meaning. Indeed, an instruction in the statutory language
could be misleading, for it “could lead the jury to equate the malignant heart with an evil
disposition or a despicable character” instead of focusing on a defendant’s awareness of the risk
created by his or her behavior.
“Two lines of decisions developed, reflecting judicial attempts ‘to translate this amorphous
anatomical characterization of implied malice into a tangible standard a jury can apply.”
Under both lines of decisions, implied malice requires a defendant’s awareness of the risk of
death to another.
The earlier of the two decisions, . . . originated in . . .People v. Thomas (1953),
malice is implied when “the defendant for a base, antisocial motive and with wanton disregard
for human life, does an act that involves a high degree of probability that it will result in death.”
***
The later line dates from this court’s 1966 decision in People v. Phillips (1966)
Malice is implied when the killing is proximately caused by “ ‘an act, the natural consequences
of which are dangerous to life, which act was deliberately performed by a person who knows that
his conduct endangers the life of another and who acts with conscious disregard for life.’ ” * * *
Concerned, however, that juries might have difficulty understanding the Thomas test’s concept
of “wanton disregard for human life,” we later emphasized that the “better practice in the future
is to charge juries solely in the straightforward language of the conscious disregard for human
life definition of implied malice,” the definition articulated in the Phillips test.
Malice is implied when the killing is proximately caused by “ ‘an act, the natural consequences
of which are dangerous to life, which act was deliberately performed by a person who knows that
his conduct endangers the life of another and who acts with conscious disregard for life.’ ”
MPC § 210.1. Criminal Homicide.
(1) A person is guilty of criminal homicide if he purposely, knowingly, recklessly or
negligently causes the death of another human being.
59
MPC § 210.2. Murder.
(1) Except as provided in Section 210.3(1)(b), criminal homicide constitutes murder when:
(a) it is committed purposely or knowingly; or
(b) it is committed recklessly under circumstances manifesting extreme indifference to the value
of human life. . . .
MPC § 210.3. Manslaughter.
(1) Criminal homicide constitutes manslaughter when:
(a) it is committed recklessly; or
(b) a homicide which would otherwise be murder is committed under the influence of extreme
mental or emotional disturbance for which there is reasonable explanation or excuse. . . .
MPC § 210.4. Negligent Homicide.
(1) Criminal homicide constitutes negligent homicide when it is committed negligently.
MPC § 210.2.(1)(b) Murder
(1) .......[C]riminal homicide constitutes murder when:
(a) committed purposely or knowingly, or
. . . . (b) it is committed recklessly under circumstances manifesting extreme indifference to the
value of human life.
MPC § 210.3. Manslaughter.
(1) Criminal homicide constitutes manslaughter when:
(a) it is committed recklessly
MPC § 210.4. Negligent Homicide.
(1) Criminal homicide constitutes negligent homicide when it is committed negligently.
State v. Williams
4 Wash. App. 908 (1971)
FACTS
ISSUE
Whether, under the circumstances of the case, the failure of the parents to bring the child to a
doctor constitutes sufficient evidence of negligence for conviction of the crime of manslaughter?
On the question of the quality or seriousness of breach of the duty, at common law, in the case of
involuntary manslaughter, the breach had to amount to more than mere ordinary or simple
negligence—gross negligence was essential.
In Washington, however, RCW 9.48.150 supersede[s] involuntary manslaughter as [it was]
defined at common law. Under [this] statute[ ] the crime is deemed committed even though the
death of the victim is the proximate result of only simple or ordinary negligence.
A. Death cause by negligence was manslaughter at common law
B. But the negligence had to be “gross”negligence, simple civil negligence insufficient
The concept of simple or ordinary negligence describes a failure to exercise the “ordinary
caution” necessary to make out the defense of excusable homicide. RCW 9.48.150.
60
Ordinary caution is the kind of caution that a man of reasonable prudence would exercise under
the same or similar conditions.
If, therefore, the conduct of a defendant, regardless of his ignorance, good intentions and good
faith, fails to measure up to the conduct required of a man of reasonable prudence, he is guilty of
ordinary negligence because of his failure to use “ordinary caution.”
If such negligence proximately causes the death of the victim, the defendant, as pointed out
above, is guilty of statutory manslaughter.
§ 2.02(2)(d) Negligently.
A person acts negligently with respect to a material element of an offense when he should be
aware of a substantial and unjustifiable risk that the material element exists or will result from
his conduct. The risk must be of such a nature and degree that the actor's failure to perceive it,
considering the nature and purpose of his conduct and the circumstances known to him, involves
a gross deviation from the standard of care that a reasonable person would observe in the actor's
situation.
UNLAWFUL CONDUCT 1. THE FELONY-MURDER RULE
The classic formulation of the felony-murder doctrine declares that one is guilty of murder if a
death results from conduct during the commission or attempted commission of any felony.
Some courts have made no effort to qualify the application of this doctrine, and a number of
earlier English writers also articulated an unqualified rule.
At the time the Model Code was drafted, a number of American legislatures, moreover,
perpetuated the original statement of the rule by statute. As thus conceived, the rule operated to
impose liability for murder based on the culpability required for the underlying felony without
separate proof of any culpability with regard to the death.
The homicide, as distinct from the underlying felony, was thus an offense of strict liability.
Furthermore, it was hard to claim that the doctrine worked injustice in an age that recognized
only a few felonies and that punished each as a capital offense.
At common law all felonies were punishable by death. In a felony-murder situation, it made little
difference whether the actor was convicted of murder or of the underlying felony because the
punishment was the same.
In modern times, however, legislatures have created a wide range of statutory felonies. Many of
these crimes concern relatively minor misconduct not inherently dangerous to life and carry
maximum penalties far less severe than those authorized for murder . . .
The prospect of such consequences has led to a demand for limitations on the felony-murder
rule.
PEOPLE V. FULLER
86 Cal.App.3d 618 (1978)
FACTS
ISSUE
61
Whether the district court erred in striking the murder count based on felony-murder concluding
that it did not apply to an unintentionally caused death during a high speed automobile chase
following the commission of a nonviolent, daylight burglary of an unattended motor vehicle.
Burglary falls expressly within the purview of California’s first degree felony-murder rule. Any
burglary within Penal Code section 459 is sufficient to invoke the rule.
Thus, the trial court erred in striking the murder count premised upon the felony-murder rule.
§ 189. Murder; degrees
All murder which is perpetrated by means of a destructive device or explosive, a weapon of mass
destruction, knowing use of ammunition designed primarily to penetrate metal or armor, poison,
lying in wait, torture, or by any other kind of willful, deliberate, and premeditated killing, or
which is committed in the perpetration of, or attempt to perpetrate, arson, rape, carjacking,
robbery, burglary, mayhem, kidnapping, train wrecking, or any act punishable under Section
206, 286, 288, 288a, or 289, or any murder which is perpetrated by means of discharging a
firearm from a motor vehicle, intentionally at another person outside of the vehicle with the
intent to inflict death, is murder of the first degree. All other kinds of murders are of the second
degree.
[Under the felony-murder statute,] if a merchant in pursuit of a fleeing shoplifter is killed
accidentally (by falling and striking his head on the curb or being hit by a passing automobile),
the thief would be guilty of first degree felony murder assuming the requisite intent to steal at the
time of the entry into the store.
Such a harsh result destroys the symmetry of the law by equating an accidental killing resulting
from a petty theft with a premeditated murder.
In no sense can it be said that such a result furthers the ostensible purpose of the felony-murder
rule which is to deter those engaged in felonies from killing negligently or accidentally. . . .
MPC § 210.2. Murder.
(1) Except as provided in Section 210.2(1)(b), criminal homicide constitutes murder when:
(a) it is committed purposely or knowingly; or
(b) it is committed recklessly under circumstances manifesting extreme indifference to the value
of human life. Such recklessness and indifference are presumed if the actor is engaged or is an
accomplice in the commission of, or an 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.
MPC § 221.1. Burglary.
(1) Burglary Defined. A person is guilty of burglary if he enters a building or occupied
structure, or separately secured or occupied portion thereof, with purpose to commit a
crime therein, unless the premises are at the time open to the public or the actor is
licensed or privileged to enter. It is an affirmative defense to prosecution for burglary that
the building or structure was abandoned.
MPC § 210.2. Murder.
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(1) Except as provided in Section 210.2(1)(b), criminal homicide constitutes murder
when:
. . . (b) it is committed recklessly under circumstances manifesting extreme indifference
to the value of human life. Such recklessness and indifference are presumed if the actor is
engaged or is an accomplice in the commission of, or an 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.
MPC § 222.1. Robbery.
(1) Robbery Defined. A person is guilty of robbery if, in the course of committing a
theft, he:
(a) inflicts serious bodily injury upon another; or
(b) threatens another with or purposely puts him in fear of immediate serious bodily
injury; or
(c) commits or threatens immediately to commit any felony of the first or second degree.
An act shall be deemed “in the course of committing a theft” if it occurs in an attempt to
commit theft or in flight after the attempt or commission.
Whatever the felony-murder rule’s justification at common law, courts have attempted to provide
the rule with a contemporary rationale. These post hoc rationalizations fall into four general
categories: deterrence, transferred intent, retribution, and general culpability.
The deterrence rationale consists of two different strains:
The first approach views the felony-murder rule as a doctrine intended to deter egligent and
accidental killings during commission of felonies. Proponents argue that co-felons will dissuade
each other from the use of violence if they may be liable for murder.
The second view focuses not on the killing, but on the felony itself, and endorses the felonymurder rule as a deterrent to dangerous felonies. From this perspective, punishing both
accidental and deliberate killings that result from the commission of a felony is “the strongest
possible deterrent” to “undertaking inherently dangerous felonies.”
Critique:
Both of the deterrence justifications are logically flawed and neither has proven to have a basis in
fact.
The illogic of the felony-murder rule as a means of deterring killing is apparent when applied
to accidental killings occurring during the commission of a felony. Quite simply, how does one
deter an unintended act?
Second, the rule from this perspective uses the sanctions for murder to deter felonies, and “it is
usually accepted as wiser to strike at the harm intended by the criminal rather than at the greater
harm possibly flowing from his act which was neither intended nor desired by him.”
Where the killing is unintended, it would be far more sensible to enhance the sentence for
conduct over which the felon had control, such as the carrying of a deadly weapon, rather than
automatically to elevate the killing to murder.
63
C. Transferred Intent and Constructive Malice: The Felony-Murder Rule’s Presumption of
Culpability
The felony-murder rule may be conceptualized as a theory of “transferred or constructive intent.”
This theory posits that the intent to commit the felony is “transferred” to the act of killing in
order to find culpability for the homicide. The rule thus serves “the purpose of * * * reliev[ing]
the state of the burden of proving premeditation or malice.”
Judges and commentators have criticized the transferred intent theory of felony murder as “an
anachronistic remnant” that operates “fictitiously” to broaden unacceptably the scope of murder.
The very concept of transferred intent has been criticized as having “no proper place in criminal
law.” * * *
D. Retribution and General Culpability: A Strict Liability View of the Felony-Murder Rule
An alternative approach is to view the rule as not requiring a separate mens rea element for the
homicide, but as justifying conviction for murder simply on the basis that the defendant
committed a felony and a killing occurred. * * * The justifications advanced for this
conceptualization are deterrence of the underlying felony, and the notion that the felon has
exhibited an “evil mind” justifying severe punishment.
Although the general culpability rationale was perhaps sufficient as long as a general intent of
wrongdoing established malice aforethought, it conflicts with the progressive trend of
categorizing homicide according to the degree of culpability. Indeed, the felony-murder rule . . .
effectively eliminates a mens rea element in convicting a felon for a killing occurring during the
commission of a felony, and results in the rule operating as a strict liability crime: the occurrence
of a killing is punished as murder regardless of the defendant’s culpability.
ii. The “Inherently Dangerous Felony” Limitation
People v. Howard
34 Cal. 4th 1129 (Cal. 2005).
FACTS
ISSUE
Whether the crime of driving with a willful or wanton disregard for the safety of persons or
property while fleeing from a pursuing police officer (Veh.Code, § 2800.2) is an inherently
dangerous felony for purposes of the second degree felony-murder rule?
What is the 2nd degree felony murder rule in California?
. . . [T]he second degree felony-murder rule is a court-made rule, it has no statutory definition.
“A homicide that is a direct causal result of the commission of a felony inherently dangerous to
human life (other than the ... felonies enumerated in Pen.Code, § 189) constitutes at least second
degree murder.” . . . The rule “eliminates the need for proof of malice in connection with a
charge of murder.”
It is not an evidentiary presumption but a substantive rule of law, which is based on the theory
that “when society has declared certain inherently dangerous conduct to be felonious, a
defendant should not be allowed to excuse himself by saying he was unaware of the danger to
life because, by declaring the conduct to be felonious, society has warned him of the risk
involved.”
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What is the standard for determining whether an act is an Inherently Dangerous Felony?
“In determining whether a felony is inherently dangerous [under the second degree felonymurder rule], the court looks to the elements of the felony in the abstract, ‘not the “particular”
facts of the case,’ i.e., not to the defendant's specific conduct. That is, we determine whether the
felony “by its very nature ... cannot be committed without creating a substantial risk that
someone will be killed ... ”
Felonies that have been held inherently dangerous to life include shooting at an inhabited
dwelling, poisoning with intent to injure, arson of a motor vehicle ...... manufacturing
methamphetamine, kidnapping, and reckless or malicious possession of a destructive device
Felonies that have been held not inherently dangerous to life include ...... false imprisonment by
violence, menace, fraud, or deceit; possession of a concealable firearm by a convicted felon;
possession of a sawed-off shotgun; [prison] escape; grand theft; conspiracy to possess
methedrine; extortion; ...... and child endangerment or abuse.
Is §2800.2 an Inherently Dangerous Felony in the abstract?
Section 2800.2 provides:
(a) If a person flees or attempts to elude a pursuing peace officer in violation of Section
2800.1 and the pursued vehicle is driven in a willful or wanton disregard for the safety of
persons or property, the person driving the vehicle, upon conviction, shall be punished by
imprisonment in the state prison, or by confinement in the county jail ....... The court may
also impose a fine...... or may impose both that imprisonment or confinement and fine.
(b) For purposes of this section, a willful or wanton disregard for the safety of persons or
property includes, but is not limited to, driving while fleeing or attempting to elude a
pursuing peace officer during which time either three or more violations that are assigned
a traffic violation point count under Section 12810 occur, or damage to property occurs.
Implication?
§ 2800.2 is not an inherently dangerous felony considered in the abstract, because it can be
violated with conduct that is not inherently dangerous.
A felony is not inherently dangerous if there is any way it can be committed without creating a
substantial risk of death to someone.
ii. The “Independent Felony” (or Merger) Limitation
People v. Smith
35 Cal. 3d 798 (Cal. 1984)
ISSUE
Whether felony child abuse may serve as the underlying felony to support a conviction of second
degree murder on a felony-murder theory.
Our opinions have repeatedly emphasized that felony murder, although the law of this state, is a
disfavored doctrine . . . .
65
Accordingly, we have reiterated that this “highly artificial concept” “should not be extended
beyond any rational function that it is designed to serve.” “Applying this principle to various
concrete factual circumstances, we have sought to insure that the [doctrine] . . . be given the
narrowest possible application consistent with its ostensible purpose—which is to deter those
engaged in felonies from killing negligently or accidentally.”
In accord with this policy, we restricted the scope of the felony-murder rule in [People v.
Ireland (1969)
In that case the defendant and his wife were experiencing serious marital difficulties which
eventually culminated in defendant’s drawing a gun and killing his wife.
The jury was instructed that it could find the defendant guilty of second degree felony murder if
it determined that the homicide occurred during the commission of the underlying felony of
assault with a deadly weapon.
“. . . if the jury derived from the instruction the correct meaning of the doctrine in question, it
would have concluded that it should find defendant guilty of second degree murder if it found
only that the homicide was committed in the perpetration of the crime of assault with a deadly
weapon. Thus, the proper understanding of the instruction would have relieved the jury from a
specific finding of malice aforethought.”
The effect of such instruction, . . . was, therefore, to substantially eviscerate the defense of
diminished capacity to negative malice, since malice was imputed.
The net effect of this imputation would be to hold that all intentional killings accomplished by
means of a deadly weapon were murder regardless of the circumstances and could never be
mitigated to manslaughter, since all such killings included in fact an assault with a deadly
weapon.
We held that such effect was impermissible.
We therefore hold that a second degree felony-murder instruction may not properly be given
when it is based upon a felony which is an integral part of the homicide and which the evidence
produced by the prosecution shows to be an offense included in fact within the offense charged.
People v. Ireland, 450 P.2d 580, 590
This is referred to as the Felony Murder “Merger Limitation”
In Wilson we held that the felony-murder rule cannot apply to burglary-murder cases in which
“the entry would be non-felonious but for the intent to commit the assault, and the assault is an
integral part of the homicide and is included in fact in the offense charged . . . “.
Because under Ireland the “elements of the assault were necessary elements of the homicide,”
the felony of burglary based on an intent to commit assault was included in fact in the homicide.
We reasoned that “Where a person enters a building with an intent to assault his victim with a
deadly weapon, he is not deterred by the felony-murder rule. That doctrine can serve its purpose
only when applied to a felony independent of the homicide.”
Cases in which the second-degree felony-murder doctrine has withstood an Ireland attack include
those in which the underlying felony was furnishing narcotics; driving under the influence of
66
narcotics; poisoning food, drink or medicine; armed robbery; kidnaping; and finally, felony child
abuse by malnutrition and dehydration . . .
Why did Defendants in these cases not succeed in having the second-degree felony murder
instruction barred?
Because in none of these decisions, was the underlying felony one that has included in its
definition and an assault on the person of the victim.
[Hence in the logic of the defense, since there was no intention to commit an assault on the
person of the victim, the felony-murder rule does provide a deterrent, either not to commit the
felony at all, or not to commit homicide negligently or otherwise.]
In Burton, the underlying felony was armed robbery. Therefore, we reasoned, the felony was an
integral part of the homicide and included in fact within it. The defendant asserted that the
felony-murder rule did not apply because an armed robbery necessarily includes an assault with a
deadly weapon.
[BUT] Even if the felony was included within the facts of the homicide and was integral thereto,
a further inquiry is required to determine if the homicide resulted ‘from conduct for an
independent felonious purpose‘ as opposed to a ‘single course of conduct with a single
purpose‘ (ibid.). In cases like Ireland, the ‘purpose of the conduct was the very assault which
resulted in death‘; on the other hand, ‘in the case of armed robbery, as well as the other felonies
enumerated in section 189 of the Penal Code, there is an independent felonious purpose, namely
in the case of robbery to acquire money or property belonging to another.’
We conclude that there is a very significant difference between deaths resulting from assaults
with a deadly weapon, where the purpose of the conduct was the very assault which resulted in
death, and deaths resulting from conduct for an independent felonious purpose, such as robbery
or rape, which happened to be accomplished by a deadly weapon and therefore technically
includes assault with a deadly weapon.
Our inquiry cannot stop with the fact that death resulted from the use of a deadly weapon and,
therefore, technically included an assault with a deadly weapon, but must extend to an
investigation of the purpose of the conduct.
In both Ireland and Wilson the purpose of the conduct which eventually resulted in a homicide
was assault with a deadly weapon, namely the infliction of bodily injury upon the person of
another. The desired infliction of bodily injury was in each case not satisfied short of death.
Thus, there was a single course of conduct with a single purpose.
However, in the case of armed robbery, as well as the other felonies enumerated in section 189
of the Penal Code, there is an independent felonious purpose, namely in the case of robbery to
acquire money or property belonging to another. Once a person has embarked upon a course of
conduct for one of the enumerated felonious purposes, he comes directly within a clear
legislative warning - if a death results from his commission of that felony it will be first degree
murder, regardless of the circumstances.
67
The point is that the felonies enumerated in § 189 that are subject to the felony murder rule do
not have as their object a physical attack on the victim with a high risk of death.
This court has reiterated numerous times that “The purpose of the felony-murder rule is to deter
felons from killing negligently or accidentally by holding them strictly responsible for killings
they commit.” (People v. Washington (1965) 62 Cal.2d 777, 781 [44 Cal.Rptr. 442, 402 P.2d
130].)
iv. Killings “in the Perpetration” or “in Furtherance” of a Felony
STATE V. SOPHOPHONE
Supreme Court of Kansas, 2001.
270 Kan. 703, 19 P.3d 70.
FACTS
ISSUE
Whether the felony-murder rule applies against the defendant
when the killing results from the lawful act of a third party?
This “intervening cause” or “break in circumstances” argument has no merit under the facts of
this case. We have held in numerous cases that “time, distance, and the causal relationship
between the underlying felony and a killing are factors to be considered in determining whether
the killing occurs in the commission of the underlying felony and the defendant is therefore
subject to the felony-murder rule.”
Based on the uncontroverted evidence in this case, the killing took place during flight from the
aggravated burglary, and it is only because the act which resulted in the killing was a lawful one
by a third party that a question of law exists as to whether Sophophone can be convicted of
felony murder
[W]e look to the prevailing views concerning the applicability of the felony-murder doctrine
where the killing has been caused by the acts of a third party. * * *
In Dressler, Understanding Criminal Law, * * * the question is posed of whether the felonymurder rule should apply when the fatal act is performed by a non-felon.
Dressler states: “This issue has perplexed courts. Two approaches to the question have been
considered and applied by the courts.
1. The ‘Agency’ Approach
2. The ‘Proximate Causation’ Approach
“The majority rule is that the felony-murder doctrine does not apply if the person who directly
causes the death is a non-felon.
The reasoning of this approach stems from accomplice liability theory. Generally speaking, the
acts of the primary party (the person who directly commits the offense) are imputed to an
accomplice on the basis of the agency doctrine. It is as if the accomplice says to the primary
party: ‘Your acts are my acts.’ It follows that [a co-felon] cannot be convicted of the homicides
because the primary party was not the person with whom she was an accomplice. It is not
68
possible to impute the acts of the antagonistic party—[the non-felon or] the police officer—to [a
co-felon] on the basis of agency.
The ‘Proximate Causation’ Approach
An alternative theory . . . holds that a felon may be held responsible under the felony-murder
rule for a killing committed by a non-felon if the felon set in motion the acts which resulted in
the victim’s death.
The minority of the states whose courts have adopted the proximate cause theory believe their
legislatures intended that any person, co-felon, or accomplice who commits an inherently
dangerous felony should be held responsible for any death which is a direct and foreseeable
consequence of the actions of those committing the felony.
These courts apply the civil law concept of proximate cause to felony-murder situations.
We hold that under the facts of this case where the killing resulted from the lawful acts of a
law enforcement officer in attempting to apprehend a co-felon, Sophophone is not
criminally responsible for the resulting death of Somphone Sysoumphone, and his felonymurder conviction must be reversed.
3. The res gestae doctrine. What if a felon kills someone after the crime is committed, but
shortly thereafter? In some circumstances, courts will treat the post-felony death as
falling with the “res gestae” of the felony and, therefore, within the scope of the felonymurder rule.
In other words, the death need not technically occur “during” the commission or attempted
commission of the felony, if the death and killing are considered to be part of a continuous
transaction. For example, the felony-murder rule applies if a robber flees to a rooftop, and a
police officer in pursuit falls into an airshaft and dies. People v. Matos, 83 N.Y.2d 509, 611
N.Y.S.2d 785, 634 N.E.2d 157 (1994).
It was also held to apply when the perpetrator of a home invasion, fleeing from a police vehicle,
collided with a civilian car, killing its occupants, ten minutes and ten miles away from the scene
of the felony. People v. Gillis, 474 Mich. 105, 712 N.W.2d 419 (2006).
However, just as a death that results after the felony is completed may be enough to establish
felony-murder rule, a death that temporally occurs during the commission of a felony may not be
enough (as Sophophone demonstrates).
A causal relationship between the felony and the killing must also be established. For example,
the felony-murder rule should not apply if a customer in a grocery store, unaware that a robbery
is underway, coincidentally dies of a heart attack.
Presumably, something more than simple but-for causation must exist between the felony and the
death. That is, the felony must also be a proximate cause of the death (or, as some courts might
put it, there must be a logical nexus to the felony).
One justice, in People v. Hudson, 222 Ill. 2d 392, 305 Ill. Dec. 927, 856 N.E.2d 1078 (2006)
(Freeman, J., specially concurring), has raised the issue with this hypothetical:
69
Defendant X robs an individual at gunpoint. During the robbery, defendant X accidentally
discharges the gun. At the forest preserve two blocks away, the victim is riding a horse. The
horse bolts at the sound of the gunshot, crosses a busy street, and throws the victim to the
ground. An oncoming car cannot stop in a timely fashion and runs over the victim, inflicting the
injuries that result in the death. Here, X is the but-for cause of the death: but for firing the gun,
the horse would not have bolted, and so on.
But, X’s responsibility for the victim’s death based on felony-murder should require a proximate
causation analysis that considers the role of the intervening causes (the horse bolting and the
oncoming car striking the victim).
C. PRINCIPLES OF JUSTIFICATION
1. STRUCTURE AND UNDERLYING THEORIES OF JUSTIFICATION DEFENSES
All justification defenses have the same internal structure: triggering conditions permit a
necessary and proportional response Triggering conditions are the circumstances that must exist
before an actor will be eligible to act under a justification.
For example, in defensive force justifications the justification is triggered if an aggressor presents
a threat of unjustified harm to a protected interest, as by attempting to burn the defendant’s
chicken coop. . . .
The triggering conditions of a justification defense do not give an actor the privilege to act
without restriction.
To be justified, the responsive conduct must satisfy two requirements: (1) it must be necessary to
protect or further the interest at stake, and (2) it must cause only a harm that is proportional or
reasonable in relation to the harm threatened or the interest to be furthered.
The necessity requirement:
Demands that the defendant act only when and to the extent necessary to protect or further the
interest at stake.
Thus, where an aggressor announces his intention to assault the actor at noon the next day, the
threat provides the triggering condition for self-defense. But, if indeed the actor is in no danger at
the time, he is not justified in immediately using physical force against the aggressor.
The proportionality requirement:
Places a limit on the maximum harm that may be used in protection or furtherance of an interest.
It bars justification when the harm caused by the actor may be necessary to protect or further the
interest at stake, but is too severe in relation to the value of the interest. Where an actor has no
other option but deadly force to prevent the stealing of apples from her orchard, a jurisdiction
that prohibits deadly force to protect property essentially requires the actor to sacrifice her apples
out of regard for the thieves’ lives.
2. SELF-DEFENSE
a. General Principles
UNITED STATES V. PETERSON
483 F.2d 1222 (D.C. Cir. 1973).
FACTS
Indicted for second-degree murder, and convicted by a jury
70
of manslaughter as a lesser included offense
Issue:
1. The first of Peterson's complaints centers upon an instruction that the right to use deadly
force in self-defense is not ordinarily available to one who provokes conflict or is the aggressor
in it.
2. The second aspect of the trial judge's charge as to which Peterson asserts error concerned the
undisputed fact that at no time did Peterson endeavor to retreat from Keitt's approach with the
lug wrench.
We are persuaded to the conclusion that in the circumstances presented here, the trial judge did
not err in giving the instruction challenged.
Within the common law of self-defense there developed the rule of “retreat to the wall,”
which ordinarily forbade the use of deadly force by one to whom an avenue for safe retreat
was open.
This doctrine was but an application of the requirement of strict necessity to excuse the taking of
human life, and was designed to insure the existence of that necessity. Even the innocent victim
of a vicious assault had to elect a safe retreat, if available, rather than resort to defensive force
which might kill or seriously injure.
In a majority of American jurisdictions, contrarily to the common law rule, one may stand his
ground and use deadly force whenever it seems reasonably necessary to save himself. While the
law of the District of Columbia on this point is not entirely clear, it seems allied with the strong
minority adhering to the common law.
That is not to say that the retreat rule is without exceptions.
One restriction on its operation comes to the fore when the circumstances apparently foreclose a
withdrawal with safety.
Peterson, however, invokes another—the so-called “castle” doctrine. It is well settled that one
who through no fault of his own is attacked in his home is under no duty to retreat therefrom.
The oft-repeated expression that “a man’s home is his castle” reflected the belief in olden days
that there were few if any safer sanctuaries than the home.
The “castle” exception, moreover, has been extended by some courts to encompass the
occupant’s presence within the curtilage outside his dwelling. Peterson reminds us that when he
shot to halt Keitt’s advance, he was standing in his yard and so, he argues, he had no duty to
endeavor to retreat.
Castle Doctrine
The trial judge's charge to the jury incorporated each of these limitations on the retreat rule.
Peterson, however, invokes another–the so-called “castle” doctrine. It is well settled that one
who through no fault of his own is attacked in his home is under no duty to retreat
therefrom.93 The oft-repeated expression that “a man's home is his castle” reflected the belief in
olden days that there were few if any safer sanctuaries than the home.94 The “castle” exception,
moreover, has been extended by some courts to encompass the occupant's presence within the
71
curtilage outside his dwelling.95 Peterson reminds us that when he shot to halt Keitt's advance, he
was standing in his yard and so, he argues, he had no duty to endeavor to retreat.
Despite the practically universal acceptance of the “castle” doctrine in American jurisdictions
wherein the point has been raised, its status in the District of Columbia has never been squarely
decided.
But whatever the fate of the doctrine in the District law of the future, it is clear that in absolute
form it was inapplicable here.
The right of self-defense, we have said, cannot be claimed by the aggressor in an affray so long
as he retains that unmitigated role. It logically follows that any rule of no-retreat which may
protect an innocent victim of the affray would, like other incidents of a forfeited right of selfdefense, be unavailable to the party who provokes or stimulates the conflict. Accordingly, the
law is well settled that the “castle” doctrine can be invoked only by one who is without fault in
bringing the conflict on. That, we think, is the critical consideration here.
NOTE 1, p. 527 A. Defendant (call him David) invited some friends over for a night of drinking.
During the evening, one of his drunk guests (call him Carl) passed out, only to awaken to find his
wife in bed with the defendant David. Carl, in a fit of rage, lunged at David with a knife. David
grabbed a gun from beneath his bed and shot Carl dead. David now seeks to assert a claim of
self-defense.
Is David entitled to a self-defense instruction?
Peterson provides:
Notice that the court says that “ it has long been accepted that one cannot support a claim of selfdefense by a self-generated necessity to kill. It goes on to say that the defense is available only to
those free from fault in the difficulty. And: it is denied to slayers who incite the fatal attack,
encourage the fatal quarrel or otherwise promote the necessitous occasion taking life.”
While there appears to be no fixed rule on the subject, the cases hold, and we agree, that an
affirmative unlawful act reasonably calculated to produce an affray foreboding injurious or fatal
consequences is an aggression which, unless renounced, nullifies the right of homicidal selfdefense
§ 3.04. Use of Force in Self-Protection.
(1) Use of Force Justifiable for Protection of the Person. Subject to the provisions of this
Section and of Section 3.09, the use of force upon or toward another person is justifiable when
the actor believes that such force is immediately necessary for the purpose of protecting himself
against the use of unlawful force by such other person on the present occasion.
The solution to this situation under the provisions of [Section 3.04] is as follows: B is entitled to
defend himself against A’s attack, but only to the extent of using moderate, nondeadly force. He
is given this privilege by Subsection (1).
B exceeds the bounds of “necessary” force under that provision, however, when, after reducing
A to helplessness, he batters A’s head on the floor. Since this excessive force is, in its turn,
unlawful, under Subsection (1) A is entitled to defend himself against it and, if he believes that
he is then in danger of death or serious bodily harm without apparent opportunity for safe retreat,
72
(1) Use of Force Justifiable for Protection of the Person. Subject to the provisions of this
Section and of Section 3.09, the use of force upon or toward another person is justifiable when
the actor believes that such force is immediately necessary for the purpose of protecting himself
against the use of unlawful force by such other person on the present occasion.
A is entitled to use his knife in self-protection. A of course is criminally liable for his initial
battery on B, but would have a justifying defense that he could raise against prosecution for the
ultimate homicide or wounding.
SELF-DEFENSE
a.
General Principles
Common Law Self-Defensee
So it is that necessity is the pervasive theme of the well defined conditions which the law
imposes on the right to kill or maim in self-defense.
There must have been a threat, actual or apparent, of the use of deadly force against the defender.
The threat must have been unlawful.
The defender must have believed that he was in imminent peril of death or serious bodily harm,
and that his response was necessary to save himself therefrom.
These beliefs must not only have been honestly entertained, but also objectively reasonable in
light of the surrounding circumstances.
Defendant “retreated to the wall” if possible and safe.
No less than a concurrence of these elements will suffice
MPC § 3.04
(b) The use of deadly force is not justifiable under this Section unless the actor believes that such
force is necessary to protect himself against death, serious bodily injury, kidnapping or sexual
intercourse compelled by force or threat; nor is it justifiable if:
*
*
*
(ii) the actor knows that he can avoid the necessity of using such force with complete safety by
retreating or by surrendering possession of a thing to a person asserting a claim of right thereto
or by complying with a demand that he abstain from any action that he has no duty to take,
except that:
(A) the actor is not obliged to retreat from his dwelling or place of work, unless he was the initial
aggressor or is assailed in his place of work by another person whose place of work the actor
knows it to be;
Section 3.09. Mistake of Law as to Unlawfulness of Force or Legality of Arrest; Reckless or
Negligent Use of Otherwise Justifiable Force; Reckless or Negligent Injury or Risk of
Injury to Innocent Persons.
(1) The justification afforded by Sections 3.04 to 3.07, inclusive, is unavailable when:
(3) When the actor is justified . . .in using force upon or toward the person of another but he
recklessly or negligently injures or creates a risk of injury to innocent persons, the justification
afforded by those Sections is unavailable in a prosecution for such recklessness or negligence
towards innocent persons.
73
The Model Penal Code: Commentary on MPC § 3.09[2]:
“[W]e do not believe a person ought to be convicted for a crime . . . where he has labored under a
mistake such that, had the facts been as he supposed, he would have been free from guilt ....... If
the tribunal is satisfied that the belief was held, the defendant in a prosecution for a crime
founded on wrongful purpose should be entitled to be judged on the assumption that his belief
was true. To convict for a belief arrived at on unreasonable grounds is, as we have urged, to
convict for negligence. Where the crime otherwise requires greater culpability for a conviction, it
is neither fair nor logical to convict when there is only negligence as to the circumstances that
would establish a justification.“
Conclusion: If a defendant sincerely believes that he is being threatened in a way that justifies
his use of deadly force, but that belief was negligent than he can only be charged with negligent
homicide MPC §210.4. If he was reckless in forming that belief, he can only be charged with
reckless manslaughter § 210.3
The definitions of recklessness and negligence are explicit on this point, each involving a
substantial and “unjustifiable” risk that a danger to innocent persons will result. Thus, if the only
way to save one’s life is to use deadly force that creates some risk of harm to others, that force
might be justified.
Note 8. Stand your ground laws :
Moreover, § 776.013 was added, and it provides that:
(1) A person is presumed to have held a reasonable fear of imminent peril of death or great
bodily harm to himself or herself or another when using [deadly] defensive force * * * if
(a) The person against whom the defensive force was used was in the process of unlawfully
and forcefully entering, or had unlawfully and forcibly entered, a dwelling, residence, or
occupied vehicle, or if that person had removed or was attempting to remove another
against that person’s will from the dwelling, residence, or occupied vehicle; and
(b) The person who uses or threatens to use defensive force knew or had reason to believe that an
unlawful and forcible entry or unlawful and forcible act was occurring or had occurred;
(3) The presumption set forth in subsection (2) does not apply if:
(a) The person against whom the defensive force is used or threatened has the right to be in
or is a lawful resident of the dwelling, residence, or vehicle, such as an owner, lessee, or
titleholder, and there is not an injunction for protection from domestic violence or a
written pretrial supervision order of no contact against that person; or
(b) The person or persons sought to be removed is a child or grandchild, or is otherwise in the
lawful custody or under the lawful guardianship of, the person against whom the defensive force
is used or threatened; or
(c) The person who uses or threatens to use defensive force is engaged in a criminal activity or is
using the dwelling, residence, or occupied vehicle to further a criminal activity; or
PEOPLE V. GOETZ
Court of Appeals of New York
68 NY 2d 96 (1986)
PROCEDURAL FACTS
74
JUDGE WACHTLER. A Grand Jury has indicted defendant on attempted murder, assault, and
other charges for having shot and wounded four youths on a New York City subway train after
one or two of the youths approached him and asked for $5. The lower courts, concluding that the
prosecutor’s charge to the Grand Jury on the defense of justification was erroneous, have
dismissed the attempted murder, assault and weapons possession charges.
We now reverse and reinstate all counts of the indictment.
NY Penal law § 35.15(2): “A person may not use deadly physical force upon another person
under circumstances specified in subdivision one unless (a) He reasonably believes that such
other person is using or about to use deadly physical force . . . or (b) He reasonably believes that
such other person is committing or attempting to commit a kidnapping, forcible rape, forcible
sodomy or robbery”
Because the evidence before the * * * Grand Jury included statements by Goetz that he acted to
protect himself from being maimed or to avert a robbery, the prosecutor correctly chose to
charge the justification defense in section 35.15 to the Grand Jury.
The prosecutor responded by instructing the grand jurors that they were to consider the
circumstances of the incident and determine “whether the defendant’s conduct was that of a
reasonable man in the defendant’s situation.”
It is this response by the prosecutor—and specifically his use of “a reasonable man”—which
is the basis for the dismissal of the charges by the lower courts.
As expressed repeatedly in the Appellate Division’s plurality opinion, because section 35.15 uses
the term “he reasonably believes,” the appropriate test, according to that court, is whether a
defendant’s beliefs and reactions were “reasonable to him.”
Under that reading of the statute, a jury which believed a defendant’s testimony that he felt that
his own actions were warranted and were reasonable would have to acquit him, regardless of
what anyone else in defendant’s situation might have concluded.
Penal statutes in New York have long codified the right recognized at common law to use deadly
physical force, under appropriate circumstances, in self-defense.
These provisions have never required that an actor’s belief as to the intention of another
person to inflict serious injury be correct in order for the use of deadly force to be justified,
but they have uniformly required that the belief comport with an objective notion of
reasonableness.
MPC § 3.04(2)(b): The use of deadly force is not justifiable under this Section unless the actor
believes that such force is necessary to protect himself against death, serious bodily harm,
kidnapping or sexual intercourse compelled by force or threat.
MPC § 3.09[2]: When the actor believes that the use of force upon or toward the person of
another is necessary for any of the purposes for which such belief would establish a justification
under Section [3.04] . . . but the actor is reckless or negligent in having such belief or in
acquiring or failing to acquire any knowledge or belief which is material to the justifiability of
his use of force, the justification afforded by those Sections is unavailable in a prosecution for an
offense for which recklessness or negligence, as the case may be, suffices to establish culpability.
75
Unreasonable belief: “imperfect” defense?
It [self defense] may be divided into two general classes, to wit, perfect and imperfect right of
self defense.... If, however, [the defendant] was in the wrong,-if he was himself violating or in
the act of violating the law,-and on account of his own wrong was placed in a situation wherein it
became necessary for him to defend himself against an attack made upon himself which was
superinduced or created by his own wrong, then the law justly limits his right of self defense, and
regulates it according to the magnitude of his own wrong. Such a state of case may be said to
illustrate and determine what in law would be denominated the imperfect right of self-defense.
Whenever a party by his own wrongful act produces a condition of things wherein it becomes
necessary for his own safety that he should take life or do serious bodily harm, then indeed the
law wisely imputes to him his own wrong and its consequences to the extent that they may and
should be considered in determining the grade of offense which but for such acts would never
have been occasioned.
State v. Faulkner, 483 A.2d 759, 762–63, 301 Md. 482, 488–89 (Md.,1984)
Many states now recognize “imperfect” or “incomplete” justifications defenses. In these
jurisdictions, a defendant is guilty of manslaughter, rather than murder
.
State v. Faulkner, 483 A.2d 759, 762–63, 301 Md. 482, 488–89 (Md.,1984)
Note 11. Self-defense and innocent bystanders. When Goetz shot the four youths, innocent
subway passengers were sitting nearby. Suppose that an errant bullet from Goetz’s gun had
struck and killed one of the bystanders. Should Goetz’s self-defense claim against the youths
apply in a prosecution for the death of the bystander?
How would the Model Penal Code answer this question? See MPC §3.09.
Section 3.09. Mistake of Law as to Unlawfulness of Force or Legality of Arrest; Reckless or
Negligent Use of Otherwise Justifiable Force; Reckless or Negligent Injury or Risk of
Injury to Innocent Persons.
*
*
*
(3) When the actor is justified under Sections 3.03 to 3.08 in using force upon or toward the
person of another but he recklessly or negligently injures or creates a risk of injury to innocent
persons, the justification afforded by those Sections is unavailable in a prosecution for such
recklessness or negligence towards innocent persons.
3. Defense of Others
People v. Kurr
203 Mich.App. 317 (2002)
FACTS
ISSUE
Whether the trial court erred in failing to instruct on defense of others concluding that a nonviable fetus does not constitutes an “other” for purposes of asserting that defense.
And
“was she thereby denied “her constitutional right to present a defense”
76
“In Michigan, the killing of another person in self-defense is justifiable homicide if the defendant
honestly and reasonably believes that his life is in imminent danger or that there is a threat of
serious bodily harm.” . . . Case law in Michigan also allows a person to use deadly force in
defense of another.
Traditionally, the “defense of others” concept applied solely to those persons with whom the
defendant had a special relationship, such as a wife or brother ............. [T]he defense now makes
no distinction between strangers and relatives with regard to its application.
We conclude that in this state, the defense should also extend to the protection of a fetus, viable
or nonviable, from an assault against the mother, and we base this conclusion primarily on the
fetal protection act adopted by the Legislature in 1998. See M.C.L. § 750.90a et seq. This act
punishes individuals who harm or kill fetuses or embryos under various circumstances.
The plain language of these provisions shows the Legislature's conclusion that fetuses are worthy
of protection as living entities as a matter of public policy
This definition clearly encompasses nonviable fetuses. Moreover, the legislative analysis of the
act indicates that, in passing the act, the Legislature was clearly determined to provide criminal
penalties for harm caused to nonviable fetuses during assaults or negligent acts against pregnant
women.
Because the act reflects a public policy to protect even an embryo from unlawful assaultive or
negligent conduct, we conclude that the defense of others concept does extend to the protection
of a nonviable fetus from an assault against the mother.
We emphasize, however, that the defense is available solely in the context of an assault against
the mother. Indeed, the Legislature has not extended the protection of the criminal laws to
embryos existing outside a woman's body, i.e., frozen embryos stored for future use, and we
therefore do not extend the applicability of the defense of others theory to situations involving
these embryos.
Defendant now argues that because the trial court did not instruct the jury on the defense of
others theory, she was denied her constitutional right to present a defense.
In light of our holding regarding the applicable law, we must now determine whether the trial
court's jury instructions represented an adequate application of the law to the facts of the instant
case. A criminal defendant has a state and federal constitutional right to present a defense.
Instructional errors that directly affect a defendant's theory of defense can infringe a defendant's
due process right to present a defense.
Here, the trial court permitted defendant to present evidence that would establish a defense of
others theory at trial. However, despite its pretrial ruling concerning the issue, the court declined
to give the ‘defense of others’ jury instruction, and defendant contends that this omission
severely prejudiced her.
Because the jury instructions essentially excluded consideration of defendant's viable defense of
others theory, a new trial is warranted.
In general, a person is justified today in using force to protect a third party from unlawful use of
force by an aggressor. The intervenor’s right to use force in such circumstances parallels the
77
third party’s right of self-defense. Put differently, she may use force when, and to the extent that,
the third party would apparently be justified in using force to protect himself.
MPC § 3.05. Use of Force for the Protection of Other Persons.
(1) Subject to the provisions of this Section and of Section 3.09, the use of force upon or toward
the person of another is justifiable to protect a third person when:
(a) the actor would be justified under Section 3.04 in using such force to protect himself against
the injury he believes to be threatened to the person whom he seeks to protect; and
(b) under the circumstances as the actor believes them to be, the person whom he seeks to protect
would be justified in using such protective force; and
(c) the actor believes that his intervention is necessary for the protection of such other person.
NOTE 3: In general, a person is justified today in using force to protect a third party from
unlawful use of force by an aggressor. The intervenor’s right to use force in such circumstances
parallels the third party’s right of self-defense. Put differently, she may use force when, and to
the extent that, the third party would apparently be justified in using force to protect himself.
At one point, most jurisdictions applied the “alter ego rule”: a person who comes to the aid of
another is placed in the shoes of the individual for whom she was providing assistance. Put
differently, the right to defend another is no greater than the right of the third person to defend
himself. Since C had no right to defend himself in this example, A cannot validly assert defenseof-others in an “alter ego” jurisdiction.
This is no longer the majority rule. Most states now provide that if A acts on the basis of a
reasonable belief, the defense applies to A, even if C has no right of self-defense. What do you
think is the rationale for this rule? Which approach—the alter ego rule or the “reasonable belief”
standard—is preferable?
STATE V. BOYETT
144 N.M. 184 (2008)
FACTS
ISSUE
Whether the trial court erred in refusing to instruct the jury on “defense of habitation”
concluding that the defense “did not apply in this case because Defendant did not shoot Victim
inside his home.”
Defense of habitation has long been recognized in New Mexico.
It gives a person the right to use lethal force against an intruder when such force is necessary to
prevent the commission of a felony in his or her home.
The defense is grounded in the theory that “ [t]he home is one of the most important institutions
of the state, and has ever been regarded as a place where a person has a right to stand his [or her]
ground and repel, force by force, to the extent necessary for its protection.
Ultimately, in every purported defense of habitation, the use of deadly force is justified only if
the defendant reasonably believed that the commission of a felony in his or her home was
immediately at hand and that it was necessary to kill the intruder to prevent that occurrence.
78
But our courts have never held that entry into the defendant's home is a prerequisite for the
defense. On the contrary, the seminal New Mexico case on defense of habitation was clear that,
in certain circumstances, it may justify an occupant's use of lethal force against an intruder who
is outside the home. [Citing Bailey, 27 N.M. at 162]
In addition to providing a defense for the killing of an intruder already inside the defendant's
home, Bailey explained that defense of habitation justifies killing an intruder who is assaulting
the defendant's home with the intent of reaching its occupants and committing a felony against
them.
Protecting a defendant's right to prevent forced entry necessitates that the defense apply when an
intruder is outside the home but endeavoring to enter it.
This interpretation of defense of habitation is supported by Couch, where the defendant fired a
shotgun from within his home at an intruder who was outside, pelting the home with rocks.
Prior to the night of the shooting, the defendant's home had repeatedly been broken into, which
caused he and his wife to “suffer intensely from apprehension of violence at the hands of the
unknown intruder.” When the later assault on their home occurred, both the defendant and his
wife believed that the attackers were the same people who had previously broken in. This Court
concluded that, even though the victim was killed outside the home, the defendant was entitled to
an instruction on defense of habitation because he could reasonably have believed that the
person attacking it intended to enter and commit violence against the occupants.
We recognize that “[t]he term felony in former times carried a connotation of greater threat than”
it does today. “ Felonies are no longer constrained to forcible and atrocious crimes, and were
we not to update Bailey's “felony” language, defense of habitation may apply to situations in
which an intruder attempts to force entry into a home with the purpose of committing a nonviolent felony, such as bribing a public official therein.
Seeking to avoid such absurdity, we turn to our prior decisions to determine the meaning of
“felony” as it is used in the defense of habitation context.
Those authorities show that the term “felony” in the defense of habitation context is properly
limited to those felonies involving violence. In other words, the felony that the defendant acted
to prevent must have been one that would have resulted in violence against the occupants were it
not prevented; in the event of any other felony, a defense of habitation instruction would be
unwarranted.
Defendant's argument seems to assert that he should have received the instruction because he
could have reasonably believed that Victim was going to shoot him and then enter his home to
continue the shooting. While that theory justifies the instructions that Defendant received on self
defense, and defense of another, it does not give rise to an instruction on defense of habitation
because it does not allege any attempted forced entry on Victim's part.
Because there is no evidence to support the theory that Defendant killed Victim in defense of his
habitation, refusing the instruction was not in error.
79
Although the trial court erred in its reasons for denying the instruction, the end result of its ruling
was correct, and thus we affirm. (“[E]ven if the district court offered erroneous rationale for its
decision, it will be affirmed if right for any reason.”).
NECESSITY (“CHOICE OF EVILS”)
a. General Principles
NELSON V. STATE
597 P.2d 977 (Alaska 2008)
FACTS
ISSUE
Whether the jury was properly instructed on the defense of necessity?
The sole question presented is whether the jury was properly instructed on the defense of
necessity. Nelson requested an instruction which read:
You are instructed that the defendant is allowed to use a motor vehicle of another person without
permission if the use is for an emergency in the case of immediate and dire need. You are further
instructed that once the defendant has raised the issue of emergency or necessity, the state must
prove the lack of emergency or necessity beyond a reasonable doubt.
Over Nelson’s objection, the court gave an instruction on the necessity defense which read as
follows:
You are instructed that it is a defense to a crime such as joyriding or taking someone else’s motor
vehicle without his permission that the person acted out of necessity in a case of immediate and
dire need. However, such a defense exists only when natural forces create a situation wherein it
becomes necessary for a person to violate the law in order to avoid a greater evil to himself or his
property. The harm which is to be avoided must be the greater harm and it must be immediate
and dire. Where a reasonable alternative other than violating the law is available in order to
avoid the harm the defense of necessity is not applicable
Nelson argues that he was entitled to wording which would explicitly allow the jury to find a
necessity defense if a reasonable person at the time of acting would have believed that the
necessary elements were present. Nelson is correct in stating that the necessity defense is
available if a person acted in the reasonable belief that an emergency existed and there were no
alternatives available even if that belief was mistaken. Moreover, the person’s actions should be
weighed against the harm reasonably foreseeable at the time, rather than the harm that actually
occurs.fn6
Case fn 6:
. . . [T]he defendant must also have acted in the belief that the reasonably foreseeable harm
resulting from the violation would be less than the harm resulting from compliance with the law.
However, here the defendant’s belief is not by itself sufficient. An objective determination must
be made as to whether the defendant’s value judgment was correct, given the facts as he
reasonably perceived them. The majority of jurisdictions appear to hold that this determination
must be made, at least initially, by the court.
80
Assuming that the instruction given was not worded adequately to convey these concepts to the
jury, we would find the error harmless, for Nelson failed to make out a case for the necessity
defense.
8.Necessity
Conduct otherwise criminal is justifiable if the defendant reasonably believed that the conduct
was necessary to avoid some harm to society that would exceed the harm caused by the conduct.
The test is objective; a good faith belief in the necessity of one’s conduct is insufficient.
But, causing the death of another person to protect property is never justified.
Example: Throwing cargo overboard during a violent storm, if necessary to save the lives of the
crew and other people on board a ship, would not constitute criminal damage to property. On the
other hand, throwing some members of the crew overboard to save the cargo would never be
justifiable.
The defense of necessity is not available if the defendant is at fault in creating a situation
requiring her to choose between two evils.
Under the traditional common law view, the pressure producing the choice of evils had to come
from natural forces; however, modern cases do not require that the necessity arise from natural
forces.
Defense of a Dwelling [common law general defense] “defense of habitation”
a.Nondeadly Force
A person is justified in the use of nondeadly force in defense of her dwelling when, and to the
extent that, she reasonably believes that such conduct is necessary to prevent or terminate
another’s unlawful entry into or attack upon her dwelling.
b.Deadly Force
One is generally justified in the use of deadly force in two situations:
1) Tumultuous Entry Plus Personal Danger
Use of deadly force is justifiable where the entry was made or attempted in a riotous, violent, or
tumultuous manner and the person reasonably believes that the use of force is necessary to
prevent a personal attack upon herself or another in the dwelling.
2) Felony
Use of deadly force is also justifiable where the person reasonably believes that such force is
necessary to prevent the entry into the dwelling by a person who intends to commit a [violent]
felony in the dwelling.
4.Defense of Property in general (i.e., not defense of habitation)
a.Nondeadly Force
Nondeadly force may be used to defend property in one’s possession from unlawful
interference. In the case of real property, this means entry or trespass; in the case of personal
property, this means removal or damage. The person must reasonably believe that force is
needed, and the need to use force must reasonably appear imminent. Thus, force may not be used
if a request to desist or refrain from the activity would suffice. In addition, the right is limited to
property in one’s possession. Force cannot be used to regain possession of property that he
reasonably believes was wrongfully taken, unless the person using it is in “immediate pursuit” of
the taker.
b.D eadly Force May Not Be Used
81
Defense of property alone can never justify the use of deadly force. A person may use
deadly force in the defense of property generally only in conjunction with another privileged
use of force, e.g., self-defense, defense of others, or to effectuate an arrest.
Commentators generally agree that there are three essential elements to the defense:
1) the act charged must have been done to prevent a significant evil;
2) 2) there must have been no adequate alternative;
3) 3) the harm caused must not have been disproportionate to the harm avoided.
The instruction given adequately describes these requirements for the jury.
Nelson argues that he was entitled to wording which would explicitly allow the jury to find a
necessity defense if a reasonable person at the time of acting would have believed that the
necessary elements were present. Nelson is correct in stating that the necessity defense is
available if a person acted in the reasonable belief that an emergency existed and there were no
alternatives available even if that belief was mistaken. Moreover, the person’s actions should be
weighed against the harm reasonably foreseeable at the time, rather than the harm that actually
occurs.
8. Necessity
Conduct otherwise criminal is justifiable if the defendant reasonably believed that the conduct
was necessary to avoid some harm to society that would exceed the harm caused by the conduct.
The test is objective; a good faith belief in the necessity of one’s conduct is insufficient.
But, causing the death of another person to protect property is never justified.
Example: Throwing cargo overboard during a violent storm, if necessary to save the lives of the
crew and other people on board a ship, would not constitute criminal damage to property. On the
other hand, throwing some members of the crew overboard to save the cargo would never be
justifiable.
The defense of necessity is not available if the defendant is at fault in creating a situation
requiring her to choose between two evils.
Under the traditional common law view, the pressure producing the choice of evils had to come
from natural forces; however, modern cases do not require that the necessity arise from natural
forces.
DURESS
a. General Principles
U.S. v. CONENTO-PACHON
723 F.2d 691 (9th Cir. 1984)
FACTS
ISSUE
Did the district court err in grating the government’s motion to exclude evidence of
duress and necessity concluding the evidence was insufficient to support the defenses?
There are three elements of the Duress defense:
(1) an immediate threat of death or serious bodily injury,
(2) a well-grounded fear that the threat will be carried out, and
(3) no reasonable opportunity to escape the threatened harm.
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Immediacy:
The element of immediacy requires that there be some evidence that the threat of injury was
present, immediate, or impending. “[A] veiled threat of future unspecified harm” will not satisfy
this requirement.
Contento-Pachon's contention that he was operating under the threat of immediate harm was
supported by sufficient evidence to present a triable issue of fact.
Escapability:
The defendant must show that he had no reasonable opportunity to escape
Defendant presented a triable issue on the element of escapability.
We hold that a defendant who has acted under a well-grounded fear of immediate harm with no
opportunity to escape may assert the duress defense
Necessity
The defense of necessity is available when a person is faced with a choice of two evils and must
then decide whether to commit a crime or an alternative act that constitutes a greater evil.
Defendant has attempted to justify his violation . . . by showing that the alternative, the death of
his family, was a greater evil.
Traditionally, in order for the necessity defense to apply, the coercion must have had its source in
the physical forces of nature. The duress defense was applicable when the defendant’s acts were
coerced by a human force. This distinction served to separate the two similar defenses. But
modern courts have tended to blur the distinction between duress and necessity.
Note 3. Duress and mens rea. Does a coerced person lack the requisite mens rea of an offense?
Consider these observations from Hibbert v. The Queen, [1995] 2 S.C.R. 973 (Can.):
Threats of death or serious bodily harm can effect a person’s state of mind.
However, a person who carries out the actus reus of a criminal offence in response to such
threats will not necessarily lack the mens rea for that offence.
Whether he or she does or not will depend both on what the mental element of the offence in
question happens to be, and on the facts of the particular case.
As a practical matter, though, situations where duress will operate to “negate” mens rea will be
exceptional, for the simple reason that the types of mental states that are capable of being
“negated” by duress are not often found in the definitions of criminal offences.
In general, a person who performs an action in response to a threat will know what he or she is
doing, and will be aware of the probable consequences of his or her actions.
UNITED STATES V. VEACH
455 F.3d 628 (6th Cir 2006)
FACTS
ISSUE
Whether the trial court erred in in granting the government’s motion in limine
to exclude Veach’s presentation of a defense of voluntary intoxication
The jury convicted Veach of one count of resisting a federal law enforcement officer, 18 U.S.C.
§ 111(a)(1), and two counts of threatening to assault and murder a federal law enforcement
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officer with intent to impede such officer in the performance of official duties, 18 U.S.C. §
115(a)(1)(B).
As we have held, “[i]t is well established that intoxication, whether voluntary or involuntary,
may preclude the formation of specific-intent and thus serve to negate an essential element of
certain crimes.”
It is, however, only “the mens rea of a specific-intent crime” that may be negated by a . . .
voluntary intoxication defense; [this defense has] . . . no applicability to general intent crimes.”
To determine whether the district judge properly excluded the defendant’s testimony relating to
his level of intoxication at the time of the crimes charged, it is thus necessary to decide, first,
whether 18 U.S.C. §§ 111(a)(1) and 115(a)(1)(B) are general or specific intent offenses
8 U.S.C. § 111(a)(1):
Whoever forcibly assaults, resists, opposes, impedes, intimidates, or interferes with [any officer
or employee of the United States or of any agency in any branch of the United States
Government, or any person assisting such an officer or employee] while engaged in or on
account of the performance of official duties . . . shall, where the acts . . . constitute only simple
assault, be fined . . . or imprisoned not more than one year, or both . . ..
The mere intentional performance of the prohibited act is sufficient to subject the perpetrator to
federal criminal liability.
The plain language of the statute thus supports the district judge’s conclusion that voluntary
intoxication ....... s not a viable defense to a charge of a violation of § 111.
18 U.S.C. § 115(a)(1)(B):
Whoever threatens to assault, kidnap, or murder, a United States official, a United States judge, a
Federal law enforcement officer, or an official whose killing would be a crime under [18 U.S.C.
§ 1114], with intent to impede, intimidate, or interfere with such official, judge, or law
enforcement officer while engaged in the performance of official duties, or with intent to
retaliate against such official, judge, or law enforcement officer on account of the performance of
official duties, shall be punished as provided in subsection (b). (Emphasis added.).
[T]he ...... specific intent requirement in 18 U.S.C. § 115(a)(1)(B) differentiates that statute from
18 U.S.C. § 111(a)(1). § 115(a)(1)(B) require[s] the government to prove beyond a reasonable
doubt that the defendant threatened certain against a government official but also that the
defendant made such ....... [and] that the defendant made such a threat for the specific purpose of
interfering with the performance of official duties or of retaliating for the performance of such
duties. . . .
B. INTOXICATION
Intoxication may be caused by any substance. Alcohol, drugs, and medicine are the most
frequent. Evidence of intoxication may be raised whenever the intoxication negates the existence
of an element of a crime. The law generally distinguishes between voluntary and involuntary
intoxication.
1. Voluntary Intoxication
Intoxication is voluntary (self-induced) if it is the result of the intentional taking without duress
of a substance known to be intoxicating. The person need not have intended to become
intoxicated.
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a. Defense to Specific Intent Crimes
Voluntary intoxication evidence may be offered, when the defendant is charged with a crime that
requires purpose (intent) or knowledge, to establish that the intoxication prevented the defendant
from formulating the requisite intent. Thus, voluntary intoxication may be a good defense to
specific intent crimes, but will not be a defense to general intent crimes.
MPC 2.08. Intoxication.
(1) Except as provided in Subsection (4) of this Section, intoxication of the actor is not a defense
unless it negatives an element of the offense.
(2) When recklessness establishes an element of the offense, if the actor, due to self-induced
intoxication, is unaware of a risk of which he would have been aware had he been sober, such
unawareness is immaterial.
(3) Intoxication does not, in itself, constitute mental disease within the meaning of Section 4.01.
(4) Intoxication that (a) is not self-induced or (b) is pathological is an affirmative defense if by
reason of such intoxication the actor at the time of his conduct lacks substantial capacity either to
appreciate its criminality [wrongfulness] or to conform his conduct to the requirements of law.
(5) Definitions. In this Section unless a different meaning plainly is required:
(a) “intoxication” means a disturbance of mental or physical capacities resulting from the
introduction of substances into the body;
(b) “self-induced intoxication” means intoxication caused by substances that the actor
knowingly introduces into his body, the tendency of which to cause intoxication he knows or
ought to know, unless he introduces them pursuant to medical advice or under such
circumstances as would afford a defense to a charge of crime;
(c) “pathological intoxication” means intoxication grossly excessive in degree, given the
amount of the intoxicant, to which the actor does not know he is susceptible.
b. No Defense to Strict Liability Crimes or Crimes Requiring Malice, Recklessness,
or Negligence
Voluntary intoxication is not a defense to crimes requiring malice, recklessness, or negligence, or
crimes of strict liability. Thus, voluntary intoxication is not a defense to common law murder,
which requires a mens rea of “malice aforethought.”
Example: After drinking heavily, A breaks into a house, wrongly thinking it is her own. When
surprised by B, the owner, A reacts with force, beating B with her fists. While driving home A is
cited for speeding. Will A have a defense of intoxication: (i) to burglary? (Yes, if as a result she
did not know that the house belonged to B or did not have the intent to commit a felony therein);
(ii) to battery? (No, if battery may be the result of recklessness); or (iii) to speeding? (No,
because speeding is a strict liability offense).
1) Crimes that Require Recklessness
While crimes calling for recklessness require a conscious disregard of a substantial and
unjustifiable risk, a person who was not consciously aware of the risk only because he was
intoxicated will be deemed to have acted recklessly with regard to the risk.
b. No Defense to Strict Liability Crimes or Crimes Requiring Malice, Recklessness,
or Negligence
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Voluntary intoxication is not a defense to crimes requiring malice, recklessness, or negligence, or
crimes of strict liability. Thus, voluntary intoxication is not a defense to common law murder,
which requires a mens rea of “malice aforethought.”
Example: After drinking heavily, A breaks into a house, wrongly thinking it is her own. When
surprised by B, the owner, A reacts with force, beating B with her fists. While driving home A is
cited for speeding. Will A have a defense of intoxication: (i) to burglary?
(Yes, if as a result she did not know that the house belonged to B or did not have the intent to
commit a felony therein);
(ii) to battery? (No, if battery may be the result of recklessness);
or (iii) to speeding? (No, because speeding is a strict liability offense).
b. No Defense to Strict Liability Crimes or Crimes Requiring Malice, Recklessness,
or Negligence
1) Crimes that Require Recklessness
While crimes calling for recklessness require a conscious disregard of a substantial and
unjustifiable risk, a person who was not consciously aware of the risk only because he was
intoxicated will be deemed to have acted recklessly with regard to the risk.
2. Involuntary Intoxication
Intoxication is involuntary only if it results from the taking of an intoxicating substance (i)
without knowledge of its nature, (ii) under direct duress imposed by another, or (iii) pursuant to
medical advice while unaware of the substance’s intoxicating effect.
Involuntary intoxication may be treated as mental illness, in which case a defendant is entitled
to acquittal if, because of the intoxication, she meets whatever test the jurisdiction has adopted
for insanity.
3. Relationship to Insanity
Intoxication and insanity are two separate defenses. However, continuous, excessive drinking or
drug use may bring on actual insanity (e.g., delirium tremens). Thus, a defendant may be able to
claim both an intoxication defense and an insanity defense.
A. INSANITY
Legal background
“How far one by an exercise of free will may determine his general destiny or his course in a
particular matter and how far he is the toy of circumstance has been debated through the ages by
theologians, philosophers, and scientists. Whatever doubts they have entertained as to the matter,
the practical business of government and administration of the law is obliged to proceed on more
or less rough and ready judgments based on the assumption that mature and rational persons are
in control of their own conduct.”
The insanity defense reflects the fundamental moral principles of our criminal law. An
adjudication of guilt is more than a factual determination that the defendant pulled a trigger, took
a bicycle, or sold heroin. It is a moral judgment that the individual is blameworthy. * * *
Our concept of blameworthiness rests on assumptions that are older than the Republic: “man is
naturally endowed with these two great faculties, understanding and liberty of will.”
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“[H]istorically, our substantive criminal law is based on a theory of punishing the vicious will.
It postulates a free agent confronted with a choice between doing right and wrong, and choosing
freely to do wrong.” Central, therefore, to a verdict of guilty is the concept of responsibility. * *
* An acquittal by reason of insanity is a judgment that the defendant is not guilty because, as a
result of his mental condition, he is unable to make an effective choice regarding his behavior.
The insanity defense exempts certain defendants because of the existence of an abnormal mental
condition at the time of the crime. The various formulations differ significantly on what effects a
mental illness must have had to entitle the defendant to an acquittal.
Note that [or present purposes] insanity is a legal term rather than a psychiatric or medical one.
Furthermore, insanity is a generic term comprising many possible mental abnormalities, all of
which have only one thing in common: they are recognized by law as dictating certain legal
consequences. Usually, the cause of a defendant’s mental illness or insanity is irrelevant in
determining the legal consequences.
C. Struggling for a Definition: The Tests of Insanity
STATE V. JOHNSON
399 A.2d 469 (1979)
Supreme Court of Rhode Island (1979)
FACTS
ISSUE
Whether the court should abandon the M’Naghten test in favor of a new standard for determining
the criminal responsibility of those who claim they are blameless by reason of mental illness.
The historical evolution of the law of criminal responsibility is a fascinating, complex story.
For purposes of this opinion, however, an exhaustive historical discussion is unnecessary; a
brief sketch will therefore suffice. The renowned “right-wrong” test had antecedents in England
as early as 1582. In that year the Eirenarcha, written by William Lambard of the Office of the
Justices of Peace, laid down as the test of criminal responsibility “knowledge of good or evil.”
The principal rule in M’Naghten’s Case, 8 Eng.Rep. 718 (1843) states:
“To establish a defense on the ground of insanity it must be clearly proved that, at the time of
committing the act, the party accused 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 it, that
he did not know that what he was doing was wrong.”
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1. Formulations of Insanity Defense
a. M’Naghten Rule
Elements The traditional M’Naghten rule provides that a defendant is entitled to an acquittal if
the proof establishes that:
a) A disease of the mind
b) Caused a defect of reason
c) Such that the defendant lacked the ability at the time of his actions to either:
(1) Know the wrongfulness of his actions; or
(2) Understand the nature and quality of his actions.
Application of M’Naghten Rule
a) Defendant with Delusions
If the defendant suffered from delusions (false beliefs), it is necessary to determine whether his
actions would have been criminal if the facts had been as he believed them to be.
Example: A, because of a mental illness, believed B wanted to kill him. A killed B. Is A entitled
to an acquittal on insanity grounds under the M’Naghten rule?
Held: No. Even if A’s delusion had been accurate, he would not have been legally entitled to kill
B simply because B wanted to kill him.
b) Belief that Acts Are Morally Right
A defendant is not entitled to an acquittal merely because he believes his acts are morally right,
unless he has lost the capacity to recognize that they are regarded by society as wrong.
c) Inability to Control Oneself
Under the traditional interpretation given to the M’Naghten rule, it is irrelevant that the
defendant may have been unable to control himself and avoid committing the crime. Loss of
control because of mental illness is no defense.
Problems with the M’Naghten Rule
The test’s emphasis upon knowledge of right or wrong abstracts a single element of personality
as the sole symptom or manifestation of mental illness. M’Naghten refuses to recognize
volitional or emotional impairments, viewing the cognitive element as the singular cause of
conduct.
One of the [other] most frequent criticisms of M’Naghten has been directed at its all-or-nothing
approach, requiring total incapacity of cognition.
By focusing upon total cognitive incapacity, the M’Naghten rule compels the psychiatrist to
testify in terms of unrealistic concepts having no medical meaning.
Responding to criticism of M’Naghten as a narrow and harsh rule, several courts supplemented it
with the “irresistible impulse” test
b. Irresistible Impulse Test
Under the irresistible impulse test, a defendant is entitled to an acquittal if the proof establishes
that because of mental illness he was unable to control his actions or to conform his conduct to
the law.
“If . . . it shall be definitely established to be true that there is an unsound condition of the mind,
that is, a diseased condition of the mind, in which, though a person abstractly knows that a given
act is wrong, he is yet, by an insane impulse, . . . irresistibly driven to commit it, the law must . . .
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give to this condition . . . its exculpatory effect.’ . . . We think it sufficient if the insane
delusion—by which we mean the delusion proceeding from a diseased mind—. . . so subverts his
will as to destroy his free agency by rending him powerless to resist by reason of the duress of
the disease.”
Parsons v. State, .g., 81 Ala. 577, 2 So. 854 (1887)
Problems with Irresistible Impulse Test
Although a theoretical advance over the stringent right and wrong test, the irresistible impulse
doctrine has also been the subject of widespread criticism. Similar to M’Naghten’s absolutist
view of capacity to know, the irresistible impulse is considered in terms of a complete
destruction of the governing power of the mind.
A more fundamental objection is that the test produces the misleading notion that a crime
impulsively committed must have been perpetrated in a sudden and explosive fit.
Thus, the irresistible impulse test excludes those “far more numerous instances of crimes
committed after excessive brooding and melancholy by one who is unable to resist sustained
psychic compulsion or to make any real attempt to control his conduct.”
The development of this test has recognized that an irresistible impulse need not come upon the
defendant suddenly.
c.Durham (or New Hampshire) Test
Under the Durham rule, a defendant is entitled to an acquittal if the proof establishes that his
crime was the “product of mental disease or defect.”
A crime is a “product of” the disease if it would not have been committed but for the disease.
In this way, the Durham test is broader than either the M’Naghten or irresistible impulse tests; it
was intended primarily to give psychiatrists greater liberty to testify concerning the defendant’s
mental condition.
Problem with Durham test:
The elusive, undefined concept of “productivity” . . . gave the jury inadequate guidance. Most
troublesome was the test’s tendency to result in expert witnesses’ usurpation of the jury function.
Testimony couched in terms of the legal conclusion that an act was or was not the product of
mental disease invited the jury to abdicate its responsibility as ultimate decision maker, and
acquiesce in the experts’ conclusion
d.A merican Law Institute (“A.L.I.”) or Model Penal Code Test
Under MPC § 4.01 the defendant is entitled to an acquittal if the proof shows that he suffered
from a mental disease or defect and as a result lacked substantial capacity to either
(i)
Appreciate the criminality (wrongfulness) of his conduct; or
(ii) Conform his conduct to the requirements of law.
This test combines the M’Naghten and the irresistible impulse tests by allowing for the
impairment of both cognitive and volitional capacity
American Law Institute (“A.L.I.”) or Model Penal Code Test
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In contrast to the M’Naghten and “irresistible impulse” criteria, the Model Code formulation
reflects the judgment that no test is workable that calls for complete impairment of ability to
know or to control.
How does the MPC § 4.01 solve this problem?
To meet these difficulties, it was thought that the criterion should ask if the defendant, as a result
of mental disease or defect, was deprived of “substantial capacity” to appreciate the criminality
(or wrongfulness) of his conduct or to conform his conduct to the requirements of law, meaning
by “substantial” a capacity of some appreciable magnitude when measured by the standard of
humanity in general, . . .
The use of “appreciate” rather than “know” conveys a broader sense of understanding than
simple cognition. The proposal as originally approved in 1955 was cast in terms of a person’s
lack of capacity to appreciate the “criminality” of his conduct, but the Institute accepted
“wrongfulness” as an appropriate substitute for “criminality” in the Proposed Final Draft.
Appreciating “wrongfulness” may be taken to mean appreciating that the community regards the
behavior as wrongful. * * *
The part of the Model Code test relating to volition is cast in terms of capacity to conform one’s
conduct to the requirements of the law. Application of the principle calls for a distinction,
inevitable for a standard addressed to impairment of volition, between incapacity and mere
indisposition. In drawing this distinction, the Model Code formulation effects a substantial
improvement over pre-existing standards.
MPC § 4.01. Mental Disease or Defect Excluding Responsibility.
(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.
18 U.S. Code § 17. Insanity defense
(a) Affirmative Defense.— It is an affirmative defense to a prosecution under any Federal statute
that, at the time of the commission of the acts constituting the offense, the defendant, as a result
of a severe mental disease or defect, was unable to appreciate the nature and quality or the
wrongfulness of his acts. Mental disease or defect does not otherwise constitute a defense.
Holding in Johnson?
Because of our overriding concern that the jury's function remain inviolate, we today adopt the
following formulation of the Model Penal Code test:
A person is not responsible for criminal conduct if at the time of such conduct, as a result of
mental disease or defect, his capacity either to appreciate the wrongfulness of his conduct or to
conform his conduct to the requirements of law is so substantially impaired that he cannot justly
be held responsible.
The terms “mental disease or defect” do not include an abnormality manifested only by repeated
criminal or otherwise antisocial conduct.
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The criminal law * * * is an expression of the moral sense of the community. The fact that the
law has, for centuries, regarded [insane] wrong-doers as improper subjects for punishment is a
testament to the extent to which that moral sense has developed. Thus, society has recognized
over the years that none of the three asserted purposes of the criminal law—rehabilitation,
deterrence and retribution—is satisfied when the truly irresponsible * * * are punished.
United States v. Freeman (357 F.2d 606. 2nd Cir. 1966)
Crim Law Outline:
Nulla poena sine lege: No Crime without law, No Punishment without law
3 Principles of Legality:
• Criminal statutes should be understandable to reasonable law bidding persons
• Criminal statutes should be crafted so that they do not delegate basic policy matters to
policeman, judges, and juries for a resolution on an “ad hoc” and subjective basis
a. Ad Hoc:
i. Case by case basis; when necessary when needed
• Judicial Interpretation of ambigious statutes should be biased in favor of the accused;
(Concept known as Lenity Doctrine)
a. Lenity Doctrine:
i. Judicial Doctrine requiring Ambiguitities in a criminal statute relating to
prohibition and penalties to be resolved in favor of the accused; If it is not
contray to the Legislative Intent
Commonwealth v. Mochan: (Lewd, Ilicit phone calls)
• Soliciting someone to commit a Misdemeanor (sodomy) is a Misdemeanor
• Rule: what ever outrages Decency and injures Public Moral is a Misdemeanor @ Common
Law
• Majority:
o An act that scandalously effects the “morals” or “health” of the community is a
Misdemeanor (Sound like Vagueness Doctrine)
• Dissent:
o Seperation of Powers argument; this law should be decided and made by the
Legislature not the courts
Keller v. Superior Court: Keller beat his wife and killed her unborn child (187 crime). Not
contesting the assult and battery charge only the 187 on unborn fetus
• Writ of Prohibition:
o Even if proven this does not amount to a crime (Motion to Dismiss “12b”)
• Majority:
o Judiciuary would be overstepping their authority if the Court allowed Keller to be
tried w/a 187 homicide.
o 187 does not apply to unborn fetus. Statute only states humans. Fetus is not, was
not deemed a human when the action occurred.
o Legislature needs to determine if a fetus is or is not a person; NOT the Courts
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•
•
o Courts apply, Interpret, and enforce the Law
Ex Post Facto:
o To Retroactively effect or force; Only applicable to Crim Law and Punishments
Retroactive:
o Taking effect from a date in the past
o Side Note:
 Retroactive is UnConstitutional if it is unforeseeable
1/16/20
In re Banks: “Peeping Tom Case”
• Banks is a minor charged with being a Peeping Tom
• Banks challenges the Peeping Tom statute as being vague and is UnConstitutional
• Banks claims the statute punishes innocent conduct
• Original statute failed due to vagueness and punishing innocent conduct but the added word
of “secret” in this states criminal statute is able to survive “vagueness Test”
• Majority:
o The word secret gives the statute enough specificity of malice intent to invade what
the female deems private activity.
o “Secret”: (narrowly tailored to address wrongful intent)
o Foreseable: type of action under law
 Ex Post Facto does not apply
o Vagueness test:
 Legislative Intent
 Common Law Meaning
 Stautory History
 Define Language from Dictionary “Blacks & Webster’s”
o Overbreadth:
 Statute offends the Const. principle that a government purpose to
control/prevent activities Constitutionally subject to state regulation may
not be achieved by means which sweep UnNecessarly Broadly and thereby
invade the arera of protected freedoms
• It is invoked when limiting construction that has been/could be
placed on the challenged statute
Desertran v. City of Los Angeles: “arresting homeless people during the 2007-2009 recession"
• Desertran is filling a SS 1983 Civil action so that they can sue the city/state for Civil
injustices done to the plaintiffs in this case
• Problems with the 85.02 homeless statute:
o Cant sleep in your car
o Cant have objects in your car the look like you live in your car (Lots of people have
plenty of home items in there cars. (makeup, combs, bottled water, protein bars,
snacks etc..)
• Problems with the statute:
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•
•
•
1. It “statute” may fail to provide the kind of notice that will enable ordinary people
to understand; to the conduct It prohibits
2. It “statute” may authorize and even encourage arbitrary and or discriminatory
enforcement
Fair Notice:
o To enable an ordinary citizen to conform his or her conduct to the law.
o Penal statutes cannot require the public to speculate as to its meaning while risking
life, liberty, and property in the Process
A statute is Unconstitutionally Vague if it encourages arbitrarty/discriminatory
enforcement
o Vagueness Doctrine is designed specifically this kind of selective enforcement
o Vagrancy Laws teach that the scales of justice are so tipped that even-handed
administration of the Law is NOT Possible
Majority:
o SS 85.02 is Unconstitutionally vague (Vague, Vagrancy, and hurts innocent
bystanders
1. Look at Legislative intent. (was meant to stop/hinder illegal dumping of trash and
human waste in city
2. Common Law Meaning: To many arbitrary areas in the statute of 85.02
3. Statutory History: No History; it was a new Statute
4. Define Language: To many arbitrary areas in the statute
Yates v. US: Red Fish in the Gulf of Mexico
• Fisherman violated a statute 1519 “disposing of information (tangible objects) part of an
Investigation”
• Yates says 1519 was not intended for fish but tangible objects in Bankruptcy Court
• What is a Tangible Object? Warden claims Fish are Tangible Objects?
• Court applies a test to determine:
o Addresses Webster’s Dictionary “not helpful to the majority” Fish are Tangible
Objects
o Uses rule 16 of FRCP “discovery”. Designed to protect defendants by compelling
prosecution to turn over the defense’s material evidence for the charges at issue
o A law I later placed in the Chapter after law 1519 is on the books 1512c to continue
addressing Bankruptcy
o Leonard Hand: “words are Chameleons which reflect the color of the environment
(Look at the surrounding language in the statute)
o Caption to rule 1519 is Bankruptcy
o 1519 is not about General Spoliation Regulation
1/23/20
Rule 1512(c)(1) was added to chapter 1500 after rule 1519 in play and enacted
Rule 1512(c)(1) was not placed in chronological order after rule 1519:
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•
this helps defeat the “in order” argument and supports the Heading argument of Bankruptcy
of Chp. 1500 addressed by the majority
Superfluous: Unnecessary, more than enough
Noscitus a Socis:
• Known by its companions, known by what surrounds it; Eiusdem Generis the word is
known by the company it keeps
o Helps support that law 1512(c)(1) only applies to hard-drives, and for bankruptcy
related cases
Rule 1519 includes the words falsify: HOW DO YOU FALSIFY A FISH
Fisherman is not convicted under rule 1519, reverse and remanded
Actus Rea:
• Physical/External part of the crime; is the Conduct or the harmful Result (Book Says
Action & Final Result)
Mens Rea:
• The mental or intentional Ingredient
Murder is a Result Crime: Actus Rea
DWI = the offense is the crime not the result, no one is hurt. Conduct Crime Not Result
Conduct Crime: Attempted Murder
Result Crime: Murder occurs
Martin v. State:
• Martin was arrested for public Intoxication
• Martin was taken by the police from his home to the street where the police arrested him
for Public Intoxication
• The Public Intox on a city street: was not a Voluntary act by Martin: NO Public Inox
charge
State v. Utter
• Father is charged and convicted of murder for stabbing his son in the chest
• Father says military training caused him to act InVoluntary; by killing his son
• Claims military jungle training causes him to act Involuntarily once certain motions or
actions commence; which is why he killed his son
• Two Components of every Crime:
o Objective = Actus Rea
o Subjective = Mens Rea
• What is Homicide:
o Murder
o Manslaughter
o Excusable Homicide
o Jusitifable Homicide
• What is an Act:
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•
•
•
•
•
o An act must be a Willed movement/omission of a possible/legally required
performance—Involves an exercise of will—Signifies something Voluntarily
A Spasm is not an Act
Involuntary Act: irresistible impulse to do something
Conditioned Response is Utters Argument
Appellant contends that a person is in an automatic/unconscious/involuntary which is
incapable of committing a Culpable act of murder; maybe liable/guilty of manslaughter but
not murder
Charges hold Father goes down, Father is only allowed to bring facts to the case and let the
jury decide if he is in fact telling the truth
State v. Strasburg:
• In Culpa = in Culpability; gets you into guilt
• Ex Culpa = gets you out of guilt
• Involuntary Act:
o Has no claim to merit; so neither can induce guilt; the concurrence of the Will when
it has it’s choice either to do of to avoid the fact in question, being the only thing
that renders human actions either Praiseworthy or Culpable
• Without Consent of Will:
o Human actions cannot be considered Culpable; now where there is no Will to
commit the offense is there any just reason why a party should incur the penalties
of law made for the punishment of crimes and offenses
• An UnConscious Act:
o Is not an act at all; it is merely a physical event/occurrence for which there can be
no Criminal Liabilty
• This is almost impossible to prove; Need to Convince the Jury
o Case stands
o Father goes down for murder
o Can only give the Jury the facts and let them decide, which for the father did not
have evidence to support his claim so he was not allowed to bring forth this
argument to the Jury
State v. Utter:
• Requirement of a Voluntary Act:
o A person is not guilty of an offense unless his liability is based on conduct that
includes a voluntary act or the omission to perform an act of which he is capable
 Drinking & getting drunk is a Voluntary act, Unconscious behavior that is
self-inflicted is not a solid defense. May take murder to manslaughter
• Non-Voluntary acts include:
o Reflex Convulsions
o Conduct during hypnosis/resulting from hypnotic suggestions
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•
•
•
•
•
o Body movement that is not a product of the effort or determination of the actor;
either consciously or habitually
Actions od Duress:
o Are not involuntary, sometimes acts of duress are excusable/exceptionable
Involuntary Actions:
o Are condoned, and sometimes even pitied from time to time
Mens Rea:
o Signifies the actors state of mind regarding the social harm of the offense; whereas
the element of voluntariness applies to the act that caused the social harm
Voluntary acts are Not Always Intentional:
o Carl is at a shooting range. He aims and shoots at a target. Someone walks behind
the target as Carl pulls the trigger killing the other person. Carl Voluntarily pulled
the trigger to hit a target but he did not intentionally try to shoot/kill the other person
Possession can be a Voluntary/Involuntary Act if done Knowingly or UnKnowingly
Peoples v. Bradley
• Beardsly was having an affair w/another women. She took drugs and passed out.
• Beardsly had a hotel employee moved to the basement room to sleep it off. The Women
never woke and died from the drug overdose in her sleep
• RULE:
o Beardsly have no Duty to save the women unless he created the situation
• ISSUE:
o Did Beardsly have a Duty to render aide to the women he secretly met and was
having an affair with?
• To Neglect Duty:
o You must have a Duty & not a mere obligation to render aide
o It must be a Duty imposed by law or Contract, and not the omission to perform the
Duty must be the Immediate & Direct Cause of Injury/Death
• Who you have a Duty to:
o If a person who sustains to another the legal relation of as husband to wife, parent
to child, master of seamen, etc.. or by Contract
 If you see someone about to commit suicide you don’t have a Duty to stop
them
• 5 Situations which a Failure to act may Constitute a Breach of Legal Duty:
o Can be held criminally liable where the statute posses a Duty
o Where one stands in a certain relationship status to another.
 Husband to wife
 Parent to child
o Where one has a Contractual Duty to care for another
o Where one has voluntarily assumed the care of another and secured the helpless
person as to prevent others from rendering help
o When a person creates a risk of harm to another
• Duty to Assist:
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o A person @ the scene of an emergency who knows that another person is exposed
to or has suffered a grave physical harm shall, to the extent a person can do so
without danger or peril to self or others, give reasonable assistance to the exposed
person.
o Reasonable Assistance may include :
 Obtaining or attempting to obtain aide from Law Enforcement/Medical
Personal
Barber v. California Superior Court:
• Mr. Herbert Underwent Brain surgery; after a successful surgery he suffered a Heart Attack
after the procedure
• Herbert went into a comma; He was later put on a ventilator along with a feeding &
hydration tube
• Later at the families request along with his wife, they wrote and signed a letter to take Mr.
Herbert off the breathing ventilator; Herbert was able to keep breathing while off the
ventilator
• Later the family along with the wife requested that Mr. Herbert’s feeding and hydration
tubes be removed
• Mr. Herbert later died of starvation & hydration
• Dr. Barber is being charged w/murder for taking Mr. Herbert off life support
• All the decisions were made with the wife’s approval and signature’s
• Under the doctrine a person is not held liable for causing additional injury if they act
reasonably in providing help
• Distinguishing Acts from Omissions
o Failure to provide food & hydration is an omission;
o When you have a legal Duty to do something and you don’t do it
• Holding:
 Case is later dropped due to wife’s consent to end life support
Barber v. Superior Court Rules
• All Bystanders: you don’t have a duty to render aide, But once you start rendering aide
and that person relies on you; you know have a duty to them; even if done voluntarily
• Under certain circumstances a spouse/parent or someone contractually bound has the
authority to decide if future medical treatment should be continued or DisContinued
• Once the physician’s medical treatment is Futile, the dr. and his medical team don’t have
a Duty to render anymore aide
• A spouse has a right to discontinue life saving treatment if NO Contract regarding life
saving treatment has been filled out by the patient
• A physician is authorized under the standards of Medical Practice to discontinue a forum
of therapy/life saving treatment when Medical Treatment is considered Futile
• Social Harm: If you look at the Actus Reaus elements of some criminal offenses you will
find both conduct (nature of Conduct) elements as well as result (result of conduct)
elements
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•
•
•
•
•
•
Actus Reus : the act of doing something voluntarily/UnVoluntary; with or without Mens
Rea
Attendant Circumstances: such elements constitute a part of the Actus Reaus of every
offense.
Elements of Attendants: is a condition that must be present in conjunction w/prohibited
conduct or result in order to Constitute a Crime
o DWI: the attendant element is driving an automobile; which is legal but combined
with being legally drunk is deemed illegal
Mens Rea: a guilty mind, guilty or wrongful purpose, a criminal intent (Relates to Social
Harm)
Actus Non Facit Nisi Mens Sit Rea: An act does not make [the order of it] guilty unless
the mind is guilty, that is unless the intent to be criminal [Criminal Law Mantra]
Felon in Latin: one who is full of bitterness/venom and who is “cruel, fierce, or wicked
base”
Two Meanings of Mens Rea:
1. Broad Prospective : (Culpability) guilty mind, vicious will, immoral motive, or
morally Culpable state of mind. Defendant is guilty of crime if she/he commits a
Social Harm of the offense with any morally blameworthy state of mind; It is not
significant whether he/she caused the social harm Intentionally, or with some
blameworthy Mental state
2. Narrow Prospective: (Elemental) refers to the mental statethe defendant must have
had with regard to Social Harm; elements set out in the definition of the offense
(Attendant elements)
Regina v. Cunningham:
• Uses the Broad Culpability approach for Mens Rea
• Malice:
o An actual intention to do a particular kind of harm that was in fact done
o Reckless disregard of a foreseeable risk that a harm would result; AKA (Person
was aware of the risk of the harm and did it anyways)
2/4/20
People v. Conley: struck in the head with a wine bottle, face disfigurement
• Defendant Conley struck Sean O’Neal with a Wine bottle while attempting to hit Marty
Carol with the wine bottle (Marty Carol ducked)
• Issue of Appeal:
1. Defendant (Conley) that state failed to prove beyond a reasonable doubt that the
victim incurred a Permanent Disability
2. The state failed to prove that Defendant (Conley) intended to inflict a permanent
Disability
• Rule:
• Injury Deemed Disabling:
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•
•
•
o All that must be shown is that the victim is no longer whole; such that the injured
body portion/part no longer serves the body in the same manner as it did before the
injury
4-4 Intent:
o A person intends or acts intentionally to accomplish a result or engage in conduct
described by the statute defining the offense, when his conscious objective or
purpose is to accomplish that result or engage in that conduct.
 The tierer of fact considers all the evidence and natural inferences drawn
therefrom (can use the surrounding Circumstances of the event to determine
“subjective”)
4-5 Knowledge:
a) a person knows or acts knowingly or w/knowledge of
b) The result of his conduct, described by the statute defining the offense, when he is
consciously aware that such a result is practically certain to be caused by his
conduct
12-4 Aggravated Battery:
o Where the offender Intentionally or Knowingly causes Great Bodily Harm,
Permanent Disability, or Disfigurement
 Causes a Social Harm: the very essence of every Crime
Holding: Issue 2: The surrounding Circumstances, use of Bottle, absence of warning, and the force
of the blow are facts from which the jury could reasonably Infer the Intent to Cause Permanent
Disability. Issue 1: Also; the fact that O’Neal show that his face/mouth no longer serve the Body
in the same manner as it did before the Injury proves the 1st Issue
Transferred Intent:
• Intend to hit one person but hits another. Mens rea: motive Actus rea: the Act swinging of
bottle/Blow to head/ hit
o Mens rea and Actus Rea are satisfied just transferred
Side Note:
• If the element of intent is presumed in the statute and the defendant is required to disprove
the he intended the Act/Consequence of his voluntary Act; this statute will be deemed
UnConstitutional. (Can’ presume Intent)
General Intent: (Less Culpable mental state) Less Knowledge, Recklessness, or Negligence
• When no particular mental state is set out in the definition of the crime; in which case the
prosecutor need only prove Social Harm of the offense was performed w/a morally
blameworthy state of mind
o Public Intoxication
Specific Intent: (Elemental)
• Has a Special Mental Element Intentionally/Knowingly
• Offense is one in which mental state is expressly set out in the definition of the crime
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•
o (Aggravated Battery) Where the offender Intentionally or Knowingly causes
Great Bodily Harm, Permanent Disability, or Disfigurement
Has 3 types of Mental Elements:
o Must prove an intention by an actor to commit some future act separate from the
Actus Rea (Ex: Possession of Marijuana w/intent to sell)
o Offense may require proof of a special motive or purpose for committing the Actus
Rea (Ex: Offensive Contact with another w/intent to cause humiliation
o Requires proof of the actors Awarness of the Attendant Circumstances. (Ex:
Intentional sale of Obscene Literature to a person who you know/presumably know
is under the age of 18.)
2/6/20
Strict Liability Crimes:
1. Usually only have fines attached to them w/No Incarceration
4 types of Culpability:
1. Purposeful
2. Knowledgeable
3. Recklessly
4. Negligently
MPC: 1.13
(10) “material element of an offense”:
2. An element that does not relate exclusively to the statute of limitations, jurisdiction, venue
or any other matter similarly UnConeccted w/the harm or evil, incident to conduct, sought
to be prevented by the law defining the offense or the existance of justification or excuse
for such conduct
(11) Purposely: with “purpose”, “designed” or “w/design”
(12) Intentionally: “w/intent”, means “purposely”
(13) Knowingly: “Knowing” or “w/Knowledge”
(14) Recklessly: “Recklessness” or “w/Recklessness”
(15) Negligently: “Negligence” or “w/Negligence”
MPC 2.02
A person ,acts purposeiy with respect to a material element of
an offense when:
(i) if the-element involves the nature of his conduct or a result thereof, it is his conscious objectto engage-in conduct of that nature or to cause such a result; And
(ii) if the element involves the attendant circumstances, he is aware of the existence of such
circumstances or he believes or hopes-that they exist.
(b) Knowingly.
A person acts knowingly with respect to a material element of an offense when:
(i) if the element involves the nature of-his conduct-or the attendant circumstances, he is aware
that his conduct is of that-nature or that such circumstances exist; and
(ii) if the element involves a result of his conduct, he is
aware that it is practically certain that his conduct will cause
such a result.
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1) Recklessly.
A person acts recklessly with respect to a material element of an offense when he consciously
disregards a substantial and unjustifiable risk that the material element exists or will result
from his conduct. The risk must be of such a nature and degree that, considering the nature and
purpose of the actor's conduct and the circumstances known to him, its disregard involves a gross
deviation from the standard of conduct that a law-abiding person would observe in the actor's
situation.
(d) Negligently.
A person acts negligently with respect-to a material element of an offense when he should- be
aware of a substantial and unjustifiable risk that the material element exists or will result from
his conduct. The risk must be of such a nature and degree that the actor's failure to perceive it,
considering the nature and purpose of his conduct and the circumstances known-to-him,
involves a gross deviation from the-standard of care that a-reasonable person would observein the actor's situation.
Purposely
Knowingly
Recklessly
Negligently
Circumstance
He is aware of such
circumstances or
hopes they exist
He is aware that such
circumstances exist
Result
It is his conscious
objection to cause
such a result
He is aware that it is
practically certain
that his conduct will
produce such a result
He consciously
He consciously
disregards a
disregards a
Substantial &
Substantial &
UnJustifiable risk that Unjustifiable risk that
the material element
the material element
exist
WILL Result from
his Conduct
He Should be aware He should be aware
of a Substantial &
of a substantial &
UnJustifiable Risk
UnJustifiable Risk
that the material
that the material
element exists or Will element will result
result from such
from his Conduct
Conduct
Conduct
It is his conscious
objective to engage in
conduct of that nature
He is aware that hie
conduct is of that
nature
He consciously
disregards a
Substantial and
UnJustifiable Risk
that his conduct is
prohibited
He Should be Aware
of a Substantial &
UnJustifiable Risk
that his Conduct is
Prohibited
MPC 2.02 (4) Prescribed Culpability Requirements applies to all Material Elements:
3. When the Law Defining an offense prescribes the kind of Culpability that is sufficient for
the commission of an offense, w/out distinguishing among the material elements thereof,
such provisions shall apply to All Material Elements of the Offense; Unless a Contrary
Purpose plainly appears
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3/24/20
“malice aforethought” which converge on four constituent states of mind.
1) “Intent to kill”: the notion of intent to kill includes awareness that the death of another
would result from one’s actions, even if the actor had no particular desire to achieve such
a consequence. Thus, intentional or knowing homicide was murder unless the actor killed
in the heat of passion engendered by adequate provocation, in which case the crime was
manslaughter.
2) “Intent to cause grievous bodily harm”: Knowledge that conduct would cause serious
bodily injury was generally assimilated to intent and was deemed sufficient for murder if
death of another actually resulted.
3) “Depraved-heart murder”: This label derived from decisions and statutes condemning
as murder unintentional homicide under circumstances evincing a “depraved mind” or an
“abandoned and malignant heart.” . . .the essential concept was one of extreme recklessness
regarding homicidal risk.
4) “Intent to commit a felony.” This is the origin of the felony-murder rule, which assigns
strict liability for homicide committed during the commission of a felony. These four states
of mind exhausted the meaning of “malice aforethought”; the phrase had no residual
content
Murder:
1st Degree: premeditated and deliberated
2nd Degree every other type of intentional killing without adequate
provocation. (Think Guthrie without delib. and premedit)
Voluntary Manslaughter, murder except committed in heat of
passion or adequate
provocation.
-Now we turn to unintentional killings that result from unjustified risk-taking.
PEOPLE V. KNOLLER
§ 187. “Murder” defined
murder is the unlawful killing of a human being, or a fetus, with malice aforethought.
§ 188. Malice, express malice, and implied malice defined
Such malice may be express or implied. It is express when there is manifested a deliberate
intention unlawfully to take away the life of a fellow creature. It is implied, when no considerable
provocation appears, or when the circumstances attending the killing show an abandoned and
malignant heart.
§ 189. Murder; degrees
All murder which is perpetrated by means of a destructive device or explosive, a weapon of mass
destruction, knowing use of ammunition designed primarily to penetrate metal or armor, poison,
lying in wait, torture, or by any other kind of willful, deliberate, and premeditated killing, . . . , or
any murder which is perpetrated by means of discharging a firearm from a motor vehicle,
intentionally at another person outside of the vehicle with the intent to inflict death, is murder of
the first degree. All other kinds of murders are of the second degree.
- a killing by one with an “abandoned and malignant heart” (§ 188), is far from clear in its
meaning.
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Indeed, an instruction in the statutory language could be misleading, for it “could lead the jury to
equate the malignant heart with an evil disposition or a despicable character” instead of focusing
on a defendant’s awareness of the risk created by his or her behavior.
SS 188 has expressed and Implied Malice (Cannot commit murder without for thought)
The two ways to prove implied Malice
People v. Thomas (1953), (Degree of Probability = Proximate Cause)
4. malice is implied when “the defendant for a base, antisocial motive and with wanton
disregard for human life, does an act that involves a high degree of probability that it
will result in death.” * * *
People v. Phillips (1966) (Looks like a level of Recklessness is only required)
5. Malice is implied when the killing is proximately caused by “ ‘an act, the natural
consequences of which are dangerous to life, which act was deliberately performed by a
person who knows that his conduct endangers the life of another and who acts with
conscious disregard for life.’ ”
MPC § 210.1. Criminal Homicide.
(1) A person is guilty of criminal homicide if he purposely, knowingly, recklessly or negligently
causes the death of another human being.
MPC § 210.2. Murder.
(1) Except as provided in Section 210.3(1)(b), criminal homicide constitutes murder when:
a) it is committed purposely or knowingly; or
b) it is committed recklessly under circumstances manifesting extreme indifference to
the value of human life. . . .
MPC § 210.3. Manslaughter.
1. Criminal homicide constitutes manslaughter when:
(a) it is committed recklessly; or
(b) a homicide which would otherwise be murder is committed under the
influence of extreme mental or emotional disturbance for which there is
reasonable explanation or excuse. . . .
MPC § 210.4. Negligent Homicide.
Criminal homicide constitutes negligent homicide when it is committed negligently.
Summary of definitions of common law “malice aforethought” which converge on four
constituent states of mind.
a) “Intent to kill”: the notion of intent to kill includes awareness that the death of another
would result from one’s actions, even if the actor had no particular desire to achieve such
a consequence. Thus, intentional or knowing homicide was murder unless the actor killed
in the heat of passion engendered by adequate provocation, in which case the crime was
manslaughter.
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b) “Intent to cause grievous bodily harm”: Knowledge that conduct would cause serious
bodily injury was generally assimilated to intent and was deemed sufficient for murder if
death of another actually resulted.
c) “Depraved-heart murder”: This label derived from decisions and statutes condemning as
murder unintentional homicide under circumstances evincing a “depraved mind” or an
“abandoned and malignant heart.” . . .the essential concept was one of extreme
recklessness regarding homicidal risk.
d) “Intent to commit a felony.” This is the origin of the felony-murder rule, which assigns
strict liability for homicide committed during the commission of a felony. These four
states of mind exhausted the meaning of “malice aforethought”; the phrase had no
residual content
Side Note (§ 188), is
• far from clear in its meaning. Indeed, an instruction in the statutory language could be
misleading, for it “could lead the jury to equate the malignant heart with an evil disposition
or a despicable character” instead of focusing on a defendant’s awareness of the risk created
by his or her behavior.
The two ways to Prove implied Malice
People v. Thomas (1953), (High Degree of Probability—Proximate Cause
malice is implied when “the defendant for a base, antisocial motive and with wanton disregard
for human life, does an act that involves a high degree of probability that it will result in death.”
***
People v. Phillips (1966) (Harder to Prove–Looks like 2nd Degree Murder
1. Malice is implied when the killing is proximately caused by “ ‘an act, the natural
consequences of which are dangerous to life, which act was deliberately performed by a
person who knows that his conduct endangers the life of another and who acts with
conscious disregard for life.’
MPC § 210.1. Criminal Homicide.
• A person is guilty of criminal homicide if he purposely, knowingly, recklessly or negligently
causes the death of another human being.
MPC § 210.2. Murder.
(1) Except as provided in Section 210.3(1)(b), criminal homicide constitutes murder when:
(a) it is committed purposely or knowingly; or
(b) it is committed recklessly under circumstances manifesting extreme indifference to the
value of human life. . . .
MPC § 210.3. Manslaughter.
(1) Criminal homicide constitutes manslaughter when:
(a) it is committed recklessly; or
(b) a homicide which would otherwise be murder is committed under the influence of
extreme mental or emotional disturbance for which there is reasonable explanation or
excuse. . . .
MPC § 210.4. Negligent Homicide.
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•
Criminal homicide constitutes negligent homicide when it is committed negligently.
State v. Williams
• The concept of simple or ordinary negligence describes a failure to exercise the “ordinary
caution” necessary to make out the defense of excusable homicide. RCW 9.48.150.
• Ordinary caution is the kind of caution that a man of reasonable prudence would exercise
under the same or similar conditions.
• If, therefore, the conduct of a defendant, regardless of his ignorance, good intentions and
good faith, fails to measure up to the conduct required of a man of reasonable prudence,
he is guilty of ordinary negligence because of his failure to use “ordinary caution.”
3/26/20
UNINTENTIONAL KILLINGS:
UNLAWFUL CONDUCT 1. THE FELONY-MURDER RULE
The classic formulation of the felony-murder doctrine declares that one is guilty of murder if a
death results from conduct during the commission or attempted commission of any felony.
• In modern times, however, legislatures have created a wide range of statutory felonies.
Many of these crimes concern relatively minor misconduct not inherently dangerous to life
and carry maximum penalties far less severe than those authorized for murder
§ 187. “Murder” defined
murder is the unlawful killing of a human being, or a fetus, with malice aforethought.
§ 188. Malice, express malice, and implied malice defined (malice must be shown)
Such malice may be express or implied. It is express when there is manifested a deliberate
intention unlawfully to take away the life of a fellow creature. It is implied, when no considerable
provocation appears, or when the circumstances attending the killing show an abandoned and
malignant heart.
§ 189. Murder; degrees (No mental state “Mens Rea” required for Felony Murder)
All murder which is perpetrated by means of a destructive device or explosive, a weapon of mass
destruction, knowing use of ammunition designed primarily to penetrate metal or armor, poison,
lying in wait, torture, or by any other kind of willful, deliberate, and premeditated killing, . . . , or
any murder which is perpetrated by means of discharging a firearm from a motor vehicle,
intentionally at another person outside of the vehicle with the intent to inflict death, is murder of
the first degree. All other kinds of murders are of the second degree.
PEOPLE V. FULLER
(Stealing Spare tires and fleeing) While fleeing thieves hit a car killing someone
§ 189. Murder; degrees
All murder which is perpetrated by means of a destructive device or explosive, a weapon of mass
destruction, knowing use of ammunition designed primarily to penetrate metal or armor, poison,
lying in wait, torture, or by any other kind of willful, deliberate, and premeditated killing, or
which is committed in the perpetration of, or attempt to perpetrate, arson, rape, carjacking,
robbery, burglary, mayhem, kidnapping, train wrecking, or any act punishable under Section
206, 286, 288, 288a, or 289, or any murder which is perpetrated by means of discharging a
firearm from a motor vehicle, intentionally at another person outside of the vehicle with the
105
intent to inflict death, is murder of the first degree. All other kinds of murders are of the second
degree.
[Under the felony-murder statute,] if a merchant in pursuit of a fleeing shoplifter is killed
accidentally (by falling and striking his head on the curb or being hit by a passing automobile),
the thief would be guilty of first degree felony murder assuming the requisite intent to steal at the
time of the entry into the store.
Such a harsh result destroys the symmetry of the law by equating an accidental killing resulting
from a petty theft with a premeditated murder.
In no sense can it be said that such a result furthers the ostensible purpose of the felony-murder
rule which is to deter those engaged in felonies from killing negligently or accidentally.
What do you want to know? Proximate Cause to the actual event/Could be a Partial Cause
• “As long as the homicide is the direct causal result of the robbery the felony-murder rule
applies whether or not the death was a natural or probable consequence of the robbery.
So long as a victim's predisposing physical condition, regardless of its cause, is not the
only substantial factor bringing about his death, that condition, and the robber's
ignorance of it, in no way destroys the robber's criminal responsibility for the death.”
MPC § 210.2. Murder.
(1) Except as provided in Section 210.2(1)(b), criminal homicide constitutes murder when:
(a) it is committed purposely or knowingly; or
(b) it is committed recklessly under circumstances manifesting extreme indifference to the
value of human life. Such recklessness and indifference are presumed if the actor is
engaged or is an accomplice in the commission of, or an 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.
MPC § 221.1. Burglary. (Does not include vehicles)
• Burglary Defined. A person is guilty of burglary if he enters a building or occupied
structure, or separately secured or occupied portion thereof, with purpose to commit a
crime therein, unless the premises are at the time open to the public or the actor is
licensed or privileged to enter. It is an affirmative defense to prosecution for burglary
that the building or structure was abandoned.
MPC § 210.2. Murder.
(1) Except as provided in Section 210.2(1)(b), criminal homicide constitutes murder when:
(a) it is committed purposely or knowingly; or
Clossest to Felony Murder: legal presumption but not same as Felony Murder; could
still get murder under the MPC
(b) it is committed recklessly under circumstances manifesting extreme indifference to the
value of human life. Such recklessness and indifference are presumed if the actor is
engaged or is an accomplice in the commission of, or an 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.
MPC § 222.1. Robbery.
(1) Robbery Defined. A person is guilty of robbery if, in the course of committing a theft, he:
(a) inflicts serious bodily injury upon another; or
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(b) threatens another with or purposely puts him in fear of immediate serious bodily
injury; or
(c) commits or threatens immediately to commit any felony of the first or second degree.
An act shall be deemed “in the course of committing a theft” if it occurs in an attempt to
commit theft or in flight after the attempt or commission.
3/31/20
The deterrence rationale consists of two different strains:
a) The first approach views the felony-murder rule as a doctrine intended to deter egligent
and accidental killings during commission of felonies. Proponents argue that co-felons
will dissuade each other from the use of violence if they may be liable for murder.
b) The second view focuses not on the killing, but on the felony itself, and endorses the
felony-murder rule as a deterrent to dangerous felonies. From this perspective, punishing
both accidental and deliberate killings that result from the commission of a felony is “the
strongest possible deterrent” to “undertaking inherently dangerous felonies.”
Critique:
a) Both of the deterrence justifications are logically flawed and neither has proven to have a
basis in fact.
i.
The illogic of the felony-murder rule as a means of deterring killing is apparent
when applied to accidental killings occurring during the commission of a felony.
Quite simply, how does one deter an unintended act?
ii.
Second, the rule from this perspective uses the sanctions for murder to deter
felonies, and “it is usually accepted as wiser to strike at the harm intended by the
criminal rather than at the greater harm possibly flowing from his act which was
neither intended nor desired by him.”
iii.
Where the killing is unintended, it would be far more sensible to enhance the
sentence for conduct over which the felon had control, such as the carrying of a
deadly weapon, rather than automatically to elevate the killing to murder
Could deter Career Criminals but not criminals who act in passion or first time criminals who
don’t know the law:
• Finally, as with the other deterrence rationale, the felony-murder rule can have no
deterrent effect if the felon either does not know how the rule works or does not believe a
killing will actually result. *
Transferred Intent and Constructive Malice: The Felony-Murder Rule’s Presumption of
Culpability
• The felony-murder rule may be conceptualized as a theory of “transferred or constructive
intent.” This theory posits that the intent to commit the felony is “transferred” to the act
of killing in order to find culpability for the homicide. The rule thus serves “the purpose
of * * * reliev[ing] the state of the burden of proving premeditation or malice.”
The “Inherently Dangerous Felony” Limitation
107
People v. Howard (Fleeing a Police Officer after stealing spare tires)
ISSUE
Whether the crime of driving with a willful or wanton disregard for the safety of persons or
property while fleeing from a pursuing police officer (Veh.Code, § 2800.2) is an inherently
dangerous felony for purposes of the second degree felony-murder rule?
§ 189. Murder; degrees
• All murder which is perpetrated by means of a destructive device or explosive, a weapon
of mass destruction, knowing use of ammunition designed primarily to penetrate metal or
armor, poison, lying in wait, torture, or by any other kind of willful, deliberate, and
premeditated killing, or which is committed in the perpetration of, or attempt to
perpetrate, arson, rape, carjacking, robbery, burglary, mayhem, kidnapping, train
wrecking, or any act punishable under Section 206, 286, 288, 288a, or 289, or any murder
which is perpetrated by means of discharging a firearm from a motor vehicle,
intentionally at another person outside of the vehicle with the intent to inflict death, is
murder of the first degree. All other kinds of murders are of the second degree.
What is the 2nd degree felony murder rule in California?
[T] he second degree felony-murder rule is a court-made rule, it has no statutory definition.
• “A homicide that is a direct causal result of the commission of a felony inherently
dangerous to human life (other than the ... felonies enumerated in Pen.Code, § 189)
constitutes at least second degree murder.” . . . The rule “eliminates the need for proof of
malice in connection with a charge of murder.”
• It is not an evidentiary presumption but a substantive rule of law, which is based on
the theory that “when society has declared certain inherently dangerous conduct to be
felonious, a defendant should not be allowed to excuse himself by saying he was unaware
of the danger to life because, by declaring the conduct to be felonious, society has warned
him of the risk involved.”
What is the standard for determining whether an act is an Inherently Dangerous Felony?
a) “In determining whether a felony is inherently dangerous [under the second degree
felony-murder rule], the court looks to the elements of the felony in the abstract, ‘not the
“particular” facts of the case,’ i.e., not to the defendant's specific conduct. That is, we
determine whether the felony “by its very nature ... cannot be committed without
creating a substantial risk that someone will be killed ... ”
b) Felonies that have been held inherently dangerous to life include shooting at an
inhabited dwelling, poisoning with intent to injure, arson of a motor vehicle . . .
manufacturing methamphetamine, kidnapping, and reckless or malicious possession of a
destructive device
c) Felonies that have been held not inherently dangerous to life include ...... false
imprisonment by violence, menace, fraud, or deceit; possession of a concealable firearm
by a convicted felon; possession of a sawed-off shotgun; [prison] escape; grand theft;
conspiracy to possess methedrine; extortion;.......and child endangerment or abuse.
Is §2800.2 an Inherently Dangerous Felony in the abstract?
Section 2800.2 provides:
108
a) If a person flees or attempts to elude a pursuing peace officer in violation of Section
2800.1 and the pursued vehicle is driven in a willful or wanton disregard for the safety
of persons or property, the person driving the vehicle, upon conviction, shall be punished
by imprisonment in the state prison, or by confinement in the county jail ....... The court
may also impose a fine ...... or may impose both that imprisonment or confinement and
fine.
b) For purposes of this section, a willful or wanton disregard for the safety of persons or
property includes, but is not limited to, driving while fleeing or attempting to elude a
pursuing peace officer during which time either three or more violations that are
assigned a traffic violation point count under Section 12810 occur, or damage to property
occurs.
Is § 2800.2 an Inherently Dangerous Felony “IDF”?
• Violations that are assigned points under section 12810 and can be committed without
endangering human life include driving an unregistered vehicle owned by the driver,
driving with a suspended license, driving on a highway at slightly more than 55 miles per
hour when a higher speed limit has not been posted, failing to come to a complete stop at
a stop sign, and making a right turn without signaling for 100 feet before turning.
•
•
Implication?
o § 2800.2 is not an inherently dangerous felony considered in the abstract, because it
can be violated with conduct that is not inherently dangerous.
 A felony is not inherently dangerous if there is any way it can be
committed without creating a substantial risk of death to someone.
A jury may well find that the motorist has acted with malice by driving with conscious
disregard for the lives of others, and thus is guilty of murder.
But, ...... the prosecution may not (as it did here) resort to the second degree felonymurder rule to remove from the jury’s consideration the question whether a killing that
occurred during a violation of section 2800.2 was done with malice.
o Major Rule about Inherently Dangerous
o Felony murder: Murder that occurred while committing a Felony that was not
Inherently Dangerous (Crime can be done without being inherently dangerous) Is
their a way to commit the crime without it being Inherently if so the crime is not
Inherently dangerous
4/2/20
People v. Smith (Beating a child for eating a sandwich on the Couch; Child went into
Respiratory arrest and passed away
ISSUE
Whether felony child abuse may serve as the underlying felony to support a conviction of second
degree murder on a felony-murder theory.
• Our opinions have repeatedly emphasized that felony murder, although the law of this
state, is a disfavored doctrine . . . .
• Accordingly, we have reiterated that this “highly artificial concept” “should not be
extended beyond any rational function that it is designed to serve.” “Applying this
109
•
•
•
•
•
•
principle to various concrete factual circumstances, we have sought to insure that the
[doctrine] . . . be given the narrowest possible application consistent with its ostensible
purpose—which is to deter those engaged in felonies from killing negligently or
accidentally.”
People v. Ireland Example:
o if the jury derived from the instruction the correct meaning of the doctrine in
question, it would have concluded that it should find defendant guilty of second
degree murder if it found only that the homicide was committed in the
perpetration of the crime of assault with a deadly weapon. Thus, the proper
understanding of the instruction would have relieved the jury from a specific
finding of malice aforethought.”
The net effect of this imputation would be to hold that all intentional killings
accomplished by means of a deadly weapon were murder regardless of the circumstances
and could never be mitigated to manslaughter, since all such killings included in fact an
assault with a deadly weapon.
o We held that such effect was impermissible.
Holding: We therefore hold that a second degree felony-murder instruction may not
properly be given when it is based upon a felony which is an integral part of the homicide
and which the evidence produced by the prosecution shows to be an offense included in
fact within the offense charged.
Because under Ireland the “elements of the assault were necessary elements of the
homicide,” the felony of burglary based on an intent to commit assault was included in
fact in the homicide.
o We reasoned that “Where a person enters a building with an intent to assault his
victim with a deadly weapon, he is not deterred by the felony-murder rule. That
doctrine can serve its purpose only when applied to a felony independent of the
homicide.”
The People argued that . . . that the felony of burglary with intent to assault the wife was
‘independent of the homicide‘ of the daughter and therefore the felony-murder rule could
apply.
HOLDING:
o We rejected the theory, holding that ‘It would be anomalous to place the person
who intends to attack one person and in the course of the assault kills another
inadvertently or in the heat of battle in a worse position than the person who from
the outset intended to attack both persons and killed one or both
o Because in none of these decisions, was the underlying felony one that has
included in its definition and an assault on the person of the victim.
o [Hence in the logic of the defense, since there was no intention to commit an
assault on the person of the victim, the felony-murder rule does provide a
deterrent, either not to commit the felony at all, or not to commit homicide
negligently or otherwise.]
110
•
In People v. Burton, we refined the Ireland rule by adding the caveat that the felonymurder doctrine may nevertheless apply if the underlying offense was committed with an
“independent felonious purpose.”
o In Burton, the underlying felony was armed robbery. Therefore, we reasoned, the
felony was an integral part of the homicide and included in fact within it. The
defendant asserted that the felony-murder rule did not apply because an armed
robbery necessarily includes an assault with a deadly weapon.
o [BUT] Even if the felony was included within the facts of the homicide and was
integral thereto, a further inquiry is required to determine if the homicide resulted
‘from conduct for an independent felonious purpose‘ as opposed to a ‘single
course of conduct with a single purpose‘ (ibid.). In cases like Ireland, the
‘purpose of the conduct was the very assault which resulted in death‘; on the
other hand, ‘in the case of armed robbery, as well as the other felonies
enumerated in section 189 of the Penal Code, there is an independent felonious
purpose, namely in the case of robbery to acquire money or property belonging to
another.’
o We conclude that there is a very significant difference between deaths
resulting from assaults with a deadly weapon, where the purpose of the conduct
was the very assault which resulted in death, and deaths resulting from conduct
for an independent felonious purpose, such as robbery or rape, which happened
to be accomplished by a deadly weapon and therefore technically includes assault
with a deadly weapon.
 In Ireland and Wilson the purpose of the conduct which eventually
resulted in a homicide was assault with a deadly weapon, namely the
infliction of bodily injury upon the person of another. The desired
infliction of bodily injury was in each case not satisfied short of death.
Thus, there was a single course of conduct with a single purpose.
o However, in the case of armed robbery, as well as the other felonies enumerated
in section 189 of the Penal Code, there is an independent felonious purpose,
namely in the case of robbery to acquire money or property belonging to another.
Once a person has embarked upon a course of conduct for one of the enumerated
felonious purposes, he comes directly within a clear legislative warning - if a
death results from his commission of that felony it will be first degree murder,
regardless of the circumstances.
 The point is that the felonies enumerated in § 189 that are subject to the
felony murder rule do not have as their object a physical attack on the
victim with a high risk of death.
 This court has reiterated numerous times that “The purpose of the felonymurder rule is to deter felons from killing negligently or accidentally by
holding them strictly responsible for killings they commit.” (People v.
Washington
§ 189. Murder; degrees
111
All murder which is perpetrated by means of a destructive device or explosive, a weapon of mass
destruction, knowing use of ammunition designed primarily to penetrate metal or armor, poison,
lying in wait, torture, or by any other kind of willful, deliberate, and premeditated killing, or
which is committed in the perpetration of, or attempt to perpetrate, arson, rape, carjacking,
robbery, burglary, mayhem, kidnapping, train wrecking, or any act punishable under Section
206, 286, 288, 288a, or 289, or any murder which is perpetrated by means of discharging a
firearm from a motor vehicle, intentionally at another person outside of the vehicle with the
intent to inflict death, is murder of the first degree. All other kinds of murders are of the second
degree.
Cal. Penal Code § 203 Mayhem
Every person who unlawfully and maliciously deprives a human being of a member of his body,
or disables, disfigures, or renders it useless, or cuts or disables the tongue, or puts out an eye, or
slits the nose, ear, or lip, is guilty of mayhem.
§ 205. Aggravated mayhem
A person is guilty of aggravated mayhem when he or she unlawfully, under circumstances
manifesting extreme indifference to the physical or psychological well-being of another person,
intentionally causes permanent disability or disfigurement of another human being or deprives a
human being of a limb, organ, or member of his or her body. For purposes of this section, it is
not necessary to prove an intent to kill. Aggravated mayhem is a felony punishable by
imprisonment in the state prison for life with the possibility of parole.
4/9/20
People v. Smith
• The language of Ireland, Wilson and Burton bars the application of the felony-murder
rule “where the purpose of the conduct was the very assault which resulted in death.”
• In cases in which the violation of section 273a, subdivision (1), is a direct assault on a
child that results in death . . ., it is plain that the purpose of the child abuse was the “very
assault which resulted in death.”
• If the actor’s felonious purpose is principally to commit life threatening violence directly
upon another person, then the felony-murder rule provides no additional incentive to a
felon to perform his felonious purpose in a safe (non-violent) manner.
o But, if there is an independent non-assaultive felonious purpose, e.g., to take
another person’s property, the felony-murder rule might convince the felon to go
about her felonious purpose in a non-assaultive fashion.
 Wilson should have just used plain murder instead of the 1st Degree
Felony Murder
 All Enumerated felony murder crimes are subject to 1st degree Felony
Murder
 CALIFORNIA MERGER RULE only applies to Non-Enumerated
Felonies (MURGER EX: p357 Note 1
 California Merger Rule p.353-357
Killings “in the Perpetration” or “in Furtherance” of a Felony
STATE V. SOPHOPHONE (Sophohone was in the back of police car after a busted robbery by
police and one of the fleeing assailants (robbers) was killed by police as the assailant drew a
weapon
112
•
•
This “intervening cause” or “break in circumstances” argument has no merit under the
facts of this case. We have held in numerous cases that “time, distance, and the causal
relationship between the underlying felony and a killing are factors to be considered in
determining whether the killing occurs in the commission of the underlying felony and
the defendant is therefore subject to the felony-murder rule.”
Based on the uncontroverted evidence in this case, the killing took place during flight
from the aggravated burglary, and it is only because the act which resulted in the killing
was a lawful one by a third party that a question of law exists as to whether Sophophone
can be convicted of felony murder
The ‘Agency’ Approach
“The majority rule is that the felony-murder doctrine does not apply if the person who
directly causes the death is a non-felon.
• The reasoning of this approach stems from accomplice liability theory. Generally
speaking, the acts of the primary party (the person who directly commits the offense)
are imputed to an accomplice on the basis of the agency doctrine. It is as if the
accomplice says to the primary party: ‘Your acts are my acts.’ It follows that [a cofelon] cannot be convicted of the homicides because the primary party was not the
person with whom she was an accomplice. It is not possible to impute the acts of the
antagonistic party—[the non-felon or] the police officer—to [a co-felon] on the basis
of agency.
The ‘Proximate Causation’ Approach
An alternative theory . . . holds that a felon may be held responsible under the felonymurder rule for a killing committed by a non-felon if the felon set in motion the acts
which resulted in the victim’s death.
• The minority of the states whose courts have adopted the proximate cause theory
believe their legislatures intended that any person, co-felon, or accomplice who
commits an inherently dangerous felony should be held responsible for any death
which is a direct and foreseeable consequence of the actions of those committing the
felony.
Holding: SOPHOPHONE was found innocent under the proximate cause approach that
was applied, Agency approach was not applied
The res gestae doctrine.
What if a felon kills someone after the crime is committed, but shortly thereafter? In some
circumstances, courts will treat the post-felony death as falling with the “res gestae” of the felony
and, therefore, within the scope of the felony-murder rule.
• In other words, the death need not technically occur “during” the commission or
attempted commission of the felony, if the death and killing are considered to be part
of a continuous transaction. For example, the felony-murder rule applies if a robber
flees to a rooftop, and a police officer in pursuit falls into an airshaft and dies.
People v. Matos
113
It was also held to apply when the perpetrator of a home invasion, fleeing from a police vehicle,
collided with a civilian car, killing its occupants, ten minutes and ten miles away from the scene
of the felony. People v. Gillis, 474 Mich. 105, 712 N.W.2d 419 (2006).
However, just as a death that results after the felony is completed may be enough to establish
felony-murder rule, a death that temporally occurs during the commission of a felony may not be
enough (as Sophophone demonstrates).
A causal relationship between the felony and the killing must also be established. For
example, the felony-murder rule should not apply if a customer in a grocery store, unaware that a
robbery is underway, coincidentally dies of a heart attack.
Presumably, something more than simple but-for causation must exist between the felony and the
death. That is, the felony must also be a proximate cause of the death (or, as some courts might
put it, there must be a logical nexus to the felony).
Example Note Question:
Defendant X robs an individual at gunpoint. During the robbery, defendant X accidentally
discharges the gun. At the forest preserve two blocks away, the victim is riding a horse. The
horse bolts at the sound of the gunshot, crosses a busy street, and throws the victim to the
ground. An oncoming car cannot stop in a timely fashion and runs over the victim, inflicting the
injuries that result in the death. Here, X is the but-for cause of the death: but for firing the gun,
the horse would not have bolted, and so on.
But, X’s responsibility for the victim’s death based on felony-murder should require a
proximate causation analysis that considers the role of the intervening causes (the
horse bolting and the oncoming car striking the victim).
• We have to show causation
o The but for gun shot to cause the horse to bolt running is not Reasonably
Foresable; This is not the Proximate Cause
STRUCTURE AND UNDERLYING THEORIES OF JUSTIFICATION DEFENSES
All justification defenses have the same internal structure: triggering conditions permit a
necessary and proportional response Triggering conditions are the circumstances that must exist
before an actor will be eligible to act under a justification
The triggering conditions of a justification defense do not give an actor the privilege to act
without restriction.
To be justified, the responsive conduct must satisfy two requirements: (1) it must be
necessary to protect or further the interest at stake, and (2) it must cause only a harm that is
proportional or reasonable in relation to the harm threatened or the interest to be furthered
The necessity requirement:
Demands that the defendant act only when and to the extent necessary to protect or further the
interest at stake.
• Thus, where an aggressor announces his intention to assault the actor at noon the next
day, the threat provides the triggering condition for self-defense. But, if indeed the
actor is in no danger at the time, he is not justified in immediately using physical
force against the aggressor.
The proportionality requirement:
Places a limit on the maximum harm that may be used in protection or furtherance of an interest.
114
•
It bars justification when the harm caused by the actor may be necessary to protect or
further the interest at stake, but is too severe in relation to the value of the interest.
Where an actor has no other option but deadly force to prevent the stealing of apples
from her orchard, a jurisdiction that prohibits deadly force to protect property
essentially requires the actor to sacrifice her apples out of regard for the thieves’
lives.
2. SELF-DEFENSE NOTE 1, p. 527
A. Defendant (call him David) invited some friends over for a night of drinking. During the
evening, one of his drunk guests (call him Carl) passed out, only to awaken to find his wife in
bed with the defendant David. Carl, in a fit of rage, lunged at David with a knife. David grabbed
a gun from beneath his bed and shot Carl dead. David now seeks to assert a claim of selfdefense.
Is David entitled to a self-defense instruction?
Peterson provides:
Notice that the court says that “ it has long been accepted that one cannot support a claim of
self-defense by a self-generated necessity to kill. It goes on to say that the defense is available
only to those free from fault in the difficulty. And: it is denied to slayers who incite the fatal
attack, encourage the fatal quarrel or otherwise promote the necessitous occasion taking life.”
While there appears to be no fixed rule on the subject, the cases hold, and we agree, that an
affirmative unlawful act reasonably calculated to produce an affray foreboding injurious or fatal
consequences is an aggression which, unless renounced, nullifies the right of homicidal selfdefense
US v. Peterson: stealing windshield wiper but later attempted to leave the scene
1. The first of Peterson's complaints centers upon an instruction that the right to use deadly force
in self-defense is not ordinarily available to one who provokes conflict or is the aggressor in it.
2. The second aspect of the trial judge's charge as to which Peterson asserts error concerned the
undisputed fact that at no time did Peterson endeavor to retreat from Keitt's approach with the
lug wrench.
• We are persuaded to the conclusion that in the circumstances presented here, the trial
judge did not err in giving the instruction challenged.
o Within the common law of self-defense there developed the rule of “retreat to
the wall,” which ordinarily forbade the use of deadly force by one to whom an
avenue for safe retreat was open.
• In a majority of American jurisdictions, contrarily to the common law rule, one may
stand his ground and use deadly force whenever it seems reasonably necessary to
save himself. While the law of the District of Columbia on this point is not entirely
clear, it seems allied with the strong minority adhering to the common law.
• The right of self-defense, we have said, cannot be claimed by the aggressor in an
affray so long as he retains that unmitigated role. It logically follows that any rule
of no-retreat which may protect an innocent victim of the affray would, like other
incidents of a forfeited right of self-defense, be unavailable to the party who provokes
or stimulates the conflict. Accordingly, the law is well settled that the “castle”
doctrine can be invoked only by one who is without fault in bringing the conflict on.
That, we think, is the critical consideration here.
115
§ 3.04. Use of Force in Self-Protection.
(1) Use of Force Justifiable for Protection of the Person. Subject to the provisions of this Section
and of Section 3.09, the use of force upon or toward another person is justifiable when the actor
believes that such force is immediately necessary for the purpose of protecting himself against
the use of unlawful force by such other person on the present occasion.
• The solution to this situation under the provisions of [Section 3.04] is as follows: B is
entitled to defend himself against A’s attack, but only to the extent of using moderate,
nondeadly force. He is given this privilege by Subsection (1).
• A is entitled to use his knife in self-protection. A of course is criminally liable for his
initial battery on B, but would have a justifying defense that he could raise against
prosecution for the ultimate homicide or wounding.
MPC § 3.04
(b) The use of deadly force is not justifiable under this Section unless the actor believes
that such force is necessary to protect himself against death, serious bodily injury,
kidnapping or sexual intercourse compelled by force or threat; nor is it justifiable if:
(i) the actor, with the purpose of causing death or serious bodily injury, provoked the use
of force against himself in the same encounter;
Common Law Self-Defensee
So it is that necessity is the pervasive theme of the well-defined conditions which the law
imposes on the right to kill or maim in self-defense.
• There must have been a threat, actual or apparent, of the use of deadly force against the
defender.
• The threat must have been unlawful.
• The defender must have believed that he was in imminent peril of death or serious
bodily harm, and that his response was necessary to save himself therefrom.
• These beliefs must not only have been honestly entertained, but also objectively
reasonable in light of the surrounding circumstances.
MPC Section 3.04. Use of Force in Self-Protection.
(1) Use of Force Justifiable for Protection of the Person. Subject to the provisions of this Section
and of Section 3.09, the use of force upon or toward another person is justifiable when the actor
believes that such force is immediately necessary for the purpose of protecting himself
against the use of unlawful force by such other person on the present occasion.
Commentary: Section (1) does not limit the privilege of using defensive force to cases
where the danger of unlawful violence is `imminent', as many formulations of the rule
now do. The actor must believe that his defensive action is immediately necessary and
the unlawful force against which he defends must be force that he apprehends will be
used on the present occasion, but he need not apprehend that it will be immediately used.
There would, for example, be a privilege to use defensive force to prevent an
assailant from going to summon reinforcements, given belief and reason to
believe that it is necessary to disable him to prevent an attack by overwhelming
numbers so long as the attack is apprehended on the `present occasion'. The latter
words are used in preference to `imminent' or `immediate' to introduce the
necessary latitude for the attainment of a just result in cases of this kind.
116
Common Law Self-Defense
So it is that necessity is the pervasive theme of the well-defined conditions which the law imposes
on the right to kill or maim in self-defense.
• There must have been a threat, actual or apparent, of the use of deadly force against the
defender.
• The threat must have been unlawful
• The defender must have believed that he was in imminent peril of death or serious bodily
harm, and that his response was necessary to save himself therefrom.
• These beliefs must not only have been honestly entertained, but also objectively
reasonable in light of the surrounding circumstances.
• Defendant “retreated to the wall” if possible and safe.
• No less than a concurrence of these elements will suffice
MPC § 3.04
(b) The use of deadly force is not justifiable under this Section unless the actor believes that such
force is necessary to protect himself against death, serious bodily injury, kidnapping or sexual
intercourse compelled by force or threat; nor is it justifiable if:
(ii) the actor knows that he can avoid the necessity of using such force with complete
safety by retreating or by surrendering possession of a thing to a person asserting a claim
of right thereto or by complying with a demand that he abstain from any action that he
has no duty to take, except that:
(A) the actor is not obliged to retreat from his dwelling or place of work, unless
he was the initial aggressor or is assailed in his place of work by another person
whose place of work the actor knows it to be;
The proportionality requirement.
Deadly force may not be used to repel a nondeadly attack, even if this is the only way to avoid
injury.
Assume that Joshua unlawfully threatens to strike Donald, and the only way Donald can
avoid the blow is to push Joshua away. Donald may be justified in pushing Joshua
because the shove is a nondeadly response to a nondeadly assault. However, if the shove
would likely cause death or serious bodily injury to Joshua—for example, if Donald
pushes him into oncoming traffic on a busy street—then the common law requires
Donald to suffer the assault, rather than risk the death of the nondeadly aggressor.
776.13
Home protection; use or threatened use of deadly force; presumption of fear of death
or great bodily harm.
(1) A person who is in a dwelling or residence in which the person has a right to be has
no duty to retreat and has the right to stand his or her ground and use or threaten to use:
(a) Nondeadly force against another when and to the extent that the person
reasonably believes that such conduct is necessary to defend himself or herself or
another against the other’s imminent use of unlawful force; or
(b) Deadly force if he or she reasonably believes that using or threatening to use
such force is necessary to prevent imminent death or great bodily harm to himself
or herself or another or to prevent the imminent commission of a forcible felony.
(3) The presumption set forth in subsection (2) does not apply if:
(a) The person against whom the defensive force is used or threatened has the
right to be in or is a lawful resident of the dwelling, residence, or vehicle, such as
117
an owner, lessee, or titleholder, and there is not an injunction for protection from
domestic violence or a written pretrial supervision order of no contact against that
person; or
(b) The person or persons sought to be removed is a child or grandchild, or is
otherwise in the lawful custody or under the lawful guardianship of, the person
against whom the defensive force is used or threatened; or
(c) The person who uses or threatens to use defensive force is engaged in a
criminal activity or is using the dwelling, residence, or occupied vehicle to further
a criminal activity; or
Section 3.09. Mistake of Law as to Unlawfulness of Force or Legality of Arrest; Reckless or
Negligent Use of Otherwise Justifiable Force; Reckless or Negligent Injury or Risk of Injury
to Innocent Persons.
(1) The justification afforded by Sections 3.04 to 3.07, inclusive, is unavailable when:
(3) When the actor is justified . . .in using force upon or toward the person of another but
`he recklessly or negligently injures or creates a risk of injury to innocent persons, the
justification afforded by those Sections is unavailable in a prosecution for such
recklessness or negligence towards innocent persons.
Commentary from MPC on 3.09(c):
In assessing a such a charge [of homicide against a person who in the exercise of self-defense
against one person injures another], the actor’s justifying purpose must of course, be given
weight in determining whether the risk to innocent persons was sufficient to establish a gross
deviation from proper standards of conduct.
The definitions of recklessness and negligence are explicit on this point, each involving a
substantial and “unjustifiable” risk that a danger to innocent persons will result. Thus, if the
only way to save one’s life is to use deadly force that creates some risk of harm to others, that
force might be justified.
Stand your ground laws : 776.012 Fla. Stat. § 776.012(2) sets out the usual, uncontroversial
general rule that a person may use or threaten deadly force
“if he or she reasonably believes that using or threatening to use such force is necessary
to prevent imminent death or great bodily harm to himself or herself or another * * *.”
But, it now goes on to state that “[a] person who uses or threatens to use deadly force in
accordance with this subsection does not have a duty to retreat and has the right to stand
his or her ground if [he or she] is not engaged in a criminal activity and is in a place
where he or she has a right to be.”
1) A person is presumed to have held a reasonable fear of imminent peril of death or
great bodily harm to himself or herself or another when using [deadly] defensive force *
* * if
(a) The person against whom the defensive force was used was in the process of
unlawfully and forcefully entering, or had unlawfully and forcibly entered, a
dwelling, residence, or occupied vehicle, or if that person had removed or was
attempting to remove another against that person’s will from the dwelling,
residence, or occupied vehicle; and
(b) The person who uses or threatens to use defensive force knew or had reason to
believe that an unlawful and forcible entry or unlawful and forcible act was
occurring or had occurred;
(3) The presumption set forth in subsection (2) does not apply if:
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(a) The person against whom the defensive force is used or threatened has the right to be
in or is a lawful resident of the dwelling, residence, or vehicle, such as an owner, lessee,
or titleholder, and there is not an injunction for protection from domestic violence or a
written pretrial supervision order of no contact against that person; or
(b) The person or persons sought to be removed is a child or grandchild, or is otherwise
in the lawful custody or under the lawful guardianship of, the person against whom the
defensive force is used or threatened; or
(c) The person who uses or threatens to use defensive force is engaged in a criminal
activity or is using the dwelling, residence, or occupied vehicle to further a criminal
activity; or
People v. Goetz: New York Subway Vigilante
• Section 3.09. Mistake of Law as to Unlawfulness of Force or Legality of
Arrest; Reckless or Negligent Use of Otherwise Justifiable Force; Reckless or
Negligent Injury or Risk of Injury to Innocent Persons.
(1) The justification afforded by Sections 3.04 to 3.07, inclusive, is unavailable when:
(3) When the actor is justified . . .in using force upon or toward the person of another
but he recklessly or negligently injures or creates a risk of injury to innocent persons, the
justification afforded by those Sections is unavailable in a prosecution for such
recklessness or negligence towards innocent persons.
One such set of circumstances pertains to the use of force in defense of a person, encompassing
both self-defense and defense of a third person.
NY Penal law § 35.15(2): “A person may not use deadly physical force upon another person
under circumstances specified in subdivision one unless (a) He reasonably believes that such
other person is using or about to use deadly physical force . . . or (b) He reasonably believes that
such other person is committing or attempting to commit a kidnapping, forcible rape, forcible
sodomy or robbery”
Because the evidence before the * * * Grand Jury included statements by Goetz that he
acted to protect himself from being maimed or to avert a robbery, the prosecutor correctly
chose to charge the justification defense in section 35.15 to the Grand Jury.
• It is this response by the prosecutor—and specifically his use of “a reasonable man”—
which is the basis for the dismissal of the charges by the lower courts.
o As expressed repeatedly in the Appellate Division’s plurality opinion, because
section 35.15 uses the term “he reasonably believes,” the appropriate test,
according to that court, is whether a defendant’s beliefs and reactions were
“reasonable to him.”
• These provisions have never required that an actor’s belief as to the intention of another
person to inflict serious injury be correct in order for the use of deadly force to be
justified, but they have uniformly required that the belief comport with an objective
notion of reasonableness
MPC § 3.04(2)(b): The use of deadly force is not justifiable under this Section unless the actor
believes that such force is necessary to protect himself against death, serious bodily harm,
kidnapping or sexual intercourse compelled by force or threat.
• The plurality below agreed with defendant’s argument that the change in the statutory
language from “reasonable ground,” used prior to 1965, to “he reasonably believes” in
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•
Penal Law § 35.15 evinced a legislative intent to conform to the subjective standard
contained in Model Penal Code § 3.04.
o This argument, however, ignores the plain significance of the insertion of
“reasonably.” Had the drafters of section 35.15 wanted to adopt a subjective
standard, they could have simply used the language of section 3.04.
We cannot lightly impute to the Legislature an intent to fundamentally alter the principles
of justification to allow the perpetrator of a serious crime to go free simply because that
person believed his actions were reasonable and necessary to prevent some perceived
harm. To completely exonerate such an individual, no matter how aberrational or bizarre
his thought patterns, would allow citizens to set their own standards for the permissible
use of force.
MPC § 3.04(2)(b): The use of deadly force is not justifiable under this Section unless the actor
believes that such force is necessary to protect himself against death, serious bodily harm,
kidnapping or sexual intercourse compelled by force or threat.
MPC § 3.09[2]: When the actor believes that the use of force upon or toward the person of
another is necessary for any of the purposes for which such belief would establish a justification
under Section [3.04] . . . but the actor is reckless or negligent in having such belief or in
acquiring or failing to acquire any knowledge or belief which is material to the justifiability of
his use of force, the justification afforded by those Sections is unavailable in a prosecution for an
offense for which recklessness or negligence, as the case may be, suffices to establish culpability.
The Model Penal Code: Commentary on MPC § 3.09[2]:
“[W]e do not believe a person ought to be convicted for a crime . . . where he has labored under
a mistake such that, had the facts been as he supposed, he would have been free from guilt ....... If
the tribunal is satisfied that the belief was held, the defendant in a prosecution for a crime
founded on wrongful purpose should be entitled to be judged on the assumption that his belief
was true. To convict for a belief arrived at on unreasonable grounds is, as we have urged, to
convict for negligence. Where the crime otherwise requires greater culpability for a conviction,
it is neither fair nor logical to convict when there is only negligence as to the circumstances that
would establish a justification.“
Conclusion: If a defendant sincerely believes that he is being threatened in a way that
justifies his use of deadly force, but that belief was negligent than he can only be charged
with negligent homicide MPC §210.4. If he was reckless in forming that belief, he can
only be charged with reckless manslaughter § 210.3
Unreasonable belief: “imperfect” defense?
• The negative implication of the reasonable-belief rule is that a person who acts on the
basis of a genuine, but unreasonable, belief that deadly force is necessary for selfprotection cannot successfully claim self-defense.
• Thus, an actor who mistakenly kills an innocent person or who uses more force than
necessary to combat real aggression will be acquitted if her mistake was reasonable, but
will be convicted of murder if her mistake was unreasonable.
• Many states now recognize “imperfect” or “incomplete” justification defenses. In
these jurisdictions, a defendant is guilty of manslaughter, rather than murder, if she kills
the decedent while harboring a genuine, but unreasonable, belief that the decedent
constitutes an imminent threat to her life.
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•
It [self defense] may be divided into two general classes, to wit, perfect and imperfect
right of self defense.... If, however, [the defendant] was in the wrong,-if he was himself
violating or in the act of violating the law,-and on account of his own wrong was placed
in a situation wherein it became necessary for him to defend himself against an attack
made upon himself which was superinduced or created by his own wrong, then the law
justly limits his right of self defense, and regulates it according to the magnitude of his
own wrong. Such a state of case may be said to illustrate and determine what in law
would be denominated the imperfect right of self-defense. Whenever a party by his own
wrongful act produces a condition of things wherein it becomes necessary for his own
safety that he should take life or do serious bodily harm, then indeed the law wisely
imputes to him his own wrong and its consequences to the extent that they may and
should be considered in determining the grade of offense which but for such acts would
never have been occasioned. (Jury Question)
Self-defense and innocent bystanders.
When Goetz shot the four youths, innocent subway passengers were sitting nearby.
Suppose that an errant bullet from Goetz’s gun had struck and killed one of the
bystanders. Should Goetz’s self-defense claim against the youths apply in a prosecution
for the death of the bystander?
How would the Model Penal Code answer this question? See MPC §3.09.
Section 3.09. Mistake of Law as to Unlawfulness of Force or Legality of Arrest; Reckless or
Negligent Use of Otherwise Justifiable Force; Reckless or Negligent Injury or Risk of Injury to
Innocent Persons.
(3) When the actor is justified under Sections 3.03 to 3.08 in using force upon or toward the
person of another but he recklessly or negligently injures or creates a risk of injury to innocent
persons, the justification afforded by those Sections is unavailable in a prosecution for such
recklessness or negligence towards innocent persons.
People v. Kurr Kurr while pregnant was assaulted by her husband Pena when she confronted
him about his Cocaine use;
• Facts: After being assaulted Pena intended to strike Kurr again but she had a knife in
hand and stuck into his chest killing Pena while defending herself and unborn fetus’s
• Issue: Whether the trial court erred in failing to instruct on defense of others concluding
that a non-viable fetus does not constitutes an “other” for purposes of asserting that
defense.
• Rules: “In Michigan, the killing of another person in self-defense is justifiable homicide
if the defendant honestly and reasonably believes that his life is in imminent danger or
that there is a threat of serious bodily harm.” . . . Case law in Michigan also allows a
person to use deadly force in defense of another.
• Traditionally, the “defense of others” concept applied solely to those persons with whom
the defendant had a special relationship, such as a wife or brother ............. [T]he defense
now makes no distinction between strangers and relatives with regard to its
application.
• Holding: the defense should also extend to the protection of a fetus, viable or
nonviable, from an assault against the mother, and we base this conclusion primarily
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•
•
on the fetal protection act adopted by the Legislature This act punishes individuals who
harm or kill fetuses or embryos under various circumstances (illegal acts), But not
abortion clinics or frozen eggs
M.C.L.A. § 750.90b Intentional conduct against a pregnant individual; resulting in
miscarriage or stillbirth; resulting in death or great bodily harm, serious or aggravated
physical injury to embryo or fetus
Sec. 90b. A person who intentionally commits conduct proscribed under sections 81 to 89
against a pregnant individual is guilty of a crime as follows:
a) If the conduct results in a miscarriage or stillbirth by that individual, or death to
the embryo or fetus, a felony punishable by imprisonment for not more than 15
years or a fine of not more than $7,500.00, or both.
b) If the conduct results in great bodily harm to the embryo or fetus, a felony
punishable by imprisonment for not more than 10 years or a fine of not more than
$5,000.00, or both.
c) If the conduct results in serious or aggravated physical injury to the embryo or
fetus, a misdemeanor punishable by imprisonment for not more than 1 year or a
fine of not more than $1,000.00, or both.
d) If the conduct results in physical injury to the embryo or fetus, a misdemeanor
punishable by imprisonment for not more than 93 days or a fine of not more than
$500.00, or both
750.81 Assault or Battery of Employee or Contractor of Public Utility
750.82. Felonious Assault; Violation in a Weapon Free School Zone
750.83. Assault with Intent to Commit Murder
750.84.Assault with Intent to DO Great Bodily Harm Less than Murder; Assault by
Strangulation or Suffocation;
750.85. Torture
750.86. Assault with Intent to Maim
750.87. Assault with Intent to Commit Felony Not Otherwise Punished
750.88. Assault with Intent to Rob and Steal; Unarmed
750.89. Assault with Intent to Rob and Steal; Armed
This definition clearly encompasses nonviable fetuses. Moreover, the legislative analysis of
the act indicates that, in passing the act, the Legislature was clearly determined to provide
criminal penalties for harm caused to nonviable fetuses during assaults or negligent acts against
pregnant women.
Because the act reflects a public policy to protect even an embryo from unlawful assaultive or
negligent conduct, we conclude that the defense of others concept does extend to the protection
of a nonviable fetus from an assault against the mother.
We emphasize, however, that the defense is available solely in the context of an assault against
the mother. Indeed, the Legislature has not extended the protection of the criminal laws to
embryos existing outside a woman's body, i.e., frozen embryos stored for future use, and we
therefore do not extend the applicability of the defense of others theory to situations involving
these embryos.
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In general, a person is justified today in using force to protect a third party from unlawful use of
force by an aggressor. The intervenor’s right to use force in such circumstances parallels the
third party’s right of self-defense. Put differently, she may use force when, and to the extent that,
the third party would apparently be justified in using force to protect himself.
MPC § 3.05. Use of Force for the Protection of Other Persons.
(1) Subject to the provisions of this Section and of Section 3.09, the use of force upon or
toward the person of another is justifiable to protect a third person when:
a. the actor would be justified under Section 3.04 in using such force to protect
himself against the injury he believes to be threatened to the person whom he
seeks to protect; and
b. under the circumstances as the actor believes them to be, the person whom he
seeks to protect would be justified in using such protective force; and
c. the actor believes that his intervention is necessary for the protection of such other
person.
• The Old approach: NO LONGER APPLIED
a) At one point, most jurisdictions applied the “alter ego rule”: a person who comes
to the aid of another is placed in the shoes of the individual for whom she was
providing assistance. Put differently, the right to defend another is no greater than
the right of the third person to defend himself. Since C had no right to defend
himself in this example, A cannot validly assert defense-of-others in an “alter
ego” jurisdiction.
b) This is no longer the majority rule. Most states now provide that if A acts on the
basis of a reasonable belief, the defense applies to A, even if C has no right of
self-defense. What do you think is the rationale for this rule? Which approach—
the alter ego rule or the “reasonable belief” standard—is preferable?
Note 4. A observes B threatening to use force against C. From A’s perspective—and we will
assume from the perspective of a reasonable person in A’s shoes—C is an innocent person about
to become the victim of B’s unlawful aggression, so A comes to C’s aid by using force against B.
Unfortunately, it turns out that B was not an aggressor, but an undercover police officer
lawfully threatening to use force against wrongdoer C.
Should A, who acted on the basis of reasonable appearances, be entitled to claim defense-ofothers?
Allows you to kill an innocent person. This would allow A to use deadly force against B
STATE V. BOYETT Love Triangle case where the Defendant killed their Fiancés lover
• Facts: Fiancés lover went to defendants’ home and knocked on the door. When the door
was answered by the Defendant the lover was shot in the face and later died (Defendant
claims victim was reaching for a gun and the defendant shot the victim first)
• Issue: Whether the trial court erred in refusing to instruct the jury on “defense of
habitation” concluding that the defense “did not apply in this case because Defendant did
not shoot Victim inside his home.”
• Defense of habitation has long been recognized in New Mexico.
o It gives a person the right to use lethal force against an intruder when such force is
necessary to prevent the commission of a felony in his or her home.
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•
o The defense is grounded in the theory that “ [t]he home is one of the most
important institutions of the state, and has ever been regarded as a place where a
person has a right to stand his [or her] ground and repel, force by force, to the
extent necessary for its protection.
o Ultimately, in every purported defense of habitation, the use of deadly force is
justified only if the defendant reasonably believed that the commission of a felony
in his or her home was immediately at hand and that it was necessary to kill the
intruder to prevent that occurrence.
o But our courts have never held that entry into the defendant's home is a
prerequisite for the defense. On the contrary, the seminal New Mexico case on
defense of habitation was clear that, in certain circumstances, it may justify an
occupant's use of lethal force against an intruder who is outside the home. [Citing
Bailey, 27 N.M. at 162]
Holding: Based on our precedent and the authorities cited above, we cannot accept the
position that defense of habitation requires an intruder to cross the threshold of the
defendant's home. Instead, we emphasize that a person has a right to defend his or her
residence not only when an intruder is already inside the home, but also when an intruder
is outside the home and attempting to enter to commit a violent felony.
o Reasoning: We recognize that “[t]he term felony in former times carried a
connotation of greater threat than” it does today. “ ...... Felonies are no longer
constrained to forcible and atrocious crimes, and were we not to update Bailey's
“felony” language, defense of habitation may apply to situations in which an
intruder attempts to force entry into a home with the purpose of committing a
non-violent felony, such as bribing a public official therein.
o Seeking to avoid such absurdity, we turn to our prior decisions to determine the
meaning of “felony” as it is used in the defense of habitation context.
o Those authorities show that the term “felony” in the defense of habitation context
is properly limited to those felonies involving violence. In other words, the felony
that the defendant acted to prevent must have been one that would have resulted
in violence against the occupants were it not prevented; in the event of any other
felony, a defense of habitation instruction would be unwarranted.
o Because defense of habitation is not restricted to instances in which the victim is
killed inside the defendant's home, the trial court in this case erred when it
excluded the instruction on that ground.
o Defendant would have been entitled to an instruction on the defense if some
evidence reasonably tended to show that he killed Victim to prevent her from
forcing entry into his home and committing a violent felony once inside.
o Thus, the question we must now answer is whether, when viewed in the light
most favorable to giving the instruction, the evidence supports that theory.
 Defendant's argument seems to assert that he should have received the
instruction because he could have reasonably believed that Victim was
going to shoot him and then enter his home to continue the shooting.
While that theory justifies the instructions that Defendant received on self
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
defense, and defense of another, it does not give rise to an instruction on
defense of habitation because it does not allege any attempted forced entry
on Victim's part.
Because there is no evidence to support the theory that Defendant killed
Victim in defense of his habitation, refusing the instruction was not in
error.
Defense of a Dwelling [common law general defense] “defense of habitation”
Nondeadly Force
• A person is justified in the use of nondeadly force in defense of her dwelling when, and
to the extent that, she reasonably believes that such conduct is necessary to prevent or
terminate another’s unlawful entry into or attack upon her dwelling.
b. Deadly Force
• One is generally justified in the use of deadly force in two situations:
(1) Tumultuous Entry Plus Personal Danger
i. Use of deadly force is justifiable where the entry was made or attempted
in a riotous, violent, or tumultuous manner and the person reasonably
believes that the use of force is necessary to prevent a personal attack
upon herself or another in the dwelling.
(2) Felony
 Use of deadly force is also justifiable where the person reasonably
believes that such force is necessary to prevent the entry into the dwelling
by a person who intends to commit a [violent] felony in the dwelling.
• Nondeadly force may be used to defend PROPERTY in one’s possession from
unlawful interference.
o In the case of real property, this means entry or trespass; in the case of personal
property, this means removal or damage. The person must reasonably believe that
force is needed, and the need to use force must reasonably appear imminent.
Thus, force may not be used if a request to desist or refrain from the activity
would suffice. In addition, the right is limited to property in one’s possession.
Force cannot be used to regain possession of property that he reasonably believes
was wrongfully taken, unless the person using it is in “immediate pursuit” of the
taker.
• Deadly Force May Not Be Used
o Defense of property alone can never justify the use of deadly force. A person may
usedeadly force in the defense of property generally only in conjunction with
another privileged use of force, e.g., self-defense, defense of others, or to
effectuate an arrest
NELSON V. STATE (Alaska MUD Grand Theft Auto)
• FACTS: Nelson got stuck in the mud and later illegally trespassed into a Dept. of
Transportation facility and stole a dump truck and front loader to pull his car out of the
mud
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•
•
•
•
•
•
•
•
•
Dump Truck got stuck in the mud but pulled it out with a front loader
But later got the front loader stuck while trying to pull his car out of the mud
After being uncesseful and multiple attmepts they went to bed, only to be woken by
Alaska State Trooper who arrested Nelson for grand theft auto, trespassing, damage to
state property; etc.
Nelson made an argument of necessity
Issue: Whether the jury was properly instructed on the defense of necessity
o Over Nelson’s objection, the court gave an instruction on the necessity defense
which read as follows:
o You are instructed that it is a defense to a crime such as joyriding or taking
someone else’s motor vehicle without his permission that the person acted out of
necessity in a case of immediate and dire need.
o However, such a defense exists only when natural forces create a situation
wherein it becomes necessary for a person to violate the law in order to avoid a
greater evil to himself or his property.
o The harm which is to be avoided must be the greater harm and it must be
immediate and dire.
o Where a reasonable alternative other than violating the law is available in order to
avoid the harm the defense of necessity is not applicable
Rule for Necessity as a Defense:
(1) the act charged must have been done to prevent a significant evil;
(2) there must have been no adequate alternative;
(3) the harm caused must not have been disproportionate to the harm avoided.
[T]he defendant must also have acted in the belief that the reasonably foreseeable harm
resulting from the violation would be less than the harm resulting from compliance with
the law. However, here the defendant’s belief is not by itself sufficient. An objective
determination must be made as to whether the defendant’s value judgment was correct,
given the facts as he reasonably perceived them. The majority of jurisdictions appear to
hold that this determination must be made, at least initially, by the court.
(1) Conduct otherwise criminal is justifiable if the defendant reasonably believed that
the conduct was necessary to avoid some harm to society that would exceed the
harm caused by the conduct. The test is objective; a good faith belief in the
necessity of one’s conduct is insufficient. But, causing the death of another person
to protect property is never justified.
 Example: Throwing cargo overboard during a violent storm, if necessary
to save the lives of the crew and other people on board a ship, would not
constitute criminal damage to property. On the other hand, throwing some
members of the crew overboard to save the cargo would never be
justifiable.
Fault in creating the emergency.
Does Model Penal Code § 3.02(2) state a sensible limitation on the scope of the necessity
defense?
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(1) Suppose that Paul recklessly starts a fire in a heavily wooded area that
immediately threatens to burn down a row of occupied houses. Paul correctly
concludes that the only way to save the homes is for him to burn down Jennifer’s
unoccupied house as a firebreak, which he does, thereby saving the other houses
and, perhaps, lives. If Paul is prosecuted for arson (defined, “purposely,
knowingly, or recklessly burning a dwelling house”), does he have a valid
necessity claim? Should he be permitted the defense?
(2)
Criminal Law Outline
CHAPTER 3 MODERN RULE OF CRIMINAL STATUTES
Sources of Criminal Law:
1. Common Law Crimes - A common law crime is one created and enforced by the
judiciary in the absence of a statute defining the offense
2. No Federal Common Law Crimes - Federal criminal law is governed entirely by statute
(Everywhere save for DC)
3. Traditional Approach— Continued use of Common Law from England (Unless
removed by statute explicitly or implicitly)
4. Modern Trend (Common Law Crimes Abolished) – statutory criminal codes and, in
doing so, most have abolished common law crimes, either explicitly or by implication.
However, jurisdictions that have abolished common law crimes have not necessarily
abolished common law defenses to crime, such as insanity and necessity, where their
statutes do not expressly provide for these defenses.
5. MPC - Although not a source of law, a scholarly endeavor to compile a comprehensive
and coherent body of criminal law. Since its publication in 1962, the M.P.C. has greatly
influenced the drafting of state criminal statutes. Due to its enlightened position on many
different issues, the M.P.C. may be the single most important source of general criminal
law. Utilitarian in style.
Vocab:
6. Ambiguous statute - is one susceptible to two or more equally reasonable
interpretations.
7. vague statute - is one that is so unclear as to be susceptible to no reasonable
interpretation, can be applied in a selective or discriminatory manner, fails to draw a line
between innocent and criminal conduct
8. Ad hoc – for this (subjective)
9. Ex post facto – retrospectively applying different law, after the fact
o no ex post facto - Neither Congress nor the courts have the ability to rule ex post
facto
10. Lenity Doctrine – “be biased in favor of the accused” if all reasonable means of
interpretation are unable to determine meaning, should be construed against the
government in favor of the defendant.
o Serves as a tie-breaker
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11. Over broad – prohibits conduct that otherwise would be legal, scope indefinite
12. Prospectively – this point forward
13. Retrospectively – This point backwards
14. Vague – provides insufficient notice of the conduct it penalizes, men of common
intelligence must necessarily guess at its meaning & differ as to its application.
15. nullum crimen sine lege, nulla poena sine lege - “no crime without law, no punishment
without law.”
16. saving construction - narrowing interpretation by a state court, so too a vagueness
problem that appears on the face of the statute might be cured by means of a clarifying
judicial interpretation
17. “desuetude”: laws that are hardly ever enforced are said, by courts, to have lapsed,
simply because they lack public support.
Approaches:
1. Statutory definitiveness is a fundamental common law concept (See In Re Banks)
o When ambiguity exists, after plain meaning, LH is considered in Com. L.
2. Common Law Approach
o Plain Meaning (unless injustice, oppression, or an absurd consequence)
 Textual
 Structural
 Noscitur a sociis- that word is known by the company it keeps
 Noscitur a socis, Ejusden generis- where general words follow specific
words in a statutory enumeration, the general words are (usually)
construed to embrace only objects similar in nature to those objects
enumerated.
 Vague or over breadth?
o Legislative Intent or History
o Lenity Doctrine
o Surplusage canon
A. PRINCIPLE OF LEGALITY
a. nullum crimen sine lege, nulla poena sine lege - “no crime without law, no
punishment without law.”
i. A person may not be convicted and punished unless her conduct was
defined as criminal (today-by statute)
b. The Due Process Clause of the federal Constitution, found in the Fifth and
Fourteenth Amendments, has been interpreted by the Supreme Court to require
that no criminal penalty be imposed without fair notice that the conduct is
forbidden.
c. The “void-for-vagueness” doctrine, which has been held to require particular
scrutiny of criminal statutes unclear as to what conduct is criminal
i. Fair Warning - A statute must give a person of ordinary intelligence fair
notice that his contemplated conduct is forbidden by the statute.
ii. Arbitrary and Discriminatory Enforcement - Must Be Avoided A
statute must not encourage arbitrary and erratic arrests and convictions
iii. Three interrelated corollaries to the legality principle:
128
1. Criminal statutes should be understandable to reasonable lawabiding persons.
2. Cannot be vague or overbroad
3. Criminal statutes should be crafted so that they do not delegate
basic policy matters to policeman, judges, and juries for resolution
on an ad hoc and subjective basis.
a. It will be constantly changing (ex post facto)
4. Judicial interpretation of ambiguous statutes should “be biased in
favor of the accused” (lenity doctrine)
a. Must be understandable and truly ambiguous
B. REQUIREMENTS OF PREVIOUSLY DEFINED CONDUCT
(UNDERSTANDABLE) (93)
a. Previously defined conduct - A person may not permissibly be convicted and
punished unless her conduct was defined as criminal (today in the United States
by statute rather than by judges) prior the time the actor engaged in the conduct.
b. Due Process
i. fair warning
ii. NO EX POST FACTO - Neither Congress nor the courts have the ability
to rule ex post facto by these processes:
1. Make criminal an act that when done was not criminal;
2. Aggravate a crime or increase the punishment therefor;
3. Change the rules of evidence to the detriment of criminal
defendants as a class; or
4. Alter the law of criminal procedure to deprive criminal
defendants of a substantive right
Commonwealth v. Mochan (1955) PG: 93: The crazy guy that called to harass and say bad
things about a lady married to a higher character. Called on a party line (other people could
hear). Bad is being done to the public.
Rule: Common Law does not necessarily create law but can encompass conduct that has no
precedent so long as it matches Legislative Intent.
Keeler v. Superior Court (1970): PG: 97 Crazy ex-husband beats prego ex-wife and kills baby.
Judicial enlargement was NOT foreseeable to this petitioner, and hence that its adoption at this
time would deny him due process of law. California amended its murder statute in response to
Keeler. No ex post facto.
Holding: We hold that in adopting the definition of murder in Penal code section 187 the
Legislature intended to exclude from its reach the act of killing an unborn fetus.
Dissent: Ex post facto does NOT mean you cannot apply retrospectively if it was foreseeable
and this sometimes allows for judicial enlargements.
• Cannot use common law rule to prosecute must use statutes
o Can use common law to fill in definitions and meaning.
• The intent of Legislature at time of enactment must be determined to understand the
meaning of the statute.
• Two insuperable (impossible to overcome) obstacles.
129
o This first is jurisdictional. The courts cannot go so far as to create an offense by
enlarging a statute, by inserting or deleting words, or by giving the terms used
false or unusual meanings. Penal statutes will not be made to reach beyond their
plain intent; they include only those offenses coming clearly within the import of
their language.
o The second is constitutional. To guarantee due process of law, the terms of a
penal statute creating a new offense must be sufficiently explicit to inform those
who are subject to it what conduct on their part will render them liable to its
penalties, is a well-recognized requirement, consonant alike with ordinary notions
of fair play and the settled rules of law. This is reflected in the constitutional
prohibition against the enactment of ex post facto laws which are laws that make
an action done before the passing of the law, and which was innocent when done,
criminal; and punishes such action or that aggravates a crime or makes it greater
than it was when committed.
C. VALUES OF STATUTORY CLARITY (NO AD HOC DELEGATION) (107)
a. Vague – provides insufficient notice of the conduct it penalizes
i. Vagueness offends several principles
1. Fair warning prohibits freedom to act
2. Arbitrary and discriminatory application
3. Without clear boundaries other rights can be infringed
b. Overbreadth - prohibits conduct that otherwise would be legal, scope indefinite
In Re Banks PG: 107: Man looked into a woman’s room. State is arguing that the trial court
erred in ruling that G.S. 14-202, “Peeping Tom” statute is unconstitutional. Statute is
unconstitutionally vague, because “men of common intelligence must necessarily guess at its
meaning and differ as to its application.” The requirement that a statute be couched in terms of
appropriate definiteness has been referred to as a fundamental common law concept.
• If you want to bring a challenge against a statute for unconstitutionality look for over
broad or over vagueness.
o Over broad: understands meaning but applies to conduct not intended to be
protected by legislature.
• The intent of the legislature controls the interpretation of a statute. When the language of
a statute is clear and unambiguous, there is no room for judicial construction and the
courts must give the statute its plain and definite meaning, and are without power to
interpolate, or superimpose, provisions and limitations not contained therein. But where a
statute is ambiguous or unclear in its meaning, resort must be had to judicial construction
to ascertain the legislative will, and the courts will interpret the language to give effect to
the legislative intent.
• “A criminal statute must be sufficiently definite to give notice of the required conduct to
one who would avoid its penalties, and to guide the judge in its application and the
lawyer in defending one charged with its violation.”
Desertrain v. City of Los Angeles PG: 114: An ordinance that did allow you to live in your
vehicle, was directed at homeless people. It was ruled vague. It failed to provide adequate
notice of the conduct it criminalized. It promoted arbitrary enforcement that targeted the
homeless.
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Look For:
o Vagueness
 Vagueness may invalidate a criminal law for either of two independent
reasons:
• First, it may fail to provide the kind of notice that will enable
ordinary people to understand what conduct it prohibits.
• Second, it may authorize and even encourage arbitrary and
discriminatory enforcement.
o Overbreadth
o Promotes arbitrary enforcement
D. Statutory Interpretation
•
Yates v. United States PG: 122: Commercial fisherman ordered a crew member to throw
undersized fish back into the sea. Case was a plurality decision (4 agree with opinion, 4
dissented, and 1 concurred) First look for the definition of “tangible object” and apply language
to the context. Legislative history. The ambiguity concerning ambit of statutes should be
resolved in favor of lenity. §1519 is bad law- too broad and undifferentiated, with too-high
maximum penalties
Holding: No, “tangible object” within §1519’s compass is one used to record or preserve
information not a statute to coverall spoliation of evidence.
• Statutory interpretation tools:
o Textual—within the provision itself
o Structural—within the section itself
o Noscitur a sociis—the intended meaning of an ambiguous word depends on the
context in which it is used.
o Ejusdem generis—where general words follow a number of specific/particular
persons or things, the general words are to be construed to embrace only objects
similar in nature to those objects specifically mentioned.
o Lenity Doctrine—two reasonable interpretation, goes to the defendant
 From SC: This venerable rule not only vindicates the fundamental
principle that no citizen should be held accountable for a violation of a
statute whose commands are uncertain or subjected to punishment that is
not clearly prescribed.
 MPC §1.02(3) may replace Lenity.
o Surplusage canon—can’t render something superfluous
CHAPTER 4 ACTUS REUS
Vocab:
1. Actus Reus – (no universally accepted def.) A physical act (or unlawful omission) by the
defendant, the physical or external part of the crime.
o Interpretation: Actus reus is to be interpreted as the comprehensive notion of act,
harm, and its connecting link, causation, with actus
 Actus: expressing the voluntary physical movement in the sense of
conduct
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Reus: expressing the fact that this conduct results in certain proscribed
harm.
o No universally accepted definition
 most common definition: include both the conduct and the harmful result
2. Mens Rea (guilty mind) - The state of mind or intent of the defendant at the time of his
act
3. Conduct Crime – No ultimate death or injury to a person or property required (dui), the
law is prohibiting a specific behavior. Involves harm to others. No ultimate harm is
required to be guilty of this offense.
o Social Harm: “negation, endangering, or destruction of an individual, group, or
state interest, which is deemed socially valuable.
4. Result Crime – ultimate purpose is to prevent or punish a harmful result (murder), the
law prohibits because of an unwanted outcome.
o Outcome is “social harm”, the loss suffered from a murder or other violent crime
is experienced not only by the immediate victim, but also by society.
5. Elements – criminal law is founded upon certain basic premises that are
6. more or less strictly observed by legislatures and courts when formulating the substantive
law of crimes. The prosecution is generally required to prove the following elements:
Actus Reus, Mens Rea, Concurrence, Harm and Causation
7. Concurrence - The physical act and the mental state existed at the same time
8. Harmful Result and Causation - A harmful result caused (both factually and
proximately) by the defendant’s act.
9. attendant circumstances – circumstances that need be present or otherwise act would
not be a crime
10. Voluntary in Cause – Actus reus was a prior act that lead to criminal conduct. Example:
getting super drunk, then driving a car. May not realize you were drunk driving.
11. Physical Act – voluntary movement, conscious exercise of actors will.
12. Reflexive or convulsive acts – not conscious and generally not accepted as actus reus,
unless voluntary in cause.
13. Omission – a nonaction that may be considered an actus reus.

Actus Reus
In general, a crime contains two components, an actus reus and the mens reus. The actus reus is
the physical or external part of the crime; and mens rea is the mental or internal ingredient.
• The modern approach is elemental culpability, the converse is broad culpability
A. VOLUNTARY
a. Not a synonym for “intention”
b. Applies to the act that caused the social harm
c. Presumed is the statute is unclear. (defendant must show otherwise)
i. Elemental test – using a statute, every circumstance and conduct necessary
to commit crime must be present in the act.
1. What are circumstances and what is conduct?
a. Take Public Intoxication example for elements:
i. be drunk (attendant circumstance)
ii. be in public (attendant circumstance)
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b.
c.
d.
e.
f.
g.
iii. Manifest drunken condition (conduct or actus reus)
KNOWLEDGE OF FACTS GIVING RISE TO A DUTY
i. As a general rule, the duty to act arises when the defendant is aware of the
facts creating the duty to act (parent must know that his child is drowning
before his failure to rescue the child will make him liable). However, in
some situations the law will impose a duty to learn the facts (e.g., a
lifeguard asleep at his post would still have a legal duty to aid a drowning
swimmer).
VOLUNTARY VERSUS INVOLUNTARY ACTIONS:
i. a person is not guilty of an offense unless his conduct includes a voluntary
act.
ii. not only excludes punishment for mere thoughts, but also bars liability for
purely involuntary conduct.
iii. persons whose involuntary movements threaten harm to other may present
a public health of safety problem, calling for therapy or even for custodial
commitment; they do not present a problem for correction.
REASONABLY POSSIBLE TO PERFORM
i. It must be reasonably possible for the defendant to perform the duty or to
obtain the help of others in performing it.
UNCONSONSCIOUSNESS
i. does NOT, in all cases provide a defense
ii. cannot use for voluntary consumption of alcohol or drugs (drunk or high)
POSSESSION AS AN “ACT”
i. Criminal statutes that penalize the possession of contraband generally
require only that the defendant have control of the item for a long enough
period to have an opportunity to terminate the possession. Absent a state
of mind requirement in the statute, the defendant must be aware of his
possession of the contraband, but he need not be aware of its illegality or
true nature. MPC has state of mind requirement for possession.
MODEL PENAL CODE §2.01
i. Requirement of Voluntary Act; Omission as Basis of Liability; Possession
as an Act.
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.
Martin v. State PG: 134: Officers arrested Martin at his home and took him onto the highway,
where he allegedly manifested a drunken condition by using loud and profane language. An
accusation of drunkenness in a designated public place cannot be established by proof that the
accused, while in an intoxication condition, was involuntarily and forcibly carried to that place
by the arresting officer.
Rule: Voluntary appearance is presupposed when not given and up to the defendant to show
otherwise.
• MPC § 2.01—Requirement of Voluntary Act
o If a statute says you have to be found voluntarily in a place, that means when
found, they have to be there, at that exact moment, voluntarily.
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State v. Utter PG: 137: WW2 veteran was startled and stabbed his son in the chest. Willful muscular
and conscious movement necessary. Appellant contends that a person in an automatist or unconscious
state is incapable of committing a culpable act such as homicidal act should be presented to the jury
because it is a question of fact IF evidence is substantial. Here the evidence presented was
INSUFFICIENT to present to jury. There is no evidence which the jury could determine or reasonably
infer what happen in the room at the time of the stabbing the jury could only speculate
• “voluntary act” is the same as “act”
o An act must be a willed movement or the omission of a possible and legallyrequired performance.
o A spasm is not an act.
• The absence of consciousness not only precludes the existence of any specific mental
state, but also excludes the possibility of a voluntary act without which there can be no
criminal liability.
B. OMISSIONS (“Negative Acts”)
a. FAILURE TO ACT WILL RESULT IN A CRIME IF THERE IS A LEGAL DUTY
TO ACT
i. Legal duty can arise from:
1. A statute
a. Ex: filing an income tac return or reporting an accident
2. A contract
a. Obligating the defendant to act, such as one entered into by a
lifeguard or nurse
3. A relationship
a. Between the defendant and the victim, which may be sufficiently
close to create a duty.
4. A voluntary assumption of care
a. In general, there is no common law duty to help someone in
distress, but once aid is rendered, the Good Samaritan may be held
criminally liable for not satisfying a reasonable standard of care.
b. If you go to help you now have a duty
5. Creation of peril “Snake Pit”
a. The person creates the harm
b. WHY THERE IS NO TO HELP OR ASSIST IF NONE OF THE 5 SITUATIONS
ABOVE?
i. “non-doings” are inherently more ambiguous than wrongdoings
1. It is harder to determine why a person fails to act
2. Increases risk of convicting morally innocent persons
ii. Difficult line-drawling problems arise in omission cases
1. Bystander effect
iii. Well-meaning bystanders often make matters worse by intervening in
ongoing events
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1. Assistance may cause more harm than good in some cases
iv. Freedom
1. Values personal autonomy
2. Careful about creating legal duties that compel us to benefit others,
rather than passing laws that simply require us not to harm others.
People v. Beardsley PG: 143: Crazy man cheating on his wife with crazy lady that overdoses while they
are binge partying. the fact that the woman was in his house created no such legal duty exists in law
and is due from a husband towards his wife, as seems to be intimated by the prosecutor’s brief. Can’t
change principle just because she was a woman because two men hanging out should have the same
outcome.
Must have a legal duty, not just a moral duty to act.
• If a person who sustains to another the legal relation of protector, as husband to wife,
parent to child, master to seaman, etc., knowing such person to be in peril, willfully and
negligently fails to make such reasonable and proper efforts to rescue him as he might
have done, without jeopardizing his own life, or the lives of others, he is guilty of
manslaughter at least, if by reason of his omission of duty the dependent person dies.
C. DISTINGUISHING ACTS FROM OMISSIONS
Barber v. Superior Cour PG: 149: 2 doctors charged with murder after taking a patient off life
support. Removing equipment is an omission. The duty did not exist because the treatment was
ineffective. The duty may exist in the immediate aftermath. Despite the doctor's actions being
intentional and undertaken with knowledge that the patient would die, the omission to continue
treatment was not an unlawful failure to perform a legal duty under the circumstances.
Since petitioners were not under a legal duty to act, they had no criminal liability for failure to
act.
• Malice may be express or implied. It is express when there is an intent unlawfully to take
any life. It is implied when the circumstances show an abandoned and malignant heart.
(Pen. Code, § 188.)
D. SOCIAL HARM
a. Social Harm—the “negation, endangering, or destruction of an individual, group,
or state interest, which is deemed socially valuable.”
b. the third element in the crime. 1) Circumstances 2) Conduct 3) Result
c. Two types of offenses:
i. “result crimes”
1. The law punishes because of an unwanted outcome
2. Examples: Criminal homicide (death of another person) or arson
(destruction of a dwelling house)
3. Law is punishing for the harm resulting from her acts or omissions
4. Outcome is “social harm”
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a. Social Harm—the “negation, endangering, or destruction
of an individual, group, or state interest, which is deemed
socially valuable.”
b. the loss suffered from a murder or other violent crime is
experienced not only by the immediate victim, but also by
society.
c. The very essence of all crime
ii. “conduct crimes”
1. The law prohibits specific behavior
2. Driving under the influence or solicitation to commit murder
iii. “attendant circumstance”, elements constitute a part of the actus reus of
every offense
1. A condition that must be present, in conjunction with the
prohibited conduct or result in order to constitute the crime.
2. Such elements constitute a part of the actus reus of every offense.
a. Example: a statute provides that “it is an offense to drive
an automobile in an intoxicated condition.” The words
“in an intoxicated condition” represent an attendant
circumstance: the actus reus of the offense does not occur
unless the actor drives her car (the conduct) while
intoxicated (that circumstance that must be present at the
time of her conduct).
d. Break down the actus reus into its nature-of-conduct, result and/or attendant
circumstance
i. Breaking and entering a dwelling house of another at nighttime with the
intent to commit a felony therein
1. breaking [nature of conduct]
2. entering [nature of conduct]
3. dwelling house [attendant circumstance]
4. of another [attendant circumstance]
5. at nighttime [attendant circumstance]
6. Mens rea: with the intent to commit a felony therein
e. The modern approach is elemental culpability, the converse is broad
culpability
CHAPTER 5 MENS REA
Vocab:
1. Broad Definition of mens rea: means “guilty mind,” “vicious will,” “immorality of
motive,” or simply, “morally culpable state of mind.”
o Culpability meaning of mens rea
2. Narrow Definition of mens rea: refers to the mental state of the defendant must have
had with regard to the “social harm” elements set out in the definition of the offense.
o Elemental meaning of mens rea
o A defendant is not guilty of an offense, even if she has a culpable frame of mind,
if she lacks any mental state specified in the definition of the crime.
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 Knowingly
 Purposely
 Recklessly
 Negligently
3. Motive – generally motive is immaterial to substantive criminal law. Motive is not intent.
It is the reason you are committing the crime.
o Not punished for thoughts
4. Transferred Intent - If a defendant intended a harmful result to a particular person or
object and, in trying to carry out that intent, caused a similar harmful result to another
person or object, her intent will be transferred from the intended person or object to the
one actually harmed. Any defenses or mitigating circumstances that the defendant could
have asserted against the intended victim (e.g., self-defense, provocation) will also be
transferred in most cases. The doctrine of transferred intent most commonly applies to
homicide, battery, and arson. It does not apply to attempt.
5. Intent: defined at common law to include not only those results that are the conscious
objective of the actor—what he wants to occur—but also those results that the actor
knows are virtually certain to occur from his conduct, even if he does not want them to
arise.
6. General Intent: no universally accepted definition, most common: an offense that does
not contain in its definition one of these three types of special mental states- that is, one
that only contains a mental state that related solely to the actus reus of the offense.
7. Specific Intent: no universally accepted definition, most common: crime is one that
contains in its definition “a special mental element” *** above and beyond any mental
state required with respect to the actus reus of the crime.
Three types of special mental elements:
1. intention by the actor to commit some future act
2. special motive or purpose
3. actor’s awareness of an attendant circumstance
8. Public Welfare offenses – Are strict liability offenses, with no mens rea but are only
forbidden acts
9. strict liability offenses – one that does not require awareness of all of the factors
constituting the crime. Generally, the requirement of a state of mind is not abandoned
with respect to all elements of the offense, but only with regard to one or some of the
elements. The major significance of a strict liability offense is that certain defenses, such
as mistake of fact, are not available.
10. Mistake of Law – ignorance of legality (stolen is a defined legal term, didn’t know it
was stolen is a Mistake of Law)
11. Mistake of Fact - ignorance of a fact which prohibited the act (thought it was my stuff
not her’s)
12. Constitutional Innocence – a defense claiming that the elements are not crimes therefore
the whole act cannot be a crime (didn’t cover in class)
13. Moral Wrong Doctrine – commission of an unmoral act serves as necessary
blameworthiness (having sex with a young person without age verification)
o at common law, a reasonable mistake of fact, but not an unreasonable one,
ordinarily exculpates a defendant prosecuted for a general intent crime.
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14. Legal Wrong Doctrine – commission of an illegal act serves as necessary
blameworthiness
o if a defendant’s conduct, based on the facts as he believes them to be, constitutes
a crime- not simply an immorality-he may be convicted of the more serious
offense that his conduct establishes.
A. NATURE OF “MENS REA”
“an act does not make the doer of it guilty, unless the mind be guilty; that is, unless the intent
be criminal” -Crim Law Mantra
a. TWO MEANINGS OF “MENS REA”
i. Narrow (modern trend to use this meaning) (“elemental” meaning)
1. Refers to the mental state the defendant must have had with regard
to the “social harm” elements set out in the definition of the
offense.
2. Using this meaning, a defendant is not guilty of an offense, even if
she has a culpable frame of mind, if she lacks any mental state
specified in the definition of the crime.
3. Elements
a. Knowingly
b. Purposely
c. Recklessly
d. Negligently
ii. Broad (“culpability” meaning)
1. Means guilty mind, vicious will, immorality of motive, or simply
morally culpable state of mind.
2. In this sense, a defendant is guilty of a crime if she commits the
social harm of the offense with any morally blameworthy state of
mind; it is not significant whether she caused the social harm
intentionally or, instead with some other blameworthy mental state.
b. MPC CULPABILITY TERMS §2.02:
i. Purposefully, want to do it
ii. Knowingly, aware of existence & it will happen
iii. Recklessly, conscious disregard for substantial and justifiable risk,
knowing of risk and goes on to take risk
iv. Negligently, knew or should have known of substantial and justifiable risk
c. TRANSFERRED INTENT OF COMMON LAW:
i. The defendant’s guilt is thus “exactly what it would have been had the
blow fallen upon the intended victim instead of the bystander.
ii. Under Moss’s objection: can only transfer intent to same crime with the
same punishment.
1. Intent to kill is not limited to the specific target but it extends to
everyone actually killed.
d. MISTAKE
i. Common Law:
1. If no specific intent or other special mental element is required for
guilt of the offense charged, a mistake of fact will not be
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recognized as an excuse unless it was based on reasonable
grounds.
ii. MPC 2.04:
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. But note MPC 2.02(7) (about liability)
e. REASONING FOR MENS REA
i. Required to distinguish between inadvertent or accidental act and acts
performed with a “guilty mind.”
Regina v. Cunningham PG: 159: guy that stole the gas meter because he needed money and gas
leaked everywhere and nearly killed homeowner (Wade) in her sleep. If appellant didn’t intend
to harm Wade, he still knew the gas would leak. It is impossible to predict the outcome of the
jury, in this instance, with proper instruction.
• In any statutory definition of a crime, ‘malice’ must be taken not in the old vague sense
of ‘wickedness’ in general, but as requiring either
o an actual intention to do the particular kind of harm that in fact was done, or
o recklessness as to whether such harm should occur or not . . .
• It is neither limited to, nor does it indeed require, any ill-will towards the person injured.
B. GENERAL ISSUES IN PROVING CULPABILITY
a. INTENT
i. Common law intent: knowledge with substantial certainty, purpose
ii. Specific intent:
1. crime is one that contains in its definition “a special mental
element” *** above and beyond any mental state required with
respect to the actus reus of the crime.
2. specific intent cannot be conclusively imputed from the mere
doing of the act
3. the prosecution must produce evidence tending to prove the
existence of the specific intent. That said, the manner in which an
act was done may provide circumstantial evidence of intent.
4. “Specific intent” offense will contain one of three types of
special mental elements:
1. intention by the actor to commit some future act
(Example: “possession of marijuana with intent to sell”)
2. special motive or purpose for committing the actus reus
(Example: “offensive contact upon another with the intent to cause
humiliation”)
3. actor’s awareness of an attendant circumstance
(Example: “intentional sale of obscene literature to a person known
to be under the age of 18 years”)
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5. Most often used like this:
a. an offense that contains in its definition mens rea element
of “intent”
iii. General intent:
1. An offense that does not contain in its definition one of these three
types of special mental states- that is, one that only contains a
mental state that related solely to the actus reus of the offense.
2. Generally, all crimes require “general intent,” which is an
awareness of all factors constituting the crime; i.e., the defendant
must be aware that she is acting in the proscribed way and that any
attendant circumstances required by the crime are present.
a. Note: that the defendant need not be certain that these
attendant circumstances exist; it is sufficient that she is
aware of a high likelihood that they exist.
3. MPC meaning of knowledge as including high probability
4. Most often used like this:
a. reserved for crimes that permit conviction on the basis of a
less culpable mental state, such as “knowledge”,
“recklessness”, or “negligence”
iv. Difference between specific and general intent:
1. there is often ambiguity in the meaning of the terms, more often,
the term “specific intent” is used to denote an offense that contains
in its definition the mens rea element of “intent”; “general intent”
is then reserved for crimes that permit conviction on the basis of a
less culpable mental state, such as “knowledge,” “recklessness” or
“negligence.”
v. Inference of intent from act:
1. A jury can infer the required general intent merely from the doing
of the act. It is not necessary that evidence specifically proving the
general intent be offered by the prosecution
People v. Conley PG: 161: Drunk teenager swings wine bottle and hits other teenage in the fact
causing permanent disability. Did not hit the teenager he intended to hit. Transferred intent
applied. By standard of “victim no longer being whole” one intends the natural and probable
consequences of this actions with transferred intent.
• Moss’s objection:
o Can only transfer intent to same crime with same punishment (president hypo)
• Statutory Definition of Intent:
o 4–4. Intent. A person intends, or acts intentionally or with intent, to accomplish a
result or engage in conduct described by the statute defining the offense, when his
conscious objective or purpose is to accomplish that result or engage in that
conduct.” (PURPOSE)
o “4–5. Knowledge. A person knows or acts knowingly or with knowledge of: (b)
The result of his conduct, described by the statute defining the offense, when he is
consciously aware that such result is practically certain to be caused by his
conduct.”
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•
o Intent can be inferred from the surrounding circumstances, the offender’s words,
the weapon used, and the force of the blow.
Common Law definition of Intent
o In the context of result crimes, e.g., battery and murder, the term “intent” is
defined at common law to include not only those results that are the conscious
objective of the actor—what he wants to occur—but also those results that the
actor knows are virtually certain to occur from his conduct, even if he does not
want them to arise. (PURPOSE and KNOWLEDGE)
Liporata V. US: Food stamp purchases without mens rea. We hold that in a prosecution for
violation of § 2024(b)(1), the Government must prove that the defendant knew that his
acquisition or possession of food stamps was in a manner unauthorized by statute or regulations.
vi. MPC APPROACH:
1. proposes four categories into which the mental component of a
criminal offense (i.e., the element of fault) can be characterized.
Because consistent use of these categories leads to analytical
clarity, they have been incorporated into several state criminal
codes
a. Prosecutor must prove that the defendant committed each
material element of the charged offense with the particular
state of mind required in the definition of that crime.
b. Abandons the countless common law and pre-Code
statutory mens rea terms and replaces them with just four
culpability terms, “purposely.” “knowingly,” “recklessly,”
and “negligently.”
c. Principles of statutory construction set out in Section
2.02assist in resolving many of the mens rea issues that
have plagued courts over the years.
2. § 2.02 Requirements of Culpability (refers to “elemental”
approach to the issue of mens rea)
a. Purposefully, want to do it
b. Knowingly, aware of existence & it will happen
c. Recklessly, conscious disregard for substantial and
justifiable risk
d. Negligently, knew or should have known of substantial
and justifiable risk
3. Purposely and Knowingly if different
a. You can know of a result without intending it (purposely)
b. 2.02(7) high degree of probability can mean knowledge
4. 2.02(1) if the law says (requires) negligence, purposely, recklessly,
knowingly then that element is required.
5. 2.02(3) If the law doesn’t require a mens rea it must be
knowingly, recklessly, or purposely, NOT negligently
a. Negligence must be specifically prescribed.
6. 2.03(2)(a) transferred intent for purposely or knowingly
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7. 2.03 (3)(a) transferred intent for recklessly or negligently
State v. Nations: The defendant (Nations) owns and operates the Main Street Disco and had a
sixteen-year-old child dancing there for “tips.” Defendant was charged and convicted of
engendering a child “less than 17 years old.” Defendant could not have checked the child's
identification, because the child had no identification with her the first day defendant "hired" the
child. HOLDING: The state proved she acted “recklessly”, not “knowingly.”
• “knowingly”- actual knowledge, “A person who acts knowingly’, or with knowledge,
with respect to an attendant circumstance when he is aware of that those circumstances
exist.
• The Nations court stated that, under Missouri law, “the state’s burden was to show
defendant was actually aware of the child was under seventeen, a heavier burden that
showing [under the MPC there was a ‘high probability’ that defendant was aware the
child was under seventeen”
o The court applied statute wrong because the statute requires that SHE was aware
there was a high probability the kid was under 17 not there was a “high
probability.”
o Defense: He did not have actual knowledge
o If they had the MPC she would have been guilty.
vii. DOCTRINE OF WILLFUL BLINDNESS
1. Basic requirements: (MPC Solution)
a. the defendant must subjectively believe there is high
probability that a fact exists and
b. the defendant must take deliberate actions to avoid
learning of that fact.
Believed that these requirements give willful blindness an appropriately
limited scope that surpasses recklessness and negligence.
2. Criminal Defense Lawyers: If a criminal defense lawyer knows her
client plans to testify falsely- to perjure himself- the lawyer may
not permit her client to so testify.
3. Willful:
a. sometimes said to be “a word of many meanings’ whose
construction is often dependent on the context in which it
appears.”
i. Two common interpretations:
1. May merely mean that the actor
intentionally committed the prohibited act.
2. The term requires proof that the actor
intentionally performed the prohibited act in
bad faith, with wrongful motive, or in
violation of a known legal duty.
viii. PROBLEMS IN STATUTORY INTERPRETATION
1. Not every construction, but only" 'every reasonable construction
must be resorted to, in order to save a statute from
unconstitutionality.'"
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Flores- Figueroa v. United States: guy with fake ID’s, did he need to know he the ID belonged
to “another person?” Yes, the statute requires the government to show that the defendant knew
that the "means of identification" he or she unlawfully transferred, possessed, or used, in fact,
belonged to "another person." The textual and enforcement arguments were not “sufficient to
overcome the ordinary meaning, in English or through ordinary interpretive practices, of
the words that Congress wrote.” Knowingly was a transitive verb.
C. STRICT LIABILITY
A. These cases do not fit neatly into any of such accepted classifications of common-law
offenses, such as those against the state, the person, property, or public morals.
B. Also, penalties commonly are relatively small, and conviction does not do grave damage to
an offender’s reputation. Under such considerations, courts have turned to construing statutes
and regulations which make no mention of intent as dispensing with it and holding that the
guilty act alone makes out the crime
C. No defense of ignorance or Mistake of Law or Fact.
D. Are generally “regulatory” offenses (i.e., offenses that are part of a regulatory scheme) that
implicate public health or safety. They generally involve a relatively low penalty and are not
regarded by the community as involving significant moral impropriety.
E. Strict liability is typically criticized on two grounds
a. Strict liability legislation arguably does not deter, since the actor, by
hypothesis, is unaware-and, as a reasonable person would not be aware-of the
facts that render his conduct dangerous.
b. It is unjust to condemn a person who is not morally culpable.
F. Model Penal Code generally rejects strict criminal liability
Morissette v. United States PG: 185: Man takes abandoned shells from government property
and makes them into profit. Knowing conversion requires more than knowledge that defendant
was taking the property into his possession. He must have had knowledge of the facts, though not
necessarily the law, that made the taking a conversion. The mere omission from the language
of the statute of any mention of intent is not to be construed as eliminating the element of
intent from the crime. No grounds for inferring any affirmative instruction from Congress to
eliminate intent from any offense with which this defendant was charged.
Staples v. United States PG: 189: Automatic hand gun case. Silence on this point by itself does
not necessarily suggest that Congress intended to dispense with a conventional mens rea element,
which would require that the defendant know the facts that make his conduct illegal. We must
construe the statute in light of the background rules of the common law, in which the
requirement of some mens rea for a crime is firmly embedded. As we have observed, “[t]he
existence of a mens rea is the rule of, rather than the exception to, the principles of Anglo–
American criminal jurisprudence.” Offenses that require no mens rea generally are disfavored.
Some indication of congressional intent, express or implied, is required to dispense with mens
rea as an element of a crime.
Garnett v. State PG: 198: Rape case of 13-year-old with the mentally ill man who believed she
was of age) Ruled a Strict Liability Offense. The defendant knows that the activity is regarded
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as immoral and/or improper by large segments of society. Moreover, the defendant is aware that
“consent” by persons who are too young is ineffective.
D. MISTAKE AND MENS REA
a. Mistake of Fact Mistake or Ignorance of Law.
i. It is not a defense to a crime that the defendant was unaware that her acts
were prohibited by the criminal law or that she mistakenly believed that
her acts were not prohibited. This is true even if her ignorance or mistake
was reasonable.
1. The common law distinction between the two alternative meanings
of mens rea:
2. elemental meaning; and (2) the culpability meaning correlate with
the common law concepts of specific intent and general intent.
ii. With a specific intent crime, a mistake is a defense when it negates the
specific intent required by the offense.
iii. With a general intent crime, if the mistake is reasonable, is provides a
defense. If the mistake was unreasonable, then at common the
defendant would be culpable and therefore liable.
iv. If a general intent crime, and the mistake is reasonable, some courts will
still impose liability under the “moral wrong” doctrine or the “legal
wrong doctrine”.
b. Mistake Must Negate State of Mind -Ignorance or mistake as to a matter of fact
will affect criminal guilt only if it shows that the defendant did not have the state
of mind required for the crime
c. Requirement that Mistake Be Reasonable –
i. Specific Intent Crimes—Reasonableness Not Required Any mistake of
fact, reasonable or unreasonable, is a defense to a specific intent crime.
ii. Malice and General Intent Crimes—Reasonableness Required If the
mistake or ignorance is offered to negate the existence of general intent or
malice, it must be a reasonable mistake or ignorance, i.e., the type of
mistake or ignorance that a reasonable person would have made under the
circumstances.
d. Mistake or Ignorance of Law May Negate Intent - If the mental state for a
crime requires a certain belief concerning a collateral aspect of the law, ignorance
or mistake as to that aspect of the law will negate the requisite state of mind. This
situation involves ignorance of some aspect of the elements of a crime rather than
the existence of the statute making the act criminal.
i. Example: B, who has had her car repossessed by a loan company,
honestly believes she is still the lawful owner of the vehicle and is
lawfully entitled to possession of it. She sees it sitting in a parking space
in front of the loan company office and takes it. Even if B is wrong about
her right to take the automobile, she is not guilty of larceny because she
lacks the requisite intent to deprive another of his property.
ii. § 2.02(1) Minimum Requirements of Culpability. - Except as provided
in Section 2.05 (a violation), a person is not guilty of an offense unless he
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acted purposely, knowingly, recklessly or negligently, as the law may
require, with respect to each material element of the offense.
iii. § 2.02(3) Culpability Required Unless Otherwise Provided. - When the
culpability sufficient to establish a material element of an offense is not
prescribed by law, such element is established if a person acts purposely,
knowingly or recklessly with respect thereto.
e. EXCEPTIONS these are allowed as a true affirmative defense to a crime
i. Statute was not published
ii. Reasonable reliance on statute or judicial decision
iii. Reasonable reliance on Official interpretation or advice
People v. Navarro PG: 206: Guy took beams from a construction site that is had in good faith
believed the beams were abandoned. If no specific intent or other special mental element is
required for guilt of the offense charged, a mistake of fact will not be recognized as an excuse
unless it was based upon reasonable grounds.
People v. Marrero PG: 211: Peace officer carried an unregister gun but thought he fell under the
“peace officer” exception that he didn’t. The protection of mistake of law does not apply simply
by misconstruing the meaning of a statute but must instead establish that the statute relied on
actually permitted the conduct in question and was only later found to be erroneous. Mistake of
law regarding a statutory definition is not a valid defense unless the mistaken belief is based on
an official statement of the law contained in a statute or issued by a public servant.
Cheek v. United States PG: 222: Guy stops paying taxes because he believed them to be
unconstitutional. A good faith misunderstanding of the law or a good faith belief that one is not
violating the law does not have to be reasonable to negate the element of willfulness.
COMMON LAW: MISTAKE AND MENS REA
If Model Penal Code § 2.04 does not apply, common law applies:
Step 1: Ask yourself: Is the offense specific intent, general intent, or
strict liability?
Step 2A: With specific intent offenses, do elemental analysis, ask: Does the mistake relate to
the specific intent portion of the offense?
If YES: do elemental analysis; that is, ask yourself whether
the mistake negates the specific intent element of the offense.
If it does, the defendant must be acquitted.
Step 2B: With general intent offenses, do culpability analysis; that is,
determine whether the defendant acted with a morally blameworthy
state of mind. There are alternative ways to answer this question:
Usual way: Determine whether the defendant’s mistake
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was reasonable or unreasonable. If it was unreasonable, then
he acted with a culpable state of mind and may be convicted.
If his mistake was reasonable, then he is morally innocent and
entitled to a defense for want of a mens rea.
Alternatively (rare): Even if the defendant’s mistake
was reasonable, some courts will apply the Amoral wrong@
and/or Alegal wrong@ doctrines, as discussed in Notes 5-6 page 209-210 after Navarro [in
slides].
Step 2C: With strict liability offenses, a mistake is never a defense.
Under elemental analysis, there is no element of mens rea to
negate. Under culpability analysis, by definition,
blameworthiness is irrelevant.
CHAPTER 6 CAUSATION
Vocab:
1. Cause (Causation in Fact) - Before the defendant’s conduct can be considered a
proximate cause of plaintiff’s injury, it must first be a cause in fact of the injury. Apply
But-For test
2. “But For” Test - An act or omission to act is the cause in fact of an injury when the
injury would not have occurred but for the act.
3. “substantial factor” test - when two defendants concurrently inflict mortal wounds upon
a human being, each of which is sufficient to cause death. The defendant’s conduct is a
cause-in-fact of a prohibited result if the subject conduct was a “substantial factor” in
bringing about the said result.
4. Necessary Condition or Sine Qua Non (“without which not”) - The actor’s negligent
conduct is a “cause in fact” if without that negligent conduct the harm to plaintiff would
not have occurred. Stated otherwise, but for the actor’s negligent conduct, the injury
would not have happened.
5. Substantial Factor Causation - Even if harm to the plaintiff would have occurred
without the defendant’s action, if the causal activity of the defendant can be said to be a
substantial factor causally in bringing about the harm, he may be found liable for the
harm.
6. “Proximate cause” – Casual link between act and injury that was a direct and natural
result of reasonable foreseeability. Limitation upon the type of causal relation required to
impose liability on a defendant because of negligent or other wrongful conduct. Not only
must the negligent conduct be a “but for” or “substantial factor” in bringing about the
harm, it must also be a “proximate” cause of the injury. (Defined more narrowly in Crim
law than Tort law.)
7. Intervening Forces – when some but-for causal agent comes into play after the
defendant’s voluntary act or omission and before the social harm occurs when it breaks
the causal chain it is called a superseding cause.
8. novus actus interveniens (“new intervening act”) – superseding cause
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9. Superseding cause - an act of a third person or other force which by its intervention
prevents the original actor from being liable for harm to another which his antecedent
conduct was a “cause in fact” in bringing about.
Approaches
• “But-For” Test - An act or omission to act is the cause in fact of an injury when the
injury would not have occurred but for the act. Determines Actual Cause or Cause in
fact.
• “Substantial factor” test - when two defendants concurrently inflict mortal wounds
upon a human being, each of which is sufficient to cause death
• Cause in fact – Conduct must be casually operative in causing the harm. This can be
satisfied by either being a (1) necessary or a (2) “substantial factor” in causing the
harm
• Proximate causation analysis – Not a matter of applying hard and fast rules leading to
some scientifically “correct” outcome; instead, it is an effort by the factfinder to
determine, based on policy considerations or matters of fairness, whether holding the
defendant(s) criminally responsible for a prohibited result is proper. Thinking in terms of
factors that potentially affect causal responsibility is most accurate approach.
A) Actual Cause (Cause-in-Fact 229)
o Clearly there can be no criminal liability for such result-type offenses unless it
can be shown that the defendant’s conduct was a cause-in-fact of the prohibited
result, whether the result be the death of a human being, personal injury to
another, or injury to another’s property
o traditional “but for” test in determining whether the defendant’s conduct was a
cause-in-fact of a prohibited consequence in result-type offenses such as vehicular
homicide
B) Proximate Cause (Legal Cause, 235)
MPC § 2.03. Causal Relationship Between Conduct and Result
• (1) Conduct is the cause of a result when:
o (a) it is an antecedent but for which the result in question would not have
occurred; and
o (b) the relationship between the conduct and result satisfies any additional causal
requirements
• Proximate causation analysis – Not a matter of applying hard and fast rules leading to
some scientifically “correct” outcome; instead, it is an effort by the factfinder to
determine, based on policy considerations or matters of fairness, whether holding the
defendant(s) criminally responsible for a prohibited result is proper. Thinking in terms of
factors that potentially affect causal responsibility is most accurate approach.
• Intervening Forces – when some but-for causal agent comes into play after the
defendant’s voluntary act or omission and before the social harm occurs when it breaks
the causal chain it is called a superseding cause.
o 1) an act of Nature,” i.e., an event that cannot be traced back to any human
intermediary
o 2) an act of an independent third party
o 3) an act or omission of the victim that assists in bringing about the outcome
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o 4) conduct is viewed as too remote or unnatural
• If an intervening cause did indeed supersede the defendant’s act as a legally significant
causal factor, then the defendant’s conduct will not be deemed a proximate cause of the
victim’s injury.
• 1) Schaefer- 2 factors of PC Factual cause and Proximate cause. PC designed to
prevent crim. liability when the result of the def. conduct is viewed as too remote or
unnatural. Everyone agrees the Def conduct was factual but-for the second accident.
Standard of Intervening cause supersedes the causal link is one of reasonable
foreseeability. Linchpin of intervening cause is based on an objective standard of
reasonableness.
• 2) Dressler’s analysis.
o 1) Foreseeability factor  A) Responsive intervening – harm results from actions taken in response
to the def. conduct. Presumptively foreseeable and does not break the
causal chain unless it is abnormal, and if abnormal, also unforeseeable.
(grossly negligent)
 B) Coincidental intervening – def. conduct puts victim in the wrong
place at the wrong time. Presumptively unforeseeable and breaks the
causal chain unless it’s foreseeable (all things considered).
 If same general type of harm is foreseen, but not the exact manner it may
occur in either A or B then it is not a superseding cause.
o 2) Apparent-safety doctrine – def. active force has come to rest in a position of
apparent safety. The court stops following PC after this event.
o 3) Free deliberate and informed human intervention – Voluntary, knowing,
and intelligent – a victim is a human agent that is the case of an intervention of a
natural force. (refusing medical care is foreseeable)
o 4) De minimis –.
o 5) Intended consequences doctrine minimal contribution to the social harm may
accelerate certain death by a few seconds, not a superseding cause – generally the
actor wanted a result and if that result occurs – even if an unforeseeable event
intervened – not a superseding intervention.
o 6) Omission factor – With no duty to act, no matter how unforeseeable an
omission may be, this “negative act” will not cut off liability of an earlier
“positive act.” Nothing does not supersede something.
o 7) Contributory negligence of victim – a victim’s own actions caused their own
death after defendant’s actions.
C) Concurrence of the Elements (250)
• Mens rea and actus reus required at the same time.
• The defendant must have had the intent necessary for the crime at the time he committed
the act constituting the crime. In addition, the intent must have prompted the act.
• Example: A decides to kill B. While driving to the store to purchase a gun for this
purpose, A negligently runs over B and kills him. Is A guilty of murder? No, because
although at the time A caused B’s death he had the intent to do so, this intent did not
prompt the act resulting in B’s death (i.e., A’s poor driving).
• Compare: With the intent to kill B, A strangles B to the point of unconsciousness, but
does not actually kill B. Thinking B is dead, A buries B, and B dies as a result. Is A guilty
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of murder, even though the death-causing act of burying B was done without the intent to
murder? Yes, in a majority of jurisdictions. Most courts would find that the two acts were
part of a single transaction with a common intent.
Oxedine v. State PG: 230:
People v. Rideout PG: 236:
Velazquez v. State PG: 246:
CHAPTER 7 CRIMINAL HOMICIDE
1. Common Law Murder - unlawful killing of another human being with malice
aforethought.
2. Manslaughter – unlawful killing of a human being without malice (residual category for
all other criminal homicides)
3. Voluntary Manslaughter - Upon a sudden quarrel or heat of passion
4. Involuntary Manslaughter - In the commission of an unlawful act not amounting to a
felony, or in the commission in an unlawful manner, or without due caution and
circumspection, of a lawful act which might produce death
5. Procurement – getting someone else to commit the murder
6. Adequate provocation - calculated to inflame the passion of a reasonable man and tend
to cause him to act for the moment from passion rather than reason
MPC: If you cannot answer “but-for” test no need to go past §2.03(1)(a)
Overview
• 2. Common Law Origins and Statutory Reform (253-5)
o Com Law def- unlawful killing of another human being with malice aforethought.
o “arbitrary symbol” used by judges to signify any of a number of mental states deemed
sufficient to support liability for murder.
o “malice aforethought” has been stretched to:
 1) Intent to Kill – intentional not Heat of Passion
 2) Intent to cause grievous bodily harm – knowledge that conduct would
cause serious injury was generally assimilated to intent and was sufficient for
murder it death was the result.
 3) Depraved-Heart- Unintentional homicide with abandoned and malignant
heart, wanton and willful disregard for murder absent any actual intent to kill.
 4) Felony-Murder – strict liability for homicide committed during the
commission of a felony.
o Early statutes, however, sought to differentiate among criminal homicides and
ultimately led to the division of:
 Murder, which retained its status as a capital crime, and
 the lesser offense of Manslaughter
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3. Variations on the Theme: Some Homicide Statutes
o Florida carried a Com. Law substance into statute to form a version of manslaughter the killing of a human being by the act, procurement or culpable negligence of
another where such killing shall not be justifiable or excusable homicide nor murder
o Cali: pg. 256
o Michigan: 258
o New York: 259
o Ohio: 262
o Penn: 264
B) Intentional Killings (273)
o 1. Deg. Of Murder: Deliberation-Premeditation Formula
 Deliberation – measure and evaluate the major facets of the choice (how)
 Premeditate – think about beforehand. (what)
Guthrie (Man with mental illness stabs another in the neck at work, 273)
• The linchpin was the jury instruction that described the difference between 1st and 2nd degree
murder. The line isn’t clear, but can be carefully defined to jury discretion.
Midgett (Man beats his son Ronnie Jr. to death, 277)
• To “speak of premeditation and deliberation which are instantaneous, or which take no
appreciable time, ... destroys the statutory distinction between first and second-degree
murder.
o Intent to kill is necessary for premeditated and deliberate murder.
Forrest (kills father who is dying, mercy killing, 280)
• Premeditation means that the act was thought out beforehand for some length of time,
however short, but no particular amount of time is necessary for the mental process of
premeditation. Deliberation means an intent to kill, carried out in a cool state of blood, in
furtherance of a fixed design for revenge or to accomplish an unlawful purpose and not under
the influence of a violent passion, suddenly aroused by lawful or just cause or legal
provocation. The phrase “cool state of blood” means that the defendant's anger or emotion
must not have been such as to overcome his reason.
o Mercy killing. Premeditated and Deliberate can be shown with these factors:
 1) w/o provocation at killing
 2) conduct and statements before and after killing
 3) threats and declarations
 4) ill-will between parties
 5) lethal act after the victim is helpless
 6) # of wounds (contentious tool, not universally accepted)
Handout: Man shoots cop in chest dies many years later by UTI
o Year and a day rule - At common law, a defendant could not be prosecuted for
murder unless the victim died within a year and a day of the act inflicting injury.
o If felony-murder is in the statute, and MPC applies
 2.03(1)(a) but-for test.
• Foreseeable action.
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2. Manslaughter: Heat of Passion Killings (285)
• A. Common Law Principles
o Rule of Provocation for mitigation
 1) There must have been adequate provocation
 2) The killing must have been in the heat of passion
 3) It must have been a sudden heat of passion—that is, the killing must have
followed the provocation before there had been a reasonable opportunity for
the passion to cool
 4) There must have been a causal connection between the provocation, the
passion, and the fatal act.
Girouard v. State (A married army couple fight and the wife is murdered, 285-9)
• may mitigate what would normally be murder to manslaughter. (1) discovering one’s spouse
in the act of sexual intercourse with another; (2) mutual combat; (3) assault and battery (4)
injury to ones relatives or a third party (5) death resulting from resistance from illegal aren’t.
The standard is one of reasonableness.
C. MPC and Beyond
a. The Model Code endorses a formulation that affords sufficient flexibility to differentiate
in particular cases between those special aspects of the actor’s situation that should be
deemed material for purpose of grading and those that should be ignored. There thus will
be room for interpretation of the word “situation,” and that is precisely the flexibility
desired. * * * In the end, the question is whether the actor’s loss of self-control can be
understood in terms that arouse sympathy in the ordinary citizen. Section 210.3 faces this
issue squarely and leaves the ultimate judgment to the ordinary citizen in the function of
a juror assigned to resolve the specific case.
People v. Casassa (Man’s obsession causes his own stress and murders, 303-8)
• Affirmative defense of extreme emotional disturbance may be based upon a series of events,
rather than a single precipitating cause.
• The defense of “extreme emotional disturbance” has two principal components
o (1) the particular defendant must have “acted under the influence of extreme
emotional disturbance,”
 The first requirement is wholly subjective—i.e., it involves a determination
that the particular defendant did in fact act under extreme emotional
disturbance, that the claimed explanation as to the cause of his action is not
contrived or sham
o (2) there must have been “a reasonable explanation or excuse” for such extreme
emotional disturbance, “the reasonableness of which is to be determined from the
viewpoint of a person in the defendant’s situation under the circumstances as the
defendant believed them to be.”
 The second component is more difficult to describe—i.e., whether there was a
reasonable explanation or excuse for the emotional disturbance.
“The ultimate test, however, is objective; there must be ‘reasonable’ explanation or excuse for
the actor’s disturbance.”
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D) Unintentional Killings: Unlawful Conduct
 Felony-Murder Rule
 A. The Doctrine in General
• The mens rea exists with the felony. So, not exactly strict liability.
• Duress defense can work for the underlying felony.
 C. Limitations on the Rule
• Criticism; if murder itself wouldn’t be prosecuted for first degree
murder then how can it be with an underlying felony?
• Under MPC – 210.2(1)(b) is the closest we get to felony-murder rule
in MPC. Presumption of recklessness is given when felony has been
proven. The defendant can challenge the presumption.
• Meant to deter murder during a felony.
• Cali approach – Is the statute inherently dangerous? Need one
instance of not being dangerous to alleviate felony-murder burden. Is
the felony (conduct) assaultive?
o Courts have used a textual and structural approach to
answer. No consensus.
o Merger
 When the felony merges with the murder, the felony-murder rule cannot
apply.
• Assault with a deadly weapon yields a killing. This murder would
then be raised to first degree murder with felony-murder rule.
 Independent Rule – felony must be independent of the killing to use felonymurder.
People v. Smith
Issue: whether the felony child abuse may serve as the underlying felony to support a conviction
of second-degree murder on a felony-murder theory.
Felony-murder purpose: to deter those engaged in felonies from killing negligently or accidently
People v. Ireland: Held: inapplicable to felonies that are an integral part of and included in fact
without the homicide.
Referred to as Felony Murder “Merger Limitation”
• A second-degree felony-murder instruction may not properly be given when it is based
upon a felony which is an integral part of the homicide and which the evidence produced
by the production shows to be an offense included in fact within the offense charged.
• Ireland attack: if it succeeds can’t charge my client with second-degree felony murder
instruction and just wants a murder instruction
People v. Wilson: The felony-murder rule cannot apply to burglary-murder cases in which “the
entry would be nonfelonies but for the intent to commit the assault, and the assault is an integral
part of the homicide and is included in fact in the offense charged.
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•
Where a person enters a building with an intent to assault his victim with a deadly
weapon, he in not deterred by the felon-murder rule. That doctrine can serve its
purpose only when applied to a felony independent of the homicide.”
o Limit felony-murder to cases where there is a purpose of deterrence
People v. Sears: It would be anomalous to place a person who intends to attack one person but in
the court of the assault kills another inadvertently or in the heat of battle in a worse position than
the person who from the outset intended to attack both person and killed one or both.
• Under the Ireland rule: if went in hoping to kill two people and kills one only charged
with murder
People v. Burton: We refined the Ireland rule by adding the caveat that the felony murder may
nevertheless apply if the underlying offense was committed with an “independent felonious
purpose.”
Conclusion: Since this was an assaultive abuse the felony-murder rule did not apply and they are
just charged with murder.
Killings “in the Perpetration” or “in furtherance” of a Felony
State v. Sophophone
270 Kan. 703, 19 P.3d 70
-Defendant is arguing he is not guilty of felony-murder rule because he was in custody at the
time of the shooting.
-arguing there was a “break in circumstances”
-Intervening cause
-Court denied that argument
REAL ISSUE: killing was unlawful by a 3rd party that a question of law exists as to whether
Sophophone can be convicted of felony-murder.
Agency Approach: (court used this approach) (majority position): the majority rule is that the
felony-murder doctrine does not apply if the person who directly causes the death is a non-felon.
The “Proximate Causation” approach: (minority position): a felon may be held responsible
under the felony-murder rule for a killing committed by a non-felon if the felon set in motion the
acts which resulted in the victim’s death.
* In order to be guilty of felony-murder must be involved “in the perpetration” or “in
furtherance” of the felony.
-Defendant’s charge should be reversed using the “Agency” Approach.
Res Gestae doctrine: if a felon kills someone after the crime committed but shortly thereafter in
some circumstance’s courts will treat the post-felony death as falling with the “res gestae” of the
felony and, therefore, within the scope of the felony-murder rule.
-A causal relationship between the felony and the killing must also be established
-Presumably, something more than simple but-for causation must exist between the
felony and the death.
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-Felony must be the proximate cause of the death
Justifications and Excuses
1. Justification defense - All justification defenses have the same internal structure:
triggering conditions permit a necessary and proportional response Triggering conditions
are the circumstances that must exist before an actor will be eligible to act under a
justification.
2. Transferred intent and justification – may not apply if another is killed, but excessive
or negligent force may cause transferred intent to be apply.
3. Reasonable Mistake – Premise is not correct, but would be a reasonable act in the same
manner
4. Alter Ego – the right to defend another is no greater than the right of the third person to
defend himself. (Minority rule compared to Reasonable belief self-defense)
5. Affirmative defense - all elements met and justified.
6. Failure of proof defense – element not proven.
7. Imperfect defense - Some states recognize an imperfect defense in other circumstances.
For example, various jurisdictions allow a defendant to claim an imperfect defense if she
uses deadly force in response to a nondeadly assault. Other states allow the imperfect
defense “where the homicide would fall within the perfect self-defense doctrine but for
the fault of the defendant in provoking or initiating the difficulty at the non-deadly force
level.”
8. Necessity at Common law - must have arisen from nature
9. Duress –must come from human and removes either mens rea or actus reus.
APPROACHES
 Justifications have all elements of the crime, but lawful.
o Necessary and Proportional (521-2)
• it must be necessary to protect or further the interest at stake
• it must cause only a harm that is proportional or reasonable in
relation to the harm threatened or the interest to be furthered.
o Preservation of life vital to defense.
o Safety outweighs retreat
 COM LAW MINORITY - Retreat to the wall - which ordinarily forbade the
use of deadly force by one to whom an avenue for safe retreat was open.
 COM LAW MAJORITY – Stand your ground when it seems necessary to
save yourself.
o Transferred intent and justification – may not apply if another is killed, but
excessive or negligent force may cause transferred intent to be apply.
o MPC 3..04
 3.04(b)(2): The use of deadly force is not justifiable under this Section unless
the actor believes that such force is necessary to protect himself against death,
serious bodily harm, kidnapping or sexual intercourse compelled by force or
threat.
 (2)(c) – outside of a and b don’t have to retreat or surrender.
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•
•
•
•
•
•
•
•
o MPC 3.09 - Mistake of Law as to Unlawfulness of Force or Legality of
Arrest; Reckless or Negligent Use of Otherwise Justifiable Force; Reckless or
Negligent Injury or Risk of Injury to Innocent Persons
 The justification afforded by Sections 3.04 to 3.07, inclusive, is unavailable
when:
 (3) When the actor is justified . . .in using force upon or toward the person of
another but he recklessly or negligently injures or creates a risk of injury to
innocent persons, the justification afforded by those Sections is unavailable in
a prosecution for such recklessness or negligence towards innocent persons
Commentary from MPC on 3.09(c):
o In assessing a such a charge [of homicide against a person who in the exercise of selfdefense against one person injures another], the actor’s justifying purpose must of
course, be given weight in determining whether the risk to innocent persons was
sufficient to establish a gross deviation from proper standards of conduct.
o The definitions of recklessness and negligence are explicit on this point, each
involving a substantial and “unjustifiable” risk that a danger to innocent persons will
result. Thus, if the only way to save one’s life is to use deadly force that creates some
risk of harm to others, that force might be justified.
o A similar use of force might not, however, be justified to stop a fleeing armed robber
if there were danger to others. Although the risk to the life of the robber does not
outweigh the benefits of preventing the escape, the risk to others might well do so.
Objective – includes previous experiences and facts
Under MPC- one can have a neg, reckless, or reasonable mistaken premise, but right
conclusion and use the defense.
Reasonable Mistake – Not correct, but reasonable.
To use DEADLY FORCE
o 1) without fault
o 2) Attacker must be using unlawful force
o 3) threat of imminent death or great bodily harm
Use of NONDEADLY FORCE
• Individual who is without fault may use such force as she reasonably believes is necessart
to protect herself from the imminent use of lunlawful force upon herself.
Common Law self-defense justification
• 1) Objectively reasonable
• 2) Imminent Threat
• 3) Retreat
o 1) safety outweighs need for retreat.
o 2) No retreat necessary in several specific situations
 1) Castle Doctrine
 2) Attack occurs while the victim is making lawful arrest
 3) Assailant is in the process of robbing the victim
MPC ON IMMINENT THREAT
• Says “Immediately Necessary” not imminent meaning at the necessary moment.
Think about who is acting in self-defense. Often the victim acting in defense appears
to be the aggressor.
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•
Battered Spouse Syndrome in some jurisdictions satisfies the Com law
• 1) Validates as a subjective element
• 2) Victim is sensitive to the batter’s aggression
• 3) (eliminates retreat as a element)
US. v Peterson (man tells a dude not to move or he dies. Then gets shot)
• One who is the aggressor in a conflict culminating in death cannot invoke the necessities
of self-preservation. The “castle” doctrine. It is well settled that one who through no fault
of his own is attacked in his home is under no duty to retreat therefrom (didn’t apply
because defendant was aggressor and at fault.
People v. Goetz (subway vigilant)
• Requirements as to triggering conditions and the necessity of a particular response are
met. As to the triggering conditions, the statute requires that the actor “reasonably
believes” that another person either is using or about to use deadly physical force or is
committing or attempting to commit one of certain enumerated felonies, including
robbery. As to the need for the use of deadly physical force as a response, the statute
requires that the actor “reasonably believes” that such force is necessary to avert the
perceived threat. If a defendant sincerely believes that he is being threatened in a way
that justifies his use of deadly force, but that belief was negligent than he can only be
charged with negligent homicide MPC §210.4. If he was reckless in forming that
belief, he can only be charged with reckless manslaughter § 210.3
State v. Wanrow (woman is startled by child molester while on crutches, shots him)
• Whether the jury should only consider acts immediately before the killing, This is not the
law of self-defense in Washington. Justification of self-defense is to be evaluated in
light of all the facts and circumstances known to the defendant, including those known
substantially before the killing. There was a misstatement of law because the jury
instruction suggested that the measure is that of a reasonable MAN.
People v. Kurr (Pregnant lady was punched in stomach issued warning, the killed 575-9)
• MI Common Law- the killing of another person in self-defense is justifiable homicide if
the defendant honestly and reasonable believes that his life is in imminent danger or that
there is a threat of seriously bodily harm (extends to in utero fetuses) We conclude that an
individual may indeed defend a fetus from such an assault and may even use deadly force
if she honestly and reasonably believes the fetus to be in danger of imminent death or
great bodily harm.
State v. Norman (Battered spouse shots batterer in his sleep)
• Common Law needs immediate threat. MPC uses the immediately necessary window to
defend one’s self.
OTHER FORMS OF SELF-DEFENSE
A. Right of the AGGRESSOR to use self-defense
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a. withdrawal or retreat – aggressor who is in good faith attempts to remove
herself from the fight and communicates to the other person her desire to remove
herself, regains her right to use self-defense
b. Sudden Escalation – victim of the initial aggression suddenly escalates a
“minor” fight into one involving deadly force and does so without giving the
aggressor the change to withdraw
B. Defense of others – determining whether a person who has used force to defend another
person is criminally liable for her acts
a. Relationship with person
i. Relationship not necessary, by majority rule, A few jurisdictions require
that the person whom the defendant aided must either have been a member
of the defendant’s family or the defendant’s employee or employer.
C. Status of person aided
a. A defendant has the defense of defense of others only if she reasonably believed
that the person she assisted had the legal right to use force in his own defense. If
in fact that person had no such legal right, does the defendant still have a defense?
The majority view is yes, because all that is necessary for the defense is the
reasonable appearance of the right to use force. In a minority of jurisdictions,
however, the answer is no, because the defendant “steps into the shoes of the
person she defends” and therefore has no defense if that person had no legal right
to use force in self-defense
D. Defense of a Dwelling [common law general defense]
a. Nondeadly Force
i. A person is justified in the use of nondeadly force in defense of her
dwelling when, and to the extent that, she reasonably believes that such
conduct is necessary to prevent or terminate another’s unlawful entry into
or attack upon her dwelling.
E. Deadly Force
a. One is generally justified in the use of deadly force in two situations:
i. Tumultuous Entry Plus Personal Danger
1. Use of deadly force is justifiable where the entry was made or
attempted in a riotous, violent, or tumultuous manner and the
person reasonably believes that the use of force is necessary to
prevent a personal attack upon herself or another in the dwelling.
ii. Felony
1. Use of deadly force is also justifiable where the person reasonably
believes that such force is necessary to prevent the entry into the
dwelling by a person who intends to commit a felony in the
dwelling.
State v. Boyett (580-6)
b. Defense of Habitation – Use of deadly force is justified only if the defendant
reasonably believed that the commission of a felony in his or her home was
immediately at hand and that it was necessary to kill the intruder to prevent that
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occurrence. (Can be inside the home or outside, but must be in the commission of
prevention of a violent felony)
c. Police using Deadly force – law enforcement typically plead 1) crime prevention
or 2) arrest when a person dies by a police officer. Deadly force is not allowed in
the case of a misdemeanor. Most states have statutorily restricted deadly force to
forcible (atrocious) felonies.
F. Duress defense (note: Intent and motive not the same thing and if duress does not
eliminate mens rea it can be used as an affirmative defense.)
a. 1) Immediate threat of death or serious bodily injury
i. Element requires that there be some evidence that the threat of injury was
present, immediate, or impending
b. 2) Well-grounded fear that the threat will be carried out
c. 3) No reasonable opportunity to escape the threatened harm
i. Trier of fact should decide whether one in the actors position might
believe that there was not a reasonable opportunity to escape.
d. Difference between duress and necessity – “the major difference between
duress and necessity is that duress negates the existence of the mens rea and
necessity negates the actus reus of the crime.” (US v. Micklus)
e. Duress always involves a human threat, necessity can be other things.
f. Defendant will be acquitted with a duress defense (except murder) when def
proves that
i. 1) another person unlawfully threatened imminently to kill or grievously
injure him or another person
ii. 2) he was not at fault in exposing himself to threat.
g. MPC Duress §2.09 and Choices of Evil §3.02
G. Incorrect formulation of duress
a. A reasonable but mistake belief holds no liability if a person of ordinary firmness
would not have been able to resist the threat.
b. If one’s mistaken belief was recklessly or negligently formed, he could be liable
only for a crime of recklessness or negligence.
US v. Contento-Pachon (guy swallows cocaine to save family, 613-616)
• Duress defense (note: Intent and motive not the same thing and if duress does not
eliminate mens rea it can be used as an affirmative defense.)
o 1) Immediate threat of death or serious bodily injury
 Element requires that there be some evidence that the threat of injury was
present, immediate, or impending
o 2) Well-grounded fear that the threat will be carried out
o 3) No reasonable opportunity to escape the threatened harm
 Trier of fact should decide whether one in the actors position might
believe that there was not a reasonable opportunity to escape.
• Difference between duress and necessity
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o “the major difference between duress and necessity is that duress negates the
existence of the mens rea and necessity negates the actus reus of the crime.” (US
v. Micklus)
o Duress always involves a human threat, necessity can be other things.
• Defendant will be acquitted with a duress defense (except murder) when def proves that
o 1) another person unlawfully threatened imminently to kill or grievously injure
him or another person
o 2) he was not at fault in exposing himself to threat.
H. MPC Duress §2.09 and Choices of Evil §3.02
a. Incorrect formulation of duress
i. A reasonable but mistake belief holds no liability if a person of ordinary
firmness would not have been able to resist the threat.
ii. If one’s mistaken belief was recklessly or negligently formed, he could be
liable only for a crime of recklessness or negligence.
People v. Anderson (duress a defense to murder,628-634)
 Duress cannot be a common law neither be a complete defense to murder, nor imperfect
defense to mitigate to manslaughter. Duress can be a defense to a felony in the instance
of felony-murder.
o Duress- human physical forces
o Necessity – general welfare
Nelson v. State (586-591)
 Necessity Defense – May be raised if the defendant’s actions, although it violates the law,
were necessary to prevent an even greater harm from occurring. (Hard to determine a
jurisdictions scope and standing of defense) (balancing potential harm and punishment
show importance of the prohibited act)
o Commenter’s test
 1) Act must have been done to prevent significant evil
 2) No adequate alternative
 3) Harm caused must not be disproportionate
MPC Limits scope of Necessity Defense (§3.02 (1-2))
1) Actor must believe conduct is necessary
2) Harm caused must be less than avoided harm
3) Objective balancing, not subjective
4) Not allowed in Legislatively barred
5) Not available if crime is committed reckless or neg. (3.02(2))
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I. Intoxication Defense
a. Voluntary intoxication is not a defense to crimes requiring malice,
recklessness, or negligence, or crimes of strict liability (specific intent). Thus,
voluntary intoxication is not a defense to common law murder, which
requires a mens rea of “malice aforethought.”
b. Intoxication is involuntary only if it results from the taking of an intoxicating
substance (i) without knowledge of its nature, (ii) under direct duress imposed by
another, or (iii) pursuant to medical advice while unaware of the substance’s
intoxicating effect. And therefore a defense.
c. Intoxication and insanity are two separate defenses. However, continuous,
excessive drinking or drug use may bring on actual insanity (e.g., delirium
tremens). Thus, a defendant may be able to claim both an intoxication defense and
an insanity defense.
US v. Veach (drunk dude threatens cops, 634-42)
o Voluntary intoxication can only preclude specific intent mens rea. When you
read “Intentional performance” think moral or legal wrong doctrines.
State v. Johnson (The M’Naghten test, 649-653)
o Prohibited explanation if you knew you did it, then you were guilty.
J. Insanity Defense
a. The insanity defense exempts certain defendants because of the existence of
an abnormal mental condition at the time of the crime. The various
formulations differ significantly on what effects a mental illness must have
had to entitle the defendant to an acquittal. Note that insanity is a legal term
rather than a psychiatric one. Furthermore, insanity is a generic term
comprising many possible mental abnormalities, all of which have only one
thing in common: they are recognized by law as dictating certain legal
consequences. Usually, the cause of a defendant’s mental illness or insanity is
irrelevant in determining the legal consequences.
K. Types of Insanity defenses:
a. M’Naghten Rule
i. Elements The traditional M’Naghten rule provides that a defendant is
entitled to an acquittal if the proof establishes that:
ii. a) disease of the mind
iii. b) Caused a defect of reason
iv. c) Such that the defendant lacked the ability at the time of his actions to
either:
1. 1) Know the wrongfulness of his actions; or
2. 2) Understand the nature and quality of his actions.
v. ISSUES: One of the [other] most frequent criticisms of M’Naghten has
been directed at its all-or-nothing approach, requiring total incapacity of
cognition. By focusing upon total cognitive incapacity, the M’Naghten
rule compels the psychiatrist to testify in terms of unrealistic concepts
having no medical meaning.
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b. Irresistible Impulse Test - Under the irresistible impulse test, a defendant is
entitled to an acquittal if the proof establishes that because of mental illness he
was unable to control his actions or to conform his conduct to the law.
i. ISSUES - A more fundamental objection is that the test produces the
misleading notion that a crime impulsively committed must have been
perpetrated in a sudden and explosive fit.
c. Durham Test - Under the Durham rule, a defendant is entitled to an acquittal if
the proof establishes that his crime was the “product of mental disease or defect.”
i. ISSUES - The elusive, undefined concept of “productivity” . . . gave the
jury inadequate guidance. Most troublesome was the test’s tendency to
result in expert witnesses’ usurpation of the jury function.
d. MPC Test - Under MPC § 4.01 the defendant is entitled to an acquittal if the
proof shows that he suffered from a mental disease or defect and as a result
lacked substantial capacity to either
i. 1) Appreciate the criminality (wrongfulness) of his conduct; or
ii. 2) Conform his conduct to the requirements of law.
e. This test combines the M’Naghten and the irresistible impulse tests by allowing
for the impairment of both cognitive and volitional capacity
Latin Phrases
• Nullum crimen sine lege, nulla poena sine lege
o “no crime without law, no punishment without law”
• Noscitur a sociis
o “is known by the company it keeps”
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•
•
•
•
Ejusdem generis
o “Of the same kind, class, or nature”
Ignorantia legis neminem excusat
o “ignorance of the law excuses no one”
Malum in se
o “evil in itself”
Malum prohibitum
o “evil because prohibited”
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