De enses
Jus ca ons
and Excuses
MPC s3 01
(1281-1282)
MPC s1 12
(1272)
(1) n any
prosecu on
based on
conduc
wh ch s
us ab e
under h s
Ar c e
us ca on
s an
a rma ve
de ense
(2) The ac
ha conduc
s us ab e
under h s
Ar c e does
no abo sh or
mpa r any
remedy or
such conduc
wh ch s
ava ab e n
any c v
ac on
Jus y o
adm a y
ha he X
d d o ha
very h ng A
bu o argue
ha was a
good h ng or
he r gh or
sens b e h ng
o do e her
n genera or
a eas n he
spec a
c rcums ances
o he
occas on
(1) No person may be conv c ed o an o ense un ess each e emen o such o ense s proved beyond a reasonab e doub n he absence
o such proo he nnocence o he de endan s assumed
(2) Subsec on (1) o h s Sec on does no
(a) requ re he d sproo o an a rma ve de ense un ess and un here s ev dence suppor ng such de ense or
(b) app y o any de ense wh ch he Code or ano her s a u e p a n y requ res he de endan o prove by a preponderance o ev dence
(3) A ground o de ense s a rma ve w h n he mean ng o Subsec on (2)(a) o h s Sec on when
(a) ar ses under a sec on o he Code wh ch so prov des or
(b) re a es o an o ense de ned by a s a u e o her han he Code and such s a u e so prov des or
(c) nvo ves a ma er o excuse or us ca on pecu ar y w h n he know edge o he de endan on wh ch he can a r y be requ red o
adduce suppor ng ev dence
(4) When he app ca on o he Code depends upon he nd ng o a ac wh ch s no an e emen o an o ense un ess he Code o herw se
prov des
(a) he burden o prov ng he ac s on he prosecu on or de endan depend ng on whose n eres or con en on w be ur hered he
nd ng shou d be made and
(b) he ac mus be proved o he sa s ac on o he Cour or ury as he case may be
(5) When he Code es ab shes a presump on w h respec o any ac wh ch s an e emen o an o ense has he o ow ng
consequences
(a) when here s ev dence o he ac s wh ch g ve r se o he presump on he ssue o he ex s ence o he presumed ac mus be
subm ed o he ury un ess he Cour s sa s ed ha he ev dence as a who e c ear y nega ves he presumed ac and
(b) when he ssue o he ex s ence o he presumed ac s subm ed o he ury he Cour sha charge ha wh e he presumed ac
mus on a he ev dence be proved beyond a reasonab e doub he aw dec ares ha he ury may regard he ac s g v ng r se o he
presump on as su c en ev dence o he presumed ac
(6) A presump on no es ab shed by he Code or ncons s en w h has he consequences o herw se accorded by aw
Peop e v
Goetz and
no es
(871-886)
n roduc ory
No es
(869-871)
n NY a
person s
us ed n
us ng dead y
orce n SD or
de ense o
ano her ony
she
ob ec ve y
and
reasonab y
be eves an
a acker s
e her (1)
us ng or
abou o use
dead y orce
or (2)
comm ng or
a emp ng o
comm a
k dnapp ng
orc b e rape
orc b e
sodomy or
robbery
Jus ca ons
and excuses
do no seek
o seek o
re u e any
req d
e emen so
he
prosecu ons
case ra her
hey sugges
cons dera ons
ha nega e
ab y even
when a
e emen s o
he o ense
are presne
ex
SD= us ca on
nsan y =
excuse
No es
A us ca on
o SD may be
perm ed
when he D s
be e was
m s ake bu
on y here
was an
ob ec ve y
reasonab e
bas s or he
be e n he
rs p ace
(1) Wh ch
hrea s are
dead y?
he genera
ru es s ha
any hrea o
n c grea
bod y harm
qua es
even he
harm m gh
no be
e- hrea n ng
The r gh o
use dead y
orce n SD
has
con a ned an
e emen o
ob ec ve
reasonab eness
rom he days
o common
aw
Du y o
Re rea
(921-925)
State v Ke y
+ no es
(887-902)
(2)
qua ca ons
o he
ob ec ve es
(3) spec y ng
he ac or s
s ua on
mos
ur sd c ons
adop some
orm o hybr d
s d he ury
mus udge
he D by he
s ds o he
reasonab e
person n he
s ua on
MPC so u on
s o have
cour s and
presumab y
ur es
de erm ne n
each case
on an ad hoc
bas s wha
c rcums naces
coun as par
o he D s
s ua on
(4) grad ng
prob em
MPC
approach
Exper
es mony on
ba ered
women s
syndome s
adm ss b e n
a murder ra
SD s
c a med
Second o dea w h s ua ons
nvo v ng m s aken be e s he
Code prov des n §3 09(2)
When he ac or be eves ha
he use o orce upon or oward
he person o ano her s
necessary or any o he
purposes or wh ch such be e
wou d es ab sh a us ca on
under §§3 03 o 3 08 bu he
ac or s reck ess or neg gen n
hav ng such be e or acqu r ng
or a ng o acqu re any
know edge or be e wh ch s
ma er a o he us ab y o h s
use o orce he us ca on
a orded by hose Sec ons s
unava ab e n a prosecu on or
an o ense or wh ch
reck essness or neg gence as
he case may be su ces o
es ab sh cu pab y The MPC
approach has no been
n uen a n s a e s a u ory
re orm
A person who k s
n he hones bu
unreasonab e be e
n he need o k
wou d be gu y o
neg gen hom c de
The Code ach eves
h s resu hrough
he n erac on o
wo d s nc
requ remen s F rs
n he var ous
us ca on
prov s ons he
Code s a es ha
he us ca on s
ava ab e whenever
he ac or herse
sub ec ve y
be eves ha he
necessary
c rcums ances are
presen
when no
de ense o
SD bu s
k ed
n en ona y
(1) murder
(2) mper ec
SD - so VMS
(3) MS -prob em s
hs
ns nua es s
nvo un ary
wh e a SD
k ng s
vo un ary-us ca on
here s ha
cu pab y s
s m ar o ha
o MS
(1) rad ona
v ew eng sh
CL mposed
a s r c du y
o re rea a
person cou d
use dead y
orce n SD
on y a er
exhaus ng
every chance
o ee when
he had h s
back aga ns
he wa
yp ca y on y
a owed
s
sc en ca y
re ab e nad
re evan o
he case
(3) s and your
ground
rough y 33
s a es have
now enac ed
aws ha
perm he
ac or o mee
orce w h
orce nc ud ng
dead y orce
even n pub c
spaces where
re rea s
poss b e
(2) recen
case aw
hre has been
a d s nc
endencec o
avor a req
o re rea n
se ngs
ou s de he
home
(4) he cas e
excep on (a)
n ruders n
ur sd c ons
requ r ng
re rea an
excpe on s
nvar ab y
made when
he D s
a acked n
h s own
home by an
n ruder
Expand ng
C m na
L ab y
MPC s5 01
1291 1292
No e on
Sauoy
Re o m 669
MPC s211 2
1301
(1) De n on o A emp A person s
gu y o an a emp o comm a cr me
ac ng w h he k nd o cu pab y
o herw se requ red or comm ss on o he
cr me he
(2) Conduc Wh ch May Be He d
Subs an a S ep Under Subsec on (1)(c)
Conduc sha no be he d o cons u e a
subs an a s ep under Subsec on (1)(c)
o h s Sec on un ess s s rong y
corrobora ve o he ac or?s cr m na
purpose W hou nega v ng he
su c ency o o her conduc he o ow ng
s rong y corrobora ve o he ac or?s
cr m na purpose sha no be he d
nsu c en as a ma er o aw
(a) purpose y engages n conduc wh ch
wou d cons u e he cr me he a endan
c rcums ances were as he be eves hem
o be or (b) when caus ng a par cu ar
resu s an e emen o he cr me does or
om s o do any h ng w h he purpose o
caus ng or w h he be e ha w cause
such resu w hou ur her conduc on h s
par or(c) purpose y does or om s o do
any h ng wh ch under he c rcums ances
as he be eves hem o be s an ac or
om ss on cons u ng a subs an a s ep n
a course o conduc p anned o cu m na e
n h s comm ss on o he cr me
(3) Conduc Des gned o A d
Ano her n Comm ss on o a
Cr me A person who engages n
conduc des gned o a d ano her
o comm a cr me wh ch wou d
es ab sh h s comp c y under
Sec on 2 06 he cr me were
comm ed by such o her person
s gu y o an a emp o comm
he cr me a hough he cr me s
no comm ed or a emp ed by
such o her person
W h n he mean ng o h s A c e
enunc a on o c m na pu pose s no
vo un a y
s mo va ed n who e o n
pa by c cums ances no p esen o
appa en a he ncep on o he ac o ?s
cou se o conduc wh ch nc ease he
p obab y o de ec on o app ehens on o
wh ch make mo e d cu he
accomp shmen o he c m na pu pose
Renunc a on s no comp e e
s
mo va ed by a dec s on o pos pone he
c m na conduc un a mo e
advan ageous me o o ans e he
c m na e o o ano he bu s m a
ob ec ve o v c m
4 Renunc a on o Cr m na
Purpose When he ac o ?s conduc
wou d o he w se cons u e an
a emp unde Subsec on 1 b o
1 c o h s Sec on
s an
a ma ve de ense ha he
abandoned h s e o o comm he
c me o o he w se p even ed s
comm ss on unde c cums ances
man es ng a comp e e and
vo un a y enunc a on o h s
c m na pu pose The
es ab shmen o such de ense
does no howeve a ec he
ab y o an accomp ce who d d
no o n n such abandonmen o
p even on
A pe son
comm s a
m sdemeano
he eck ess y
engages n
conduc wh ch
p aces o may
p ace ano he
pe son n
dange o
dea h o
se ous bod y
nu y
Reck essness
and dange
sha be
p esumed
whe e a
pe son
know ng y
po n s a
ea m a o n
he d ec on o
ano he
whe he o no
he ac o
be eved he
ea m o be
oaded
(a) y ng n wa search ng or or o ow ng
he con emp a ed v c m o he cr me (b)
en c ng or seek ng o en ce he
con emp a ed v c m o he cr me o go o
he p ace con emp a ed or s
comm ss on (c) reconno er ng he p ace
con emp a ed or he comm ss on o he
cr me (d) un aw u en ry o a s ruc ure
veh c e or enc osure n wh ch s
con emp a ed ha he cr me w be
comm ed (e) possess on o ma er a s o
be emp oyed n he comm ss on o he
cr me wh ch are spec a y des gned or
such un aw u use or wh ch can serve no
aw u purpose o he ac or under he
c rcums ances ( ) possess on co ec on
or abr ca on o ma er a s o be emp oyed
n he comm ss on o he cr me a or near
he p ace con emp a ed or s
comm ss on where such possess on
co ec on or abr ca on serves no aw u
purpose o he ac or under he
c rcums ances (g) so c ng an nnocen
agen o engage n conduc cons u ng
an e emen o he cr me
Equ voca y
es ooks no
o how a he
de endan has
gone bu o
how c eae y
h s ac s
bespeak h s
n en
The MPC
d aws on
e emen s o
bo h he
p ox m y and
he
equ voca y
es s Rough y
ha he s a es
and 2 3 o he
ed c cu y
now use a
subs an a
s ep es
compa ab e o
ha o he
MPC
Sma wood v
S a e + no es
644 651
n oduc on P
1 641 644
Equ voca y Tes
659 661
MPC s5 05 1
A CL a emp s
a m sdemeano
Today he usua
pun shmen s a
educed ac o o
he pun shmen
o he
comp e ed c me
Commen
A emp a e
c mes o he
same g ade
and deg ee as
he mos
se ous o ense
wh ch s
a emp ed An
a emp o
comm a
e ony o he
1D s a e ony
o he 2D
The e s ke y o
be
e
d e ence n he
g av y o he
equ ed
measu es
depend ng on
he
consumma on
o he a u e o
he p an
s
on y whne and
nso a as he
se ve y o
sen ence s
des gned o
gene a
de e en
pu poses ha a
d s nc on on
h s g ound s
ke y o have
easonab e
o ce
n u sd c ons
ha o ow h s
app oach he
D need no
comm he as
ac necessa y
o comp e e
he c me bu
he
unequ voca
ac owa d he
comm ss on o
he o ense
mus
demons a e
ha a c me s
abou o be
comm ed
un ess
us a ed by
n e ven ng
c cums ances
Many s a es
have aken he
MPc wh ch
makes he
pun shmen
he same o
he a emp as
o he c me
a emp ed
excep o
c mes
pun shab e by
dea h o e
mp sonmen
No es
howeve can
n e an n en
o k so e y
upon he ac
ha
Sma wood
exposed h s
v c ms o he
sk ha hey
m gh con ac
HV
e o ac
may n e he
ex s ence o
he equ ed
n en v a
c cums an a
ev dence such
as he
su ound ng
c cums ances
ke " he
accused s ac s
conduc and
wo ds"
Barker
1 n en eq
Kier v. State
1 dange ous
p ox m y es
Jones v S a e
a emp
equ es S o
p oduce he
p osc bed
esu even
when
eck essness
o some esse
MR wou d
su ce o
conv c on o
he comp e ed
o ense
D sho a a
house u o
peop e
wound ng
seve a and
k ng one He
was conv c ed
o mu de bu
no a emp ed
mu de
A emp ed
mu de
equ es a
spec c n en
o k bu
s
su c en o
mu de ha he
D engages n
conduc
know ng o a
h gh p obab y
ha n do ng so
he wou d k
someone
S a e v Bu er
he aw has
ecogn zed
ha many ac s
n he way o
p epa a on a e
oo emo e o
cons u e he
c me o
a emp
P o
de n ons
have been
e ec ed bu
he e s no
de n e answe
o he de n on
o a emp A
ha can be
ga he ed om
he au ho es
s ha o
cons u e a
c m na
a mep he
s s ep a ong
he way o
c m na n en
s no
necessa y
su c en nad
he na s ep s
no necessa y
eq d The
d v d ng ne
be ween
p epa a on
and a emp e
s o be ound
somewhe e
be ween hese
wo ex emes
ngu s c o
a emp
some h ng s o
y o
accomp sh
and one
canno be sa d
o y one
does no
n end o
succeed
mo a one
who n ends o
comm a
c m na ha m
does a g ea e
mo a w ong
ha one who
does so
eck ess y o
neg gen y
u a an he
mpo ance o
he n en s no
o show ha
he ac was
w cked bu ha
was ke y o
be o owed by
hu u
consequences
(a) A person comm s an o ense w h
spec c n en o comm an o ense he
does an ac amoun ng o more han mere
Reason or
ud c a
re uc ance o
move he
hresho d o
cr m na y o
an ear er
pro n n me
has been he
des re o
preserve or
he D he
chance o
repen and
u y abandon
he cr m na
p an
NY a emp
s a u e now
equ es ha
he D engage
n conduc
wh ch ends o
e ec he
comm ss on o
he
c me many
cou s s
app y he
R zzo
dange ous
p xm y
app oach
" he e mus be
dange ous
p ox m y o
success"
prepara on ha ends bu a s o e ec he
comm ss on o he o ense n ended
(b)
a person a emp s
may be aggrava ed
cons u es an a emp
aggrava ed o
an o ense ha
h s conduc
o comm he
ense
an e emen ha aggrava es he o ense
accompan es he a emp
A yp ca req
s h a he
abandonmen
occur under
c rcums ances
man es ng a
vo un ary and
comp e e
renunc a on
o he
cr m na
purprose
Abando ng
or mos
o enses sn
a de ense o
ab y
However
some mes
s recogn zed
as a
comp e e
de ense n a
number o
s a es
" ook o he
ac ons e o
be aken o he
d s ance o
gap be ween
he D s ac ons
and he
unach eved
goa o he
consuman ed
c me he
d s ance mus
be e a ve y
sho he gap
na ow
he D
s o be he d
gu y o a
c m na
a emp "
A a cou
may exc ude a
ay w ness s
op n on
es mony he
op n on s no
he p u o
de e m ng a
ac ssue n
he case
To ob a n a
convc on o
cons uc ve
possess on o
ma uana he
p osecu on
mus show ha
he D
know ng y had
bo h powe
ove he
ma uana and
he n en o
exe c se
con o ove
he ma uana
TX Pena
Code s1501
-- A emp
R zzo
2 Why
spec c n en ?
n many cases
an n en o k
may be
n e ed om
he use o a
dead y weapon
d ec ed a a
v a pa o he
human body
D ug
Possess on
C cums ances
ha m gh
suppo an
n e ence o
nen nc ude
a emp s o
ee om he
po ce
behav o
cons s en
w h he e ec s
o d ug use
ncons s en
exp ana ons
o conduc
a ge amoun s
o money and
he p esence
o d ug
pa aphe na a
K ng v Barker
Peop e v
R zzo No es
1 2 651 655
H V+ s a us s
ke a dead y
weapon
An a emp o
k may be
pe m ss b y
n e ed by he
e o ac
he D s na u a
and p obab e
ac s conduc
and wo ds
d ec y ead o
he dea h o
he v c m
No e on he
n erac on
Be ween
Ac us Reus
and
Abandonmen
(657)
(c) s no de ense o prosecu on or
cr m na a emp ha he o ense a emp ed
was ac ua y comm ed
(d) An o ense under h s sec on s one
ca egory ower han he o ense a emp ed
and he o ense a emp ed s a s a e a
e ony he o ense s a C ass A
m sdemeanor
powe ove a
d ug may be
n e ed om
access o he
d ug n en o
exe c se
con o ove
he d ug may
be n e ed
om
su ound ng
c cums naces
Sexual
Violence: The
Law of Rape
Consent and
MR
Commonwealth
v. Fischer and
notes
(416-422)
Absence of
Consent,
Notes 1-3
(396-400)
Notes on
Mistake as to
Consent
Mistake of fact
that a victim
consented to a
D's sexual
conduct is not
a defense ot
the crime of
involuntary
deviate sexual
intercourse.
No es 6 7
424 425
Tyson v S a e
(3) policy
concerns
(2)
Recklessness
or only
negligence?
the force req't
has reduced
the danger of
incorrect
convictions by
requiring
objecticve
evidence of the
victim's
non-consent
most American
cases permit a
mistake
defense but
only when the
D's error as to
consent is
reasonable
Alaska has
dispensed with
any req't at all
that hte victim
resist. No
specific mental
s a e equ ed
so a m n mum
o eck ess y
Incapacity Drugs and
Alcohol, Note 2
(363)
All states impsoe liability
for rape when a D has
intercourse with a person
who was completely
unconscious. Similarly,
nearly all states impose
liability when the D has
intercourse with a person
who was severely
incapacitated by drugs or
alcohol he gave her
without knowledge, but
not if someone else
secretly drugged the
victim. MPC: imposing
liability only when (1) the
D has administered an
intoxicant (2) w/o the
victim's knowledge (3)
and for the purpose of
preventing resistance.
if the force
req't is
abolished, the
physical act of
rape will not
necessarily
differ from
ordinary
sex...calims of
mistake will be
more plausible,
and courts
may have to
become more
receptive to
those claims
Tyson s
desc p on s a
p a n asse on
o ac ua
consen he e
s no ec a on
o equ voca
conduc om
wh ch Tyson
can og ca y
a gue ha he
m sunde s ood
DW s ac ons
wh e h s
es mony
wou d nega e
an e emen o
he c me and
cha enges
DW s
c ed b y
does no
suppo he
g v ng o a
m s ake o ac
ns uc on
M ke Tyson o he
ape o DW a
woman who ag eed
o accompany h m
o h s ho e oom a
2 AM Tyson sa d
she esponded o
h s k ss ng and ha
she coope a ed
du ng n e cou se
DW es ed ha
when Tyson made
advances she was
e ed and ed o
gh h m Re used
o ns uc on
m s ake and was
conv c ed o ape
Sexual
Violence: The
Law of Rape:
Force
Notes (1-3
388-390
(1) statutory
interpretation
the reform of
NJ stattue
seems to
seuggest that
the reformer's
real cocnern
was not so
much to shift
attention away
from the
victim's
behavior as it
was to change
the kind of
victim behavior
as it was to
change the
kind of victim
behavior that
was
important--not
resistance
indictating
non-consent
but affirmative
behavior
indicating
authorization.
Notes on force
and resistance
1-3 (373-375)
In re MTS
((384-388)
(2) Legislative
develooments
Prosecutors
often refuse to
go forward in
the absence of
evidence or
physical force
or resistance.
more than a
dozen states
make
intercourse
without
consent a
felony in the
absence of
extrinsic force,
and altogether
roughly half
the states
make such
conduct
criminal at
either the
felony or
misdemeanor
levles
Here, CG did
not verbally
consent to
intercouse and
the jury
concluded that
she did not
consent to
intercourse by
her conduct. A
reasonable
person would
not assume
that she had
given
affirmative
permission to
mTS to have
intercourse wit
her.
The element of
physical force
in a SA calim is
satisfied by the
act of
non-consensual
penetration
without any
additional
proof of
extrinsic force.
(3) Law in
action
(1) the force
requirement
when force is
required,
moreover,
coruts typically
insist that it
must go
beyond that
which is
inherent or
incidental to
the sexual act
itself
(2) the
resistance
requirement
and in a
substantial
number of
jurisdictions,
intercouse
without consent
is not a crime at
all in the
absence of force
in some
statees,
resistane is
included
among the
formal
statutory
elements, but
more often
resistance has
been read into
statures as a
requirement
implicit in the
elements of
force or
non-consent
no American
state retains
the old req't
that a rape
conviction
always
requires
earnest
resistance. In
at least half of
the states,
reasonable
resistance is
required.
a growing
number of
jurisdictions now
criminalize all
instances of
nonconsensual
intercourse
Proof of force,
was, and often
still is an
essential
prerequisite for
a criminal
conviction of
rape in
American
jurisdictions.
(c) exceptions
to the
resistance
requirement
(b) policy
concerns
lack of physical
resistance may
reflect a
profound
primal teroor
rather than
consent
There is solid
evidence that
when the death
penalty was
constitutionally
permissible for
rape, it was
frequently
imposed in rape
cases involving
a black D and
white
complainant, but
was rarely used
in any other
racial
configuration
all courts recognize at
least some occasions
when resistance is
unnecessary--in such a
situation the question
whether the victim
offered reasonable
resistance is answered
by the westion wehther
the victim reasonably
feared serious bodily
harm so that the
reasonable amount of
resistance under the
circumstances, was no
resistance at all
Notes on
Coercion and
Duress
376-381
State v. Rusk
(4) Race and
racism
(a) Current law
Traditionally
perpetrating
intercourse
without
consent was
sufficient to
trigger liability
only when the
victim was
under a certain
age
Introductory
Note and State
v. Rusk
(364-368)
Note 4-5,
Introductory
Notes
(358-359)
(1) Implicit
threats
State v.
Thompson
State v. Alston
In a charge or
rape, the lack
of consent may
be established
by proof of
resistance or
by proof that
the victim
failed to resist
due to a
genuine and
reasonably
grounded fear.
D and his victim had lived
together for 6 months. After D
had repeatedly struck the
victim, she moved out and
ended their relationship. A
month later, D encountered
her at school and took her to
have sex and when she did
not want to he pulled her up
from a chair, took off her
clothes, pushedh er legs apart,
and penetrated her. Court
conceded that the evidecne of
non-consent was unequivocal,
but held that the evidence did
not establish the element of
force.
Commonwealth
v. Mlinarich
D, a HS
principal,
allegedly
forced one of
his students to
submit to sex
by threatening
to prevent her
from
graduating
from HS. Court
affirmed the
dismissal of
the charges.
The force
standard
effectively
guarantees
men freedom
to intimidate
women and
exploit their
weakness and
passivity, so
long as they
don't fight with
them.
state argues that the
fear and
apprehension of the
Jane Doe show the
D used force agaisnt
her; but they didn't
expand the definition
of force to include
intimidation, fear or
apprehension, rather
the adopted the DC's
definition of for force:
with a good deal of
reluctance and with
strong determination
they affirmed the
DC.
Notes on the
Scope of the
FM Rule
(521-522)
The purpose of
establishing murder by
an act committed
recklessly under
circumstances
manifesting extreme
indifference to the
value of human life, the
fact that 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
devaite sexual
intercourse by force or
threat of force, asron,
burglary, kidnapping, or
felonious escape
creates a rebuttable
presumption that the
required indifference
and recklessness
existed.
Regina v.
Serné
(517-520)
(3) FM rule
eliminates
actus reus but
it doesn't
eliminate the
MR
(2) principal
use of the FM
rule under CL
was to permit
capital
punishment
when death
resulted from
an
unsuccessful
attempt to
commit a
felony
(1) Stamp case
illustrates the
view that is
generally
accepted in
American
courts--neither
knowledge nor
recklessness
nor negligence
is required with
respsect to the
resulting
death.
Serné and his wife,
daughters, andservant
lived in his home which
had as shop attached.
He was broke and
decided alongwit his
servant to set the home
on fire with his servant
and collect the
insurance. People saws
fires break out in several
different ares of the
house at the same time
soon after he and the
servant were seen in the
shop together. His
daughters, his wife and
he were able to escape
to the roof. The servant
was rescued from a
window. The two sons
died in the fire.
D burglarized
teh business
premises of a
Honeyman and
robbed him at
gunpoint.
Serné knew,
according to
any
reasonable
person
standard, that
his actions
were placing
the lives of his
family
members at
risk of death. If
he and the
servant set fire
to the house
when the
family was still
in it, and if the
boys were
killed as a
result, then
they are guilty
of murder.
rule: if a
person
commits a
felonious act
known to be
dangerous to
life and likely
to cause death
to another
person, and
death results,
is it murder?
the FM doctrine is not
limited to those deaths
which are foreseeable.
Rather, a felon is held
SL for all killings
committed by him or his
accomplices in the
course of the felony. As
long as the homicide is
the direct or causal
result o the robbery, the
FM 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 crimianl
responsibility.
Honeyman
began
suffering chest
pains,
collapsed, and
died of a heart
attack.
(b) the MPC
(a) economic
and emotional
power
[dissent]: force
has multiple
plain
meaings...does
not believe that
force was
meant i nthe
general sense
of "doing
violence to"
bbut rather "to
constrain or
compel by
physical,
moral, or
intellectual
means or by
the exigencies
of the
circumstances".
This latter
definition is the
only one in line
with the MPC
some states
extend the
offense of rape
or sexual
assault to
situations in
which consent
is obtained by
duress
permits a
convictio nfor
gross sexual
imposition in
cases where
submission is
compelled by
htreat of ofrce
or by any
threat that
would prevent
resistance by a
woman of
ordinary
resoltution
the freedom of
sexual choice
which is to be
protected by
rape law can
be as
efffectively
negated by
nonphysical as
by physical
coercion
(d) moral,
emotional, or
psych force?
in 1995, PA
adopted a
statute defining
the "forcible
compulsion"
required for the
rape conviction
as "compulsion
by use of
physical,
intellectual,
moral,
emotional or
psychological
force, either
express or
implied."
submissions
must result
from coercion
rather than
bargain
People v.
Burton
People v.
Stamp (520)
definition of
murder should
be narrowed to
include only
thsoe felonious
acts known to
be dangerous
to life and
likely to cause
death.
(c) Duress?
Court held that
rape, as
defined by the
legislature.
requires actual
physical
compulsion or
violence of a
thrreat of
physical
physical
compulsion or
violence
sufficient to
prevent
resistance by a
person of
reasonable
resolution
Victim was a
14 y/o girl that
was in juvi
after stealing
from her
brother. After
the D agreed
to assume
custody for
her, she was
palced in his
home. V
submitted to
the D's sexual
advances after
he threatened
to send her
back to juvi if
she refused.
Homicide:
Felony Murder
Rule
Notes on the
MPC solution
(526)
(3) solutions to
the problem of
nonphysical
threats
(2) Nonphysical
threats
Burton killed a
person during
an armed
robbery and
was convicted
for 1DFM.
Burton
appealed,
arguing that
the trial court
erred by
instructing the
jury on the
1DFM because
the underlying
felony was
armed robbery
which
precedent has
held cannot
support a
felony-murder
instruction.
deaths
resulting from
felonies
undertaken for
a purpose
independent of
the homicide
support a
charge of
felony murder
Discrete
Offenses:
Homicide -Unintentional
Killings
Commonwealth
v. Welansky
(490-49)
Commonwealth
v. Malone
(509-513)
Notes (1-4)
D owned a nightclub
in Boston. The three
emergency exits
were in odd locations
and poorly marked.
Two other EEs were
marked by lights with
panic bars, but one
fo the two was
blocked b a screen
and dining table and
the other was often
locked. One evening
a bar boy lit a mtach
to see a bulb, and
eventually blew out
the mathc. The flame
ignited a palm tree
which set the club
afire. The door at the
head of stairway was
not opened until the
firemen broke it
down from the
outside. A lot of
patrons and staff
died in the fire.
Usually wanton or
reckless conduct
consists of an
affirmative act, but
where as in the present
cae there is a duty of
care for the safety of
business visitors invited
to premises which the
defendant controls,
wanton or reckless
conduct may consist of
intentional failure to
take such care in
disregard of the
probable harmful
consequences of them
or their right to care.
D was charged
with
involuntary
manslaughter.
Case on IM
was based on
wanton or
reckless
conduct.
(1) traditional
tests
the essence of wanton or
reckless conduct is
intentional conduct, by way
either of a comission or of
omission where there is a
duty to act, which conduct
involves a high degree of
likelihood that a subsantial
harm will result to another;
wanton or reckless
conduct amounts to what
has been variously
described as an
indifference to or
diseregard of probable
consequences to that
other
A person does
not need to
subjectively
foresee the
deadly
consequences
of his omission
to engage in
wanton and
reckless
behavior.
Rather, it is
enough that
the person is
subjectively
aware of
conditions that
would cause a
reasonable
person to
foresee a high
likelihood of
deadly
consequences.
willful means
intentional, in
the the phrase
willful, wanton
or reckless
conduct, what
must be
intended is the
conduct not
the resulting
harm.
State v.
Barnett
Rex v.
Bateman
proof of
recklessness
requires more than
a mistake of
judment or even
gross negligence...
wanton or reckless
conduct is
determined based
either on the D's
specific knowledge
or on what a
reasonable peson
should have known
in the
circumstance. The
D's actions
constitute wanton
or reckless condut
if an ordinary
woman under the
same
circumstances
would have
realized the gravity
of the danger.
Jerome Hall,
General
Principles of
Criminal Law
it is now generally
held that the
negligecne of the
accused must be
culpable, gross, or
reckless, that is the
conduct of the
accused must be
such a departure from
what would be the
conduct of an
ordinarily pruden or
careful man under the
same circumstances
as to be incompatible
with a proper regard
for human life, or
conduct amounting to
an indifference to
consequences. In a
majority of the states,
the offense of
involuntary
manslaughter is
defined by statute.
in order to
esablish
criminal liability
the facts must
be such that, in
the opinion of
the jury, the
negligence of
the accused
went beyond a
mere matter of
compensation
between
subjects and
showed such
disregard for
lthe life and
safety of
others as to
amount to a
crime against
the state and
conduct
deserving
punishment
the apex of
infelicity is
wilful, wanton
negligence,
which suggest
a tripple
contradiction-neglignece:
inadvertence,
willful:
intentional, and
wanton:
recklessness.
D was indicted
of murder, and
tried and found
guilty for 2DM.
Long, 13, was
shot by the D
with a
32-caliber
revolver while
playing
Russian Poker.
(4) MPC
alternative
MPC creates two crimes:
manslaughter and a lesser crime.
negligent homicide, distinguished
by whether the defendant was
aware of the unwarranted risk he
was creating. A killing is
manslaughter if the actor was
"reckless" , that is if he
"consciously disregarded a
substantial and unjustifiable risk
that his conduct would cause the
death of another" and if the risk
was "of such a nature and degree
that, consdering the nature and
purpose of his conduct and the
circumstances known to him, its
disregard involvees a gross
deviation from the standard of
conduct that a law-abiding person
would observe in the actor's
situation. By contrast, a killing is
negligent homicide when a person
should have been aware of such a
risk.
People v. Hall
(496-498)
At CL, the
criteria which
distinguished
murder from
other killing
was malice on
the parto f the
killer and this
malice was not
necessarily
malevolent to
the deceased
particularly but
any evil design
in general; the
dictate of a
wicked,
depraved an
malignant
heart.
The D testified
that the gun
chamber he
loaded was the
first one to the
right of the
firing chamber
and that when
he pulled the
chamber, he
did not expect
to have the
gun go off.
(2) definitions
of murder
Note (1-3)
When an
individual
commits an act
of gross
recklessness for
which he must
reasonably
anticipate that
death to another
is likely to result,
he exhibits that
wickedness of
disposition,
hardness of
heart, cruelty,
recklessness of
consequences,
and mind
regardless of
social duty.
(3)
distinguishing
manslaughter
from
unintentiona,
murder
many statutes
now use
formulas
inspired by the
MPC:
unintended
killing is
murder when
committed
reckless and
under
circumstanvces
manifesting
extreme
indifference to
the value of
human life
CL
formulations of
the
circumstances
under which an
unintentional
killing
constituted
murder tather
than
manslaughter
have been
incorporated
into many
American
statutes either
directly or by
reference to
such CL terms
as malice.
killing Long by this D resulted
from an act intentionally done by
the latter, in reckless and wanton
disregard of the consequences
which were at least 60% certain
from his thrice attempted
discharge of a gun known to
contain one bullet and aimed at a
vital part of Long's body. This
killing was, therefore, murder, for
malice in the sense of a wicked
disposition is evidenced by the
intentional doing of an
uncalled-for act in callous
disregard for its likely harmful
effects on others
While skiing on
Vail, Hall flew
off a knoll and
collided with
Cobb, who
was going
down the slope
below Hall.
Cobb
sustained
traumatic brain
injuries and
died as a
result. Hall was
charged with
felony reckless
manslaughter.
In Taylor, after
the D and his
female
neighbor
smoked crack
together, she
attacked him,
and he hit her
on the head to
defend himself.
Later, he
covered her
head with a
tightly knotted
plastic bag,
and carried her
to the roof of
his building
where she was
found dead the
next morning.
Giraurd v.
State
(462-464)
Note 4(a)
474-475
If the homicide (death) had
ensued, would have only been
manslaughter, then D could not
have been guilty with the intent to
murder, but only of a simple
assault and battery.
D entered the saloon
in an agitated
manner, approached
Hunt, said something
unintelligble to him,
and shot him,
inflicting a non-fatal
wound. D offered
evidence to show an
adulterous
intercourse between
his wife and hunt less
than an hour before
the assault. After the
intercourse ended he
followed Hunt to the
saloon and right
before he entered, a
friend told him that he
had saw Hunt and his
wife in the woods the
day prior.
Although the Girouard court
mentions sudden discovery
of a spouse's adultery as an
allowable form of
provocation in Maryland, this
rule prompted a public outcry
in 1994 when Peacock killed
his unfaithful wife, was
convicted of manslaughter,
and was sentenced to only
an 18-month term in a work
release program. MD
amended its law to provide
that discovery of one's
spouse engaged in sexual
intercourse with another
person does not constitute
legally adequate provocation
for the purpose of mitigating
a killing from the crime of
murder to voluntary
manslaughter
provocations will be given
without reference to any
previous model, and the
passions they excite will not
consult the precedents
But if the act of killing, though
intentional, be committed under
the influence of passion or in
heat of blood, produced by an
adequate or reasonable
provocation, and before a
reasonable time has elapsed for
the blood to cool and reason to
resume its habitual control and is
the result of the temporary
excitement, by which the control
of reason was disturbed, rathern
than of any wickedness of heart
or cruelty of recklessness of
disposition: then the law, out of
indulgence to the frality of human
nature, or rather, in recognition of
the laws upon which human
nature is constituted, very
properly regards the offense as
of a less heinous character than
murder.
w/in the principle of all the
recognized definitions of mailce
aforethought, the homicide must,
in all ordinary cases, have been
committed with some degree of
coolness and deliberation, or, at
least, under circumstances in
which ordinary men...would not
be liable to have their reason
clouded or obscured by passiom;
and the act must be prompted
by, or the circumstances indicate
that is sprung from, a wicked,
depraved or malignant mind.
D had and the deceased had been married
for two months. Before entering into the
marriage there was some evidence that
the deceased was still having a
relationship with her ex-boyfriend. On the
night of the death, an angry argument
developed and the deceased was taunting
the D. The D lungd at the deceased with a
kitchen knife behing the pillow and stabbed
her 19 times. After he realized what he had
done, he went to wash off the blood and
slit his wrists. After he realized he wouldn't
die from his self-inflicted wounds he called
the police.
it would have been
competent for the
jury to find that the
act was committed
in consequence of
the passion
excited by the
provocation, and in
a state of mind
which, within the
principle already
explained, would
have given to the
homicide had
death ensued, the
character of
manslaughter only
this would have been
sufficient evidence of
provocation ot go to the jury
Words can constitutre adequate
provocation if they are
acompanied by conduct indicating
a present intention and ability to
cause the D harm. No such
conduct was exhibited by the
deceased in this case.
Morse,
Undiminished
Confusion in
Diminished
Capacity
for provocation
to be
adequate to
mitigate
murder to
manslaughter,
the
provocation
must be
calculated to
inflame the
passion of a
reasonable
person and
tend to cause
him to act for
the moment
from passion
rather than
reason
although a
psychologist
testified to
Steven's mental
problems and his
need for
acceptance and
love "there must
be not simply
provocation in
psychological
fact, but one of
certain farily well
defined classes
of provocation
recognized as
being adequate
as a matter of
law. The
standard is one
of
reasonablenessl
it does not and
should not focus
on the peculiar
frailites of the
mind of the D.
The provocation in this case was
not enough to cause a reasonable
man to stab his provoker 19x.
D's argument is that the provocation to
mtigate murder should not be limited to the
traditional circumstances of extreme
assault or battery upon the D; mutual
combat; D's illegal arrest; injury or serious
abuse of a close relative of the D's; or the
sudden discovery of a spouse's adultery.
specific facts in
this case
supports a
reasonable
inference that
Hall created a
substantial and
unjustifiable
risk that he
would cause
another's
death
the argument for imposing a
lower punishment when the
actor was not aware of
creating an unjusitified risk is
that she is less culpable than
the person who does not
have this awareness
a reasonable
jurur could
have found
that Hall's
creation of a
substantial risk
was unjustified
a reasonably prudent and
cautious juror could have
entertained the belief that
Hall consciously
disregarded a substantial
and unjustifiable risk that
by skiing exceptionally fast
and out of control he might
collide with and kill another
person on the slope
general
assembly
enacted a
statute
imposing upon
a skier the duty
to avoid
collisions with
any person or
object below
him
a violation of a skier's duty
in an extreme fashion,
suchas here, may be
evidence of conduct that
constitutes a "gross
deviation" from the
standard of care imposed
by statute for civil
negligence
People v.
Casassa
(479-483)
Note 3(a)
(471-473)
Court cannot hold that a verbal
domesting argument ending in the
death of one spouse can result in
a conviction for MS. Court
perceives no holding in favor of
those who find the easiest way to
end a domestic dispute is by
killing the offending spouse.
In a bench trial, the D was convicted of
2DM and was sentenced to 22 years in
prison, 10 of which were suspended
(probation?).
reason at the time of the act,
be disturbed or obscured by
passion to an extent which
might rneder orinary men, of
fair average disposition,
liable to act rashly or without
due deliberation or reflection,
and from passion rather than
judgment.
several
eyewitnesses
all said that
Hall was
travelling too
fast for the
conditions
CO followed MPC
definitions of
manslaughter and
negligent homicide.
On appeal the
district court
determined that in
order for Hall's
conduct to have
been reckless, it
must have been at
least more likely
than not that death
would result.
Discrete
Offenses:
Homicide -Voluntary
Manslaughter
and
Provocation
Maher v.
People
(464-467, sans
dissent)
while skiing usually carries a very
low risk, a reasonable person
could have concluded that Hall's
skiing could significantly increase
the likelohood that a collision
would occur and the extent of the
injuries athat might result from
such a collision, including death.
the charge of
reckless
manslaughter
requires that a
person recklesly
causes the death of
another person, for
his conduct to be
reckless, the actor
must have
consciously
disregarded a
substantial and
unbjustifiable risk
that death could
result from his
actions
County court
found that
Hall's conduct
"did not rise to
the level of
dangerousness"
required under
CO law to
uphold a
conviction for
manslaughter.
It was held that
the evidence
ws legally
insufficient to
establish the
depravity
required to
establish
murder rather
manslaughter
Note
2--Awareness
Miller,
(Wo)manslaughter,
Voluntary
manslaughter,
Gender, and the
MPC
Would abolish
the
provocation
defense and
convict all
intentional
killers of
murder.
Reasonable
people do not
kill not matter
how much they
are provoked,
and generally
retain the
capacity to
control
homicidal or
any other kind
of aggressive
or antisocial
desires.
Law
Commission
(UK) Report
No. 290,
Partial
Defenses to
Murder
Gruber, A
Provocative
Defense
Juries cannot be expected to
enforce a standard of
reasonableness which
adequately protects a woman's
life. Indicated that agressors
and juries view the world
through lenses of cultural
construction: masculine
violence is simply and
inevitable fact of life...the law
must take a normative stand.
What is reasonable cannot be
determined without reference
to value systems biased in
favor of men, the only truly
egalitraian approach is
abolition. By virtue of its brutal
discrimination against women
under both common law and
MPC, the defense of
manslaughter no longer has a
place in American penal law.
Provocation critics contend that the doctirne
prevents the state from approrpiately enforcing
criminal law against sexist killers who deserve
punishment for murder. However, the group most
likely to be burdened by the elimination or
limitation of the provocation defense is young
men of color accused of non-intimate homicides
and facing murder chargers in one of the most
punitive systems on earth. However, tethering
women's equality interests to crime victims'
interest in harsh retribution turns each instance
of leniency toward a male defendant into a case
of discrimination against women and
exacerbates inequality because there are not
enough women defendants to similarly benefit
from the law's leniency. Thus, a legal change
directed toward reducing leniency in intimate
homicides increases sverity in the one realm
where women are most likely to be murder D's,
leaving untouched the non-domestic homicides
perpetrated nearly exclusively by men.
D was
convicted with
2DM--sole
issue: whether
D at the time of
killing had
acted under
the influence of
extreme
emotional
disturbance
D brutally
murdered
Consolo after
Consolo
repeatedly
denied his
advances. The
night of
Consolo's
death, D
brought wine
as a gift, and
when Consolo
rejected the
gifts, D
stabbed her
with a steak
knife several
times in the
throat, dragged
her body to the
bathtub, and
submerged her
in water to
make sure she
was dead.
We favor as the
moral basis for
retaining a
defense of
provocation that
the D had
legitimate
grounds to feel
seriously
wronged by the
person at whom
his or her
conduct was
aimed, and this
lessens the
moral culpability
of the defendant
reacting to the
outrage in the
way the they did.
a psychst
testified that
the D has
become
obsessed with
Consolo and
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
Discrete
Offenses:
Homicide
Introductory
Note (on
grading and
premeditation)
(451-452)
Note 4(c) (461)
Following the
lead of the
MPC, some
states have
rejected
premeditation
as the basis for
identifying
murders that
deserve the
greatest
punishment
legislative
grading is
accomplished
by dividing
homicidal
conduct into
crimes of
different
names (murder
and
manslaughter)
and by dividing
the same
crime into
different
degrees
(First-degree
and
second-degree
murder)
prior to the
recodification effort
began by the MPC,
American jurisdictions
maintained a a law of
murder built around CL
concepts
the most significant
departure was a
change initiated by PA
legislation in
1794--created 1st and
2nd degree murder
NY: "Most mercy killings are
the consequence of long
and careful deliberation, but
they are not especially
appropriate cases for
imposition of capital
punishment... some purely
impulsive murders will
present no extenuating
circumstances-- the
suddenness of the killing
may simply reval
callousness so complete
and depravity so extreme
that no hesitation is req'd.
Report of the
Royal
Commission
on Capital
Punishment
(444, p. 72 and
74)
Introduction
(443-444)
MPC comments: (1) the
particularD msut have acted under
the influence of EED and (2) there
must have been a reasonable
explanation or excuse for such
EED, the reasonableness of which
is to be determined from the
viewpoint of a person in the D's
situation under the circumstances
as the D believed them to be.
court found that the D's
emotional reaction to be so
bizarre to him that it could not be
considered reasonable so as to
reduce the conviction to
manslaughter in the 1D.
rebuttal: a
psychst
testitfied that
although the D
was
emotionally
disturbed he
was not under
the influence of
"extreme
emotional
disturbance"
within the
meaning of the
MPL, because
his disturbed
state was not a
product of
external
factors but
rather was a
stress he
created from
within himself.
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 D found
himself and the external
circumstnaces 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 reducction of the crime
charged from murder in the 2D to
manslaughter in the 1D.
court
recognized
that an action
influenced by
an EED is not
one that is
necessarily so
spontaenously
undertaken.
Rather it may
be that a
signficant
mental trauma
has affected a
D's mind for a
substantial
period of time,
simmering in
the unknowing
subconscious
and then
inexplicably
coming to the
fore.
in this regard, the court
considered each of the mitigating
factors put forth by the D,
including his claimed mental
disability, but found that the
excuse offered by the D was so
peculiar to him that it was
unworthy of mitigation.
State v.
Guthrie
(456-458)
Guthrie was
convicted of
1DM and
sentenced to a
life sentence
with the
recommendation
of mercy
unlawful
homicide may
be murder,
manslaughter,
suicide, or
infanticide
homicide: the
killing of a
human by a
human
murder:
unlawful killing
with malice
aforethought
manslaughter:
unlawful killing
w/o malice
aforethought
to allows the
state (via
Schrader
instructions) 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
eliminated the
distinction
between 1DM
and 2DM
suffered a
panic attack
before the
stabbing--didn't
understand his
overreaction to
the situation
malice
aforethought:
comprehensive
name for a
number of
different
mental
attitudes which
ahve been
variously
defined
was meant to confine
the death penalty, which
was then mandatory on
conviction of any CL
murder to homicides
that were particurlarly
heinous
issue: is this
1DM or 2DM
Stabbed his
coworker in the
neck and killed
him
murder and
manslaughter
are felonies at
CL and are not
defined by
statute
reflect a belief
that one who
meditates an
intent to kill
and then
deliberately
executes it is
more
dangerous and
more culpable
than one who
kills on sudden
impulse
premeditation
and
deliberation
should be
defined in a
way to give
juries both
guidance and
reasonable
discretion--the
accused mut
kill purposely
after
contemplating
the intent to kill
Mens Rea:
Part II
If Trump Jr.
Didn't Know
Campaign
Finance Law,
He Didn't
Break It
Note 3
(Shelton v.
Sec'y of
corrections)
(321-322)
Note on MR
Reform
(340-341)
Staples v.
United States
(309-311)
D was charged with
violating the
national firearms
act which makes
possession of an
unregistered
firearm punishable
by up to 10 years in
prison. The rifle
found in his
possession met the
act's definition of a
firearm--a weapon
capable of
automatically firing,
but at some point
has been filed
down.
Proposed bill:
FECA requires
that a person act
knowingly and
willingly--and
according to the
DOJ's standards
this heightened
MR means that a
person must
know that he is
breaking the law
to trigger a
criminal
prosecution, and
must know about
the relevant
statutory duty.
by the DOJ's
standards, if a D
is unaware of
FECA, they
cannot commit a
criminal violation
of the statute.
"where laws
proscribe conduct
that is neither
inherently nor likely
to be regulated, the
SC has consistently
invalidated them or
construed them to
require proof of MR
in order to avoid
criminalizing "a
broad range of
apparently innocent
conduct"
If no state of mind is required by law
for a federal offense: (1) the state of
mind the gov't must prove is
knowing and (2) if the offense
consists of conduct that a
reasonable person in the same or
similar circumstances would not
know, or would not have reason to
believe, was unlawful, the gov't must
prove that the D knew, or had
reason to believe, the conduct was
unlawful
"the state cannot
shift the BoP to a D
on an essential
element of an
offense. To do so
would dispense wit
the fundamental
precept underlying
the American
system of
justice--the
presumption of
innocence."
after Shelton was
convicted under
this statute after
delivering a
container that held
cocaine, the federal
court held the
statute
unconstitutional
opponents: are concerned
that it will allow culpable
indiivduals, and
particularlly corporate
executives, to violate
health and safety laws
without consequenve by
closing their eyes to what
otherwise would be
obvious to them
proponents: addresses
those who should never
have been convicted in
the first place: people who
engaged in conduct
without any knowledge of
or intent to violate the alw
and that they could not
reasonably have
anticipated would violate a
criminal law
FL amended it's
drug control
statures to provide
that "knowledge of
the illicit nature of a
controlled
substance is not an
element of any
offense under this
chapter," lack of
suck knowledge
was made an
affirmative D
D testified that the
rifle never fired
automatically in his
possession and
that he did not
know it was able to
do so.
D sought
instruction that the
gov't had to prove
that he knew the
gun fired
automatically
Strict Liability:
Introductory
Note (303)
it is unthinkable to us
that Congress
intended to subject
such law-abiding,
well-intentioned
citizens to a possible
10 yr term of
imprisonment if what
they genuinely and
reasonably believed
was a conventional
semiautomatic
weapon turns out to
have worn down into
or been secrelty
modified into a fully
automatic weapon
silence on this
does not
necessarily
suggest that
Congress
intended to
dispense with a
conventional MR
element-- must
construe the
statute in light of
the background
rules of CL
SL: cases
where liability
was imposed
without any
demonstrated
culpability, not
even
negligence,
with respect to
at least one of
the materail
elements of
the offense
Morisette v.
United States
(305-309)
More extreme
form of SL:
one in which
the D neither
knew or had
any reason to
know that
anything about
his behavior
was legally or
even morally
wrong
the mere omission
from §641 of any
mention of intent
will not be
construed as
eliminating that
element from the
crimes denounced
D, a junk dealer, openly
entered an AF practice
bombing range and took
spent bomb casings that
had been lying about for
years exposed to the
weather and rusting
away. He flattened them
out and sold them at a
city junk market for $84.
admitted that he knew
he was taking AF bomg
casings but he honestly
believed them to be
abandoned and
therefore violating no
one's rights by taking
them
Cheek was a pilot for AA and was
convicted of willfully failing to file income
tax returns for several years, in violation of
26 USC s7201 which provides that any
person is guilty of a felony "who willfully
attempts in any manner to evade or
defeat any tax imposed by this title or the
payment thereof."
(1) mistake of law
sometimes arises
because a person is
aware of a law but
misinterprets its meaning
or sometimes simply
doesn't know the law
exists (2) misinterpretation
or complete ignorance
may be relavant because
the elements or or scope
of the criminal law with
which the D is charged
makes the awareness or
knowledge of some legal
std. part of the offense (3)
if a mistake of law is of the
type that normally does
not excuse, can the D
claim a defense when his
misinterpretation is based
on an official document or
official advice that turns
out to be incorrect?
offenses in which
there is no
necessity for the
prosecution to
prove the existence
of MR; the doing of
the prohibited act
prima facie importst
the offense, leaving
it open to the
accused to avoid
liability by proving
that he took all
reasonable care
trial judge rejected
D's defense and
said that the
question on intent is
whether or not he
intended to take the
property
Cheek v.
United States
(336-338)
Mistake of
Law-Introductory
Note (325-236)
the tendency in the
past has been to
see the choice
between two stark
alternative (i) full
MR or (ii) SL...but
there is a middle
position
SC reversed,
saying that the D
had to have
knowledge of facts
that made the
covnersion
wrongful, that is,
that the property
had not been
abandoned by it's
owner
D was indictedd and
convicting of violating
USC s641 which made
it a crime to "knowingly
convert" government
property.
absent a clear
statement from
Congress that there is
no MR requirement,
federal felony
statures should not
be interpreted to
eliminate the MR req
The act is silent
concerning the
mens rea
required for a
violation, it
simply states
that "it shall be
unlawful for any
person...to
receive or
possess a
firearm which is
not registered to
him in the NFR
and Transfer
Record.
Regina v. City of
Sault Ste. Marie
(319-321)
That is not the
case here --the
specific intent
requirement was
to ensure that
taxpayers who
attempted to
comply with the
tax code would
not be convicted
of crimes for
innocent
mistakes, not to
allow taxpayers
to ignore known
duties imposed
by the tax code.
His defense was based on info he
received from a group opposing the
institution of taxation.
A good-faith belief that one is not
violating the law, if it is to negate
willfulness, must be objectively
reasonable.
Congress has accordingly softened the
impact of the CL presumption by making
specific intent to violate the law an
element of certain federal criminal tax
offenses.
Cheek argues that
his good faith
beliefe negates
the willfulness
requirement of the
statute.
The standard for the statutory willfulness
requirement is the "voluntary, intentional
violation of a known legal duty"
Mens Rea:
Part I
MPC Section
2.04 -Ignorance or
Mistake
What is
Common Law
The common
law system
uses case law
precedents to
determine
outcomes.
Civil law
systems
(France,
Germany,
Turkey, Egypt,
and Louisiana,
among other
jurisdictions)
do
not use judicial
precedents in
the same way.
Common law
also means the
rules that
existed before
statutes were
created, and
largely derive
from English
(and colonial
American)
sources. So,
?at common
law,?
murder was
generally ?The
killing of
another human
being with
malice
aforethought.
Common law
has been
supplanted by
statutes in the
United States.
There is no
such
thing as
?murder,? only
murder as
defined in a
particular
statute.
HOWEVER, if
there are
ambiguities in
a statute (and
there always
are), we can
go back
to common law
understandings
in order to
understand
what the words
in a statute
meant,
particularly if
the statute is
old.
(1) ignornace
or mistake as
to a matter of
fact or law is a
defense if:
(a) the
ignorance or
mistake
negatives the
purpose,
knowledge,
belief,
recklessness
or negligence
required to
establish a
material
element of the
offense; or
(b) the law
provides that
the state of
mind
established by
such ignorance
or mistake
constitutes a
defense.
(2) Although
ignorance or
mistake would
otherwise afford
a defense to the
offense charged,
the defense is
not available if
the defendant
would be guilty
of another
offense had the
situation been
as he supposed.
In such case,
however, the
ignorance or
mistake of the
defendant shall
reduce the
grade and
degree of the
offense of which
he may be
convicted to
those of the
offense of which
he would be
guilty had the
situation been
as he supposed.
Notes 1-2, 4-5
(288-291)
(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;
orProcess
(4) The
defendant
must prove a
defense arising
under
Subsection (3)
of this Section
by a
preponderance
of evidence.
(b) he acts in reasonable
reliance upon an official
statement of the law, afterward
determined to be invalid or
erroneous, contained in (i) a
statute or other enactment; (ii)
a judicial decision, opinion or
judgment; (iii) an administrative
order or grant of permission; or
(iv) an official interpretation of
the public officer or body
charged by law with
responsibility for the
interpretation, administration or
enforcement of the law
defining the offense.
(4) the
lesser-crime
princple
when a
defendant
knowingly
commits a
crime, he runs
the risk of his
crime resulting
in a greater
crime. In that
situation Brett
agreed, the D
cannot raise a
mistake of fact
as a defense.
(5) the MPC
approach
MPC
presumes that
in general,
aggravating
circumstances
should trigger
more sever
penalties only
when the D
was
subjectively
aware of a risk
that the
circumstances
existed
D was convicted of taking an
unmarried girl udner 16 out
of the possesion and gasint
the will of her father in
violation of:
"whoever shall unlawfully
take or cause to be taken
any unamrried girl, being
under the age of 16 years,
out of the possession and
against the will of her father
or mother, or of any person
having the lawful care or
charge of her shall be guilty
of a misdemeanor
jury found that the girl was
14 at the time, but that she
had told the D she was 18
and the D honestly believed
that statement and that his
belief was reasonable
Notes on
Common-Law
Terminology
(263-266)
Notes on the
MPC Reforms
(272-273)
Regina v.
Prince
(1) Intro
court says the
act was wrong
regardless of if
they have to
construe the
crime as
requring mens
rea because
the taking of
female out of
her father's
possession,
not knowing
whether she is
or is not under
16 is wrong in
itself
[dissent]: there can be no
conviction for a crime in
England, in the absence of
a criminal mind or mens
rea. If the facts were as he
beleived he would be
committing the lesser
crime. Then rhe runs the
risk of his crime resulting
in the greater crime. It is
clear that ignorance of the
law does not excuse.
Mistake of facts, on
reasonable grounds, to the
extent that if the facts
were as believed the acts
of the prisoner would
make him guilty of no
criminal offesne at all, is
an excuse and that such
excuse is implied in every
criminal enactment in
England.
MR framework
has been
adopted by
more than half
of US
jurisdictions
however, the
older
framework for
MR analysis
survives,
however, and
indeed
remains
dominat in a
number of
jurisdictions
MPC attempts to mitigate the difficulties of
MR analysis through 3 distinct tools:
manageable categories, precise definitions,
and convenient default rules
(1) code
eliminates the
use of general
intent, specific
intent and
other
ambiguous
terms and
replaces them
with just four
mental
states--purpose,
knowlege,
recklessness,
and negligence
(2) provides a
clear,
rigorouse
definition for
each of it's four
mens rea
terms
(3) provides
rules of
interpretation
(default rules)
to enable
courts to
determine the
required
mental state
sensibly and
predictably
when the
statutory
language
concerning MR
is silent,
ambiguos or
contradictory
Traditional
common law
offenses
require proof
that the D
acted either
willfully,
intentionally,
malisciously,
corruptly,
wantonly,
recklessly,
negligently, or
with scienter.
courts also
often
distinguish
between
specific intent
and general
intent
legal analysis in
the CL mens rea
framework is
inevitably
imperfect and
sumewhat
unpredictable,
there can
seldom be an
authoritatively
correct answer
each of these
terms has
been given
different
meanings in
different
contexts, and
some have
been given
different
meanings by
different
courts, even in
identical
contexts
the approach
taken in
Cunningham
reflects the
prevailing
approach at
CL--generally CL
courts adopt this
approach as their
default rule.
Absent clear
indications to the
contrary, courts
will interpret
malice to require
that the
defendant was
aware his actions
posed a
substantial risk of
causing the
prohibited harm
"where a
statute does
not define a CL
term like
malice, courts
presume a
definition akain
to the one
adopted by the
court in
Cunningham
that focused
on the
disregard of
the likelihood
that damage or
injury would
result"
Pope v. State
(236-238)
criminal liability may not
be imposed upon an
individual for failing to flfill
a moral, instead of a legal,
obligation
Pope was
found guitly
under the third
and fifth counts
of a nine-count
indictment
3rd count--on or about April 11, 1976,?.?.?.?while
having the temporary care, custody and
responsibility for the supervision of Demiko
Lee Norris, a minor child under the age of
eighteen years, [she] did unlawfully and
feloniously cause abuse to said minor child in
violation of Article 27, Section 35A of the
Annotated Code of Maryland.?.?.?.
5th count--alleging that on the same date
she "did unlawfully and willfully conceal and
fail to disclose a felony to wit: the murder of
Demiko Lee Norris committed by Melissa Vera
Norris on April 11, 1976, having actual
knowledge of the commission of the felony
and the identity of the felon, with the intent to
obstruct and hinder the due course of justice
and to cause the felon to escape unpunished?.?
.??
Melissa Norris, a young mother with a
three-month-old infant, was suffering from a
serious mental illness and given to episodes of
violent religious frenzy. The defendant (Mrs.
Pope) took Norris and her child into her house
one Friday night after church services because
they had no other place to go.
Pope's omissions constituted in
themselves cruel and inhumane treatment
within the meaning of the statute
A person may be convicted of felony child
abuse upon evidence legally sufficient to
establish that the person (1) was (a) the
parent of, or (b) the adoptive parent of, or
(c) in loco parentis to, or (d) responsible
for the supervision of a minor child under
the age of 18 years, AND (2) caused, by
being in some manner acountable for, by
act of commission or omission, abuse of
the child in the form of (a) physical injury
or injuries sustained by the child as a
result of (i) cruel or inhumane treatment,
or (ii) malicious acts or acts by such
person.
During the weekend Pope fed and looked
after the child in a variety of ways. On
Sunday afternoon, Norris went into a
frenzy, claiming she was God and that
Satan had hidden himself in the body of
her child. In Pope's presence she
savagely beat and tore at the child. Pope
didn't try and protect the child, didn't call
authorities, or seek medical assistance.
The child eventually died in the night.
mens rea--a
requirement often
identified wit hthe
classic maxim,
actus non facit
reum, nisi meus sit
rea
(3) specific
intent and
general intent
(2) malice
United States
v. Gray
specific intent
is to identify
those actions
that must be
done with
some specified
further purpose
in mind
ex: burglary
requires that a
person break
and enter a
structure with
the further
objective of
committing a
felony inside.
this state of mind is general
intent--the intent to do an act
without any further purpose in mind
it is not enough
that the person
knowingly or
purposefully do
the act
itself--the
breaking and
entering
without proof
of that further
objective, there
can be no
conviction for
burglary
general intent
in this context
usually means
that the D can
be convicted if
he did what in
ordinary
speech we
would call a
voluntary
action
ex: B at CL was defined as
(1) B&E (2) of a dwelling
place (3) of another person
(4) in the night (5) with intent
to commit a felony inside -there are 3 attendnat
circumstances and D might
be aware of some or all of
them
the concern of criminal
law is limited to
determining whether a
defendant intended,
expected, or should
have expected that his
actions would produce
particular
consequences
Blackstone
translation: an
unwarrantable act
without a vicious
will is not crime at
all
the vicious will
was the mens
rea; essentially it
refers to the
blameworthiness
entailed in
choosing to
commit a
criminal wrong
general intent crime is one
for which the awareness of
the attendant circumstance
need not be proved--a lesser
mental state like
recklessness or negligence
will suffice
mens rea in its narrow
sense is more formal
and technical--refers to
the kind of mental
awareness or intention
that must accompany
the prohibited act,
under the terms of the
statute defining the
offense
variety of defenses
to criminal liability-involuntary act,
legal insanity,
accident, and
mistake, are
considered mens
rea defenses
another usuage of SI, is to describe a crime that
requires the D have actual knowledge of some
particular fact or circumstance in addition to
knowledge of his or her conduct
the mother was always present--Pope
had no right to usurp the role of the
mother even to the extent of
responsibility for the child's
supervisions, it would be most
incongruous that acts of hospitality
and kindness, made out of common
decency and prompted by sincere
concern for the wellbeing of a mother
and her child, subjected the good
samaritan to criminal prosecution for
abusing the very child she sought to
look after.
Pope's conduct, during and after the
acts of abuse, must be evaluated with
regard for the rule that although she
may have had a strong moral
obligation to help the child, she was
under no legal obligation to do so
unless she then had responsibility for
the supervision of the child as per the
statute.
Pope may not be
punished as a
felon under out
system of justice
for failing to fulfill
a moral
obligation--she
was under no
legal obligation.
No basis for an
interpretation
that a person
"has"
responsibility
for the
supervision of
a child, if that
person
believes or
may have
reason to
believe that a
parent is not
capable of
caring for the
child.
This position is
also taken by
the MPC
§2.01(3):
recognizing
liability for an
omission only
when "a duty
to perform the
omitted act is
otherwise
impsoed by
law"
D was
convicted of
murder in the
3rd degree
Most cases
where liability
is imposed for
a failure to act
are like the
Jones case,
where it
ended up
being
involuntary
mansalughter
because the D
doees not
have an intent
to kill
Jones reflects
the general
Anglo-American
position that
unless a penal
statute
specifically
requires a
particular
action to be
performed,
criminal liability
for omission
arises only
when the law
of torts or
some other law
impsoes a duty
to act.
D ripped off the gas meter
in the cellar of an
unonccupied home and
stole the money inside. D
didn't turn off the gas
which seeped into an
adjancent house where an
elderly woman was
sleeping. The elderly
woman was partially
asphyxiated.
legislatures
have often left
the mental
element
undefined or
treated it
ambiguously,
leaving it to the
courts to figure
out what the
proper mental
stare should
be for that
offense
Was concivted under §
23 of the Offenses
against the Person Act,
1861, which provides that
is a felony to "unlawfully
and maliciously" give or
cause another puerson to
take poison in a manner
that endanders his life.
Judge erred in defining
malice as wickedness in
his jury
instruction--essentially
instructed the jury to
convict if they believe D
behaved wickedly
Malice in a criminal statute
means that the person
acted with either (1) an
actual intention to do the
particular kind of harm
that was infact done or (2)
reckless dsiregard of a
foreseeable risk that the
harm would result,
meaning the person was
aware of the risk of harm
and did the act anyway.
D alllowed a
92 y/o man to
die of
starvation after
agreeing to
feed him and
knowing that
there was no
other way for
him to obtain
food.
Such a case
might be
murder if the
defendant
refused aid
with the
intention of
causing death.
(3) Interpreting
the scope of a
duty
The rule that
there is
generally no
duty to act is
inapplicable,
when statutory
language or CL
doctrines
create such a
duty
(5) when is an
act considered
voluntary
(1) the
rationale of
Martin
No doubt that
the D behaved
badly, but the
real issue is if
D foresaw that
taking the gas
meter
couldseriously
harm someone
but did it
anyway
D urged that the stature be interpreted to
require proof of "criminal negligence," that is
"something more than the slight degree of
negligene necessary to support a civil action for
damages." The trial court rejected that view and
instructed the jury that "a person acts
negligently when the person fails to perceive an
unjustifiable risk that the result will occur, the
risk must be of such a nature and degree that
the failure to perceive it constitutees a deviation
from the standard of care that a reasonable
person would observe in the situation.
Judge instructed that malice meant wicked and that a
person acted malisciously if he did something which he
as no business doig and perfectly well knows it.
(2c) 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.
(2b) knowingly: a person acts
knowlingly with respect to a material
element of an offense when:
(2a) 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
objecto
engage in
conduct of that
nature or to
cause such a
result; and
it is well settled that a mens rea of simple or
ordinary negligence can support a criminal
conviction, for some criminal offenses a greater
mens rea is required and in other situations no
mental state is at all needed, namely for strict
liability. negligence, rather than gross
negligence is the minimum permissible
cosntitutionally standard because it seeks to
ensure that criminal penalties will be imposed
only when the conduct at issue is something
society can reasonably expect to deter
(i) if the
element
involves the
nature of his
conduct, he is
aware that his
conduct is of
that nature or
that such
circumstances
exist
(ii) if the
element
involves the
attendant
circumstances,
he is aware of
the existence
of such
circumstances
or he believes
or hopes they
exists.
(ii) if the
element
invovles a
result of his
conduct, he is
aware that it is
practically
certain that his
conduct will
cause such a
result.
(2d) negligently: a person
acts negligently with
respect to the material
element of an offense
when he should be
aware of a substantial
and justifiable 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, involve a gross
deviation from the
standard of care that a
reasonable person would
observe in the actor's
situation.
(1) if we focus
solely on the
text of the
statute, where
is there any
hint that the
apperance
must be
voluntary?
Commonwealth
v. Pestinikas
actus reus: the
commission of
some voluntary
act that is
prohibited by
law
(2) if a
conviction
under the
circumstances
of Martin is
troubling, it
would
presumably
remain
troubling even
if the statutory
wording had
not specifically
required that
the accused
"appear."
Appellant was
convicted of
being drunk on
a public
highway
(4)
contemporary
applications
in a
prosecution
unde the
reworded
statute, a
person forced
to swallow
alcohol and
then carried
into public by
police would
seem to meet
the statutory
requirements
for conviction,
even though
he had not
engaged in
any conduct at
all
a conviction
under these
circumstances
would violate
the
fundamental
principle that
criminal liability
always
requires an
actus reus
People v. Low
D was arrested
for driving a
stolen vehicle
and taken to
jail, where a
serach found
drugs hidden
in his pocket
he was
convicted of
not only the
stolen vehicle
offense but
also of
"knowingly
bringing a
controlled
substance into
a county jail"
an accusation
of
drunkennness
in a designated
public place
cannot be
established by
proof that the
accused, while
in an
intoxicated
condition, was
involuntarily
and forcibly
carried ot that
place by the
arresting
officer...
CA Supreme Court
distinguished Martin
on the grounds that
the D has the
opportunity to
relinquish the
forbidden object
before entering the
premises
he conceded
knowking
possession but
invoked Martin to
argue that since he
had been taken to
jail against his will,
he had not
voluntarily
committed the
required act of
"bringing the drug
into jail."
State v. Barnes
State v. Eaton
Barnes was
arrested for
drunk driving
and placed in
jail, where a
bag containing
marijuana fell
out of his pants
D was
convicted of
possessing a
controlled
substance
while in county
jail
conviction was
upheld for
possession of
a controlled
substance
even though
he wasn't
voluntarily
present at the
facility
court
concluded that
the necessary
voluntary act
occurs when
the D
knowingly
possesses the
controlled
substance
after the Canadian
officers forcibly
returned him to US
customs officials in
handcuffs, the D was
charged and
convicted of being
voluntarily present
and found in the US
State v. Macias
state supreme court
found Martin controlling
and reversed the
drugs-in-jail coniction
a Honduran
citizen who
had been in
the US without
authorization,
attempted to
enter Canada
from NY
supreme court found that
the D had no other
available choice other
than to surrender
evidence that would
convict him of another
crime, and threfore failing
to read a voluntariness
requirement into the
stature would produce
absurd results
incompatible with the
principles of criminal
resposnibility
Officers of the
law arrested
him at his
home and took
him onto the
highway,
where he
allegedly
committed the
proscribed acts
the second
circuity
reversed the
conviction
because when
the D was
found in the
US he has
been returned
involuntarily
Canadian
official denied
him entry
because he did
not have valid
documents
"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"
appears=a
voluntary
appearance is
presupposed
Notes and
Questions up
to 4(b)
(226-228)
People v.
Newton
(224-226)
Newton was
charged with
the murder of
Frey, a police
officer who
died of bullet
wounds
received in a
struggle with
the D
Newton
eventually
stated that
after being
shot he was
unconscious
and was still
only
semiconscious
when he
arrived at the
hospital
Frey stopped a
car driven by
the D and
ordered him
out of the car,
after which an
altercation
ensued
expert testified that
"a gunshot wound
which penetrates in
a body cavity, the
abdominal cavity or
the thoracic cavity
is very likely to
produce a profound
reflex shock
reaction, that is
quite different than
a gunshot wound
which penetrates
on only skin and
muscles and it is
not at all
uncommon for a
person shot in the
abdomen to lose
consciousness and
go into this reflex
shock condition for
short periods of
time up to half and
hour or so"
at some point,
Newton
wrestled the
gun away and
shot several
fatal shots at
Frey
Newton drew a
gun and in a
struggle for it's
posession, the
gun went off
and wounded
Heanes,
another police
officer
the struggle
ctoninued and
Heanes fired a
shot at
Newton's
midesction
(1) rationale of
the voluntary
act
requirement
it was of the opinion of
the expert that D was in a
state of unconsciousness
when Frey was shot
(3) cuplability
required
unless
otherwise
provided: when
the culpability
sufficient to
establish a
material
element of an
offense is not
proscribed by
law, such
eleemnt is
established if a
person acts
purposely,
knowlingly or
recklessly with
respect thereto
(NOT
negligently)
where not self-induced as
by involuntary intoxication
or the equivalent,
unconsciousness is a
complete defense to a
charge of criminal
homicide
(4) prescribed
culpability
requirements apply
to all material
elements: when the
law defining an
offense prescribes
the kind of culpability
that is sufficient for
the commission of
an offense, without
distinguishing
among the material
elements thereof,
such provision shall
apply to all the
material elements of
the offense, unless a
contrarty purpose
plainly appears
(6)
requirmeent of
purpose
satisfied if
purpose is
conditional:
When a
particular
purpose is an
element of an
offense, the
element is
established
although such
purpose is
conditional,
unless the
condition
negatives the
harm or evil
sought to be
prevented by
the law
defining the
offense.
(5) substitures for
negligence,
recklessness, and
knowledge: When the
law provides that
negligence suffices to
establish an element of
an offense, such element
also is established if a
person acts purposely,
knowingly or recklessly.
When recklessness
suffices to establish an
element, such element
also is established if a
person acts purposely or
knowingly. When acting
knowingly suffices to
establish an element,
such element also is
established if a person
acts purposely.
(7)
requirement of
knowledge
satisifed by
knowledge of a
high
probability:When
knowledge of
the existence
of a particular
fact is an
element of 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.
(8)
requirement of
willfulness
satisfied by
acting
knowingly: A
requirement
that an offense
be committed
wilfully is
satisfied if a
person acts
knowingly with
respect to the
material
elements of
the offense,
unless a
purpose to
impose further
requirements
appears.
(10) culpability as
determinant of
grade of offense:
when the grade or
degree of an
offense depends on
whether the offense
is committed
purposely,
knowingly,
recklessly or
negligently, its
grade or degree
shall be the lowest
for which the
determinative kind
of culpability is
established with
respect to any
material element of
the offense.
(9) culpability as
to the 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.
since a voluntary act is a
necessary element of every crime,
the prosecution bears the burden
of proving that act--and typically
its voluntary character --beyond a
reasonable doubt
involuntary
acts are never
blameworthy,
but the
opposite is not
true
"involuntary does not
have a consistent
meaning even within
the criminal law:
many types of
conduct that are
considered
"involuntary" for
purposes of some
laws are not for
others
a voluntary act
is necessary,
but not
sufficient for
criminal liability
James
Fitzjames
Stephen, A
History of the
Criminal Law
of England
law is unequivocal on
this point --MPC
s2.01(1) would afford a
full defnesne and a
long-honored maxim of
the criminal law states:
cogitationis poenam
nemo patitur--no one is
punishable soley for his
thoughts. Though the
law of attempt will allow
criminal liability if a
defendant moves
beyond thoughts to
some actions, even if
they do not result in a
completed offense,
attempt still requires an
act of some kind
two situations in which
human actions misfire: (1)
where actions are done
accidentally or under duress
(2) where the action misfires
-- convulsions, relfexes, etc.
for example: a person may act
voluntarily by driving carefully
to work but may have an
accident and injure someone
unintentionally
"to make a complete crime, cognizable by human laws, there must be both a will and
an act...for which reason in all...jurisdictions an overt act, or some open evidence of
an intended crime is necessary, in order to demonstrate the depravity of the will
before the man is liable to punishment."
William
Blackstone,
Commentaries
now assume
he is arrested
before he
takeas any
action to
formulate the
details of the
arson
suppose a person
conceives the idea to burn
down a building and writes
in his diary the list of
supplies he would need
(3)
distinguishing
between
voluntary acts
and
blameworthy
acts
MPC defines
voluntariness
indirectly by
simply listing
examples of
involuntary
acts
people whose
involuntarily
movements
threaten harm
to others may
present a
public health or
safety
problem,
calling for
therapy or
even for
custodial
commitment;
they do not
present a
problem of
correction
unconsciousness need
not reach the physical
dimensions commonly
associated with the term
(coma, inertia, incapability
of locomotion or manual
action etc.) it can exist
where the subject
physically acts in fact but
is not, at the time,
conscious of acting
Notes on
Culpable
Thoughts
(2)
distinguishing
between
voluntary and
involuntary
acts
(2) purpose and
knowledge:
knowledge that the
requisite external
circumstances
exists is a common
element in both
conceptions. But
actions is not
purposive with
respect to the
nature or result of
the actor's conduct
unless it was his
conscious object to
perfom an action of
that nature or to
cause such a
result.
(3) recklessness:
whether the risk
relates to the
nature of the actor's
conduct, or to the
existence of the
requisite attendant
circumstancees, or
to the result that
may ensue is
immaterial; the
concept is the
same, and is thus
defined to apply to
any material
element. The risk
must be substantial
and unjustifiable
"sinful thoughts and dispositions of mind might be the subject of
confession and of penance, but they were never punished in this
country by criminal proceedings...if it were not so restricted it would
be...intolerablel all mankind would be criminals, and most of their lives
would be passed in trying and punishing each other for offenses which
could never be proved."
Text
Glanville
Williams,
Criminal Law:
The General
Part 2
Better reasons for the rule would be (1) the difficulty of distinguishing between
daydream and fixed intention in the absence of behavior tending towards the crime
intended, and (2) the undesirability of spreading the criminal law so wide as to cover a
mental state that the accused might be too irresolute even to begin to translate into
action.
Abraham
Goldstein,
Conspiracy to
Defraud the
United States
[T]he act requirement serves a number of closely-related objectives: it seeks to assure
that the evil intent of the man branded a criminal has been expressed in a manner
signifying harm to society; that there is no longer any substantial likelihood that he will
be deterred by the threat of sanction; and that there has been an identifiable
occurrence so that multiple prosecution and punishment may be minimized.
D was found
guilty of
involuntary
mansalughter
through failure
to provide for
Anthony Lee
Green, which
resulted in his
death
Deceased was
the 10 m/o
baby of Shirley
Green
He was placed
with the D--a
family friend
Evidence was
uncontested
that the D had
ample means
to provide food
and medical
care
Jones v.
United States
gov't contends that either
the 3rd or 4th are
applicable here
(1) where a statute
imposes a duty to care for
another, (2) where one
stands in a certain status
relationship to another, (3)
where one has assumed a
contractual duty to care
for another, and (4) where
one has voluntarily
assumed the care of
another and so secluded
the helpless person as to
prevent others from
rendering aid
trial judge
failed to
instruct the jury
that Jones
could only be
convicted if
there was
proof that she
was under a
legal duty to
feed and
provide
medical care
for Anthony
At least four situations win
which the failure to act
may constitute breach of a
legal duty:
Proportionality
Graham v.
Florida
State v. Bryant
generally
questions
involving
escape
andprison
conditions are
not relevant to
the question of
whether a
defendant
should be
sentenced to
death or life
imprisonment
without parole.
Graham
pleaded guilty
to attempted
armed robbery
at 16 and was
sentenced to
three years
probation
less than six
months after
being
released, he
was arrested
for a
home-invasion
robbery with
two-accomplices
trial court
found that
Graham had
violated his
probation and
sentenced him
to the max
sentence
authroized by
law: life
imprisonment
for the
home-invasion
and 15 years
for the
attempted
armed robbery
two different
typees of
proportionality
challenges
(2) comprises
cases in which
the court
implements the
proportionality
standard by
certain
categorical
restrictions on
the death
penalty
Notes 1 and 2
(211-213)
(1) involves the
challenges to
the length of
term-of-years
sentences
given to all the
circumstancees
in a particular
case
(2b) guided by
the standards
elaborated by
controlling
precedents
and by the
court's own
understanding
and
interpretation
of the 8th
amendment's
text, history,
meaning, and
purpose" the
court must
determine in
the exercise of
its own
independent
judgment
whether the
punishment in
question
violates the
constitution
(2a) consider
the objective
indical of
society's
standards, as
expressed in
legislative
enactments
and state
practice to
determine
whether there
is a national
consensus
against the
sentencing
practice at
issue
looking at
legislative
enactments
and state
practice to
determine if
there is a
national
consensus
saying "this is
not something
we do"
involves
considering (1)
culpability and
(2) severity of
punishment
classification in
turn contains
two subsets:
(1) considering
the nature of
the offense (2)
considering the
characteristics
of the offender
when
compared to
an adult
murderer, a
juvenile
offender who
did not kill or
intend to kill
has twice
diminished
moral
culpability
retributivist
perspective:
court rejected
the sentence
under the
retributivist
rational
because of the
lesser
culpability of
juveniles
incapacitation:
to justify LWOP
on the
assumption
that the
juvenile
offender
forever will be
a danger to
society requies
the sentencer
to make
judgment that
the juvenile is
incorrigible
life without the
possibility of
parole is a
disproportionate
sentence for a
juvenile
Determining
whether a
punishment is
appropriate
proportionality
and recidivism
Locker v.
Andrade
Roper v.
Simmons
none of the
penal
sanctions that
have been
recognized as
legit,
retribution,
deterrence,
incapacitation,
and rehab
provides and
adequate
justification
established
that because
juveniles have
lessened
culpability they
are less
deserving of
the most
severe
punishments
rehab: failed to
justify the
sentence
because a
LWOP
sentence
forswars
altogether the
rehabilatative
ideal
deterrence:
failed to
support the
sentence in the
court's view
because
juveniles make
impetous
decisions and
are less likely
to take a
potential
punishment
into account
another CA
3-strikes case
Andrade has
stolen from a
K-mart on 2
occasions, the
first time for a
sum worth
~$80 and the
second time
for a sum
worth ~$60
because both
amounts were
under $200,
the offenses
were
classififed as
petty thefts,
normally a
misdemeanor,
but since
Andrade had
preivous
convictions,
the 3-strikes
rule applied
as a result, for
each of the
petty thefts,
the was
sentenced to a
term of 25
years to life,
the terms to
run
consecutively
a LWOP
sentence
excludes the
idea of rehab
because you
are not going
to be sent back
into the world
hard to deter
kids because
they don't think
rationally
alternatively,
one may
believe that
what an
offender
deserves is an
equivalent to
what the
people believe
he deserves,
and that is a
misunderstanding
of desert to
believe that
theorists can
second-guess
determinations
made by the
people
according to
this view, the
purpose of the
8th
amendment is
to enforce the
retributivist
constrating,
the content of
which doesn't
change with
the whims of
the democratic
majority
HLA Hart & A.
Honoré,
Causation in
the Law
AC Ewing, A
Study of
Punishment II:
Punishment as
Viewed by the
Philosopher
(2) whether the
proportionality judgment is
best made by the people,
through the laws enacted by
legislatures, or whether the
courts must play a more
robust role?
(1) should the prospect of
large benefits in deterrence
or incapacitation (that is
utilitarian concerns) suffice
to render a punishment
proportionate, or should
proportionality be viewed as
requiring punishment that is
commensurate with
culpability and the gravity of
the crime for which an
offender is being sentence
one may
believe that the
questions of
what people
deserve or
don't deserve
are matters of
objective moral
reality and the
people or it's
frequent proxy,
the democratic
process, may
come out with
a wrong
answer at
times
Ewing v.
California
(205-211)
Introductory
Note (202-205)
if the court's do
second-guess
the judgment
of the people
on what basis
can they do
so?
if a man is severely punished for a
comparitively slight offense, people will
be liable to forget about his crime and
think only of his sufferings, so that he
appaers a victim of cruel laws, and the
whole process, instead of reaffirming
the law and intensifying men's
consciousness that the kind of act
punished is wrong, will have the
opposite effect of casting discredit o
nthe law and making the action of the
lawbreaker appear excusable or even
heroic
liable to produce an effect of this sort
on the victim
passion ran so
far high in
favor of the
three-strikes
law that no one
noticed that
the Klaas
family
withdrew their
support for the
law because
they found it
too extreme
he will be likely to think the penalty
excessive in any case, and the great
danger of punishment is that this will
lead to self-pity and despair, or anger
and bitterness, instead of repentance
Hyman Gross,
A Theory of
Criminal
Justice (1979)
on a deterrent
theory, the
rationale of the
severity of
punishments is
complex
(1) one crime,
if unchecked,
may cause
greater harm
than another,
and hence on
general
utilitarian
grounds,
greater
severity may
be used in its
repression
than in the
repression of a
less harmful
crime
(2) the
temptation ot
commit one
sort of crime
may be greater
than anothe
rand hence a
more severe
penalty is
needed
(3) the
commission of
one crime may
be a sign of a
more
dangerous
character in
the crimianl
needing longer
sentence for
incapacitation
or reform
the requirement
that punishment
not be
disproportionately
great is dictated
by the same
principle that does
not allow
punishment of the
innocent, for any
punishment in
excess of what is
deserved ifor the
criminal conduct is
punishment
without guitl
the requirement that punishment be
proportional to the seriousness of the
offense is a core principle of
punishment, both as a central limit
dictated by the 8th amendment, and
as a statutory statement of purpose in
modern criminal codes
Jeremy
Bentham,
Principles of
Penal Law
MPC s1.02 "the aim to differentiate on
reasonable grounds between serious
and minor offenses" and "to safeguard
offenders against excessive,
disproportionate or arbitrary
punishment."
(1) the value of
punishment
must not be
less in any
case than what
is sufficient to
outweigh that
of the profit of
the offense
CA Penal Code: "punishment" is
the purpose of imprisonment of
crimes, which purposes is "best
served by terms proportionate
to the seriousness of the
offense"
NY Penal Law: "to
differentiate on reasonable
grounds between serious
and minor offenses and to
prescribe proportionate
penalties therefore"
(3) when two
offenses come
in competition,
the
punishment for
the greater
offense must
be sufficient to
induce a man
to prefer the
lesser
ex: if a man having
reaped the profit of a
crime, and undergone
the punishment, finds
the former more than
equivalent to the
latter, he will go on
offending forever,
there is nothing to
restrain him
two offenses
may be said to
be in
competition,
when it is in
the power of
an individual to
commit both
(5) the
punishment
ought in no
case be no
more than
what is
necessary to
bring it into
conformity with
the rules given
here
(4) the
punishment
should be
adjusted in
such a manner
to each
particular
offense, that
for every party
of the mischief
there may be a
motive to
restrain the
offender from
giving birth to it
(8) punishment
must be further
increased in
point of
magnitude, in
proportion as it
falls in points
of proximity
(7) that the
value of the
punishment
may outweigh
the profit of the
offense, it must
be increased in
point of
magnitude, in
proportion as it
falls short in
point of
certainty
ex: in adjusting
the
punishment for
stealing a sum
of money, let
the magnitude
of the
punishment be
determined by
the sum stolen
Law Puts Us
All in Danger
as Eric Garner
Lots of police
activity is not
directed
toward
gathering
evidence or
solving crimes,
intead it's
about order
maintenance.
harder to
predict what
kids will do in
the future
(1) such a
conflict is
undesirable on
simple
utilitarian
grounds
it might either confuse
moral judgment or
bring the law into
dispute
Morales was
arrested when
he was
standing in a
group of five
other Latino
teenagers in a
white
neighborhood
a citizen who wants to abide by
the law has no quick and easy
way to find out what the law
actually is--a violation of the
traditional principle that the state
cannot punish without fair notice
Morales was
assumed to be
in agang
because he
was wearing
blue and black
clothing which
were the colors
of a street
gang
if the D has one prior serious or
violent felony conviction, he must be
sentenced to twice the term otherwise
provided as punishment for the
current felony conviction; if the D has
two or more prior serious or violent
felony convictions, he must receive
an indeterminate term of life
imprisionment; D sentenced to life
under the 3-strikes law become
eligible for parole on a date
calculated by reference to a minimum
term which is never less than 25
years
enacted in 1994,
includes some things
that many people
might not consider
violent or serious;
second and third strike
do not have to be a
violent or serious
felonies
(2) principles of
justice or fairness
between different
offenders require
morally
distinguishable
offenses to be
treated differently
and morally simialr
offenses to be
treated alike
court explained
three factors may
be reelevant to a
determination of
whether a sentence
is so
disproportionate
that it violates the
8th amendment
Kennedy:
accepted
proportionality
review for
non-capital
sentences, and
identified four
principles for
proportionality
reivew:
certain offenses (wobblers) may be
classifed as feloniees OR
misdemeanours--some crimes that
would otherwise be misdemeanours
become wobblers because of the D's
prior record and prosecutors are
allowed to execute their discretion
(1) primacy of the
legislature, (2)
the variety of
legitimate
penalogical
schemes, (3) the
nature of our
federal system,
and (4) the
requirement that
proportionality
reivew be guided
by objective
factors
Ewing stole 3 golf clubs worths $399/each
was convicted of several theft offenses prior to
stealing clubs
(1) recidivism
is a serious
public safety
concern in CA
according to a
study, property
offenders like
Ewing had
higher
recidivism
rates
(1) gravity of
the offense
and the
harshness of
the penalty (2)
the sentences
imposed on
other criminals
in the same
jurisdictions (3)
the sentences
imposed for
commission of
the same
crime in other
jurisdictions
the 8th
amendment
does not
require strict
proportionality
between criime
and sentence,
rather it
forbidds only
extreme
sentences that
are grossly
disproportionate
to the crime
(2) deterrence
also lends
some support
for the three
strike law
four years after
the passage of
the three-strike
laws, the
recidivism
rates of
paroless
returned to
prison for the
commission of
a new crime
dropped by
nearly 25%
Ewing's
sentences also
reflects a
rational
legislative
judgment,
entitlted to
deference, that
offenders who
have
committed
serious or
violent felonies
and who
continue to
commit
felonies must
be
incapacitated
no
proportionality
principle for
the length of
sentences
faced with a
gross
proportionality
claim and must
first make a
threshold
comapirson of
the crime
committed and
the sentence
imposed
majority
acknowledged
that the
constitution
does not
mandate
adoption of
any one
penological
theory
this
acknowledgement
having been
made no longer
suffices merely to
assess the
gravity of the
offense
compared to the
harshness of the
penalty
ordinance: (a) whenever a
police officer observes a
person whom he reasonably
believes to be a criminal
street gang member loitering
in any public place with one
or more persons, he shall
order all such persons to
disperse and remove
themselves from the area.
Any person who does not
promptly obey such an order
is in violation of this section.
(b) it shall be an affirmative
defense of an alleged
violation of this section that
the pereson who was
observed loitering was in
fact a member of a criminal
street gang. (c) as used in
this section: (1) loiter means
to reamine in any one place
with no apparent purpose
In 1992, the Chicago Council
enacted the Gang Congregation
Ordinance, which prohibits
"criminal street gang members"
from "loitering" with one another
or with other persons in any
public place.
vagueness: (1) as applied: only
needs to show that the stature
does not have a clear meanining
in the context of a particualr
case. (2) facial: must
dmeonstrate that no matter how
harmful a person's condcut may
be, one can never tell whether
the statute covers the situation or
not. (a) notice (b) arbitrary
enforcement
[said differently]: there are two
separate and distinct reasons for
concluding that a criminal violated
the DPC on vagueness grounds.
(1) the law may fail to provide the
public with adequate notice
regarding the conduct that is
prohibited (2) the law may permit
or even encourage authorities to
enforce the law in an arbitratry
and discriminatory manner
definition of loiter
given in the
statute makes it
so that no one
can know if they
are loitering or
not
"no apparent
purpose"--no one
can tell if they
have an apparent
purpose to a
police officer
when a statute
can be void for
vagueness it is
upholding
legality (one of
the three
principles
limiting the
imposition of
punishment)
the definition of "loitering" in the
ordinance--to remain in one place with
"no apparent purpose" is too vague
because it fails to distinguish between
clearly innocent conduct and the type
of conduct that is intended to be
criminalized
as for
enforcement,
the ordinance,
gives the
police
impermissibly
borad
discretion to
determine
when someone
is lotering "for
no apparent
reason"
officer's order
to disperse
doens't cure
the notice
beceause it is
given only after
the conduct
has occurred,
and also
because the
order itself is
vauge as to
where the
people must
disperse and
when they
were permitted
to reassemble
Chapman: In the three years the law
was in force, before being invalidated
by the courts, police dispersed some
89,000 people at public gatherings and
arrested 42,000 people who didn't move
fast enough or far enough to suit the
cops. Not all were gang members, since
the ordinance gives police the authority
to disperse a group of 10, 20, or 100 if a
single person present is even
supsected of belonging to a gang.
"there are no standards governing the
exercises of the discretion granted by the
ordinance, the scheme permits and
encourages an abritrary and discriminatory
enforcement of the law...it results in a regime
in which the poor and the unpopular are
permitted to "stand on a public sidewalk...only
at the whim of any police officer."
(1) vagrancy
laws:
Papachristou
v. City of
Jacksonville
considered the
leading case
on the
constitutionality
of
vagrancy-type
laws
"the
Jacksonville
ordinance
makes criminal
activites which
by modern
standards are
normally
innocent"
government should be by
clearly defined laws not
government by the
moment-to-moment opinions of
a policeman on beat
(2) the
Chicago
response ot
Morales
(3) other
anti-gang and
anti-loitering
legilsation
new ordinance
that specifies that
dispersal, in
compliance with
the order means
"removing
themselves from
within sight and
hearing of the
place at which
the order was
issued."
requires the
police to
desginate
particular areas
within the city in
which the order
can be
enforced--but this
info is not public
there are 2 independent grounds
on which a statute can be
unconstiutionally vague
on the contrary, ordinances have
been struck down where they
prohibit loitering "under
circumstances manifesting the
purpose to sell drugs" when
"repeatedly beckoning" can
establish a manifested purpose,
without proof of the defendant's
actual intent
the MPC
prohibits
lotering in a
place, at a
time, or in a
manner not
usual for
law-abiding
individuals
under
circumstances
that warrant
alarm for the
safety of
persons or
property in the
vicinity
the notice
prong asks
whether the
statute in
question will
"enable
ordinary
people to
understand
what conduct it
prohibits
plurality reads
into the 8th
amendment
the unstated
proposition
that all
punishment
should
reasonably
pursue the
multiple
purposes of
the criminal
law
ordinances reviewed in the wake
of Morales have been upheld
when they target loitering with a
criminal intent or where they are
limited to loitering in a specific,
narrow location
places Ewing's
sentence well
within the
twilight zone
between
Solem and
Rummel
the NJ Supreme Court struck
down part of the state's bias
intimidation statute because it
allowed a defendant to be
convicted of the crime of bias
intimidation if the victim of the
underlying offense was
intimidated
if the police cannot
tackle high rates of
crime in a
neighborhood with
an anti-gang
ordinance strategy,
they may turn to
other approaches
like broken
windows policing
quality of
life/broken
window
policing is
related to
hot-spot
policing which
has shown to
reduce crime
"the mere fact that a penal
stature is so framed as to
require a jury upon occassion
to determine a question of
reasonableness is not
sufficient to make it too vague
to afford a practical guide to
permissible conduct
an ordinance in Athens, GA was held to be
unconstitutional and it was based on similar language
as that of the MPC because there are no overt acts
necessary to trigger criminal liabiluty under the statutes,
nor were there specific guidelines to inform law
enforcmeent officers of what behavior might legitimately
bring the officer to believe a person was involved in
unlawful drug activity
(b) the
sentencetriggering
criminal conduct
do not deny the
seriousness of
shoplifting, but in
terms of harm
caused or
threatened to
the victim or
society, it is low
on the criminal
conduct scale
however, hot spot policing
involves the intense use of
stop-and-frisk which a NY
determined was
unconstitutional and
involved indirect racial
profiling
supreme court
has enforced a
proportionality
requirement for
fines and
forfeitures
the court has
held that states
may not impose
punitive damage
awards to
punish a D for
harm to
non-parties
striking awards
down when a
more modest
punishment for
the
reprehensible
conduct could
have satisfied
the state's
legitimate
objectives
(c) the
offender's
criminal history
one might
argue that
those who
commit several
property
crimes should
receive long
terms of
imprisonment
in order to
incapacitate
them, however,
that is not the
goal of the
three strikes
statute
quality of life enforcement
and fixing broken windows
have no significant effect
on the level of serious
crime
United States
v. Ragen
rests on the
idea that
graffiti,
unrepaired
damage, and
quality of life
offenses, are
not trivial
matters
court held that "in
focusing on the
victim's perception
and not the
defendant's intent, the
statute doese not give
a defendant sufficient
guidance or notice on
how to conform to the
law"
if a claim
crosses that
threshold, then
the court
should
compare the
sentence at
issue to other
sentences in
the same or
other
jurisidictions
comparative
analysis looks
at:
(6) the second independent ground on which a
statute can be void for vagueness is when it
encourages arbitrary and discriminatory
enforcement
State v.
Pomianek
proportionality
in other
contexts
the
comparative
analysis will
validate or
invalidate an
initial judgment
that a
sentence is
grossly
disproportinate
to the crime
(a) the length
of the prison
term
(4) the notice
prong of
vagueness
Notes 3-5
(218-221)
[dissent] plurality
[concurrence]
Chapman
Excerpt and
notes 1-7
(193-202)
City of Chicago
v. Morales
(185-193)
Federal law includes more than 3000
crimes, fewer than half of which
found in the federal criminal code.
The rest arae scattered throughout
other statutes
vagueness is a
substantive
legal doctrine
that interacts
with policing
issues
Many reasons
why we might
wish the legal
graduation of
the
seriousness of
crimes
expressed in
its scale of
punishments,
not to conflict
with common
estimates of
their
comparative
wickedness
CA's 3-strike law
reflects a shift in the
state's sentencing
policies towards
incapacitating and
deterring repeat
offenders who threaten
public safety
this opinion is
guided by
Kennedy's
principles
given in
Harmelin
Solem v. Helm
Scalia/Rehnquist
wrote that the
proportionaltiy
requirement
ofthe 8th
amendment was
an aspect of our
death penalty
jurisprudence,
rather than a
generalizable
aspect of 8th
amendment law
HLA Hart, Law,
Liberty, and
Morality
Vagueness
and Police
Discretion
Order
Maintenance
Policing
Harmelin .v
Michigan
according to this view, effective
control of major crime, not to
mention maintenance of urban
neighborhoods requires police to
enforce quality of life laws even
though such enforcement will
involve considerable discretion
Defining
Criminal
Conduct
McBoyle v.
United States
(162-163)
McBoyle was
convicted of
transporting an
airplane that
he knew had
been stolen
legality: to give
fair warning of
the nature of
the conduct
that is
considered an
offense
it does not
uphold the
principle of
legality
issue: does the
National Motor
Vehicle Act
apply to
aircraft?
sec 2 of the theft act:
"the tern motor vehicle
shall include an
automobile, automobile
truck, automobile
wagon, motor cycle, or
any other self-propelled
vehicle not designed for
running on rails."
it is impossible to read
words that so carefully
enumerate the different
types of motor vehicles and
have no referecne to
aircraft as including aircraft
Yates v. United
States
(163-172)
Introduction
(157-158)
althought it is likely that
McBoyle did not consider
the act prior to committing
his acts, it is reasonable
that a failr warning should
be given to the world in
language that any
layperson would
understand regarding the
consequences of corssing
the line of the law
culpability: to
safeguard
conduct that is
without fault
from
condmenation
as cirminal
proportionality:
to differentiate
on reasonable
grounds
between
serious and
minor offenses
when a rule of conduct is laid
down in words that evokes a
picture of vehicles moving on
land and not in the air, the
act's application to aircraft
should not be assumed if the
legislature did not expressly
say so
Yates was indicted under 18
USC s2232(a) and 18 USC s159
after tampering with evidence
showing the catching of
undersized fish
American
criminal law
has been
shaped by the
MPC
three
fundamental
principles limit
the imposition
of punishment:
legality,
culpability, and
proportionality
s1519: "whoever knowingly
laters, destroys, mutiliates,
conceals, covers up, falsifies, or
makes a false entry in any
record, document or tangible
object with the intent to impede,
obstruct, or influence the
investigation or proper
administration of any matter
within the jurisidiction of any
department or agency of the
United States..., or in relation to
or contemplation of any such
matter or case, shall be fined
under this title, imprisoned not
more than 20 years, or both."
MPC is not
itself law and is
not legally
bidning
anywhre,
however, since
1962, more
than half of
these states
have eneacted
model criminal
coddes that
draw heavilty
on the MPC
legality,
culpability, and
proportionality
are also
important
principles of
the MPC
Notes 1-3
(172-175)
via this principle, tangible
object is read to refer
specifically to the subject
of tangible objects
including records and
documents
use the principle of noscuitir a
sociis (a word is known by the
company it keeps) to accord
ascribing to one word a meaning
that's so borad that it's
inconsistent with accompanying
words and giving unintended
meaning to Acts of Congress
the words surrounding
"tangible object" also cabin the
contextual meaning of that
term
while headings aren't
commanding, they supply cues
that Congess did not intend
"tangible object" in s1519 to
sweep within its reach physical
objects of very kind...if they did
one would have suspected a
clearer indication of that intent
principle of esjusdem generis
(where general words follow
specific words in a statutrory
enumeration, the general words
are usually consured to embrace
only objects similar in nautre to
those object enumerated by the
preceding specific owrds
finally,
lenity-ambiguity
concerning
the ambit of
criminal
statutes
should be
resolved in
favor of
lenity
appropriate to require that
Congress should have spoken in
a language that was clear and
definite
to read tangible objects as
including fish in s1519 does not
uphold the principle of legality
dictionary definitions aren't
dispositive of the meaning of
"tangible object"
s1519 was enacted as part of
the Sarbanes-Oxley Act of 2002
that legislation designed to
protect investors and restore
trust in financing afollowing the
collapse of Enron
[dissent]: when
congress has not
supplied a definition
we tend to give a
statutory term its
ordinary menaing
have also followed
the rule that the title
of the statute and the
heading of the section
cannot limit the plain
meaning of the text
the principles of
noscitur a sociis and
esjudem generis are
used to reduce
ambiguity, not create
it...when words have
a clear definiton, the
canons cannot be
used to defeat it
lenity only kicks in after
all legitimate tools of
interpretation have
been exhausted
via the ordinary meaning of
tnagible object, it would
include a fish
(1) the rule of
lenity: two
distinct
versions of the
lenity doctrine
have been
adopted
(a) (OLD)
meant to block
judicial
specualtion
about the
significance of
context and
legilsative
intent--requires
courts to adopt
the narrowest
possible
interpretation
of a criminal
statute's text
lenity has been
codified but the
MPC has not
(b) (NEW)
doctrine is a
"last resort"
when all other
tools of
interpretation
fail to clarify
the statutes
meaning
map of crimes
(3) lenity and
the olitics of
crimee
(2) legislative
intent
(c) using a
gun: 18 USC
s924 imposes
a 5-yr
minimum
sentnece to
anyone who
"during and in
relation to drug
trafficking
crime uses or
carries a
firearm"
criminal
procedure
Kahan argues that in
practice the federal
courts have abandoned
lenity and that it is a
good thing because
courts should seek to
fashion sensible laws
rather than leaving this
task to Congress
even where legislative
history exists, it is often
hard to determine what
was the intent of the
body as a whole,
because different
members may express
different views and
support a laaw for
different reasons
civil
rights
no congruence
gov't:
D Act
charge
law
D Mental
State
congruence
interregation
plea
Smith attempted
to trade drugs for
his MAC10 (gun)
prosecutors
successfully
argued that use in
this manner fell
beneath the
statute
Kahan argues that
allowing congress to
delegate its criminal
lawmaking
responsibilities to the
courts is much more
efficient and more
effective that requiring
congress to make
criminal law without
judicial assistance
Scalia objects to
reliance on legislative
history, he maintains
that textual meaning,
when ambiguous, can
be idnetified by resort to
canons of construction,
like the ones used in
Yates
seems to be
inconsistent with
McBoyle
The Problem
of Punishment
and the
Criminal
Process
Restorative
Justice
Framework
criminal justice
questions
criminal justice
notions
restorative justice
questions
what law was
broken?
who was harmed?
who broke it?
what are the needs
and responsibilities
of all affected?
what punishment
was warranted?
McCleskey v.
Kemp + intro
note (590-597)
how do all affected
parties together
address needs and
repair harm?
restorative justice
notions
crime is a
crime is a
violation of the violation of people
law and the state and relationships
violations create
guilt
justice requires
the state to
determine guilt
(blame) and
impose pain
(punishment)
violations create
obligations
justice involves
victimes,
offenders, and
community
members in an
effort to repair
harm
McCleskey
introduced
evidence via a
statistical study
and alleged
that Georgia's
capital
sentencing
process was
administered in
a racially
discriminatory
way that was
in violation of
the 8th and
14th
amendments
McCleseky, a black
man, was convicted
with two counts of
armed robeery and
one count of
murdering a white
police officer in
Atlanta
Jury
reccomended
that the D be
sentences to
death for the
murder charge
and the court
followed the
recommendation
a criminal
alleging a
violation of the
EPC has the
burden of
proving the
purposeful
discrimination
had a
discriminatory
effect on him
D must prove that
the decisions
makers in his case
acted with a
discriminatory
purpose
McCleseky offers
no evidence to
support his claim
and instead relies
only on the study
The Structure of
Criminal
Justice...Institutional
Actors, Note 1 (7-10)
[dissent-Brennan]: the majority cannot
ignore the overwhelming startistical
evidence of the death pennalty study
which confirms that race plays a major
role in whehter a D will be sentenced to
death
if the study is to be accepted,
then it would be an EPC violation
everytime a black person is
sentenced for murdering a white
person
discriminatory purpose implies
that the decision maker selected
a course of action, in whole or
part, because of the adverse
results it would have against a
certain group
RULE: the defense of
necessity doesn't justify
murder unless it was
done in self-defense
[dissent-blackmun]:
McCleseky met his
burden by proving that it
was more likely than not
that the fact that the
victim he was charged
with killing was white
determined that
received a death
sentence
history confirms
that GA practices
a race-conscious
CJ system dating
back to the civil
war
portions of GA's
captial sentencing
system have already
been invalidated for
furtheering racial
discrimination 3x in
the last 15 yrs
Regina v.
Dudley and
Stephens
(89-94)
3 4
the American
criminal justice
system is
extremely
decentralized
finds that "the risk that racial
prejudice may have infected
petitioner's captial sentenicing
unacceptable in light of the
ease with which the risk could
have been minimized
"our system of justice
deliberately sacrifices
much in efficiency to
preserve local
autonomy and to
protect the individual"
clear that Lord Hale is firm
on the idea that extreme
necessity of hunger
doens't justify larceny so
what might he think about
extreme necessity of
hunger justifying murder
Lord Hale
reads this to
be
self-defense
12 14
18
20
24
(1) overview-the American
justice system
has the largest
penal system
in the world
turtle
America has
no single
criminal justice
system
it is said that it follows from various
definitions of murder in books of
authoity, which definitions imply the
doctrine in order to save your life you
may lawfully take away the life of
another, when that other is neither
attmepting nor threatening yours, not
is guilty of any illegal act whatsoever
towards you or anyone else
water
gone
turnips
0
The Sweep of
Criminal Law
in American
(1-4)
"so if divers be in danger of
drowning by the casting away
of some boat or barge, and
one of them get to some
plank...and another to save
his life thrust him from it,
whereby he drowned, this is
neither self-defense not by
misadventure, but justifiable"
it is not correct to
say there is any
absolute or
unqualified
necessity to
preserve one's
life--in fact there
are many siutations
when the opposite
is true
a man has no right to
declare tempatation to be
an excuse, though he
himself might have yielded
to it, not allow compassion
for the criminal to change
or weaken in any manner
the legal definition of a
crime
Lord Braun--however
there is not law that
represents this
authority in current law
<40, addicts, lack of work
prep/experience, poorly
edcuated, mental/physical
illness
(2) the social and
racial
concentration--effects
of criminal law in
america are not
spread equally
among the population
black people make up
nearly half of the
incarcerated
population but only
13.2% of the natuonal
population
those who are
incarcerated come from
the most disadvantged
segments of the
poulation
black people and
hispanic people
routinely recieve
harsher sentences
than whites for crimes
of equal severity
(3) causes--some
researchers argue that
mass incarceration is
primarily a result of the
prevalence of increasingly
high crime rates of arrest
for known crimes, more
punitive attitudes that are
reflected in longer
sentences, and more
agressive policies in the
enforcement of drug laws
three-strike
laws
elimination/restriction
of parole
(4)
consequences--worry
that the deployment of
criminal sanctions has
expanded far beyond
what's needed to serve
those purposes
small deterrent effect
in adding more time to
already long sentences
vast expansion has created a
large popilation whose access to
public benefits, occupations,
vocational licenses, and the
franchise is limited by a criminal
sanction
when new problems arise, criminal
law is viewed as a first choice rather
than a last resort
US has also turned to
criminal law as it's
favored method for
addressing disorder in
workplaces, families,
and schools
criminal
system fills the
void of an
adequate
mental health
system
Adjudication of
Criminal Cases
Jurisdiction &
What Law
Applies Where
They Agreed
to Meet their
Mother's Killer:
Then Tragedy
Struck Again
state courts
can only hear
violations of
state criminal
laws
at least 35
states have
tried various
forms of
restorative
justice
Local/State Courts
Usually, restorative
justice is used for
nonviolent crimes,
especially those
committed by juveniles,
or to help victims heal
when the legal
proceedings are over,
not as a replacement for
prosecution.
federal courts
can only hear
violations of
federal criminal
laws
Federal Courts
Nontribal member
against nontribal
memeber on tribal land
highest state
appeals court
United States
Supreme Court
state appeals
courts
federal
appeals courts
state trial
courts
federal district
courts
Tribal Courts
Non-major crimes
committed by tribal
Includes an act
Committed on federal land or
members against tribal
committed within borders
in other area designated
members in tribal
or result within borders
federal
country, as well as
victimless tribal crimes
Fed Constitutional Power
Tribe members for major
crimes on tribal land:
nontribal memebrs for action
against tribal members on
triabl land
Problem of
Punishment
Note 5: Cost
Effective
Alternatives
(131-132)
In a 1999 article DiLulio qualifed
his position that "prisons are a
bargain" when the incarceration
prisoners nationwide was 1.6M
With the US prison and jail population
near the 2M mark, DiLulio argued that
the US has maxed out on the
public-safety value of incarceration
and the justice system is becoming
less capable of distributing sanctions
and supervision rationally, especially
where drug offenders are concerned
argued that it's time for policy makers
to change focus and aim for zero
prison growth and devoting more
resources to drug treatment nad
effective supervision of offenders on
probation and parole
the soaring costs of incarceration
have begin to generate a consensus
across political lines that America's
reliance on imprisonment has gone
too far.
exception:
low-level,
first-time drug
offenders
most drug felons in state prisons do
not fit that description but it makes no
sense to lock away even one drug
offender whose case could be
adjudicated in special drug courts and
handled less expensively through
intensively supervised probation
featuring no--nonsense drug
treatment and community service
DiLulio Excerpt
(128-129)
"if the question is how to restrain known convicted
criminals from murdering, raping, robbing,
assaulting, and stealing then incarceration is a
solution, and a highly cost-effective one"
Zimring
Excerpt (128)
incarceration is
central to the
basic structure
of the modern
prison and jail
Moore Excerpt
(123-124)
Utilitarian: no
rehab needed
anymroe
Rehab
involves two
different ideals
of rehab that
are often
confused:
Retributivism: he did a wrong, however,
he is no longer culpable and shown
himself during the 13 years he was
supposed to be in jail
it costs (on average)
$25,000/year to keep a
convicted criminal in
prison
four benefits come from that: (1) imprisonment
punishes offendeers and expresses society's moral
disapproval, (2) it teaches felons and would-be felons
a lesson, (3) prisoners get drug treatment and
education, (4) "a thug in prison can't shoot your
sister."
ideal 1: this is
achieved when
we make
criminals safe
to return to the
streets
this ideal
justifies
punishment by
how much
better off all of
us will be if
"treatment" will
be completed
because the
streets will be
that much
safer
ideal
2/paternalistic:
seeks to rehab
offenderes not
jsut so they
can be
returned safely
to the streets
but so they can
lead flourishing
and successful
lives
this ideal
justifies
punishment
not in the
name of all of
us, but rather
in the
offenders' own
name; since it
does so in their
name, but
contraty to
their own
expressed
wishes
parternalistic
type of rehab
theory has no
placae in any
theory of
punishment/and
there are three
reasons why:
(1) such a patenalisticc
reform theory allocates
scaree societal resources
away from other, more
deserving groups that want
them (like individuals with
mental disabilities and the
poor)
He had a
full-time job as
a carpenter
and was
registered with
the state.
Eventually
determined
that there was
no purpose
served in
keeping him
incarcerated
(2) paternalistic justifications
are themselves to be regarded
with suspiscion. Criminals are
not in the standard classes in
society for whcih paternalistic
state intervention is
appropriate
(3) such recasting of
punishment in terms of
"treatment" for the good of the
criminal makes possible a kind
of moral blindness that is
dangerous in itself
adopting a humanitarian
conceptualization of
punishment makes it easy
to inflict treatments and
sentences that need bear
no relation to the desert of
the offender
This American
Life: Run on
Sentence
Mr. Anderson
robbed a BK
manager
Had a full time
job at the time
of crime. It was
his first and
only offense.
Paperwork
Issue that
made it seem
like he was
detained and
they didn't
come looking
for him until 13
yeras later
when they tried
to make him
fulfull his
sentence
Wright Excert?
(82-83)
What is
Punishment?
(81-82)
less harsh than
imprisonment
but more harsh
than probation
intermediate
sanctions: home
detention,
community
service,
intensive
supervision
probation
fine, probation,
imrpisonment,
restorative
justice, death
penalty
these have collateral
consequences: impediment
to futurre employment, risk
of enhanced punishment in
event of future offense, loss
of voting rihgts, public
housing access and
deportation, parental rights
number of
factors since
the '70s has
increased pain
of
imprisonment
imprisonment
can be a
punishment for
failure to pay a
fine, or meet
conditions of
an
intermediate
sanction
maximum
security prisons
varied living
arrangement: (1)
segregation, (2)
general
population, (3)
honor blocks
have 20% of
prison
population,
advanced tech,
inmates have
little freedom,
tedium of prison
living broken by
violence
medium/minimum
security prison
violence much
less common,
inmates have
greater freedom,
sometimes offer
community
release
programs
deteriorating
conditions,
longer prison
sentences,
overcrowding,
increased
violence
led to an
emergence of
prison gangs
for
self-defense
and drug
acces
some of these
prison gangs will
be exported into
the free world
Note 3 (85-86)
Crowding
consequences
of
overcrowding
poor health
care,
interference
with rehab,
increased
illness,
constant noise,
oppressive
living
arrangements
magnify
interprersonal
conflict among
prisoners and
create even
greater impetus
for
inmate-on-inmate
violence and
additional
opportunities ofr
inmates to
perpetuate
violence with
impunity
research links
crowding with
increased rates
of violence,
psych
breakdowns,
rapes, and
suicides
impact on
inmate
psychology
aggregate the
likelihood for
recidivism
Bentham
Excerpt
(97-98)
Introductory
Note (97-97)
experts believe
that efficient
prison
management
requires prison
to operate
significantly
below their full
capacity levels
retributive:
"people
deserve it,"
backwards
looking: past
behavior of
offender
in an
overcrowded
and violent
prison, a
shorter
sentence may
satisfy the
ideals
justifications
for
punishment:
Utilitarian:
"punishment
for a useful
purpose,"
forward
looking: what
punishment
can produce in
the futrure
in an
overcrowded
and violent
prison a
shorter
sentence may
be sufficient for
a utilitarian
viewpoint
Problem:
Victim Impact
Statements
(109-111)
Moore Excerpt
(101-102)
general object which all laws
have is to augment the total
happiness of the community and
therefore to exclude everything
that tends to subtract from that
happiness--to exclude mischief
should urge
punishment of
all offenders
who deserve it,
even if no
victims want it
retributivism is
the view that
punishment is
justified by the
moral
culpability of
those who
receive it
punishes only
because the
offender
deserves it
differs from an
"eye for an
eye"/death
penalty
because they
are not
comitted to any
particular
penalty
scheme
Payne v.
Tennessee
People v. Levitt
utilitarian
justifies
punishment of
past offenses
by the greater
good of
preventing
future offenses
moral dessert
is a sufficient
reason to
punish
"bereavement
is relevant to
damages in a
civil action, but
it has no
relationship to
the proper
purposes of
sentencing in a
criminal case"
compare
guilty verdict
def.
no charge
seems to defeat the
lenity dosctrine's goal
of ensuring fair
warning--if a D had to
determien statute's
meaning by
consulting legislative
history and applying
other complex tools of
statutory warning can
we really say that
they had fair warning
MPC
Commentaries
(291-292)
MPC
Commentaries
(273-276)
MPC Section
2.02 -- General
Requirements
of Culpability
(2) Kinds of
culpability
defined
(1) minimum requirements of
culpability: ... a person is not guilty
of an offense unless he acted
purposely, knowingly, recklessly, or
negligently with respect to each
material element of the crime
[dissent]: notions of fundamental fairness
require a showing of something more than
failure to act reasonably, before a defendant
may be subjected to imprisonment. it is well
established that mere negligence is insufficient
to justify an award of punitive damages. It is
difficult to accept the proposition than an action
which cannot form the basis for a punitive civil
award fairly can be sanctioned with
imprisonment
[concurrence]: the difference between criminal
and civil negligence although not major is
distinct, under both standards, a person acts
negligently when he fails to perceive a
substantial and unjustifiable risk that a particular
result will occur. But criminal negligence
requires a greater risk. This standard is only
met when the risk is of such a nature and
degree that the failure to perceive it constitutes
a gross deviation from the standard of care that
a reasonable person would observe in the
situation. Requires the jury to find negligence so
gross as to merit not just damages, but also
punishment. It does not spill over into
recklessness; there is still no requirement that
the D actually be aware of the risk of harm.
However, criminal negligence does require a
more culpable mental state than simple,
ordinary negligence.
Martin v. State
(221)
(2) the actus
reus
requirement
court's
explanation
raises two
problems:
act (MPC
definition):
bodily
movement
whether
voluntary or
involuntary
negligence, rather than gross negligence, is
sufficient to provide assurance that criminal
penalties will be imposed only when the
conduct at issue is something society can
reasonably expect to deter.
D, captain of an oil tanker, ran his ship aground
on a reef, causing 11M gal's of oil to spill into
the water. D was prosecuted under an Alaska
statute that made it an offense to any person to
"discharge, cause to be discharged, or permit
the discharge of petroleum...upon the waters or
land of the state exxcept as the department may
be regulation may permit. When committed
"negligently" the offense is designated a
misdemeanor, punishable by up to 90 days
imprisonment.
Notes and
Questions 1-5
(222-224)
(2) Omissions
and homicide
(1) Finding a
legal duty
ex: unlawful
assembly is
the act of
joining with a
group in a
public place
with the intent
to commit
unlawful acts
State v.
Hazelwood
(268-269)
Actus Reus:
Culpable
Conduct
Notes 1-3
(235)
Sole question is whether she had
"responsibility for the supervision of"
the child in the circumstances
Regina v.
Cunningham
(260-262)
Introductory
Note (258-259)
SC held that
the
victim-impact
testimony and
the
prosecutor's
arguements on
that subject
were relevant
to the
defendant's
moral blame,
which is the
crucial factor in
determining
the death
penalty
not guilty
verdict
sentence
execution of
sentence
proportionality
review in
practice
Ewing set a
high hurdle
and because
of that,
successful 8th
amendment
challenges
continue to be
rare
state
constitutions
many state
constitutions
contain
provisions
similar to the
8th
amendment,
but state
courts
sometimes
read them as
imposing more
significant
limits on the
legislature
(4) negligence:
does not
involve a state
of awareness.
when one
inadvertently
creates a
substnatial and
unjustifiable
risk of which
he ought to be
aware
ignorance or
mistake is a
defense when
it negates the
existence of a
state of mind
that is
essential to the
commission of
an offense
it is impossible to
assert that a crime
requiring intention
or recklessness
can be committed
although the
accused labourer
under a mistake
negating the
requisite intention
or recklessness
if no culpability
level is
explicity stated
in the definition
of the offense,
purpose,
knowledge, or
recklessness is
required by
s2.02(3) as to
each material
element
there is no
justification for
requiring that
ignorance or
mistake be
reasonable if the
crime or the
element of the
crime invovled
requires acting
purposely or
knowingly
TX Penal Code
Title II s6.03-definitions of
culpable
mental states
s2.04(2)
solution is to
deny the
defense in
certain
circumstances
but to limit the
classification of
the offense
and the
available
dispositions of
the D to those
that would
have been
avilable upon
conviction of
the lesser
offense
(a) A person
acts
intentionally, or
with intent,
with respect to
the nature of
his conduct or
to a result of
his conduct
when it is
his conscious
objective or
desire to
engage in the
conduct or
cause the
result.
(b) A person acts knowingly,
or with knowledge, with
respect to the nature of his
conduct or to circumstances
surrounding
his conduct when he is
aware of the nature of his
conduct or that the
circumstances exist. A
person acts knowingly, or
with
knowledge, with respect to a
result of his conduct when
he is aware that his conduct
is reasonably certain to
cause the result.
(c) A person acts recklessly, or
is reckless, with respect to
circumstances surrounding his
conduct or the result of his
conduct
when he is aware of but
consciously disregards a
substantial and unjustifiable
risk that the circumstances
exist or the result will
occur. The risk must be of
such a nature and degree that
its disregard constitutes a
gross deviation from the
standard of care that
an ordinary person would
exercise under all the
circumstances as viewed from
the actor's standpoint.
(d) A person acts with
criminal negligence, or is
criminally negligent, with
respect to circumstances
surrounding his conduct
or the result of his conduct
when he ought to be aware
of a substantial and
unjustifiable risk that the
circumstances exist or the
result will occur. The risk
must be of such a nature
and degree that the failure to
perceive it constitutes a
gross deviation from
the standard of care that an
ordinary person would
exercise under all the
circumstances as viewed
from the actor's standpoint.