Contents
Appendix I: Criminal Law Charts ..............................................................................................................................................11
Voluntary Acts .............................................................................................................................................................................11
Omission ........................................................................................................................................................................................12
Mens Rea: Common Law ..........................................................................................................................................................13
Mens Rea MPC..............................................................................................................................................................................14
Mistake of Law Common Law ................................................................................................................................................15
Mistake of Law MPC...................................................................................................................................................................16
Fair Notice Common Law ........................................................................................................................................................17
Fair Notice MPC ...........................................................................................................................................................................17
Mistake of Fact Common Law ................................................................................................................................................18
Mistake of Fact MPC ..................................................................................................................................................................19
Official Statement .......................................................................................................................................................................20
Elements of Homicides IM-NH ..............................................................................................................................................21
Mens Rea- Homicide ..................................................................................................................................................................22
Murder Chart- Mens Rea..........................................................................................................................................................23
I.
Federal Sentencing Guidelines—judge can’t use enhancers to increase sentence over maximum ...24
c.
Sentencing moves to Judge’s Discretion/Guidelines not Mandatory ........................................................24
d.
Policy Deviation from Guidelines ........................................................................................................................24
II.
Need for an Actus Reus ................................................................................................................................................24
III.
Omission as Actus Reus ...............................................................................................................................................24
IV.
Constructive Possession as Actus Reus .................................................................................................................24
b.
Proximity ......................................................................................................................................................................24
c.
Intent to Control .............................................................................................................................................................24
V. Requirement of Harm for Actus Reus ........................................................................................................................24
VI.
Requirement of Voluntariness for Actus Reus ...................................................................................................24
c.
Attempted Defenses to Voluntariness ...................................................................................................................24
VII.
Status Crimes ...................................................................................................................................................................24
VIII.
Mens Rea .......................................................................................................................................................................24
a. Strict Liability ..................................................................................................................................................................24
b.
Common Law Offenses=Requirement of Mens Rea .....................................................................................24
c.
Vicarious Liability/Commercial Activity Rule ....................................................................................................24
d.
Notice .............................................................................................................................................................................24
e. Mens Rea Levels of Intent ...........................................................................................................................................24
f.
Mistake of Fact/Non Governing Law......................................................................................................................25
1
g. Mistake of Law/Governing Law ...............................................................................................................................25
h.
IX.
Capacity for Mens Rea .............................................................................................................................................25
Causation...........................................................................................................................................................................25
a. But-For Causation ..........................................................................................................................................................25
b.
Proximate Causation ................................................................................................................................................25
c.
Intervening Cause ..........................................................................................................................................................25
d.
Causation by Omission ............................................................................................................................................25
X. Intentional Homicide Offenses ......................................................................................................................................25
a. Intentional Murder (2nd Degree) .............................................................................................................................25
b.
Premeditated Murder (1st Degree) .....................................................................................................................25
c.
Voluntary Manslaughter .............................................................................................................................................25
XI.
Unintentional Homicide ..............................................................................................................................................26
a. Involuntary Manslaughter ..........................................................................................................................................26
b.
Reckless Murder (2nd Degree Murder)..............................................................................................................26
c.
Vehicular Murder ...........................................................................................................................................................26
XII.
Felony Murder.................................................................................................................................................................26
a. Impure: State v. Martin—D set fire at party, girl dies of smoke inhalation ............................................26
b.
Pure: People v. Stamp—bank manager heart attack after armed robbery.........................................26
c.
Causal Limitations .........................................................................................................................................................26
d.
Inherently Dangerous Standard ..........................................................................................................................26
e. California cases ...............................................................................................................................................................26
XIII.
Defensive Force ..........................................................................................................................................................26
a. Self Defense ......................................................................................................................................................................26
XIV. Inchoate Offenses...........................................................................................................................................................26
a. Attempt ..............................................................................................................................................................................26
b.
Complicity.....................................................................................................................................................................26
c.
Conspiracy ........................................................................................................................................................................26
MPC and Common Law .................................................................................................................................................................27
I.
Actus Reus: Voluntary Act ..............................................................................................................................................27
a. Common law ....................................................................................................................................................................27
b.
MPC § 2.01(1): person’s conduct has to include a “voluntary act or omission to perform an act
of which he is physically capable.” ..................................................................................................................................27
II.
Omission ............................................................................................................................................................................27
a. Common Law General Rule: subject to a few limited exceptions, a person has no criminal law
duty to act to prevent harm to another, even if she can do so at no risk to herself, and even if the
person imperiled may lose her life in the absence of assistance. .......................................................................27
2
b.
III.
MPC § 2.01(1)..............................................................................................................................................................27
Mens Rea ...........................................................................................................................................................................27
a. Common Law General Principles.............................................................................................................................27
b.
IV.
MPC § 2.02 General Requirements of Culpability .........................................................................................28
Strict Liability ..................................................................................................................................................................28
a. Common law ....................................................................................................................................................................28
b.
MPC § 2.02(1)—no conviction can be obtained unless the prosecution proves some form of
culpability regarding each material element of an offense. ..................................................................................28
V. Mistake of Fact ....................................................................................................................................................................28
a. Common Law ...................................................................................................................................................................28
b.
VI.
MPC .................................................................................................................................................................................29
Mistakes of Law ..............................................................................................................................................................29
a. Common Law ...................................................................................................................................................................29
b.
VII.
MPC General Rule ......................................................................................................................................................29
Causation...........................................................................................................................................................................29
a. Common law ....................................................................................................................................................................30
b.
MPC .................................................................................................................................................................................30
VIII.
Defense: Intoxication ...............................................................................................................................................30
a. Common law ....................................................................................................................................................................30
b.
IX.
MPC .................................................................................................................................................................................31
Criminal Homicide .........................................................................................................................................................32
a. Common law ....................................................................................................................................................................32
b.
MPC .................................................................................................................................................................................33
CRIMINAL LAW OUTLINE ............................................................................................................................................................35
I.
Introduction .........................................................................................................................................................................35
II.
Structure of a Criminal Trial ......................................................................................................................................35
III.
Punishment ......................................................................................................................................................................36
a. Introduction .....................................................................................................................................................................36
b.
Theories of punishment ..........................................................................................................................................36
i.
Retribution- oldest theory from Emmanuel Kant ............................................................................................. 36
ii.
Utilitarianism- Jeremy Bentham ....................................................................................................................... 36
c.
Green and Jones Hypo ..................................................................................................................................................37
d.
Modern Sentencing Guidelines ............................................................................................................................37
iii.
Federal Sentencing Guidelines .......................................................................................................................... 38
3
iv. Apprendi v. New Jersey- D convicted for firing shots into home; later said it was because they were black,
but afterwards D rescinded his racist comment.; Trial judge applied “hate crime” enhancer after trial, and this
extended sentence past statutory maximum. .......................................................................................................... 38
v. Blakely v Washington- D convicted of kidnapping wife, judge finds that there was deliberate cruelty that D
didn’t admit and jury didn’t find; extends punishment ............................................................................................ 38
vi. U.S. v. Booker – Punished for crack possession. Judge increased sentence after trial when considering prior
convictions (allowed) and facts came out that there was much more crack at sentencing hearing by
preponderance of evidence ...................................................................................................................................... 38
vii.
U.S. v. Rita ..................................................................................................................................................... 38
viii.
Gall V. U.S. ..................................................................................................................................................... 38
ix.
Reasons for departing from guidelines ............................................................................................................. 38
x.
Kimbro v. U.S. .................................................................................................................................................... 38
xi.
What has changed from guidelines to now ...................................................................................................... 38
IV.
The Criminal Act .............................................................................................................................................................39
a. General elements of offenses.....................................................................................................................................39
V. Actus Reus .............................................................................................................................................................................39
a. Underlying Facts and Basis ........................................................................................................................................39
b.
Need for an Actus Reus ...........................................................................................................................................39
i.
Rule: .................................................................................................................................................................. 39
ii.
MPC § 2.01 (1) ................................................................................................................................................... 39
iii.
Reasons for act requirement ............................................................................................................................ 39
iv.
Proctor v. State – D arrested for having house w/ “intent to sell alcohol” ...................................................... 39
c.
Omissions ..........................................................................................................................................................................39
i.
Rule: MPC § 2.01 (3).......................................................................................................................................... 39
v.
Jones v. U.S.-...................................................................................................................................................... 40
a. D convicted of involuntary manslaughter for not providing adequate medical care to friend’s baby whom
she assumed care of.................................................................................................................................................. 40
vi.
d.
Good Samaritan Laws ....................................................................................................................................... 40
Possession ....................................................................................................................................................................40
i.
Rule: MPC § 2.01(4)........................................................................................................................................... 40
ii.
Constructive Possession Rule (common law): One must have ......................................................................... 40
iii.
Cases ................................................................................................................................................................. 41
e. Requirement of Harm ..................................................................................................................................................41
i.
Rule: .................................................................................................................................................................. 41
ii.
Cases: ................................................................................................................................................................ 42
4
f.
Requirement of Voluntariness ..................................................................................................................................42
i.
Rule: MPC § 2.01 ............................................................................................................................................... 42
ii.
Theories of punishment applied to involuntary actions: .................................................................................. 42
iii.
Cases ................................................................................................................................................................. 42
g. Prohibition of Status Crimes......................................................................................................................................43
i.
Rule: .................................................................................................................................................................. 43
ii.
Why not punish status crimes? ......................................................................................................................... 43
iii.
Robinson v. California (Statute making it illegal to be addict) .......................................................................... 43
iv.
Fingarette on Addiction .................................................................................................................................... 44
v.
Justice White’s dissent of Robinson .................................................................................................................. 44
vi.
Cases: ................................................................................................................................................................ 44
VI.
Mens Rea ...........................................................................................................................................................................45
a. 4 reasons why mens rea is difficult to establish ................................................................................................45
b.
MPC § 2.02 (1) ............................................................................................................................................................45
c.
History of mens rea .......................................................................................................................................................45
d.
Requirement of a Guilty Mind (Strict Liability Offenses) ...........................................................................45
i.
Strict Liability General Rules ............................................................................................................................. 45
ii.
Strict Liability Purpose....................................................................................................................................... 46
iii.
MPC: .................................................................................................................................................................. 46
iv.
Malum in Se v. Malum Prohibitum ................................................................................................................... 46
v.
How Courts Assess Whether Crime is Strict Liability (SL): ................................................................................ 46
vi.
Types of Strict Liability ...................................................................................................................................... 47
vii.
Cases: ............................................................................................................................................................ 47
e. Categories of Culpability .............................................................................................................................................50
i.
Rule MPC § 2.02 ................................................................................................................................................ 50
ii.
Way courts interpret specific and general intent: ............................................................................................ 51
iii.
Primary view of specific and general intent...................................................................................................... 51
iv.
Cases ................................................................................................................................................................. 52
f.
Mens Rea Default Rules ...............................................................................................................................................53
i.
Rule MPC § 2.02 (1)(3)and (4) ........................................................................................................................... 53
ii.
Cases: ................................................................................................................................................................ 53
g. Mistake of Fact and Non-Governing Law..............................................................................................................54
i.
Rule MPC § 2.04 ................................................................................................................................................ 54
iii.
Statutory rape law............................................................................................................................................. 54
5
iv.
h.
Cases ................................................................................................................................................................. 55
Mistake of Law (Governing Law) as an Excuse ..............................................................................................56
i.
Majority Rule:.................................................................................................................................................... 56
ii.
Minority rule ..................................................................................................................................................... 56
iii.
Policy reasons for disallowing excuse for not knowing law: ............................................................................. 56
iv.
Cases for Majority View .................................................................................................................................... 57
v.
Case for Minority View...................................................................................................................................... 58
vi.
Summary of mistake of law............................................................................................................................... 58
i.
Capacity for Mens Rea ..................................................................................................................................................59
i.
Rules: ................................................................................................................................................................. 59
ii.
Fundamental Points: ......................................................................................................................................... 59
iii.
Cases for diminished capacity: .......................................................................................................................... 60
iv.
Cases for Voluntary Intoxication ....................................................................................................................... 61
VII.
Causation...........................................................................................................................................................................61
b.
Relating to homicide: ...............................................................................................................................................61
c.
Purpose in difference between criminal law and torts in causation .........................................................62
d.
3 types of causation ..................................................................................................................................................62
i.
“But-for” causation (direct, cause-in-fact) ........................................................................................................ 62
ii.
Intervening Causes ............................................................................................................................................ 62
iii.
Proximate causation ......................................................................................................................................... 62
e. “But-For” Causation ......................................................................................................................................................62
i.
Rule: .................................................................................................................................................................. 62
ii.
Cases: ................................................................................................................................................................ 62
f.
Proximate Cause (Forward Looking/Foreseeability Approach) .................................................................63
i.
Rule: .................................................................................................................................................................. 63
ii.
MPC § 2.03 (Page 293) ...................................................................................................................................... 63
iii.
Cases ................................................................................................................................................................. 63
g. Intervening Cause (Backward Looking/ Directness Perspective to P.C.) ................................................64
i.
Rules: ................................................................................................................................................................. 64
ii.
Independent or dependent intervening test .................................................................................................... 65
iii.
Period of time elapsed since D’s actions rule: .................................................................................................. 65
iv.
Cases ................................................................................................................................................................. 66
v.
Intervening Cause: Suicide Cases ...................................................................................................................... 67
h.
Causation by Omission ............................................................................................................................................68
6
i.
Rule ................................................................................................................................................................... 68
ii.
Cases ................................................................................................................................................................. 69
VIII.
Intentional Homicide Offenses .............................................................................................................................70
a. General Overview of Homicide offenses ...............................................................................................................70
ii.
b.
Two Categories.................................................................................................................................................. 70
Murder Overview ......................................................................................................................................................70
i.
Common law ..................................................................................................................................................... 70
ii.
Common Law Gradations for Murder ............................................................................................................... 71
iii.
MPC Murder § 2.01 ........................................................................................................................................... 71
c.
Intentional Murder (2nd degree) ..............................................................................................................................71
i.
Rule: .................................................................................................................................................................. 71
ii.
Prosecution must prove intent beyond a reasonable doubt ............................................................................ 71
iii.
Transferred Intent ............................................................................................................................................. 71
iv.
Cases ................................................................................................................................................................. 71
d.
1st degree murder (Premeditated) .....................................................................................................................72
i.
Rule: .................................................................................................................................................................. 72
iii.
Special situations in which murder will almost always be 1st degree at CL ...................................................... 72
v.
MPC § 2.01 ........................................................................................................................................................ 72
vi.
Cases ................................................................................................................................................................. 73
e. Voluntary Manslaughter Overview .........................................................................................................................73
i.
Rule: .................................................................................................................................................................. 73
ii.
Common Law definition of Adequate Provocation........................................................................................... 74
iii.
MPC § 210.3 ...................................................................................................................................................... 74
iv.
Punishment ....................................................................................................................................................... 74
v.
Rationale for mitigation .................................................................................................................................... 74
vi.
Cases ................................................................................................................................................................. 75
f.
Cooling time (VM) ..........................................................................................................................................................75
i.
Rule: .................................................................................................................................................................. 75
ii.
The reasonable person standard and cooling time .......................................................................................... 75
iii.
CL standard ....................................................................................................................................................... 76
iv.
MPC and modern courts ................................................................................................................................... 76
v.
Cooling Time Establishing Case ......................................................................................................................... 76
vi.
Re-provocation Case ......................................................................................................................................... 76
g. Adultery as Adequate Provocation (VM) ..............................................................................................................77
7
iii.
Cases ................................................................................................................................................................. 77
h.
Provocation Under Reform Rules (VM) ............................................................................................................77
i.
Rule in Modern Law: ......................................................................................................................................... 77
ii.
CA standard of provocation .............................................................................................................................. 77
iii.
Who is the reasonable person? (modern trend toward subjectivizing reasonable person standard) ............. 78
iv.
MPC § 210.3 ...................................................................................................................................................... 78
v.
Cases ................................................................................................................................................................. 78
i.
Cultural Norms and the Reasonable Person........................................................................................................79
i.
Rule: .................................................................................................................................................................. 79
ii.
Case ................................................................................................................................................................... 80
IX.
Unintentional Homicide ..............................................................................................................................................81
a. Involuntary Manslaughter ..........................................................................................................................................81
iv.
CL level of mens rea: at least gross negligence, usually recklessness .............................................................. 81
vi.
Negligent & Reckless Homicide (Commonwealth v. Welansky) ....................................................................... 81
vii.
State v. Williams ............................................................................................................................................ 82
b.
Reckless Murder (2nd Degree Murder) ............................................................................................................82
iii.
2 forms of malice: ............................................................................................................................................. 82
iv.
Malice encompasses 4 mental states: .............................................................................................................. 82
vi.
Reckless murder requirements ......................................................................................................................... 82
vii.
Cases ............................................................................................................................................................. 83
c.
Vehicular Murder ...........................................................................................................................................................83
iii.
Historical Development of vehicular murder/homicide charges ...................................................................... 83
iv.
Cases ................................................................................................................................................................. 83
X. Felony Murder .....................................................................................................................................................................84
a. Definition ..........................................................................................................................................................................84
b.
Pure v. Impure ............................................................................................................................................................84
i.
Pure Felony Murder Rule .................................................................................................................................. 84
ii.
Impure Felony Murder Rule .............................................................................................................................. 84
c.
MPC § 210.2(1)(b) .........................................................................................................................................................85
d.
Typical sentence: same as premeditated murder, up to life in prison or death. ..............................85
e. Justifications for a felony murder rule ..................................................................................................................85
f.
i.
Utilitarian Principles .......................................................................................................................................... 85
ii.
Retributivist Principles ...................................................................................................................................... 85
Implications .....................................................................................................................................................................85
8
g. Redundance Problems .................................................................................................................................................85
h.
Application of the FM rule......................................................................................................................................85
i.
Cases: Pure v. Impure FM ...........................................................................................................................................85
i.
State v. Martin (Intoxicated D, fire set either with kerosene or a bag of trash. Girl dies from smoke
inhalation). NEW JERSEY RULE .................................................................................................................................. 85
ii.
j.
People v. Stamp (Pure Felony Murder) ............................................................................................................. 86
Limitations in Impure FM ...........................................................................................................................................86
i.
Enumerated felonies limitation ........................................................................................................................ 86
ii.
MPC 210.6(3)(e) - aggravating factors of a murder conviction ........................................................................ 86
iii.
Causal Limitations ............................................................................................................................................. 86
iv.
Cases: Causal Limitations .................................................................................................................................. 87
v.
Dangerous Felony Limitation (Predicate Felonies) ........................................................................................... 89
vi.
Independent Felonious Purpose- Merger Rule ................................................................................................. 91
vii.
IFP Rule.......................................................................................................................................................... 91
k. CALIFORNIA! Not on the good side of felony murder rule. Typically a liberal jurisdiction. ............92
i.
People v. Washington (Cal) (Armed robbery case. D’s partner in crime is shot to death by the owner of the
store they were attempting to rob.) AGENCY THEORY............................................................................................. 92
ii. Taylor v. Superior (Armed robbery case. Felon A and Felon B both armed. C- Taylor was the get-away
driver/lookout. B threatens innocent victim, causing him to shoot A.) CA FINALLY GETS TO PROTECTED PERSONS
THEORY ..................................................................................................................................................................... 92
iii. CA shows how taking a liberal approach to FM and trying to find constant exceptions can ruin the purpose
of the FM rule. They should just leave it out. ........................................................................................................... 93
XI.
Defensive Force ..............................................................................................................................................................93
a. Introduction .....................................................................................................................................................................93
ii.
Justification v. Excuse in self-defense ............................................................................................................... 93
iii.
Rule ................................................................................................................................................................... 93
iv.
Creation of Peril Exception to Self-Defense ...................................................................................................... 94
v.
MPC § 3.04 Use of Force in Self-Protection page 525 ...................................................................................... 94
vi.
Cases ................................................................................................................................................................. 95
b.
ii.
c.
XII.
Battered Spouse Syndrome (Subpart of Self-Defense) ...............................................................................95
Cases ................................................................................................................................................................. 96
Self Defense of property: using deadly force when not present ..................................................................97
i.
General Rules .................................................................................................................................................... 97
ii.
Cases ................................................................................................................................................................. 97
Inchoate Offenses...........................................................................................................................................................98
9
a. Attempt-Attempt to commit a crime without completing it .........................................................................98
i.
Under MPC, attempt receives the same punishment as the crime .................................................................. 98
ii.
Question as to crimes that can be attempted .................................................................................................. 98
iii.
Reasons for punishing attempt ......................................................................................................................... 98
iv.
Problems with punishing attempts ................................................................................................................... 98
v.
Types of attempts ............................................................................................................................................. 98
2.
Impossibility (old view)-What criminal set out to do was impossible. ............................................................. 98
3.
Impossibility (modern view).............................................................................................................................. 98
4.
Actus Interruptus-stopped on route to commit a crime .................................................................................. 98
vi.
Tests for determining if act constitutes an attempt ......................................................................................... 98
vii.
Defense to attempt: abandonment (Impossibility is other defense) .......................................................... 99
viii.
Cases ............................................................................................................................................................. 99
b.
Complicity.................................................................................................................................................................. 100
i.
Complicity by itself is not a crime, it is a theory of liability-accomplice liability is derivative of the principal
actors liability. This is different from conspiracy and attempt. ............................................................................. 100
c.
ii.
Acts that make D complicit include:................................................................................................................ 100
iii.
Types of principal accomplices-mostly abandoned common law .................................................................. 100
iv.
Types of accessory accomplices in mostly abandoned common law (now all treated as “party to the crime”)
100
v.
Cases ............................................................................................................................................................... 100
Conspiracy ..................................................................................................................................................................... 101
10
Appendix I: Criminal Law Charts
Voluntary Acts
11
Omission
12
Mens Rea: Common Law
13
Mens Rea MPC
14
Mistake of Law Common Law
15
Mistake of Law MPC
16
Fair Notice Common Law
Fair Notice MPC
17
Mistake of Fact Common Law
18
Mistake of Fact MPC
19
Official Statement
20
Elements of Homicides IM-NH
21
Mens Rea- Homicide
22
Murder Chart- Mens Rea
23
Crim Law Case List
I.
Federal Sentencing Guidelines—judge can’t use enhancers to increase sentence over maximum
a. Apprendi v. New Jersey
b. Blakely v. Washingon
c. Sentencing moves to Judge’s Discretion/Guidelines not Mandatory
i. U.S. v. Booker
ii. U.S. v. Rita
iii. Gall v. U.S.
d. Policy Deviation from Guidelines
i. Kimbro v. U.S.
II.
Need for an Actus Reus
a. Proctor v. State—intent without overt or unlawful act isn’t punishable by law
III.
Omission as Actus Reus
a. Jones v. U.S.—breach of legal duty is punishable
IV.
Constructive Possession as Actus Reus
a. U.S. v. Maldonado—drug bust
b. Proximity
i. U.S. v. Jenkins—sitting in front of drugs isn’t enough to establish dominion/control
ii. State v. Casey—guest brings gun to owner’s house, proximity isn’t enough for owner to possess it
since guest retains control over property when visiting another
c. Intent to Control
i. State v. Barger—no intent
ii. State v. Tucker—knowingly saved child porn
V.
Requirement of Harm for Actus Reus
a. Lawrence v. Texas—gay sodomy not illegal because they consented
VI.
Requirement of Voluntariness for Actus Reus
a. People v. Newton—gun on plane, stops in NY
b. Martin v. State—dragged out in public by cops
c. Attempted Defenses to Voluntariness
i. People v. Grant—vaulted parking meter, automatism defense
ii. People v. Decina—epileptic driver
iii. People v. Huey Newton—automatism defense for shock
VII.
Status Crimes
a. Robinson v. California—status of being addict
b. Powell v. Texas—drunk in public
c. Johnson v. State--baby
d. Pottinger—homeless
VIII.
Mens Rea
a. Strict Liability
i. People v. Dillard
ii. U.S. v. Balint
b. Common Law Offenses=Requirement of Mens Rea
i. Morissette v. U.S.
ii. U.S. v. Wulff
iii. U.S. v. Engler—division of authority with Wulff
c. Vicarious Liability/Commercial Activity Rule
i. U.S. v. Dotterweich—Drug CEO
d. Notice
i. Lambert v. California—forger didn’t register
ii. U.S. v. Hutzell—felon owned gun, claimed no notice
iii. Giorgetti v. State—sex offender 48 hrs
e. Mens Rea Levels of Intent
i. Intentional
24
IX.
X.
1. Regina v. Faulkner—sailor; can’t transfer intent from two crimes with different levels of
mens rea
ii. Knowingly
1. People v. Ryan—schrooms
iii. Recklessness
1. State v. Lima—MPC establishes recklessness as default rule
f. Mistake of Fact/Non Governing Law
i. Regina v. Prince—mistake of fact not allowed
ii. State v. Guest—mistake of fact allowed; minority view
iii. People v. Bray—KS felon didn’t know; mistake of nongoverning law since it was KS law & he was in
CA
g. Mistake of Law/Governing Law
i. Majority View
1. U.S. v. Baker
2. Cheek v. U.S.
ii. Reliance on Official Statement
1. Hopkins v. State—majority view
2. Commonwealth v. Twitchell—minority view
h. Capacity for Mens Rea
i. Diminished Mental Capacity
1. Hendershott v. People—brain dysfunction less than insanity
2. Clark v. Arizona—diminished capacity defense
ii. Voluntary Intoxication
1. State v. Cameron—trailer park chick
2. Montana v. Egelhoff—shroom campers
Causation
a. But-For Causation
i. Regina v. Martin Dyos—kid brick fight
ii. Regina v. Benge—train schedule crash
b. Proximate Causation
i. Hubbard v. Commonwealth—pre-existing condition
ii. Ex Parte Heigho—old mom heart attack
iii. Commonwealth v. Rhoades—firefighter/arson
c. Intervening Cause
i. Commonwealth v. Root—drag racers
ii. U.S. v. Hamilton
iii. Suicide Cases
1. Stephenson v. State—KKK kidnapping
2. Persampieri v. Commonwealth—husband gives gun
3. State v. Bier—husband puts gun on bed to shoot him, she kills herself
4. People v. Kevorkian—assisted suicide
d. Causation by Omission
i. Commonwealth v. Levesque—not reporting fire
ii. Commonwealth v. Kali—fire insurance fraud
iii. Palmer v. State—child abuse
iv. N.Y. v. Steinberg—exception to omission rule: battered spouse.
Intentional Homicide Offenses
a. Intentional Murder (2nd Degree)
i. Francis v. Franklin—prisoner on the run, accidentally shoots guy through door
b. Premeditated Murder (1st Degree)
i. U.S. v. Watson—shoots cop after he pleads for his life
c. Voluntary Manslaughter
i. People v. Walker—guy tries to get D to gamble, D hits with brick, slits throat
25
XI.
XII.
XIII.
XIV.
ii. Cooling Time: Ex Parte Fraley—9 months after son’s murder, D kills murderer
iii. Re-provocation: State v. Gounagias—D raped, rapist brags for 2 weeks, D kills him
iv. Adultery Provocation: Rowland v. State—D & wife living apart, D tried to shoot her lover & killed her
v. Price v. State
vi. Reformed Provocation Rules: People v. Berry—Israeli wife case
vii. Camplin—15 yr old boy raped
viii. Cultural Norms: People v. Wu—Chinese woman strangles son
Unintentional Homicide
a. Involuntary Manslaughter
i. Negligent & Reckless Homicide: Commonwealth v. Welansky—Boston night club fire
ii. State v. Williams—Native American baby with bad tooth dies
b. Reckless Murder (2nd Degree Murder)
i. Mayes v. the People—Drunk guy throws beer mug at wife
c. Vehicular Murder
i. People v. Watson—Drunk driver ran through 2 intersections, hit van & killed 2
ii. Heatley—hockey player lost control of car, killed teammate passenger. Suspected drunk driving.
Felony Murder
a. Impure: State v. Martin—D set fire at party, girl dies of smoke inhalation
b. Pure: People v. Stamp—bank manager heart attack after armed robbery
c. Causal Limitations
i. People v. Hickman—cop shot by other cop as Ds fleeing scene
ii. People v. Gladman—D killed cop 15 mins after armed robbery
iii. People v. Cavitt—Ds stole jewelry from stepmom, tied her up, she died
d. Inherently Dangerous Standard
i. People v. Patterson—D gave cocaine to friend & friend OD’d.
ii. People v. Chambers—stole vehicle
e. California cases
i. People v. Washington—D’s partner shot by store owner during armed robbery
ii. Ferlin—co-felon blows himself up, felon not liable
iii. Cabaltero
iv. Taylor v. Superior—D getaway driver, not FM since felon acquitted.
Defensive Force
a. Self Defense
i. People v. La Voie—D gets rear-ended, kills him
ii. People v. Gleghorn—D breaks in, victim shoots him with arrow
iii. Battered Spouse Syndrome
1. State v. Leidholm—abused wife kills husband in his sleep
2. State v. Norman—kills husband while asleep
iv. Self Defense of Property
1. People v. Ceballos—D sets spring gun, shoots intruder who was committing burglary
Inchoate Offenses
a. Attempt
i. People v. Staples—D rent office, drill holes to rob a bank, stopped
ii. Booth v. State—stolen coat case
iii. State v. Lyerla—shooting at car after it cut him off
iv. People v. Murray—D preparing to marry niece
b. Complicity
i. State v. Ochoa—Mob assaults police, sheriff shot
ii. Gains v. State—Getaway car driver didn’t know they had committed a robbery
c. Conspiracy
i. State v. Verive—D paid to beat up witness to stop him testifying
ii. Griffin v. State—beating up cop
26
MPC and Common Law
I.
II.
III.
Actus Reus: Voluntary Act
a. Common law
i. A person isn’t guilty of a crime unless his conduct includes a voluntary act (with a few limited
exceptions). Voluntary act is usually an implicit element of criminal statutes.
ii. Exceptions:
1. Poorly drafted statutes
2. Status offenses
3. Crimes of possession
a. Inchoate (incomplete) offenses.
b. Courts typically interpret possession statutes to require proof that the defendant
knowingly procured or received the property possesses, or that he failed to
dispossess herself of the object after she became aware of its presence.
b. MPC § 2.01(1): person’s conduct has to include a “voluntary act or omission to perform an act of which he is
physically capable.”
Omission
a. Common Law General Rule: subject to a few limited exceptions, a person has no criminal law duty to act to
prevent harm to another, even if she can do so at no risk to herself, and even if the person imperiled may
lose her life in the absence of assistance.
i. Exception: Commission by Omission
1. Defendant’s omission of the duty to act serves as a legal substitute for a voluntary act.
b. MPC § 2.01(1)
i. Person’s conduct has to include “a voluntary act or the omission to perform an act of which he is
physically capable.”
Mens Rea
a. Common Law General Principles
i. a person isn’t guilty of a criminal offense unless the prosecution proves actus reus and mens rea.
ii. Categories
1. Intentionally
a. A person intentionally causes the social harm of an offense if (1) it is his desire to
cause the social harm, or (2) he acts with knowledge that the social harm is virtually
certain to occur as a result of his conduct.
2. Knowingly
a. A person has knowledge of a material fact if he (1) is aware of the fact or (2)
correctly believes that the fact exists.
b. There can also be a finding of knowledge when actor is guilty of so called “willful
blindness” or “deliberate ignorance.” That generally exists if the actor (1) is aware of
a high probability of the existence of the fact in question and 2(a) takes deliberate
action to avoid confirming the fact or (2b) purposely fails to investigate in order to
avoid confirmation of the fact.
3. Willfully
a.
4. Negligence
a. A person’s conduct is negligent if it constitutes a deviation from the standard of
care that a reasonable person would have observed in the actor’s situation.
5. Recklessness
a. Criminal recklessness requires proof that the actor disregarded a substantial and
unjustifiable risk of which he was aware.
6. Malice
a. In non-homicide circumstances, a person acts with malice if he intentionally or
recklessly causes the social harm prohibited by the offense.
iii. Specific & General Intent
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IV.
V.
1. General intent: all that has to be shown is that the defendant desired to commit the act
which served as the actus reus.
2. Specific intent: courts usually mean that the defendant, in addition to desiring to bring
about the actus reus, must have desired to do something further.
b. MPC § 2.02 General Requirements of Culpability
i. Person can’t be convicted unless “he acted purposely, knowingly, recklessly, or negligently, as the
law may require, with respect to each material element of the offense.”
ii. “Purposely” has 2 different focuses—
1. A person’s conscious goal is to engage in the conduct or to cause such a result.§ 2.02(2)(a)(I).
2. a person is aware of attendant circumstances or believes/hopes that they exist. §
2.02(2)(a)(ii).
iii. Knowingly has 2 different focuses—
1. If person is aware that it’s practically certain that his conduct will cause such a result. §
2.02(2)(b)(ii).
2. If a person is aware that his conduct is of that nature or that such attendant circumstances
exist. § 2.02(2)(b)(I).
iv. Recklessly
1. Conscious disregard for substantial and unjustified risk that the material element exists or
will result from this conduct. § 2.02(2)(c).
v. Negligently
1. If person should be aware of substantial and unjustifiable risk that the material element
exists or will result from his conduct. § 2.02(2)(d).
Strict Liability
a. Common law
i. Strict liability doctrine—rule of criminal responsibility that authorizes the conviction of a morally
innocent person for violation of an offense, even though the crime, by definition, requires proof of a
mens rea.
ii. Strict liability offenses—crimes that by definition do not contain a mens rea requirement regarding
one or more elements of the actus reus.
iii. There is a presumption against strict liability. Various factors may overcome this presumption
1. The statutory crime is not derived from the common law
2. There is an evident legislative policy that would be undermined by a mens rea requirement
3. The standard imposed by the statute is reasonable and adherence thereto properly
expected of a person
4. The penalty for the violation is small
5. The conviction does not gravely besmirch.
b. MPC § 2.02(1)—no conviction can be obtained unless the prosecution proves some form of culpability
regarding each material element of an offense.
i. Exception: MPC § 2.05—voluntary act and mens rea requirements don’t have to apply to offenses
graded as “violations” rather than “crimes.”
Mistake of Fact
a. Common Law
i. Strict Liability Offenses
1. Under no circumstances does a person’s mistake of fact negate his criminal responsibility for
violating a strict-liability offense.
2. Statutory rape is a strict-liability offense in most states regarding the attendant
circumstance of the female’s age.
ii. Specific Intent Offenses
1. A defendant is not guilty of an offense if his mistake of fact negates the specific-intent
portion of the crime, i.e., if he lacks the intent required in the definition of the offense.
iii. General Intent Offenses
1. Ordinary rule: not guilty of general intent crime if his mistake of fact was reasonable, but he
is guilty if his mistake was unreasonable.
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b. MPC
VI.
VII.
i. General Rules § 2.02(1)—person not guilty of an offense unless he acted “purposely, knowingly,
recklessly, or negligently, as the law may require, with respect to each material element of the
offense.”
ii. Specifically relating to mistake of fact § 2.04(1): mistake is a defense if it negates the mental state
required to establish any element of the offense. It’s irrelevant whether the offense would be
identified as general intent or specific intent at common law.
1. Exception: mistake of fact defense isn’t available if the actor would be guilty of another
offense had the circumstances been as he supposed. § 2.04(2).
Mistakes of Law
a. Common Law
i. General rule: ignorance of the law is no excuse.
ii. Also, a person is not excused if he relies on his own interpretation of the law or on his lawyer’s.
1. Exceptions
a. Reasonable reliance: Relying on an official statement of the law, later determined to
be erroneous, obtained from a person or public body with responsibility for the
interpretation, administration, or enforcement of the law defining the offense.
b. Fair Notice: under limited circumstances, a person who is unaware of a duly enacted
and published criminal statute may successfully assert a constitutional defense in a
prosecution of that offense.
c. Ignorance or Mistake that Negates Mens Rea
i. Generally: when the claimed mistake relates to other law than the offense
for which the defendant has been charged.
ii. Specific intent offenses: a different law mistake, whether reasonable or
unreasonable, is a defense in the prosecution of a specific intent offense, if
the mistake negates the specific intent in the prosecuted offense.
iii. General Intent offenses: usually mistake of a different law is not a defense
to general intent crime.
iv. Strict Liability Offenses: a different law mistake, whether reasonable or
unreasonable, is not a defense to strict liability offenses.
b. MPC General Rule
i. § 2.02(9): “neither knowledge nor recklessness or negligence as to whether conduct constitutes a
crime or as to the existence, meaning or application of the law determining the elements of an
offense is an element of such offense.”
1. Exceptions
a. Reasonable Reliance Doctrine § 2.04(3)(b)
i. A person’s belief that her conduct is lawful constitutes a defense if:
1. He relies on an official, but erroneous, statement of the law
2. The statement of law is found in a statute, judicial decision,
administrative order or grant of permission, or an official
interpretation by a public official or body responsible for the
interpretation, administration, or enforcement of the law, and
3. The reliance is otherwise reasonable.
b. Fair Notice § 2.04(3)(a)
i. Defendant is not guilty if he does not believe his conduct is illegal, and the
statute defining the offense is not known to him and was “not published or
otherwise reasonably made available” to him before he violated the law.
c. Ignorance or Mistake that Negates Mens Rea
i. MPC § 2.02(1)—requires proof of some culpable state of mind regarding
every material element of an offense.
ii. § 2.04(1)—mistake of law is a defense if it negates a material element of
the offense, or if the law expressly provides for a mistake-of-law defense.
Causation
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VIII.
a. Common law
i. General principles
1. Causation=implicit element of all crimes.
a. Usually only comes up as an issue in the prosecution of “result” crimes like
homicides.
b. NO BODY NO CRIME
2. Role of causation in criminal theory: retributive concepts of just deserts
ii. Actual (Factual) Cause
1. “But For” Test
a. No criminal liability for resulting social harm “unless it can be shown that the
defendant’s conduct was a cause in fact of the prohibited result.”
b. “But for D’s voluntary acts, would the social harm have occurred when it did?”
i. If no, then D is the actual cuase
c. Actual causation and mens rea are different
i. Mens rea without causation
b. MPC
i. Actual Cause
1. To be guilty of an offense, a person’s conduct must cause the prohibited result.
2. “Cause”=is defined under the Code as “an antecedent but for which the result in question
would not have occurred.” § 2.03(1)(a).
ii. Proximate Cause
1. Proximate causation==issues relating to the actor’s culpability, not causation proper.
2. Whether D may still be said to have caused the prohibited result with the level of culpability
(purpose, knowledge, recklessness, or negligence) required by the definition of the offense.
3. D has not acted with the requisite culpability unless the actual result, including the way in
which it occurred, was not “too remote or accidental in its occurrence to have a [just]
bearing on the actor’s liability or on the gravity of his offense.”
4. In the rare circumstance of an offense containing no culpability requirement, the Code
provides that causation “is not established unless the actual result is a probable
consequence of the actor’s conduct.” § 2.03(4).
Defense: Intoxication
a. Common law
i. Definition: disturbance of mental or physical capacities resulting from the introduction of any
substance into the body. Intoxication can refer to alcohol and other foreign substances like
prescription meds and illegal drugs.
ii. Intoxication and other defenses
1. Intoxication defense sometimes recognized when D becomes temporarily insane as result of
drugs, alcohol, or other foreign substances.
2. Diminished capacity & intoxication can operate alike, but diminished capacity is for mental
illness and not intoxication. Some states=evidence on one but not the other.
3. Intoxication & mistake of fact can overlap. In some jurisdictions, the mistake defense is
broader than the intoxication claim, so mixing the 2 may result in conceptual confusion.
iii. Voluntary intoxication General Principles
1. Intoxication is voluntary if the actor is culpable for becoming intoxicated. Such culpability
exists if the person knowingly ingests a substance that he knows or should know can cause
him to become intoxicated, unless the substance was a prescribed medication or he was
coerced to ingest it.
2. Intoxication from alcoholism or drug addition—Voluntary
a. States can’t punish for the status of being an addict though, just the conduct
resulting in an offense (public drunkenness, etc.)
3. General rule: voluntary intoxication is not an excuse for criminal conduct.
30
a. Although it is true that self-induced intoxication as such never excuses wrongdoing,
the condition that intoxication causes (clouded mental state, unconsciousness,
insanity) may serve as an exculpatory basis in very limited circumstances.
4. Exceptions to the general rule of no exculpation
a. As a result of intoxication, no mens rea required for the offense
i. Common law distinguishes between general intent and specific intent
crimes relating to voluntary intoxication.
ii. Voluntary intoxication is not a defense to general intent crimes.
iii. Voluntary intoxication IS a defense to specific intent crimes. D isn’t guilty if
(because of his intoxication) he was incapable of forming or didn’t form the
specific intent required for the offense.
b. State of unconsciousness created by intoxication
i. General approach: Although unconsciousness ordinarily precludes criminal
liability, it is not a defense if the condition was itself brought on by
voluntary consumption of alcohol or drugs.
ii. D could use his unconsciousness to prove he didn’t commit the offense at
all, instead of using unconsciousness to claim he committed the act
involuntarily.
c. Longterm intoxication induced insanity
i. Temporary insanity is not a defense. One who voluntarily introduces
alcohol or drugs into his system is the victim of “artificial voluntarily
contracted madness.”
ii. Fixed insanity: if the unsoundness of mind, although produced by long term
alcohol or drug abuse, has become fixed, the general rule is that D may
assert a traditional insanity defense.
iv. Involuntary Intoxication
1. Definition: it’s involuntary if D is not to blame for becoming intoxicated.
a. If D is coerced into ingesting
b. If D ingests it by mistake
c. If D becomes unexpectedly intoxicated from a prescribed medication
d. Pathological intoxication: intoxication grossly excessive in degree, given the amount
of the intoxicant, to wwhich the actor does not know he is susceptible.” Most likely
associated with temporal lobe epilepsy, encephalitis, etc.
2. General rule: a person who is involuntarily intoxicated is entitled to acquittal in all of the
circumstances in which voluntary intoxication is a defense.
a. Since D was intoxicated in a nonculpable manner, he should be acquitted of general
intent offenses.
b. Also excused for temporary insanity
b. MPC
i. General rule: an actor’s intoxicated condition at the time of a crime may generally exculpate him in 2
circumstances.
1. Any form of intoxication is a defense to criminal conduct if it negates an element of the
offense. § 2.08(1). (with one exception.)
2. Pathological intoxication and intoxication that was not self induced are affirmative defenses,
if the intoxication causes the actor to suffer from a mental condition comparable to that
which constitutes insanity under the Code. § 2.08(4).
ii. Negation of an element of the offense
1. Generally, MPC doesn’t distinguish between general intent and specific intent crimes
a. Exception: crimes defined in terms of recklessness.
i. Ordinarily, person acts recklessly if “he consciously disregards a substantial
and unjustifiable risk that the material element of the offense exists or will
result from his conduct.” § 2.08(4).
31
ii. However, if a person “due to self induced intoxication is unaware of the risk
of which he would have been aware had he been sober, such unawareness
is immaterial” in a prosecution for which recklessness establishes criminal
liability. § 2.08(2).
1. So, voluntarily intoxicated D cant negate proof of recklessness by
showing evidence that his intoxication caused lack of awareness of
risk.
2. Voluntary act
a. D is entitled to acquittal if his intoxication negates ANY element of the offense.
i. D not guilty unless his conduct includes a voluntary act (or specific omission
in some circumstances). §2.01(1).
ii. Conduct during unconsciousness is involuntary.
1. D may assert an involuntariness claim for unconsciousness, but the
requisite voluntary act may be found in conduct prior to the
unconsciousness.
3. Intoxication as an Affirmative Defense
a. Even if all the elements of a crime are proved, the Code recognizes an affirmative
defense based on intoxication if, at the time of the conduct:
i. D suffered from pathological intoxication or intoxication that was not self
induced;
ii. And D’s conduct qualifies under the ALI test of insanity.
IX.
Criminal Homicide
a. Common law
i. Definition: the killing of human being by another human being.
ii. Criminal homicide: committed with justification or excuse.
iii. Murder General Principles/Divisions
1. Killing of a human being by another human being with malice aforethought.
a. Aforethought=superfluous to the American definition of murder. Unless a statute
requires proof of premeditation, a spur of the moment killing may constitute
murder.
b. Malice=any one of 4 states of mind
i. The intention to kill a human being
ii. The intention to inflict grievous bodily injury on another
iii. An extremely reckless disregard for human life (depraved heart murder)
iv. OR the intention to commit a felony during the commission or attempted
commission of which a death results (felony murder).
2. Murder: Intent to Kill
a. Generally 1st degree
b. Subjective fault
3. Wilful, Deliberate, Premeditated” Killings
a. Usually 1st degree
b. Willful—generally specific intent to kill
4. Murder: Intent to Inflict Grievous Bodily Injury
a. Nearly always 2nd degree
b. Grievous bodily harm: such injury as is grave and not trivial, and gives rise to
apprehension of danger to life, health, or limb.
5. Murder: Extreme Recklessness (Depraved Heart)
a. Almost always 2nd degree
b. Extreme indifference to value of human life.
c. Reckless or extremely reckless homicide.
d. Recklessly: consciously disregarding a substantial and unjustifiable risk to human
life.
32
i. However, when a person should be (but is not) aware that the act is risky,
this would be involuntary manslaughter.
6. Felony Murder
a. Death resulting from the commission of a specifically listed felony (like arson, rape,
robbery, or burglary) constitutes 1st degree murder for which the maximum penalty
is death or life imprisonment.
i. If death from an unspecified felony, it’s 2nd degree.
iv. Manslaughter
1. Unlawful killing of a human being by another human being without malice aforethought.
2. 3 types of unlawful killings
a. Intentional killing in sudden heat of passion resulting from adequate
provocation=voluntary manslaughter
b. Unintentional killing that’s the result of an act, lawful in itself, but done in an
unlawful manner, and without due caution and circumspection=involuntary
manslaughter
c. Unintentional killing that occurs during the commission or attempted commission of
an unlawful act may constitute involuntary manslaughter (but if the act is a felony,
it’s murder).’
3. Provocation
a. Adequate provocation that causes intentional homicide in heat of passion mitigates
the offense to voluntary manslaughter.
b. Defense of provocation requires 4 elements
i. Actor must have acted in heat of passion
1. Any violent, intense, high-wrought, or enthusiastic emotion.
Including fear, jealousy, furious resentment, wild desperation.
ii. Passion must have been the result of adequate provocation
1. Depends on the specific circumstances
2. Words alone don’t constitute adequate provocation
3. Based on a reasonable person standard
iii. The actor must not have had a reasonable opportunity to cool off
1. Defense is unavailable if a reasonable person would have cooled
off in the time that elapsed between the provocation and the fatal
act.
iv. AND there must be a causal link between the provocation, the passion, and
the homicide.
1. Even if a person is adequately provoked, the provocation defense
is unavailable to a defendant whose motivation for the homicide is
causally unrelated to the provocation.
b. MPC
i. A person is guilty of criminal homicide if he ujustifiably and inexcusably takes the life of another
human being purposely, knowingly, recklessly, or negligently. 3 forms of criminal homicide:
1. Murder
a. When the actor unjustifiably, inexcusably, and in the absence of a mitigating
circumstance, kills another purposely or knowingly or recklessly (under
circumstances manifesting extreme indifference to the value of human life.) §
210.2(a)-(b)
b. No degrees of murder in the MPC.
c. Murder under the MPC is a felony of the first degree.
d. Abandons the common law element of malice aforethought.
e. Felony murder
i. MPC opposed to it, but still didn’t get rid of it
33
ii. If the felony was not committed in a manner that manifested an extreme
indifference to human life, the felon is not guilty of murder for the resulting
homicide.
2. Manslaughter
a. Guilty of manslaughter if
i. Recklessly kills another
ii. Or kills another person under circumstances that would ordinarily
constitute murder, but which homicide is committed as the result of
“extreme mental or emotional disturbance” for which there is a
“reasonable explanation or excuse.” § 210.3(1)(a)-(b).
b. Manslaughter under the MPC is a felony of the second degree.
c. Reckless homicide
i. D kills another recklessly=guilty of manslaughter.
1. BUT homicide committed recklessly may also be murder under the
MPC.
2. The difference between the 2 is that in the case of murder the
recklessness must manifest extreme indifference to the value of
human life. That feature not included in definition of
manslaughter.
3. If D is prosecuted for reckless murder, D entitled to jury instruction
regarding reckless manslaughter, & can be convicted of reckless
manslaughter if jury decides that D’s conscious risk taking
(although unjustifiable and substantial) wasn’t extreme enough to
merit murder.
4. Liability for manslaughter cannot be founded on criminal
negligence.
5. Extreme mental or Emotional Disturbance
a. Lesser offense of manslaughter if D killed victim while
suffering from an extreme mental or emotional
disturbance for which there is reasonable explanation or
excuse.
b. Enough that D experienced extreme feelings, sufficient to
cause loss of self control, at the time of the homicide.
c. Need to have a reasonable excuse.
3. Negligent homicide
a. Criminally negligent homicide—involuntary manslaughter at common law—
constitutes the lesser offense of negligent homicide under the Code. §210.4
b. Felony of the third degree
34
CRIMINAL LAW OUTLINE
I. Introduction
a. Two parts of criminal law:
i. Substantive: offenses and their elements, defenses, and punishments
ii. Procedural: Focuses on 5th 6th 7th Amendments, or rights of the accused
b. Overlap in tort and criminal law (i.e. tort and wrongful death)
i. In criminal law, not guilty doesn’t mean innocent b/c burden of proof is beyond a reasonable doubt.
ii. In tort cases it is preponderance of evidence, so tort sometimes follow criminal cases in which D is
found not guilty, but the affected party is trying to make a statement and prove that D was guilty or
to insure that if D was guilty at criminal trial, he won’t be able to profit off of his crime through book
deals, etc.
iii. Criminal law requires higher burden of proof b/c it deprives people of liberty and rights when
convicted.
c. In criminal law, P is the state or “people.”
d. D has right to jury trial, counsel, and speedy trial
II. Structure of a Criminal Trial
a. Police investigation, arrest, booking
i. 1st booking processes suspect into system and places him in holding cell
ii. 2nd booking is informal charge where police informally determine the charge, but police can’t hold
for more than 48 hours. Police must get formal charge from D.A. Does this by notifying D.A.
b. Manner of Charge- information=misdemeanor, indictment=felony
i. For information/affidavit, judge grants after short, informal hearing
ii. Indictment requires grand jury proceeding; In indictment, attorney isn’t present but Constitutional
right to self-incrimination applies (5th). D can be called, but doesn’t have to answer questions.
1. Evidence presented by loose rules
2. Grand jury may submit true bill, which issues an indictment. P only has burden of
persuasion- 95% success rate for P in getting indictment.
3. P must specify every element of crime it intends to prove
iii. Affirmative defenses- Yes, I did commit offense, but here is reason I shouldn’t be guilty- P must
disprove
1. Justification v. excuse- Justification is like self-defense, excuse is like duress or temporary
insanity (alleviates guilt but doesn’t justify the act)
2. Justification focuses on the act
3. Excuse focuses on the actual D
c. Arraignment: Short, informal hearing
i. 1st appearance. D enters a plea, trial date set, D may move to demur on 3 grounds
1. Formal charge is defective and fails to state elements
2. Crime charges don’t constitute a crime
3. Insufficient evidence
ii. If court grants demurrer, charge is dropped and double jeopardy doesn’t apply
1. P may appeal demurrer but very rare; D can’t appeal an appellate courts’ reversal
iii. After D is charged, plea bargaining plays a large role
d. Empanelment of jury
i. Need unanimous verdict- in GA, 6 for misdemeanor, 12 for felony
ii. In grand jury, 23 jurors and P must get majority
e. Pretrial Motions
i. D attacks sufficiency of evidence/indictment or challenges introduction of evidence.
f. Opening statements
i. P is first- “this is why you’re here”
ii. D may have opening statement or reserve opening statement
g. Prosecution’s case
i. “case in chief”- P must establish all elements of the offense
35
ii. Prosecution rests- D can motion for directed verdict/motion for acquittal
1. Directed verdict can’t be for guilty in criminal trials; it would be a violation of D’s right to a
jury trial.
2. Judge can reserve motion for directed verdict until after D’s case
h. Closing statements
i. Post-trial conference
i. Attorneys argue over jury instructions
ii. If judge doesn’t grant instructions, P can file interlocutory appeal
j. Verdict
i. Guilty or not guilty
ii. Judge can offer judgment notwithstanding verdict, however, P can appeal JNOV
iii. In conviction, D can appeal, if acquittal, P can’t appeal unless fraud or jury tampering
k. Possibilities for Appeal Results
i. Reverse and dismiss, Reverse and remand, affirm, and find error, but uphold b/c error was harmless
III. Punishment
a. Introduction
i. Criminal law is statutory law, it provides knowledge and informs people what the crime is.
ii. Influences legislatures defining offenses, judges in sentencing and applying statutes, the public
perception of fairness, important in allocating public resources, and something attorney takes into
account when advising or working for client.
b. Theories of punishment
i. Retribution- oldest theory from Emmanuel Kant
1. Atonement and proportionality- you must pay for your actions and punishment must be
proportional to harm
2. Crime caused by individual character
3. Punishment way of expressing blame for the act
4. Backward-looking: atonement for the crime
ii. Utilitarianism- Jeremy Bentham
1. Utopian view- Forward looking
2. Purpose of law is to maximize net-happiness of society
3. Only punish wrongdoer if greater good will result
4. Crime caused by social circumstances rather than choice. No blame for offender but we
consider net effect on society.
5. Principles of Utilitarianism:
a. General deterrence
i. intimidation or lesson to rest of society through punishment
b. Specific deterrence
i. Particular offender is deterred through incapacitation or intimidation.
Doesn’t attempt to take away desire to commit crime. That is
rehabilitation.
c. Rehabilitation
i. Crime is a disease, not a vice so criminals need therapy, not punishment
1. U.S. Penitentiaries were first designed as rehab facilities, and
created optimism about societies’ ability to rehab patients
2. Popular until 1970’s when liberals thought it gave judges too much
power to give indeterminate sentences b/c we should focus on
root causes of crime. Conservatives thought we were babying
criminals. Civil libertarians thought there was too much
brainwashing and criminals weren’t getting released.
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3. Penitentiaries failed to make a statistical reduction in recidivism,
except by keeping criminals off the streets while they were in
prison, which physically prevented them from committing crimes.
4. Studies show especially high rates of recidivism by certain
criminals, such as sex offenders.
5. Why would prison succeed when society has failed?
c.
Green and Jones Hypo
i. Jones kills his abusive father after thinking about it for a few hours. First time killer.
1. Jones’ mother wasn’t in imminent danger so he is guilty of 2nd degree murder by statute.
2. Mitigating factors on sentencinga. History of abuse, remorse, responsibility taken, prone to depression, no priors,
situation-specific offense not likely to happen again.
3. Aggravating factors
a. High strung and neurotic, could do it again, thought about killing before killing.
ii. Green steals and has history of offenses, though he comes from a bad family and didn’t have fatherintelligent as well.
1. Aggravating factorsa. Repeat offender, young, first time being caught for this crime but suspected of
others, drug use
2. Mitigating factorsa. Father died, mother supporting kids, got good grades in school.
3. Green is a recidivist who is likely to commit again. Does he deserve greater punishment?
a. If looking at utilitarianism, he committed an offense that all may be susceptible to.
Random offense so it excites more fear in the public. If we don’t deter it people will
try to fight against it themselves and that is dangerous.
4. Jones
a. Considering retributivism,, Jones committed a more serious crime so he deserves a
proportionate, severe, punishment. He must atone for killing somebody.
b. If looking at utilitarianism principles, if Jones gets off, society may look at the fact
that Jones got off and think it’s ok to kill. However, they also may think it is unfair
that he was punished because of surrounding circumstances. Jones is unlikely to
repeat again, so specific deterrence is not necessary.
iii. General or Specific Deterrence
1. Costs
a. We assume that offenders engage in cost-benefit analysis when committing a
crime.
b. Cost is severity of punishment discounted by chance of being caught and
punishment.
c. Criminals are more likely to commit crimes if there is a low chance of being caught,
even if the potential punishment is severe.
d. Swiftness and certainty of punishment increase deterrence, but severity is a poor
deterrent. U.S. has severe, but uncertain and slow punishment.
2. Benefits
a. Spoils discounted by the opportunity cost
b. For deterrence to work, you have to have alternate opportunities that are feasible
to the criminal. However, if you treat criminals differently based on their
opportunities there is chance for discrimination.
3. Generally, not fair to take personality into account, but we do in considering criminal priors.
4. The only criminals that have been shown to be able to be rehabilitated are drug offenders,
so neither Jones nor Green will benefit from rehabilitation.
d. Modern Sentencing Guidelines
i. Judge decides sentencing, except for death penalty which is decided by jury
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ii. Up until 1970s, sentences were indeterminate. Judge set outer limit of sentence but criminal could
be released earlier by parole. Disparity of sentencing for same offenses under this scheme.
Sentences were a luck of the draw on the judge.
1. In mid-1970s, there was public motion to support more definite sentencing scheme. This
would support both atonement and general deterrence.
iii. Federal Sentencing Guidelines
1. Uses a grid to stop sentencing disparities, give determinate sentences, and abolish U.S.
Parole Commission.
2. About half of states adopted similar system
3. Guidelines were mandatory until Booker.
4. Sentencing guidelines in certain states assessed personal characteristics, prior crimes, and
prison spot availability.
5. Burden of proof during sentencing hearing before a judge is preponderance of the evidence,
as opposed to beyond a reasonable doubt.
iv. Apprendi v. New Jersey- D convicted for firing shots into home; later said it was because they were
black, but afterwards D rescinded his racist comment.; Trial judge applied “hate crime” enhancer
after trial, and this extended sentence past statutory maximum.
1. Jury must find guilt for any sentencing factor which makes sentence extend beyond
statutory maximum, except
a. Prior facts admitted by D
b. Prior history
v. Blakely v Washington- D convicted of kidnapping wife, judge finds that there was deliberate cruelty
that D didn’t admit and jury didn’t find; extends punishment
1. Court hold that statutory maximum is maximum of sentence from facts proven by jury
2. If P wants to increase sentence after trial, there has to be a separate sentencing hearing
before jury; must give D notice.
vi. U.S. v. Booker – Punished for crack possession. Judge increased sentence after trial when considering
prior convictions (allowed) and facts came out that there was much more crack at sentencing
hearing by preponderance of evidence
1. Up until now, guidelines were mandatory; now the Federal Guidelines are advisory.
2. If Court here deemed guidelines as constitutional and mandatory, they would have to prove
every possible sentencing enhancer
3. If Court deem guidelines completely unconstitutional, it would lead to completely
discretionary sentencing.
4. Compromising allows for judicial discretion. Appellate’s review sentencing under a
reasonableness standard.
vii. U.S. v. Rita
1. If sentence falls w/in guidelines it is presumptively reasonable
viii. Gall V. U.S.
1. If district court judge departs from Guidelines it is not presumptively unreasonable.
ix. Reasons for departing from guidelines
1. Seriousness of offence
2. Deterrence
3. Benefit to D, such as rehab
4. Need to provide restitution to victim
5. Remorse shown by D
6. Manner of offense (particularly violent, overkill generally increases severity of sentence.)
7. Judge can’t consider factors not brought out in trial
x. Kimbro v. U.S.
1. Normally judges can’t take policy concerns into account when sentencing, but they can in
crack cocaine guidelines, generally on the grounds that the laws are racist. Still, they must
have a good reason in these cases.
xi. What has changed from guidelines to now
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1.
2.
3.
4.
5.
6.
Judges now have more discretion
Sentencing commission made amendments for military history, age, and mental state
Non-violent drug offenders to rehab not prison
More lenient sentences for Iraq and Afghanistan veterans
More leniency for child pornography but not child molesters
Long sentences not cost-effective, shorter terms or non-prison alternatives work better.
IV. The Criminal Act
a. General elements of offenses
i. Actus reus
ii. Mens rea
iii. Causation
1. Not always element, majority of times it is obvious
iv. Surrounding Circumstances
v. Result
V. Actus Reus
a. Underlying Facts and Basis
i. Conditioning of just punishment on the proscription, charging, and proof of an actus reus
ii. To particular actus reus, P must charge and prove beyond a reasonable doubt in order to establish
liability for a particular crime.
iii. You must deserve something as a necessary condition for punishment
iv. Punished crimes should be applied to lack of self control
v. Conduct
1. Action or failure to act when action is called for
vi. If we premise punishment on assumption that people have choice, then punishment must be for
past conduct.
vii. We want to restrict conduct to voluntary conduct- we must punish people for their choices.
viii. Criminally punishable conduct should be specified in advance. No crime without a law, no
punishment without a law.
b. Need for an Actus Reus
i. Rule:
1. We cannot convict someone for intent alone. There must be an illegal action accompanying
that intent. Otherwise, we are only punishing “bad thoughts.”
ii. MPC § 2.01 (1)
1. A person is not guilty of an offense unless his conduct is based on conduct that includes a
voluntary act or omission
iii. Reasons for act requirement
1. Even if a person has bad thoughts, they may not act on them
2. Guilty mind is poor predictor of future crime
3. There has been no harm, though harm is not always necessary.
4. Investigations and evidence procedures would become too intrusive if punishing based on
thoughts
5. Hard to prove intent
iv. Proctor v. State – D arrested for having house w/ “intent to sell alcohol”
a. Intent wasn’t connected to an overt act or unlawful act, so intent isn’t punishable
by law.
b. A legal act doesn’t become illegal because of intent to do things in the future. Guilty
intent alone isn’t a crime.
c. 5th Amendment- can’t convict someone only through their statements, must be
action.
i. Exception: Shouting “fire” in a crowded theater
c. Omissions
i. Rule: MPC § 2.01 (3)
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1. Liability for the commission of an offense may not be based on an omission unaccompanied
by action unless:
a. Omission is expressly made sufficient by the law defining the offense; or
b. A duty to perform the omitted act is otherwise imposed by law
2. 5 legally established duties to act (Established in Jones, see below)
a. Statutory duty
b. Status-based relationship
i. close-family, authority, this is starting to expand to more relationships
c. Contracted for duty
d. Seclusion-based relationship
i. Someone secludes another from getting physical care.
e. Creation of Peril (minority of states)
i. If you create the perilous situation you may have duty to act
ii. When no affirmative act, courts must prove
1. That a duty exists and
2. That D breached that duty
iii. Determining who has primary duty depends on surrounding circumstances; there is a hierarchy
involved usually.
iv. If you are unable to save person or act, there may be civil liability even if no criminal liability.
1. Children drowning in pool scenario
v. Jones v. U.S.a. D convicted of involuntary manslaughter for not providing adequate medical care
to friend’s baby whom she assumed care of.
b. Trial court says her failure to act was breach of a legal duty
i. Could be both a contracted for duty (contracted for taking care of one
child) or a seclusion-based relationship duty.
vi. Good Samaritan Laws
1. 2 types
a. If you witness an accident, you have to inform authorities and stay around to assist
authorities (most states impose this)
i. Sharise Iverson Law:
1. If a child under 14 is being sexually assaulted or violently treated,
you must report- NV
b. If you can safely act, you are required to (affirmative good Samaritan laws)
i. Minority of states
2. Problems with Good Samaritan Laws
a. Criminal law is supposed to punish misfeasance, not nonfeasance.
b. If a bystander fails to act, what crime would they be guilty of? What purpose would
punishment serve under our theories of punishment?
c. Opens yourself to civil liability if you make things worse.
d. Possession
i. Rule: MPC § 2.01(4)
1. Possession is an act if person
a. Knowingly procured or received item possessed; or
b. Is aware of control thereof for a sufficient period to have been able to terminate his
possession.
ii. Constructive Possession Rule (common law): One must have
1. Effective power over thing possessed and
2. Intent to control it
3. Can occur through another person, jointly or exclusively.
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4. If you are willfully ignorant/blind to the situation, you have constructive knowledge. You
knew something was not right and chose to ignore it.
iii. Cases
1. U.S. v. Maldonado (Drug middle man w/ drugs in hotel room)
a. Did D have dominion over drugs when he never saw or touched them?
b. Yes.
i. D being a drug middleman and the fact that he facilitated meeting
established that he had intent to control drugs
ii. Drugs being in his room where both he had exclusive access means he had
joint possession and effective power over drugs.
2. U.S. v. Jenkins (D found sitting in front of cocaine)
a. No constructive possession. Why?
i. Proximity to drugs is not enough to establish dominion or control;
ii. No evidence he was planning to distribute because he had no trace on him
and no tools for distribution.
iii. The defendants did not live in the house.
3. Hypo: Jones modified. What if you owned the house? Could you be charged?
a. If you own the house, you have more control over the areas within the house than
others. Gives prosecution a better case to charge you.
4. State v. Casey (guest leaves gun in D’s house w/out his knowledge)
a. Guests retain dominion and control over own property when visiting another’s
home
b. Something more than the object being at D’s residence is required for joint
possession
5. Vallot (D’s friends smoking pot while D in bathroom)
a. Convicted. Why?
i. Had control of the room and
ii. He knew or should have known that drug use was going on through noise
and smell.
6. State v. Barger (D has child pornography in computer history)
a. No possession. Why?
i. Intent to exercise control: How do we know it wasn’t just a pop-up or he
stumbled upon it?
ii. No control: He didn’t exercise control b/c he didn’t manipulate or do
anything w/ images
iii. He did not know that his computer automatically saved temporary internet
files, and that he had access to those.
b. If he had done anything to manipulate material, both control and intent to exercise
would be satisfied
c. Main holding: The mere fact that an object is within a person’s reach, and thus the
person has an ability to exercise some directing or restraining influence over it, is
insufficient to establish constructive possession of the object.
d. State v. Tucker
i. Knowingly accessed child porn and requested that it be sent to him from
website.
ii. He is guilty of possession because he exercised control over the documents
when he unsuccessfully tried to remove them from his computer.
e. Requirement of Harm
i. Rule:
1. In certain crimes, we cannot punish someone for something that does not constitute harm
in one way or another. This is not the case for inchoate offences.
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ii. Cases:
1. Lawrence v. Texas- Statute forbidding gay sodomy
a. Overturned Bowers v. Hardwick, which upheld GA statute prohibiting sodomy for
everyone, not just homosexuals.
b. Even though act was in confines of statute, S.C. said statute was unconstitutional
because it violated individuals’ right to privacy.
c. Case involves 2 adults who mutually consent; no harm
d. MPC doesn’t provide for court penalization of consensual sexual acts
e. State can’t enforce views on entire society’s behavior through operation of criminal
law; right to liberty under Due Process Clause
f.
Requirement of Voluntariness
i. Rule: MPC § 2.01
1. A person is not guilty of an offense unless his guilt is based on conduct that includes a
voluntary act
2. MPC § 2.01(2) The following are not voluntary acts within meaning of this section
a. Reflex or convulsion
b. Bodily movement during unconsciousness or sleep
c. Conduct during hypnosis or resulting from hypnotic suggestion
d. A bodily movement that otherwise is not a product of the effort or determination of
the actor, either conscious or habitual.
3. Common law “time-expanding”
a. If we go back far enough, we can find voluntariness. If actor voluntarily does
something that would reasonably cause the condition leading to the involuntary act,
and the actor could reasonably foresee that, he may still be found guilty for
involuntary act. See Decina
ii. Theories of punishment applied to involuntary actions:
1. Rehabilitation might work unless medical condition
2. General deterrence would seem unfair to public
a. Why should a sleepwalker or epileptic get punished?
3. Specific deterrence may work or may not
a. Possible stigmatizing punishment on unconscious action.
b. Benefit may be incapacitation.
iii. Cases
1. People v. Newton (D boards plane w/ gun. Plane makes unplanned stop in U.S.)
a. Since layover in N.Y. was unscheduled and against D’s will, no voluntary act to be in
U.S. territory.
b. If D brandished gun and caused plain to land in U.S., he may be subject to federal
airspace jurisdiction but still couldn’t be prosecuted under N.Y. “Time Framing.”
2. Martin v. State(D dragged out to public by police while drunk. Convicted of public
intoxication)
a. Not a voluntary act because he was put on highway against his will.
b. Rule of lenity- You must read criminal statutes narrowly, and any ambiguity is
construed in favor of D.
3. People v. Grant (Epileptic D vaults parking meter and kicks cop)
a. Court should have given automatism instruction, not insanity instruction, keeping
burden of proof with P.
i. Automatism deals with lack of mens rea: you couldn’t control the fact that
you acted.
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ii. Insanity is an excuse/affirmative defense: you don’t realize/understand
consequences of your act, but you control your act.
1. When D raises the affirmative defense of insanity, the burden of
proof shifts to D to prove by a preponderance of evidence
b. D bears burden of raising issue of automatism, but once he does bear burden,
burden is on state to disprove. If state cannot disprove it, D will be acquitted.
c. Even if D does get instruction, time framing:
i. Did D’s drinks cause a reasonable foreseeability that he would have a
seizure?
d. Automatism
i. State of a person who, though capable of action, is not conscious of what
he is doing.
4. People v. Decina (Driver epileptic seizure kills pedestrians)
a. D convicted (Time Framing)
i. He knew he had epilepsy and was prone to seizures. Made the voluntary
decision to drive car when reasonable foreseeability of seizure. There was
an initial voluntary act making the defendant blameworthy for the actions
that resulted from a later involuntary act.
b. Policy argument: the risk Decina posed to society was unacceptable. He was very
blameworthy.
5. People v. Huey Newton
a. automatism defense from reflex due to shock.
b. D shot in stomach, involuntary reflex to shoot and killed cop
g. Prohibition of Status Crimes
i. Rule:
1. It is not a crime to be a certain status. Punishing statuses are punishing not what people do,
but who people are.
ii. Why not punish status crimes?
1. Involuntary conduct cannot be punished
a. Being an addict is not voluntary, it is a status
2. Punishment must be retributive
a. Punishing addiction is punishing future acts, the increased likelihood of doing drugs
again, not past acts
iii. Robinson v. California (Statute making it illegal to be addict)
a. Supreme Court ruled unconstitutional
i. Punishing people for their status as an addict and not the actual act of drug
use.
ii. Defendant could be continuously guilty of this offense.
iii. Addiction is a disease, and is therefore not voluntary, but is merely a
“status”
2. Voluntariness
a. Addiction is not a voluntary action by the addict
b. Punishing addiction is punishing the mental state of being an addict, that is being
addicted and needing drugs.
3. Jurisdiction issue
a. If we say we will punish for act of doing drugs continuously, how do we know he did
drugs within our jurisdiction
i. He could be attending rehab
4. Retribution
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a. Punishment isn’t proportional to crime
b. Retribution is for past crimes, not future.
5. Statute overly broad b/c it didn’t distinguish between legal and illegal substances. Didn’t
provide adequate notice to conform their actions to the law.
6. Statute vague w/ definition of term addicted. Same concern as above.
a. Statute doesn’t provide adequate notice to people so that they can conform
conduct to it
b. How long do you have to be withdrawn from drugs to be “clean”? What if you are in
rehab?
c. Can be continuously guilty.
iv. Fingarette on Addiction
1. Not everyone who takes drugs becomes addicted.
2. Most people that become addicted break addiction
3. Some groups of people participate in a culture that encourages addiction
4. Judicious use of sanctions and threats of sanctions can be an effective tool in deterring
addicts from continued drug use.
v. Justice White’s dissent of Robinson
1. Addiction isn’t disease b/c it can be cured through will
2. Addiction isn’t a disease b/c if it was a disease, everyone that did drugs would be addicted.
3. Addiction does require an initial voluntary act.
vi. Cases:
1. Powell v. Texas- (D arrested for drunk in public, contends that he shouldn’t be convicted b/c
he is alcoholic)
a. Court doesn’t convict D for being alcoholic, but for being drunk in public place on a
specific occasion
b. Plurality opinion
i. 4 justices agreed with statement above
1. Rejected voluntariness rationale of Robinson but
2. In accordance with retribution because act punished is past act of
being drunk in public, not future of alcoholism
ii. Minority would have dismissed in favor of D on ground that Robinson
forbade punishing involuntary conduct resulting from addiction.
iii. Justice White upholds conviction
1. D’s alcoholism only rendered his drinking involuntary, not his
appearing in public.
2. D is not at fault for getting drunk, as this is involuntary because of
his addiction, but he didn’t take adequate voluntary precautions to
stay inside.
2. Johnson v. State (addict D charged w/ delivery of a controlled substance to an infant in 30-90
seconds between birth and severance of umbilical cord)
a. Conviction overturned
i. Delivery of drugs to child is involuntary
ii. No proof that there was actual exchange of drug during that time frame
iii. Legislature didn’t intend to prosecute mothers who transported illegal
drugs to fetuses.
iv. If you criminalize taking drugs solely because they harm fetus, you run risk
of criminalizing all actions of mom that may harm the fetus.
v. Rule of lenity- Statute is vague, so we construe it for D
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b. Taking drugs while going into labor could constitute an act for delivery if a late-term
fetus is deemed a child.
c. State considered passing a statute to criminalize
i. Being addicted to drugs
ii. Being pregnant
d. Above statute was not passed because it would have been overly broad and vague.
Slippery slope.
i. Because legislature considered this issue of pregnant addicts, and chose not
to pass legislation, it is not appropriate for the judicial to contradict them.
e. Most states have enacted feticide statutes to punish acts harming the unborn.
i. SC upheld a conviction like the one in Johnson
3. Pottinger (Statute punishing homeless for day-to-day acts)
a. Court says this would be punishing people not for acts, but for status of being
homeless. Not because of the statute itself, but because the homeless do not have
any alternatives. Therefore they were forced into non-compliance based on their
status.
i. Homeless people, by their definition, must reside in public at all times.
ii. Law says we aren’t punishing status of being homeless, but in fact the law
punishes acts that are inherent to being homeless because they have no
ability to comply with the law due to lack of alternatives.
1. Homeless people don’t have a choice about living their lives in
public
b. Distinguishable from Powell
i. Powell had a voluntary choice between being in public and succumbing to
his status of being an alcoholic or being in private.
ii. D’s here did not have a true choice.
VI. Mens Rea
a. 4 reasons why mens rea is difficult to establish
i. Different levels of mens rea (Difficult to distinguish between)
ii. Statutes aren’t always specific about what level required
1. If not specific, it is up to the court to decide what level applies.
iii. Even if you know what level applies, hard to determine what it applies to
iv. Even if i-iii present, you still need to determine specific mens rea of the defendant.
1. How do you prove what someone was thinking at the time they committed the act?
a. Jury makes inferences based upon surrounding circumstances.
b. MPC § 2.02 (1)
i. A person is not guilty of an offense unless he acts purposely, knowingly, recklessly, or negligently, as
the law may require, with respect to each material element of the offense (except in strict liability
MPC §2.05)
c.
History of mens rea
i. Initially, religious notions of sin
1. In 13th century, D could only be punished if he was proven to be a sinner, so broad view of
mens rea punished only immoral people
a. This is “traditional” mens rea
ii. In past century, mens rea has lost some of that traditional moral basis, only the mindset required by
the statute
1. This is “statutory” mens rea
d. Requirement of a Guilty Mind (Strict Liability Offenses)
i. Strict Liability General Rules
1. A strict liability offense is one that doesn’t require awareness of all of the factors
constituting the crime.
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a. Generally, the requirement of a state of mind is not abandoned with respect to all
elements of the offense, but only with regard to one or some of the elements.
b. Major significance of this is that certain defenses, such as mistake of fact, are not
available.
ii. Strict Liability Purpose
1. To achieve a social benefit rather than to punish conduct
2. Strict liability raises cost side of crime and it is very effective in deterrence.
a. If it’s so great at deterring conduct, why don’t we make every crime strict liability?
b. We don’t use it for everything because there is problem of moral stigma associated
with conviction of more serious crimes.
c. But if moral stigma is a problem, why make an offense that is not morally culpable a
crime to begin with when any criminal conviction causes a degree of moral stigma?
iii. MPC:
1. Requirements of culpability do not apply to:
a. Offenses which constitute violations, unless requirement involved is included in the
definition of the offense or the Court determines that its application is consistent
with effective enforcement of the law defining the offense; or
b. Offenses defined by statutes, insofar as a legislative purpose to impose absolute
liability for such offenses or with respect to any material element thereof plainly
appears
2. Recognizes strict liability offenses as needed in some situations, but shouldn’t be more than
misdemeanor and ideally shouldn’t be more than a fine
iv. Malum in Se v. Malum Prohibitum
1. Malum in Se
a. Morally wrong offenses
b. Harder for prosecution to prove
c. Often common law offenses (ex. Theft)
d. Require a guilty mind
e. Harm to an individual victim
f. Usually affirmative acts
g. Higher punishment; higher stigma
i. The higher the punishment, the more necessary the requirement for mens
rea
2. Malum Prohibitum
a. Regulatory offenses
b. Easier for prosecution to prove
c. Often strict liability; no mens rea needed
d. No direct victim but harm to public
e. Often a culpable omission where statute imposes duty
f. Lower punishment (fine); lower stigma (misdemeanor)
i. The lower the punishment, the easier it is to interpret as strict liability
g. Employer can be held guilty for employee’s acts
v. How Courts Assess Whether Crime is Strict Liability (SL):
1. Does the statute express mens rea?
a. If yes, not strict liability; they can’t “read it out”
b. If no, court must determine whether it is SL
2. Did legislature intend a mens rea?
a. If yes, not strict liability
3. Is it a common law grounded offense or a new shiny statutory offense?
a. If common law, mens rea required
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i. Not strict liability
4. Is the punishment severe (over 1 year in state prison?)
a. If so, court will “read in” mens rea most likely, so probably not strict liability
5. Is it malum prohibitum or does it involve a complex regulatory scheme?
a. If yes to either question, it can be construed as strict liability
6. Does the harm to the public outweigh harm to D?
a. If so, strict liability
7. Is there commercial activity involved?
a. If yes, it could amount to strict liability
i. Something else is needed, such as big risk to public or complex regulatory
scheme.
8. Even if strict liability, sufficient notice is required.
a. Sufficient notice can include actual notification of the public, the statute defining
offense being around for a long period of time, similar statutes across most states,
or the fact that the defendant’s actions in and of themselves should provide notice
(things like having to register as a sex offender once convicted)
vi. Types of Strict Liability
1. Substantive: Liability without moral fault
2. Pure: Liability without culpable mental state with respect to all objective elements of
offense
3. Impure: Liability without a culpable mental state without mental state with respect to at
least one element
a. Important to note that a crime can be strict liability by only not requiring mens rea
for one or more elements. One element of offense doesn’t require intent. This is
actually the most frequent case.
vii. Cases:
1. People v. Dillard: (D convicted of loaded firearm in public, said he didn’t know gun was
loaded so shouldn’t be guilty)
a. Fact the gun was loaded was considered negligence per se. Only thing that required
knowledge was the fact that D was carrying a gun.
b. California code seemed to require some level of mens rea for every crime (at least
intent or negligence).
i. Court interpreted this as “read with some level of mens rea”
ii. Risky behavior that is a danger to the public is per se negligence.
c. Legislative purpose was different (avoid violence from black panther to police) but
can be expanded to fit new situation. Baseline purpose of statute was public good.
d. Technically not strict liability (because there must be at least a very small level of
mens rea), but we treat it as very similar to a strict liability offense. Why?
i. Difficulty in proving actual knowledge gun was loaded
ii. Person w/ loaded gun and no knowledge of it being loaded is more
dangerous that he who has knowledge
iii. OK to impose (essentially) strict liability (negligencer per se) b/c it is a
malum prohibitum offense that is for public welfare.
iv. Penalty is misdemeanor (not steep)
e. Main Holding: Where there is a greater good at stake, we can basically dispense
with due process rights in malum prohibitum cases where negligence per se is the
level of mens rea (since that level is so low anyways).
i. Usually low level offenses so we aren’t worried about due process
concerns.
2. U.S. v. Balint (D mislabeled drugs, so didn’t know he was selling narcotics: this is
misdemeanor)
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a. Supreme Court overturned trial court’s acquittal of D, saying that trial court didn’t
have to prove that that D had known nature of drugs he was selling
b. Why is this strict liability?
i. Not a common law offense
ii. Not morally reprehensible
iii. Malum Prohibitum
iv. Great danger to public (mislabeled drugs)
c. However, punishment in this case was 5 years in prison. Usually strict liability
offenses are small punishments. Why is 5 years ok in this case?
i. When you have a commercial enterprise or activity, and it is something that
is likely to affect the public, the bar is even lower as far as mens rea goes.
You have a greater duty to abide by the laws, because if you don’t, there is
a great chance someone will be injured or killed. The drug supplier was on
special notice that he should have taken special precautions that he didn’t
violate the regulations.
3. Morissette v. U.S. (D took old bomb casings from Air Force bombing range but says he
thought they were abandoned so shouldn’t be convicted of converting government
property)
a. Statute was silent on mens rea. Lower court convicts.
b. Appeals court overturns conviction, requiring that D have knowledge that property
was owned by government.
c. Why does Morisette offense require culpability?
i. Theft is grounded in common law
ii. It is a morally wrong crime (theft)
d. Congress may write out common law mens rea requirement in statute, but only for
good reason.
i. If they wanted SL here they should have written it in.
4. U.S. v. Wulff (D conviction of felony provision of migratory bird act was dismissed b/c he
didn’t know birds were endangered)
a. Court finds the felony provision unconstitutional because it did not require
knowledge. Violated due process rights.
b. Court can’t read in mens rea. Why?
i. This is not common law offense, so court can’t read culpability elements
into it. Would have to be interpreted as strict liability.
ii. No legislative intent for mens rea and not written in.
iii. Same circuit as Morissette which lets the court read culpability elements
into a statute only if the statute codifies a common law offense that
traditionally required culpability. Since this is not a common law offense, no
reading in of culpability.
c. Why is strict liability not constitutional here?
i. High penalty (longer imprisonment)
ii. Besmirches D; his rights are impaired for rest of his life.
iii. Danger to public significantly less compared to harm toward the individual.
d. Since court can’t read in mens rea, there is strict liability. If strict liability and felony,
it usually violates due process.
e. Imposing felony conviction without mens rea violates due process
i. Legislature should have written in a mens rea.
5. U.S. v. Engler (Same facts as Wulff)
a. Rejected conclusion of Wulff. 3rd circuit rejecting 6th.
i. In some felonies there may not be big difference between felony penalty
and misdemeanor penalty
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1. Slippery slope argument: is a year in prison plus a fine ok? Is a year
and two days ok?
ii. Interpreted the statute as strict liability but allowed conviction to stand.
1. Court didn’t mention fact that felony greatly besmirches D. They
ignore the stigma argument.
6. U.S. v Dotterweich (CEO of company charged w/ misdemeanor b/c company sold
misbranded drugs)
a. Why is D guilty if he didn’t know?
i. Great risk to public (Malum Prohibitum)
1. For this reason vicarious liability is possible. Superior is responsible
for the acts of an inferior.
2. If president of company can’t be held responsible, who can?
ii. Commercial activity
b. Related to U.S. v Park
i. For same reasons above, corporate manages selling contaminated food
ii. We have both a malum prohibitum offense, and a commercial enterprise.
7. Lambert v. California (Statute punishing omission of being a convicted felon and not
registering. D was convicted of forgery initially)
a. Court says that statute violated D’s rights
b. Omissions constitute a legitimate actus reus as long as you are breaching a legal
duty, which here is to report your whereabouts
c. Court doesn’t rule on status offense grounds, but on grounds of due process
i. Due process requires some proof of knowledge of duty in omissions.
1. The exception is when person should, by their past actions, already
know that a duty exists
d. Court says in Balint and Dotterweich, notice isn’t required b/c they are engaged in
activity that is dangerous to public and in commercial setting. If they didn’t perform
their duties, it could result in a great risk to the public. Not so in this case.
i. In these commercial settings, regulations exist that all should know about.
Imputed knowledge of a duty
e. Law here is not typical
i. There is little harm to public
ii. Not in a commercial setting
iii. Little chance of recidivism in forgery (D’s past felony)
f. If we are going to make this a criminal act, we must give notice.
i. D was already a felon in CA and nobody notified her that this was a law.
Being charged w/ forgery doesn’t impute to people that they should
register themselves.
ii. It is possible that if there were more laws like this so that it was well
known, the lack of notice may be constitutional after all.
8. U.S. v Hutzell (D convicted for being felon and owning a gun; argues he owned gun prior and
no notice)
a. Why is D guilty but Lambert not based on unconstitutionality?
i. It is standard for a convicted felon to have restricted gun rights
ii. There an affirmative act of possessing gun, not just being a felon like in
Lambert
iii. There is great risk to public when a felon is carrying a gun
b. D should have had imputed knowledge that once he was convicted of a violent
felony he would have restricted rights. His own actions are notice. In Lambert, he
did not know he was convicted of a felony.
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c.
Blameworthiness. Although this particular offense was a malum prohibitum offense,
he had earlier been convicted of a malum in se offense (assault and battery).
Therefore, because initially blameworthy, it leads to regulations being imposed on
him.
9. Giorgetti v State (Sex offender required to register after moving within 48 hours: acquitted
of charge b/c unconstitutional)
a. Why is this strict liability unconstitutional?
i. 5 year punishment too severe
ii. You can’t give strict liability penalty for a registering offense if the
turnaround time is 48 hours
1. This is improper notice
b. The problem is not with requiring a sex offender to register and make SL, b/c sex
offenders;
i. Higher level of recidivism
ii. Dangerous to public
c. The issue is with the notice to the sex offender
i. We can require registration laws, but we must give offenders fair notice
of the laws
1. This can include history of the law, presence of other laws like this
one, and enough time to effectively register
e. Categories of Culpability
i. Rule MPC § 2.02
1. Actor is not guilty of offense unless he acted with culpability required by law for each
element of the offense
2. Types of culpability
a. Purposely: subjective view
i. Hardest for P to prove, making it D friendly
ii. Always proper for punishment
iii. Conscious objective to both partake in the conduct and to achieve the
specific harmful circumstance
1. Purpose can be transferred in crimes such as murder. “Intent
follows the bullet”. If X intends to kill Y but takes the risk that he
might kill Z, and he does kill Z accidentally, he can still be convicted
of intentional murder.
a. This is ok because the intent is transferred within the same
statute: intentional homicide.
iv. Result was exactly what you set out to do.
b. Knowingly: subjective view
i. The defendant may not have intended the result of his actions, but he did
intend the conduct that brought about the result, and he was nearly certain
that the result was likely to occur.
1. Good example is OKC bombing, where D was mad @ government
and wanted to blow up building, not kill specific people. However,
he blew up building in middle of weekday, so he knew deaths
would occur
ii. Knowledge can be inferred (Vallot smelling the pot), where purpose cannot.
iii. Willful blindness can constitute knowledge
1. This is where you suspect that there is something suspicious, but
you willfully ignore it. This counts as constructive knowledge.
c. Recklessly: subjective view
i. D knows something could go wrong and consciously disregards the known,
substantial, and unjustifiable risk and partakes in the conduct regardless.
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1. Risk must be substantial and unjustifiable because
a. It makes it easier to prosecute
b. We take justifiable risks every day so we should criminalize
only those that are unjustifiable
c. Unjustifiable is when the social good doesn’t outweigh the
danger or the cost
ii. We often look at recklessness on a balancing scale; why was the person
doing what they were doing and is it worth the cost.
iii. We must look at the facts through the eyes of the actor, as we do in intent
and knowledge. D could have “good faith” believed that his conduct wasn’t
an unjustifiable risk
iv. Professor - The “Oh what the hell standard”: you know things might go
wrong if you go down this path, but you do it anyways.
d. Negligently: Only objective standard (reasonable person)
i. D must fail to be aware of a substantial and unjustifiable risk that
circumstances exist or a result will follow
1. This failure constitutes a substantial deviation from the standard of
care a reasonable person would exercise under the circumstances.
ii. We look at cost-benefit analysis in determining whether D should or should
not have acted
1. Gravity of harm that would foreseeably result from D’s conduct
2. Probability of harm occurring
3. Burden on D from deviating from that conduct
iii. Buzzwords: reasonable, reasonableness, reasonable person, reasonable
juror.
iv. Problems with negligence standard
1. Basically the same standard from torts.
2. Is it fair to impose criminal liability under a tort standard of mens
rea?
3. The baseline “default standard for criminal culpability is “recklessness.”
ii. Way courts interpret specific and general intent:
1. Specific intent is that required by statute
a. General is the intent of the offender
2. Specific intent is purpose
a. General is something less than purpose
3. Specific is doing something specific at a specific time
a. General is to do something on some general occasion
4. Specific Is something beyond just an act; some mental state (I want to kill you; I want to take
your umbrella)
a. General intent applies only to intending to actually do the physical act (pull the
trigger, take the umbrella)
b. This is most common usage
i. Much easier for D when crime is specific intent
ii. Intent is presumed in general intent crimes
5. Specific intent is doing an act with the intent of doing a further act.
a. Breaking into a house (act/general intent); with intent to steal (specific intent) ? See
p. 267 in voluntary intoxication offenses at common law “spcific intent crimes” was
often limited to compound crimes, involving the commission of one crime with the
intent of committing another.
iii. Primary view of specific and general intent
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1. Specific Intent
a. If the definition of a crime requires not only the doing of an act, but the doing of it
with a specific intent or objective, the crime is a “specific intent” crime. It is
necessary to identify these for two reasons
i. Need for proof:
1. The existence of a specific intent cannot be conclusively imputed
from the mere doing of the act, and the prosecution must produce
evidence tending to prove the existence of the specific intent.
2. The manner in which an act was done may provide circumstantial
evidence of intent
ii. Applicability of certain defenses
1. Some defenses, such as voluntary intoxication, unreasonable
mistake of fact or non-governing law, and decreased mental
capacity (not insanity) apply only to specific intent crimes.
iii. Generally expressed as “purposely” and “knowingly”
2. General Intent
a. Generally, all crimes require “general intent”, which is an awareness of all factors
constituting the crime. D must be aware that she is acting in the proscribed way and
that any attendant circumstances required by the crime are present. Basically, these
are crimes in which intent to physically act are all that is required.
i. Jury can infer the required general intent merely from the doing of the act.
It is not necessary that evidence specifically proving the general intent be
offered by the prosecution.
ii. Defenses such as voluntary intoxication, diminished mental capacity, and
mistakes of fact and non-governing law (unless they are reasonable) are not
allowed in general intent crimes.
iii. Generally expressed as “recklessly” or “negligently” culpability levels
iv. Cases
1. Regina v Faulkner (Seaman goes to steal rum off his own boat, accidentally lights boat on
fire)
a. P tries to get D for arson
i. Arson statute requires mens rea of “felonious, malicious, and unlawful”
arson
1. P didn’t maliciously set boat on fire
b. P tries to “transfer intent”, saying that since D wanted to steal the rum, that
intentional mens rea should be translated to the other illegal act.
c. Court denies P’s assertion, why?
i. These are two separate statutes requiring two separate intents.
ii. The level of punishment should match the level of culpability. D didn’t
maliciously set fire to the ship.
iii. D admitted to attempted theft. Didn’t admit to the arson.
v. Using Faulkner as example of levels of intent
1. Intentional
a. For Faulkner, this would not have worked. He did not possess any malicious intent
to set fire to the ship at all when he lit the match to see.
2. Knowingly
a. This is another tough one to prove. Faulkner didn’t partake in the action of lighting
the match knowing that the fire would result.
3. Recklessly
a. This may be easier to prove. Faulkner may have known that there was a substantial
risk in lighting the match in a situation where alcohol was everywhere.
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f.
b. We have to look at it subjectively, though, and through the eyes of Faulkner. It is
likely that Faulkner was in the heat of the moment and didn’t even consider risk of
fire.
4. Negligently
a. This is likely what Faulkner was. A reasonable person would know that lighting a
match in a room filled with alcohol is a bad idea and presents a foreseeable risk.
b. However, if we view it from reasonable person in Faulkner’s shoes, it is a little more
difficult to make that assumption.
Mens Rea Default Rules
i. Rule MPC § 2.02 (1)(3)and (4)
1. A person is not guilty of an offense unless he acted purposely, knowingly, recklessly or
negligently as the law may require with respect to each element of the offense
2. Recklessness default rule
a. (3): When culpability sufficient to establish a material element of an offense is not
prescribed by law a person must have acted with at least recklessness with regard
to each material element of the offense; a higher degree of fault suffices to
establish this as well.
i. In order to have lower or higher standard of culpability, it must be in
language of statute
3. (4): When the law defining an offense prescribes the kind of culpability that is sufficient for
the commission on an offense, without distinguishing among the material elements thereof,
such provision shall apply to all the material elements of the offense unless a contrary
purpose plainly appears.
a. This culpability is usually put at the beginning of the statute “knowingly makes a
sale of an intoxicating beverage to a minor”
i. Here, knowingly transfers to making the sale, the fact the beverage was
intoxicating, and the fact that the person was a minor.
ii. If statute said “makes a sale of an intoxicating beverage knowing the
person to be a minor”, we may interpret recklessness as to the elements
other than the fact the person is a minor.
ii. Cases:
1. People v. Ryan (Illegal for someone to “knowingly” possess narcotic in excess of 625 mg of
narcotic, D had more than that in mushrooms)
a. What does mens rea of knowingly extend to?
i. Trial court says knowledge extends only to possession, but strict liability for
weight. Why?
1. Difficulty of proof
2. Already had requisite intent for possessing mushrooms, why not
just transfer it over?
ii. Supreme court overturns. Why?
1. By reading the statute, knowingly is first thing and it appears it
applies to all elements, including weight.
2. There is legislative intent and legislature has an “extension” of
culpability rule
3. Punishment in this set of statute varies w/ weight, so why should
this be strict liability?
4. Difficulty of proof not as difficult because most people that order
“usual shipments” have an idea of amount of narcotic and we can
get info on industry norms.
5. Rule of lenity: we don’t assume strict liability w/out clear legislative
intent
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b. In this case, it would be easy to prove knowledge on remand b/c D had so many
mushrooms, but this knowledge of weight could make a big difference in close
trials.
c. Once you determine the level of mens rea, it applies to all material elements of the
offense.
2. State v Lima (D puts child in scalding water in tub, statute is silent on culpability
requirement)
a. When statute is silent, mens rea established if for each element of offense D acted
purposely, knowingly, or recklessly.
b. Negligence should be excluded as a default rule unless statute explicitly requires it
as culpability to an element under MPC.
c. This case follows MPC § 2.02(3)—establishing recklessness as the default level of
culpability (so if purposely or knowingly occur, they are encompassed by the default
rule).
d. Without the recklessness default rule, MPC would still have a default culpability
standard: negligence, the minimal level of culpability required for criminal liability
by § 2.02(1).
g. Mistake of Fact and Non-Governing Law
i. Rule MPC § 2.04
1. Ignorance or mistake as to a matter of fact or law is a defense if
a. Ignorance or mistake negates the purpose, knowledge, recklessness or negligence
required to establish a material element of the offense; or
b. Law provides that the state of mind established by such ignorance or mistake
constitutes a defense
2. This defense is not available if D would be guilty of another offense had the situation been
as he supposed. In such case, punishment should be downgraded to what he supposed.
3. Explanation
a. Both a mistake of law and of fact are defenses if they can negate the mens rea
requirement of a material element of the offense. Furthermore, a mistake has to be
actually relevant to an element of the statute. However, ignorance of a governing
law is no excuse.
ii. When can mistake of fact or non-governing law (if it negates mental element) be used as a defense?
1. A mistake of fact or non-governing law must be “reasonable” in a general intent crime or
malice crime.
2. Any mistake, reasonable or unreasonable, of fact or non-governing law is defense in specific
intent crime.
3. Neither is a defense in strict liability offenses
iii. Statutory rape law
1. The majority rule for this law is strict liability
a. No defense based upon mistake of fact
2. The minority rule is negligence
a. There is a defense for mistake of fact as to child’s age if that mistake is “reasonable”
(objective test)
3. Rape laws differ from state to state because there are different ages of consent and
different standards for each “age group” as to culpability
4. MPC on statutory rape:
a. If there is no specific culpability in statute, mens rea is recklessness (default rule)
b. However, in statutory rape in cases where child is under ten years old, the standard
is strict liability
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c.
If child is over 10 years old, the standard is negligence and the burden of proof is on
the defendant.
i. This is an affirmative defense for statutory rape
d. Defendant must show by a preponderance of the evidence that he reasonably
believed the child was older than the critical age. Provided that age is over 10 years.
iv. Cases
1. Regina v. Prince (Man convicted of unlawfully taking any unmarried girl, being under age of
16 from possession of her father, thinking her to be 18 when she was 14)
a. There is no mental element specified in statute: this is a mistake of fact
b. Judges look at legislative intent to determine culpability
i. Statutes in this set refer to sex w/ children
ii. Statute punishes misdemeanor for sex w/ under 12 y.o. and felony for sex
with under 10 y.o. Mens rea requirement is the same.
1. If we allow mistake of fact about age here, person who has sex w/
9 y.o thinking she is 11 would not be guilty of felony (didn’t intend)
or misdemeanor (she wasn’t 10)
iii. Court decided b/c of these statutes, age wasn’t a material element of
offense requiring culpability
c. Court continues to say that if man wanting to do immoral, not illegal act, he “takes
the risk” of his act being illegal and culpability is transferred to illegal act
i. Dissenting justice says that if a person thinks he is committing an illegal act
if facts he thinks are true and another illegal act occurs through mistake of
facts, he should be liable
1. Brett arguing “reasonable mistake” grounds for negligence.
ii. Later trial in court takes dissent’s opinion
2. State v. Guest (Statutory rape rule in Alaska) “minority rule”
a. Illustrates a minority rule that is rapidly growing in statutory rape law
b. Court allows a “reasonable mistake of fact” as to the age of the child to serve as a
defense negating culpability. Imposes a negligence standard instead.
3. Georgia law
a. Differential punishment
i. If D is 21+, 10-20 years in prison
ii. If D is 18-21, 1-20 years in prison
iii. If victim is 14-15 and D is no more than 3 years older, crime is a
misdemeanor
b. Georgia recently changed laws to say that consensual oral sex (sodomy) between
minors was a misdemeanor, which is different from prior law that didn’t conform to
“sex” standards listed above
i. Said punishment of consensual oral sex between minors does not help
further views of fairness and punishment: proportionality
4. People v. Bray (D charged w/ being felon and possessing firearm, but D didn’t know he was a
felon)
a. Mistake of non-governing law in a general intent offense
i. General intent is just to carry firearm. No specific intent required for it to
be a crime.
b. No mens rea in statute, but SL isn’t an option b/c there is no legislative intent for it
i. Knowledge is the mens rea
1. D must know he has weapon, and this extends to the fact he is a
felon
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c.
Had D simply not known of the law he was charged as breaking, his mistake of law
excuse would be invalid.
d. However, this mistake of law acted as a mistake of fact.
i. D didn’t know by law that he was a felon (and neither did prosecution or
anyone else in CA)
ii. D had a “reasonable belief” that he was not in fact a felon.
1. Every time he asked or demonstrated possibility of being felon he
was assured he wasn’t.
iii. This mistake of “non governing law” undercut his ability to “knowingly”
carry a fire arm as a “known” felon.
h. Mistake of Law (Governing Law) as an Excuse
i. Majority Rule:
1. It is not a defense to a crime that the defendant was unaware that her acts were prohibited
by the criminal law or that she mistakenly believed her acts weren’t prohibited. This is true
even if her ignorance or mistake was reasonable.
a. Exception: when statute requires knowledge of overarching governing law
2. The only time there may be a defense in mistake of law is when it is non-governing law,
which is when the mental state for a crime requires a certain belief concerning a collateral
aspect of the law, and the mistake negates the requisite state of mind.
a. See People v. Bray for an example
b. Burden of proof on defendant for this defense
ii. Minority rule
1. Normally, ignorance of governing law is no excuse, but some states implement MPC § 2.04
(3) (below)
2. A belief that conduct does not legally constitute an offense is a defense to prosecution for
that offense based upon such conduct when:
a. The statute or other enactment defining the offense is not known to the actor and
has not been published or otherwise reasonably made available prior to the
conduct alleged; or
b. He acts in a 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 argument
iii. An administrative order or grant of permission
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.
c. Burden of proof by preponderance of evidence on defendant for this defense
iii. Policy reasons for disallowing excuse for not knowing law:
1. Encourages people to learn the law
a. Those who don’t know the law are of a greater threat than those who merely
mistake facts
2. Claims of not knowing the law are often false but difficult to disprove for the prosecution.
3. Though we may not allow the excuse in the guilt/innocence phase of trial, judges may
consider it in sentencing.
4. There is an increase in number of federal offenses now in which knowledge of the illegality
of the act must be established.
a. This is because these laws can be very complex and difficult for average person to
understand
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iv. Cases for Majority View
1. U.S. v Baker (D violates counterfeiting statute punishing intentional trafficking of known
counterfeit goods)
a. D says he didn’t know what he was doing was a crime. Federal statute was a
relatively new law.
b. However, D did intend to sell the known counterfeit goods, so he falls squarely w/in
the statute
c. He knew it was a civil offense and was willing to undertake that risk. He did not
know that it was now a federal crime.
d. Court doesn’t consider reasonableness of mistake and upholds conviction as
opposed to court in Bray. Why?
i. Statute clearly set out the material elements requiring mens rea, and
knowledge of the statute was not included in that.
ii. Mistake in governing law, not secondary law
iii. Statute new, but penalty has been assessed for the conduct for a long time
iv. D engaged in commercial activity. When combined w/ mistake of governing
law, this is usually a loser.
1. When you participate in commercial activity, there is presumption
that you know the regulations of that industry.
e. If court had employed minority rule, several causes for possibly letting D use the
mistake of law defense
i. Statute was new, so this could create “reasonable mistake”
ii. This is a specific intent offense, which would possibly allow for a mistake in
law defense
2. Hopkins v State (Minister violates statute by intentionally putting up sign that was intended
to solicit performance of marriages)
a. This is a mistake of governing law, because it was a mistake of the law in which D
was charged
b. This is a specific intent offense, and D did intent to solicit people for marriage, so
w/in statute
c. However, D claimed that he had gone to state attorney’s office and relied upon
their word that his sign was not a violation of the statute. Why doesn’t court allow
this excuse?
i. Court didn’t take it as an excuse here because D fell squarely within the
statute, was engaged in a type of commercial activity, and they didn’t adopt
the minority rule of MPC § 2.04(3)
d. Even if court did adopt MPC § 2.04(3) D wouldn’t necessarily be in the clear
i. Was the statement from state attorney actually “official”?
ii. Was the statement in writing, making it easier to prove?
e. Once again judge may take this mistake into account in sentencing phase, not
guilt/innocence phase
3. Cheek v. U.S. (D convicted of income tax evasion; said he didn’t pay b/c he believed laws
“unconstitutional” and didn’t believe wages were income tax)
a. Standard tax protestor argument from people who don’t like paying taxes.
b. The tax law in question required in its statute knowledge of the governing law b/c
tax laws are incredibly difficult to understand
i. Legislature doesn’t want to punish someone for not “living up to standard”
of something they cannot understand. Only trying to punish a willful breach
of tax law.
c. This is mainly a governing law excuse, but the excuse of not knowing wages were
income tax looks like a secondary law excuse that could negate mental element.
d. Cheek’s argument that tax law unconstitutional
i. This is a governing law mistake, and a pretty standard one at that.
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ii. It is clear that D knew the law; if he didn’t he wouldn’t have found it
unconstitutional, so he has met mens rea requirement for offense
1. If he really wanted to fight law on constitutional front, he would
have paid and filed the suit in court for that reason
e. D’s argument that wages not income
i. This is an issue of non-governing law
1. If D doesn’t know that wages are income, this could negate the
mens rea of an element of the offense
ii. Trial court, as demonstrating current trend of courts, asked jury to
determine whether mistake was “reasonable”, which court found it wasn’t
1. The mens rea requirement here is purpose and knowledge, so it is
specific intent crime
2. Therefore, the mens rea requirement is greater than “reasonable”
and must be viewed subjectively.
3. Remember, general intent crimes require “reasonable mistake”,
specific intent crimes require any mistake, so long as it is good
faith (subjective) mistake for mistake defense.
iii. Case was remanded on this issue
v. Case for Minority View
1. Commonwealth v. Twitchell (Christian scientist parents rely on official statement that they
won’t be found reckless in refusing to treat sick son; convicted for involuntary
manslaughter)
a. This is an omission b/c parents had a legal duty to provide care for their child.
b. Why, unlike Hopkins, is court willing to consider fact that they relied upon an official
source?
i. Mass. Decided to adopt MPC § 2.04 (3), reasonable reliance on official
statement
ii. Few states would follow this rule unless they were trying to weasel out of a
tough situation, like the one at hand.
1. Juries in these cases feel very sympathetic toward parents
2. When parents do lose, there is typically very reduced sentences
3. Parents often believe they did nothing wrong because of their
religion
2. There are laws that protect this form of child abuse and neglect, but they are few and far
between. You see convictions most often
a. When child is very young and can’t form own religious belief or belief about
membership
b. Cases in which it was clear child didn’t have to die
c. High-publicity cases (general deterrence)
vi. Summary of mistake of law
1. If the law broken is a regulatory offense that occurs in stream of public commerce, D less
likely to get a mistake defense
2. If mistake is governing law, D has harder defense
a. Unless defense involves very complex statutory provisions or
b. They have relied on an official statement or interpretation of law, and court willing
to consider MPC 2.04(3)
3. If mistake of non-governing law, D has better chance
a. If mistake of fact or non-governing law in general intent offense, court must
consider “reasonableness” of mistake. Burden on D to prove this. Preponderance of
evidence.
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b. If mistake in specific intent offense, no “reasonableness” is required to allow the
offense. P must prove specific intent beyond a reasonable doubt. Court more likely
to let mistake evidence in.
i.
Capacity for Mens Rea
i. Rules:
1. Insanity defense
a. All states allow it to be raised for crimes of all culpability requirements, except for
SL
b. Many states have a bifurcated trial. After guilt or innocence has been determined,
then there is a separate sentencing trial. If insanity defense capacity is presented at
the sentencing trial, then it is a defense.
2. Diminished mental capacity
a. Most states either don’t allow evidence of diminished mental capacity to disprove
mens rea or only allow it when D is being prosecuted for a “specific intent” offense
(which is usually “intentionally” or “knowingly”)
i. MPC and minority of states allow evidence of diminished mental capacity
for both specific and general intent offenses whenever it is relevant to
prove that D lacked necessary mental element for offense.
ii. MPC § 4.02(1)
1. “Evidence that D suffered from a mental disease or defect shall be
admissible whenever it is relevant to prove that D did or did not
have a state of mind which is an element of the offense”
3. Voluntary intoxication
a. Majority rule doesn’t usually allow it as evidence in any type of crime.
b. MPC and minority of states only allow evidence of voluntary intoxication to
attempt to disprove mental element necessary in specific intent crimes.
i. MPC § 2.08(1-2)
1. (1) Intoxication of the actor is not a defense unless it negatives
element of the offense
2. (2) When recklessness establishes an element of the offense, if the
actor, due to self-induced intoxication, is unaware of a risk of
which he would have been aware had he been sober, such
unawareness is immaterial.
c. Why not allow it in all levels of offenses
i. Drinking to point of intoxication is negligent or reckless in itself
ii. D could cover up any intentional crime just by drinking a lot before doing it
iii. Courts could end up overvaluing involuntary intoxication
d. General rule about states rights to avoid evidence of involuntary intoxication
i. If state defines voluntary intoxication as an element of the offense, they
don’t infringe on due process by disallowing it in all mental culpability
crimes (specific or general)
1. However, if state simply doesn’t allow voluntary intoxication in
“intentional” and “knowingly” crimes because of evidentiary
function, this violates due process. Must be included within statute
or statutory section, not in the evidentiary section.
ii. Fundamental Points:
1. Diminished mental state and involuntary intoxication are called “defenses”, but they are not
“affirmative defenses” like insanity. Why
a. It remains a fundamental concept of criminal law that if you lack an element of the
offense, you aren’t guilty of that offense
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i. These “defenses” are offered at trial, and do not admit to the crime, but
rather that no crime committed b/c not sufficient culpability. They attack
P’s case-in-chief b/c they are attacking an element of offense
ii. Defenses such as insanity, however, are raised when either the crime has
been proved or admitted, and say “regardless of me committing offense, I
should not be held liable”
b. Diminished capacity and voluntary intoxication refute some elements of the
offense, when allowed.
2. Problems with diminished capacity as evidence
a. There are several versions of it
b. It can create “battle of experts” and the expert testimony may be confusing to jury
c. It is very difficult to apply because it is primarily subjective
d. It sporadically allowed
i. Some states allow it only in specific intent crimes, some states and MPC
allow it in all crimes except strict liability, some don’t allow it at all.
e. Prosecution believes that it allows Ds to get off “scot free with “mediocre insanity
defenses”
3. Insanity defense
a. This is actually a defense. Regardless of specific or general intent offenses, it can be
raised
b. If presented at trial, it is not a defense, but a way to refute evidence of prosecution.
c. If presented at sentencing, though, it is the actual insanity defense and it is
affirmative defense.
iii. Cases for diminished capacity:
1. Hendershott v People (D convicted of 3rd degree assault which requires “recklessness”. D
tries to present evidence of brain dysfunction less than insanity)
a. This is general intent offense (recklessness). Don’t have to have any intention other
than assault
b. Statute in CO says evidence of impaired mental condition is restricted to specific
intent offense
i. In CO, this means “intent” or “knowledge”
c. D likely wouldn’t be able to make insanity defense, although that is available in all
culpability crimes
d. Court says statute violates due process. Why?
i. P must prove its case beyond a reasonable doubt
1. If D not allowed to assert evidence disproving mens rea, it would
essentially be a strict liability offense, which it is not
ii. Court adopts MPC § 4.02(1) (above)
1. Admissible whenever it is required to prove that D’s mental state
could not have met culpability requirement
e. State says allowing evidence of diminished capacity would essentially get rid of
insanity defense b/c simply providing contrary evidence is easier. No burden.
i. If we don’t allow D to disprove mental element, we are presuming
culpability
ii. Courts don’t like the insanity defense anyway b/c it confuses jury
f. This court follows the minority view
i. Some states don’t allow this evidence at all, others only allow for specific
intent
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2. Clark v Arizona (D shot and killed policeman, tried to give evidence of paranoid
schizophrenia, state denies)
a. U.S. Supreme court holds that states aren’t required to consider evidence of
diminished capacity for any crimes, and only have to give insanity defense.
i. A state may channel the evidence of diminished capacity into an insanity
defense.
ii. States are free to choose their standard for insanity
b. Point: Hendershott isn’t binding, and courts don’t have to consider diminished
mental capacity in any crime
iv. Cases for Voluntary Intoxication
1. State v Cameron (Drunk woman flips table and hits guy w/ bottle, tries to bring up evidence
of voluntary intoxication)
a. The offense is aggravated assault, resisting arrest, and possession of weapon, which
are all specific intent crimes with “purpose” as culpability.
b. Trial court doesn’t allow b/c evidence of voluntary intoxication only available in
specific intent
i. Appellate court reversed, saying crime w/ “purpose” as intent is specific
intent (MPC §2.08 (2) distinction)
ii. Supreme court agrees w/ appellate but reverses
1. Takes MPC§ 2.08 (2) view that intent and knowledge allow
evidence of involuntary intoxication. Gets rid of specific/general
intent distinction, though it is essentially the same thing.
c. Supreme court would allow evidence of involuntary intoxication b/c intent is
“purposely”, but doesn’t in this case. Why?
i. N.J. law says evidence of intoxication can only be used when there is such a
great level of intoxication that mental faculties depleted to point that there
could be no specific intent.
1. In short, D wasn’t drunk enough to lack intent
2. Montana v. Egelhoff (Drunk mushroom-hunting camper shoots & kills other two campers)
a. D convicted of purposefully & knowingly causing the death of another; statute
doesn’t allow evidence of voluntary intoxication for any type of crime or culpability
requirement
b. Trial court ruled that evidence of extreme intoxication was not relevant to mens rea
and statute; appellate court reversed
c. Supreme Court (Ginsburg deciding vote) agrees w/ trial court and says statute not
unconstitutional
i. State defined homicide in a way that did not incorporate intoxication into
the mental element of the offense. Excluded the entire subject of voluntary
intoxication from the mens rea part of the statute.
ii. When the exclusion is part of the evidentiary provision and not part of the
mental element of the offense, this isn’t okay.
1. If redefinition of mens rea element, its acceptable because states
can define offenses however they want.
2. Legislative intent here seems to be a redefinition instead of an
exclusionary rule.
d. If it is a redefinition of the mens rea element of the offense, it is constitutional as
the states can define the offenses how ever they want. But if it is an exclusionary
rule of evidence, and the state does not allow the admission of exculpatory
evidence, then it violates due process.
VII. Causation
a. Looks at specific result in offenses (particularly homicide).
b. Relating to homicide:
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i. Homicide requires a specific result—NO BODY NO CRIME.
ii. Have to prove that this particular defendant’s action caused that result.
1. This is usually pretty easy (direct causation) but can become very difficult when it occurs in
unusual and unexpected way.
c.
Purpose in difference between criminal law and torts in causation
i. Torts—apportioning blame to those who are best able to bear the cost of the harm, and to those
who benefited from the action.
ii. Criminal law—deterrence
1. Retributivism—people punished for the harm they cause
2. Utilitarianism—believe that harm can be fluky, and that the attempt alone should be
punished
d. 3 types of causation
i. “But-for” causation (direct, cause-in-fact)
1. D’s action directly caused the result
2. State has to link harm to D’s action
ii. Intervening Causes
1. Really a subpart of proximate causation
2. Something happens in between D’s action and the result.
3. Does this “something” break the chain of causation?
a. Independent and dependent intervening cause (below)
iii. Proximate causation
1. Someone sets something in motion that causes a harm.
2. If that person’s liable, he is the proximate cause of the result.
a. He is liable if there is nothing to “break the chain” of causation (intervening cause)
b. This approach looks almost exclusively at reasonable foreseeability of harm at the
outset of the action
e. “But-For” Causation
i. Rule:
1. But-for causation is the end of the road. If something is but-for causation, it is the cause and
that is it.
2. We are asking “would the harm occur if D didn’t engage in this conduct?”
a. If so, D not liable. If not, D liable.
ii. Cases:
1. Regina v. Martin Dyos (D hit kid on head with a brick in gang fight but we don’t know
whether his strike or another killed)
a. There were two injuries, so was D the direct cause of death?
i. No way to tell which injury caused death
ii. Expert says D’s assault very probably caused death, but there is reasonable
possibility that D’s blow didn’t kill him and other blow did.
b. Causation possibilities
i. Direct cause: D caused death
ii. Intervening cause: D hit first but second blow caused death
1. Chain of causation would be broken; D not guilty.
2. Might be guilty of assault, battery, etc. But this evidence just is not
good enough for murder.
iii. Impossible attempt: first blow kills him but then D strikes second blow.
1. Cannot kill someone twice so not guilty.
iv. Contributing causation: blows are struck simultaneously and both
contribute to death.
1. D could be guilty along with other person.
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v. Concurrent causation: blows struck together and either one would’ve
caused death by itself.
1. D and other person guilty.
c. Though the majority of situations find D liable in some way, this is not beyond a
reasonable doubt. 3/5 isn’t good enough to show direct or “but-for” causation
2. Regina v. Benge (D misreads schedule for title train and train ends up crashing and killing
many people)
a. Each actor seems to be liable
i. D misread the schedule, which created the situation to begin with and told
Wills not to place detonators to signal train
1. If he didn’t misread schedule, none of this would have happened
2. If he provided enough detonators, conductor would have been
signaled to stop
ii. Wills didn’t stand far enough down track to give ample warning to
conductor of train
1. If he was out further, train could have stopped
iii. Train conductor wasn’t paying close enough attention
1. If he paid better attention, he could have stopped in time
b. Who is main cause?
i. Court says that D is main cause because he is main contributing factor.
ii. The other actors may be contributing factors, but none had greater duty
than D.
iii. D’s actions set the entire process in motion, and it is speculative to say that
anyone else’s actions were the proximate cause of the deaths.
f.
Proximate Cause (Forward Looking/Foreseeability Approach)
i. Rule:
1. Proximate cause refers to D setting in motion the chain of events that caused the harm.
Questions of proximate cause only arise when victim’s death occurs because of D’s acts, but
in a manner not intended or anticipated by D.
2. In determining whether D’s actions were the proximate cause, we assess whether the harm
or the chain of events causing the harm was reasonably foreseeable or whether the harm or
chain of events was too far removed from D’s actions to be foreseeable.
3. If D’s actions are a cause which in the natural and continuous sequence produces a harm
and without which the harm wouldn’t have occurred, D could be the cause.
a. This “chain of causation” can only broken by an intervening independent cause.
4. Generally, if the result is foreseeable but the manner isn’t, D’s actions will be proximate
cause unless manner is wildly coincidental.
ii. MPC § 2.03 (Page 293)
iii. Cases
1. Hubbard v. Commonwealth (Drunk D refuses to succumb to restraint; jailer w/ pre-existing
heart condition has heart attack and dies w/out being struck)
a. Is D liable for homicide offense?
i. No. The death of a jailer isn’t at all foreseeable when D didn’t even make
contact or conduct directed toward him.
ii. There was no corporal blow to the jailer
iii. D isn’t “direct,” or proximate cause of jailer’s death
iv. The heart attack was an intervening cause. The death was simply too
remote and unanticipated given hubbard’s actions.
b. Ex Parte Heigho (D went to guys house to fight him and guys mom dies of heart
attack from fear- court found D guilty for manslaughter)
i. This is a case where indirect action caused death, but it is distinguishable
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ii. In this case, Heigho went to the home of victim and took aggressive,
intentional action in doing so
1. Furthermore, he aggressed intentionally against member of her
family
2. Emotional distress that can cause harm is foreseeable when you
enter into their home to fight one of their relatives.
c. Summary: why D not proximate cause
i. Jailer’s death wasn’t foreseeable result of D’s actions
ii. Jailer’s lack of care could have constituted an independent intervening
cause
2. Commonwealth v. Rhoades (D commits arson, firefighter dies of heart condition, and D
initially convicted of 2nd degree murder)
a. Court reverses and remands on jury instructions that were only based on “but-for”
causation, and not on foreseeability or intervening causes.
i. Trial court instructions said if D’s act hastened or was any part of death he
should be convicted
b. On remand, court may find it easy to transfer mens rea of arson (intent) to mens rea
of 2nd degree murder (recklessness)
i. The act here was reckless because D took unjustifiable risk of harming
people when he set the fire.
ii. Transferred mens rea here is ok, because he set the fire to commit a crime.
Not accidentally in the commission of another crime like in Regina v.
Faulkner. His initial actions were reckless and done with disregard for the
safety of others. He intentionally committed an act that put other people’s
lives at risk.
iii. We have arson, and we have a death. Does that death amount to 2nd
degree murder? If the defendant’s actions in setting the fire were the
proximate cause of the victim’s death, and the victim’s death was
reasonably foreseeable and not too remote or accidental, then we can hold
Rhoades responsible.
c. On remand, jury must determine whether D’s action in setting fire was proximate
cause of death by asking:
i. Whether death or threat of harm was reasonable
ii. Whether the death was too remote or whether there were intervening
causes such as cold weather, assumption of risk by firefighter, etc.
iii. It just cant be any cause of death, it must be the efficient cause.
d. Jury could find that harm was foreseeable, since the act of setting a fire would
reasonably put people in danger, even if nobody in building (firefighters).
e. Distinguish from Hubbard b/c here likely no assumption of risk from firefighter and
D’s actions were intentional, unlike those in Hubbard.
g. Intervening Cause (Backward Looking/ Directness Perspective to P.C.)
i. Rules:
1. We start with the injury and work our way back toward the wrongful action of D, seeking to
determine whether any act of a third party or victim, or any natural event, has severed the
causal connection between the harm and D’s wrongful conduct
2. Independent intervening causes: relieve D of liability
a. Even though D’s conduct set in motion chain of events that caused harm, thereby
satisfying “but-for” causation, another actor or event caused the harm in such an
unexpected, unusual, or unrelated manner that D’s causal connection is severed,
and he shouldn’t be held criminally responsible.
i. These absolve D of proximate cause because they are not foreseeable
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b. An event is only considered an intervening independent cause if it is a more direct
cause of the harm (there was no way victim was going to die, but they took
unforeseeable action that made them die).
i. Exception is the “irresponsible” victim.
3. Exceptions to independent intervening causes:
a. The victim not taking actions to avoid death after D’s actions doesn’t constitute an
independent intervening cause.
b. D still liable if he inflicts mortal wounds and the victim refuses treatment, hastens
his own death, submits to negligent medical care, or discontinues with treatment.
These aren’t more direct causes of death b/c the harm was going to occur if nothing
had happened anyways.
i. This doesn’t include scenarios in which harm is relatively slight and victim
refuses to take adequate personal care of himself so it becomes worse.
ii. Exception to negligent medical care. If harm is not life threatening and
doctor is grossly negligent and makes harm much worse, could be
independent cause.
c. Actions of victim are not independent intervening causes if the victim does them in
a state of “mental irresponsibility” caused by D’s actions (See Stephenson)
4. Dependent intervening causes do not absolve D of causation
a. Intended or reasonably foreseeable by D or sufficiently related to D’s conduct as to
impose liability on D for causing the harm.
i. The exceptions listed above fall within the category of dependent
intervening causes
1. These are generally thought to be “foreseeable” or “sufficiently
related” to D’s conduct as to not relieve D of guilt.
ii. Independent or dependent intervening test
1. Was victim’s actions reasonably foreseeable
a. If yes, dependent intervening cause
2. If no, was harm likely to occur if victim didn’t do anything?
a. If yes, dependent intervening cause
3. If no, was victim in an “irresponsible state of mind”?
a. If yes, dependent intervening cause
4. Victim’s own actions only break causal link if victim aggravates the injury while not in an
irresponsible mental state.
5. Doctor’s actions only break causal link if the doctor is at least grossly negligent.
iii. Period of time elapsed since D’s actions rule:
1. Current rule is that for death a substantial amount of time after D’s actions, prosecution
must still show a causal reaction between the death and D’s act, and it must be the primary
cause (no independent intervening cause) and foreseeable
a. The longer the period of time, the greater evidence for primary causation is
required
2. Rule used to be that after a year and a day, D would be absolved of any result from his
conduct toward a victim
a. Was effective b/c medical care was bad, so if action was actual cause, the victim
would normally die within a year and a day.
b. Homicide was a capital offense, so courts wanted to draw the line of guilt
somewhere
c. This is no longer rule
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3. Modern rule allows any amount of time to pass between D’s actions and death, so long as
there is clear proof of causation
a. People can be kept alive on life support for years
b. the longer the victim lives, the greater the causal link has to be.
iv. Cases
1. Commonwealth v. Root (drag race; one tries to pass over double yellow and dies; D
convicted of involuntary manslaughter)
a. Court finds that D’s conduct wasn’t proximate cause b/c victim’s own actions
caused his own death.
i. Victim was independent intervening cause b/c his own actions were
unforeseeable and of sufficient strength to break chain of causation.
b. Death in high speed illegal drag racing is foreseeable
i. This would be the forward looking approach to proximate cause
ii. Majority of courts would find this alone could satisfy causation and would
convict D
iii. Court here states that victim’s act wasn’t sufficiently foreseeable and was
more direct cause of harm. This is backward looking approach to proximate
cause.
1. Court may have been more willing to look for intervening causes
because both parties consented to the race willfully.
c. Example of a jurisdiction in which the courts believe proximate cause was too broad
an expansion of tort law.
d. Here, both people agreed to the actions. Contrast with Rhoades, where the
firefighter was an innocent party. In Root, we have two wrongdoers. The victim was
not an innocent party.
2. Commonwealth v. Levin (drag race, D swerved in path of victim’s car. Held liable).
a. Difference between this case and Root
i. Here, the victim was not responsible for his own death. D did something
affirmative to cause his death.
ii. In Root, The victim did exactly what the victim wanted to do. Not fair to
hold Root liable for the deceased’s decisions. Root did nothing affirmative
to cause the death of the victim.
3. U.S. v. Hamiton (D gets in bar fight and severely injures P; P recovering but pulls his tubes
out in hospital and dies)
a. D convicted on involuntary manslaughter, and court says victim’s actions don’t
constitute independent intervening cause. Why?
i. Victim wasn’t more direct cause of death and didn’t make his harm worse.
ii. He only avoided recovery, which is not independent intervening cause.
iii. If victim had done nothing, he still would have died; refusing medical
treatment isn’t an independent intervening factor
iv. Nurse not putting straps back on victim isn’t either b/c negligent medical
care is deemed a “foreseeable risk”
v. Victim also may have been acting outside of his own free will and incapable
of making rational choices, making him “irresponsible actor”
vi. When the harm occurs, D and victim aren’t equally situated since D kicks
him while he’s on the ground.
b. At the point when the victim died
i. direct cause=victim pulled out own breathing tube
ii. court says this action does not break the chain of causation since D’s action
put the victim in hospital and rendered him incapable of making a rational
decision.
iii. court--victim did not act out of free will.
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c.
iv. Dependent intervening cause
v. Victim does not have duty to accept medical care. Even if victim
consciously removed the tubes, he had a right to refuse treatment, and
that does not break causation.
although the nurse forgot to restrain the victim, it doesn’t matter and it’s not an
independent intervening cause.
i. court--it’s foreseeable that there will be some negligence at some point in
hospital.
ii. MERE NEGLIGENCE BY MEDICAL PERSONNEL IS NOT SUFFICIENT TO BREAK
THE CHAIN OF CAUSATION.
iii. generally, failure to treat effectively is not considered an independent
intervening action.
1. caveat: if the action had done extra harm to the victim, then it
MIGHT be considered an intervening action. It must be grossly
negligent.
a. like if surgeon dropped knife and cut artery & victim bled
out and died
v. Intervening Cause: Suicide Cases
1. Rule
a. Suicide is not an independent intervening cause if
i. D caused a harm that would already have caused death or;
ii. The actor, as a result of D’s actions, was in a state of “mental
irresponsibility” in which they are not acting out of their own free will.
b. A person will generally be liable for a homicide offense from another’s suicide
regardless of intent and regardless of prior actions if:
i. The person actively participates in the suicide or;
ii. The actor intentionally furnishes the means which the victim uses to take
their life and;
iii. The D knows the victim is in a state of mental irresponsibility, thus making
the suicide a foreseeable result.
1. Intent here is not purpose, but a reckless disregard for the lives
and safety of others
2. Subsection (a) will result in conviction regardless of mental state of
victim.
c.
D is not liable for a homicide offense in assisting suicide if he merely furnishes the
means in which to do so to a fully consenting and not irresponsible person acting
out of their own free will.
i. If D provides means to irresponsible person, it is homicide offense
2. Cases
a. Stephenson v. State (KKK D kidnaps victim and abuses her; she takes poison and kills
herself)
i. D didn’t intend to cause death of victim, but he is charged w/ 2nd degree
murder.
ii. D’s defense was that victim was independent intervening cause, since she
was not going to die as a result of D’s conduct anyways.
1. victim bought the mercury herself, she consumed it somewhere
else, so therefore P didn’t act with purpose.
2. Victim acted of her own free will since if she hadn’t acted, she
would have survived her injuries.
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iii. General rule: the last person to act (as long as they have free will) is
responsible for the death..
iv. Court says that b/c of D’s actions, victim was not acting out of her own free
will and was in a state of “mental irresponsibility”, so dependent
intervening cause
1. Victim’s irresponsible mental condition was natural and probable
consequence of D’s actions.
b. Persampieri v. Commonwealth (D taunts intoxicated wife who says she wants to
commit suicide and furnishes her a gun)
i. D had knowledge that victim was intoxicated and upset, and was therefore
in “irresponsible mental state”
ii. Court notes that irresponsibility should have been known b/c they were
spouses, and D had a duty to dissuade her
1. Since married, D knew her well and knew or should have known
what she was capable of.
2. Victim killing herself=dependent intervening cause. Doesn’t break
chain of causation.
c. State v. Bier (D gives wife gun during fight and says she’d have to shoot him to keep
him from leaving; kills herself)
i. D reckless in supplying gun when wife drunk and upset
1. Victim causing harm to herself is reasonably foreseeable when in
irresponsible state of mind.
d. People v. Kevorkian (D assists in suicide of terminally ill patients that asked him to
do it)
i. D not convicted of a homicide offense, though he actually intended the
people to die.
1. The victims were all responsible and in a position where they were
capable of giving consent.
2. Victims were the “but-for” cause of their own deaths by
approaching D and asking for suicide assistance.
ii. D had documentation of consent from family members and doctors
assuring him victims were indeed incredibly sick and not going to recover.
iii. D was assisting the suicides humanely
iv. Way D set up suicides:
1. He hooked victims up to a machine, the victim then started the
process by pulling a screwdriver out, then drugs would be
administered that would knock them out, causing their arm to fall,
which triggered the second round of meds that stopped their
hearts.
2. For our purposes, these victims were the direct causes of their own
deaths, they knew what they were doing.
3. So, D not the but-for cause of their deaths.
v. Court finds that when a person merely provides the means to a suicide,
rather than actively participating in the suicide of a consenting individual,
they are only guilty of assisted suicide and not homicide.
1. If D supplies means of suicide to an irresponsible actor, however,
he is guilty of homicide offense.
vi. Oregon=only state that allows assisted suicides.
h. Causation by Omission
i. Rule
1. D created harm-If a person creates a situation recklessly or negligently that causes a lifethreatening situation for others, they have a duty to take reasonable steps to diminish that
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risk. If they breach this duty, they are guilty for the harms caused by the failure to perform
that duty.
a. The reasonableness of the precaution or duty to mitigate varies with the facts of
each case.
2. Duty of Guardians-If a person has a legal duty to protect another from harm, they may be
found guilty for harm done by a 3rd party to the other if it was reasonably foreseeable and
reasonably could have been guarded against.
3. Duty to report created dangers-If an actor unintentionally commits a crime requiring
culpability, then realizes it and intentionally or knowingly fails to report it, they can be found
guilty of the original crime.
a. These cases aren’t crimes initially, but can be made crimes when there is intentional
breach of duty to act
ii. Cases
1. Commonwealth v. Levesque (Homeless people accidentally set fire but intentionally don’t
report it; 6 firefighters die b/c it wasn’t reported until hours later)
a. Court finds that though D couldn’t reasonably have taken steps to diminish the fire,
they had the duty to report it and convicts Ds of manslaughter.
b. Where a person’s actions create a life threatening risk to another, there is a duty to
take reasonable steps to alleviate the risks.
i. Whether D has satisfied this duty will depend on the circumstances of this
particular case and the steps D could be reasonably expected to take to
minimize this risk.
c. Court referenced Rhoades by saying that arsonist could be held liable for deaths
stemming from fire
i. This is not arson b/c no intent, but there can be liability once D omits duty
to diminish risk
d. D says their breach of duty wasn’t proximate cause
i. Court finds that if fire was reported earlier, it wouldn’t have spread and
smoldered like it did, causing the increased risk of death of firefighters
2. Commonwealth v. Kali (D convicted of arson when he intentionally failed to report fire that
he accidentally started)
a. Court had suspicion that D was committing insurance fraud, so they allowed mens
rea of intentionally not reporting fire to expand to intentionally starting fire
b. If D knows about the fire and then could have feasibly done something to put it out,
then according to the court, he has a duty to do so. We are imposing a later mental
state on the earlier act.
c. In both Levesque and Kali, while Ds committed no crime initially, it became a crime
when they omitted to act. We can link the mental state at that point with omission.
3. Palmer v. State (D has boyfriend that abuses her child and she should know it; child dies and
D held criminally liable)
a. D had legal duty to protect the child from foreseeable risk of harm that she could
have protected against
b. D says boyfriend is independent intervening cause
i. Court says both are criminally liable b/c of D’s parental duty.
c. This result is pretty typical in cases of single mothers that have boyfriends who
abuse the child.
4. N.Y. v. Steinberg (D is battery victim and her abusive husband beats child to death)
a. this case does not fit the typical mold of Palmer v. State.
b. D’s husband, Steinberg, was a lawyer in NY who severely beat his wife Nussbaum
and malnourished/mistreated his two adopted daughters.
c. Both Nussbaum and Steinberg initially charged with murder, but Nussbaum was a
severely battered spouse so her charge was dropped.
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i.
ii.
iii.
iv.
v.
Beaten until unrecognizable
used to be prominent editor of children’s books (no job anymore?)
extremely subservient to Steinberg
battered spouse syndrome
State realized this case wouldn’t be great for them since she was so abused
over a period of time
d. Court finds that Nussbaum not criminally liable for death of child stemming from
parental duty to protect because she was in an irresponsible state of mind from the
spousal abuse of her husband.
i. To escape liability--testify against husband and then voluntarily commit to
psych hospital, and she did both of those things.
ii. Non abuser being charged with homicide offense--doesn’t fit the typical
mold of parent having duty to child. (See later section on Battered Spouse
under Defenses).
VIII. Intentional Homicide Offenses
a. General Overview of Homicide offenses
i. Homicide offenses require observation of specific result and surrounding circumstances
1. Specific result—NO BODY NO CRIME
2. Surrounding Circumstances—Culpability inferred by observing the surrounding
circumstances of the crime
a. Culpability determines which degree offense D is guilty of
ii. Two Categories
1. Intentional (Murder and Voluntary Manslaughter)
2. Unintentional (Involuntary Manslaughter, vehicular homicide)
b. Murder Overview
i. Common law
1. Murder requires malice: Murder is an 1) unlawful killing 2) of another 3) with “malice
aforethought.” Malice aforethought describes several criteria that distinguish murder from
manslaughter
a. Intent to cause death of another (unless negated by mitigating factors); or
b. Intent to cause serious bodily injury which causes death of another (no intent to
kill); or
c. Reckless indifference to human life: extremely reckless conduct that causes death of
another
i. This is generally 2nd degree murder at CL
d. Prof: unlawful, deliberate intention to kill another human without excuse,
justification, or mitigation
2. Government must prove the intent of the murder beyond a reasonable doubt
a. This is a “subjective requirement”, so jury must look to surrounding circumstances
to establish whether they can determine whether D acted w/ intent, premeditation,
and deliberation (if necessary)
i. Use circumstantial evidence to support finding
b. Can’t presume that D intends the consequences of his acts, it must be proven by
prosecution.
3. Felony Murder: D is engaged in a felony and during the conduct of being engaged in felony,
a death results, whether intentionally or not, and whether or not he did the killing, he is
guilty
a. This acts as a SL offense as it pertains to the actual killing. All P has to prove is that D
engaged in a felony and during the course of it a death resulted directly.
b. Exceptions:
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i. There are many different applications of the felony murder rule. Some
jurisdictions do not allow the deaths of guilty parties, killed by innocent
parties in felony murder charges.
ii. Common Law Gradations for Murder
1. 1st degree: Premeditated Murder and Felony Murder
a. Prison up to life sentence w/ or w/out parole
b. Only offense eligible for death penalty
nd
2. 2 degree: Intentional only
c.
iii. MPC Murder § 2.01
1. No distinction between 1st and 2nd degree
a. Says that this distinction only created b/c capital punishment used to be automatic
for 1st degree
b. Difference in levels of culpability will arise in sentencing phase anyways
2. § 2.01 Criminal homicide is murder when
a. Purpose to kill, knowledge, or wanton and reckless disregard for human life.
Intentional Murder (2nd degree)
i. Rule:
1. For intentional homicide, the result of death must occur and it must be intended by the
actor, though there need not be any premeditation or deliberation.
2. Types of cases: usually domestic violence cases are 2nd degree murder cases. But can be 1st
depending on circumstances.
ii. Prosecution must prove intent beyond a reasonable doubt
1. Intent is a subjective standard, so we are inquiring into D’s actual mindset when committing
the crime.
2. We can do this by permitting the jury to make inferences on subjective intent based upon
the surrounding circumstances.
a. Jury required to weigh all facts and come to a conclusion about whether D
possessed intent; they look at facts and assess whether they “believe D’s story”
3. MPC § 210.2(1)(a) confirms surrounding circumstances and inference to subjective state of
mind
4. Jury is not allowed to presume that D intended the result of his actions. This violates the
due process clause b/c it shifts the burden of from P having to prove intent beyond a
reasonable doubt to D having to disprove intent.
iii. Transferred Intent
1. If a person intends to kill another, but through mistake or error in committing the act kills a
3rd party, that person’s intent is transferred and he is guilty of intentional murder on the
victim he does kill.
iv. Cases
1. Francis v. Franklin (Prisoner taken to dentist escapes, takes hostage and looks for car. Goes
to door of victim and when door slammed in his face the gun goes off and kills victim)
a. D claims no intent b/c gun had hair trigger and he accidentally pulled trigger as
reaction to door being shut
b. Court finds jury instructions to be violation of due process b/c they said D presumed
to intend consequences of his acts. Shifted burden to D to disprove intent. Not ok,
violates presumption of innocence
c. Intent is a specific element of the offense. Since it was a specific element, the state
has the burden of proof, and must prove it beyond a reasonable doubt.
d. Jury could have found that D acted w/ intent by looking at surrounding
circumstances
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i. D threatened to kill victim
ii. D escaped from custody
iii. Kidnapped dental assistant.
iv. Threatened others and fired 2 shots, stole policeman’s gun
e. Mitigating factors in surrounding circumstances
i. D didn’t harm anyone when threatened earlier
ii. 2nd shot fired into ceiling
d. 1st degree murder (Premeditated)
i. Rule:
1. 1st degree murder requires intent and malice aforethought, but also requires premeditation
and deliberation. (Distinction only present at CL)
2. Premeditation = super heightened level of mens rea. Specific purpose or intent to kill that
particular person.
3. Premeditation (subjective element)
a. D gave thought before acting on idea of taking human life and reached decision to
kill
b. “Cool mind” requirement
4. Deliberation (subjective element)
a. D has chance to reflect and turn over prospective of killing in his mind
b. Some appreciable time must elapse, but this is different with every circumstance
and can be very short
5. Premeditation and deliberation can occur in a matter of seconds, and jury looks at
surrounding circumstances to infer subjective premeditation and deliberation.
a. Reason is that many Ds won’t go up on stand and simply say they premeditated the
murder
ii. Evidentiary factors courts use to infer premeditation to avoid difficulty of establishing whether time
was sufficient at CL
1. Earlier hostility between D and victim
2. Self-interested motive
3. Manner and circumstances of killing (was killing interrupted and continued after?)
4. D’s behavior, such as stalking, before killing
5. Origin of murder weapon (Did D bring weapon?)
iii. Special situations in which murder will almost always be 1st degree at CL
1. Senseless killing (drive by)
2. Killing officer in line of duty
3. Killing of child, unless some mitigating factor
4. High profile trials may lend themselves to 1st degree when normally would be 2nd degree
5. Terrorist acts
iv. Policy for punishing premeditated murderer more than impulsive but intentional killer
1. Retributive
a. If someone thought about it and acted upon it, they are more morally reprehensible
and more deserving of punishment
2. Utilitarian
a. Person who thought about it is definitely someone who can be deterred and who
we want to be deterred
3. Problems
a. Premeditative killers are less likely to be recidivists
b. Impulsive killers may be more dangerous to society
v. MPC § 2.01
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1. One degree of murder. Deliberation may be a mitigating, rather than an aggravating
circumstance. If we have only one degree of murder, the judge can determine the sentence.
Essentially the Georgia system.
vi. Cases
1. U.S. v. Watson (D running from police. Gets to apartment, waits for cop, pins cop, grabs gun,
and shoots after cop pleads for his life twice and after a small amount of time elapsed)
a. D says no premeditation b/c it was spur of moment conduct that wasn’t preplanned
b. Court rules against D and said time and circumstances can lead to reasonable
inference of premeditation and deliberation
c. Jury must look to surrounding circumstances to determine premeditation and
deliberation
i. D resisting arrest and was planning escape
ii. Knew officer armed
iii. Could have escaped w/out killing
iv. Had time to sit down and plan his escape.
v. Officer incapacitated (easy escape) and plead for his life, but D shot him
anyway
vi. D had time to get up, let officer say “it’s not worth it” twice and still shot
him
vii. No legitimate proof that it was reaction
d. Factors in D’s favor for no premeditation
i. Officer threatened D
ii. He didn’t bring gun with him
iii. No earlier hostility
e. Contrast with Franklin: here, we have a cold blooded killing with no real excuse.
e. Voluntary Manslaughter Overview
i. Rule:
1. Manslaughter revolves around the theory of mitigation. It is still unlawful, intentional killing
which would be 2nd degree murder, but it is mitigated to less serious offense because there
is some sort of provocation that partially justifies or excuses the murder.
a. Often referred to as “heat of passion” murder:
b. Common law principles: intentional homicide committed in the sudden heat of
passion, with adequate provocation and without time to cool off, this mitigated the
offense from murder to voluntary manslaughter.
2. 2 things necessary for mitigation to voluntary manslaughter
a. Adequate provocation
i. This is an objective standard (would a reasonable man have been driven to
passion to kill under circumstances?)
b. Acted in response to that provocation
i. This is subjective standard. Court must look into whether D acted in
response to adequate provocation or it was too far removed from
provocation.
3. “Cooling time” is often invoked to determine whether actor reacted in response to adequate
provocation, and not simply for reason of revenge, etc. Subjectively and objectively utilized.
a. Subjective Standard
i. We first look at whether D had cooled down subjectively before killing. If he
had, he cannot mitigate.
1. Look at surrounding circumstances--did D conduct regular business
transactions, converse with others, etc.
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b. Objective
i. If D didn’t cool down subjectively, we must then look to see if a reasonable
person in the circumstances would have cooled down. If so, D cannot
mitigate.
ii. Common Law definition of Adequate Provocation
1. Aggravated assault and battery on D
2. Mutual Combat
3. False Imprisonment
4. Sight of adultery (not actual act, but enough where surrounding circumstances would lead
to belief of it happening very recently)
5. Commission of serious crime against close relative
a. These developed at common law b/c judges started to see cases in which they could
see why D intentionally killed the person, and they didn’t want to convict these
people of same capital offense that premeditated or intentional murderers were
subject to.
b. Under CL, WORDS ARE NEVER ADEQUATE PROVOCATION, except if those words
disclosed a fact that would have been adequate provocation had the actor observed
it himself.
iii. MPC § 210.3
1. Provocation is adequate if it would cause a reasonable person to lose their self control or
succumb to a heat of passion.
a. Objective standard
iv. Punishment
1. In practice, difference between 1st degree and 2nd degree murder can be negligible. The
same is true of 2nd degree murder and voluntary manslaughter. Manslaughter is never a
capital case.
a. At the high end of VM, punishment similar to low end of 2nd
b. Some jurisdictions even consider VM as 2nd degree murder
v. Rationale for mitigation
1. Partial Justification (was act of killing justified?)
a. Refers to adequate provocation part of VM
b. Reduces “wrongness of killing”; heat of passion killing isn’t as bad as random killing
b/c victim deserved to die in some small way
c. Here we focus on the victim’s conduct
i. Victim had to provoke
ii. Words cannot be adequate provocation
iii. victim’s defensive force against killer’s initial aggressive force is not
provocation.
iv. D must have evidence that the wrong he is avenging actually occurred
d. Retributive: D deserves some punishment, but not as much as unprovoked killer.
Not as bad as killing innocent.
e. Utilitarian: We don’t want to deter all action. People should still be able to selfdefend, we just don’t want them taking it too far.
2. Partial Excuse (was individual D really responsible?)
a. Focuses not on victim, but individual D
b. There is something about D that makes him prone to act, and this should lighten his
sentence
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c.
Reduces responsibility for killing; if we view provocation as an excuse he isn’t
responsible
d. Retributive: D’s action not reflective of their character and they were out of control
and less voluntary.
e. Utilitarian: Less deterrable b/c D’s actions were a little more involuntary; less
dangerous in general
f. Book’s guidlines:
i. Killer must act immediately after provocation
ii. victim need not have been the cause of the provocation
iii. victim’s defensive force against the killer’s initiating force could be a
provocation. (When victim responds to non-deadly force with deadly force,
D regains right to self-defense).
iv. The killer may have been understandably mistaken in ascribing bad conduct
to the victim.
f.
vi. Cases
1. People v. Walker (D and friends confronted by guy w/ knife forcing them to gamble and cuts
D; D slits his throat after getting victim on ground w/ brick)
a. Court mitigates from 2nd degree to VM. Why?
i. No pause in between time D killed and time fight started (one continuous
occurrence)
1. No “cooling time”
ii. Justification: victim was aggressor here. He had knife. D was partially
justified b/c he thought he was in danger.
1. Others in danger too
iii. Adequate provocation
1. D was minding his own business and victim threatened him w/
harm and threatened others
2. D also seems to have been cut himself
b. Not self defense
i. Self-defense requires immediate fear of being critically injured or killed
1. Here victim was incapacitated already
Cooling time (VM)
i. Rule:
1. Subjective and objective view
a. Did D actually cool off
i. If evidence shows D cooled off, murder cannot be mitigated w/out even
looking to objective standard
ii. For this we can look at circumstantial and direct evidence. Courts focus on:
1. Transaction or other business in meantime
2. Rational conversations upon other subjects
3. Evidence of preparation for killing
b. If D didn’t cool off, should he reasonably have cooled?
i. If reasonable person should have cooled by time D killed, D had sufficient
“cooling time” and he cannot mitigate to VM
2. Cooling time generally measured at CL from time that original provocation occurred.
a. Ds will attempt to “redefine” when the provocation actually occurred in order to
extend cooling time. (Gounagias)
ii. The reasonable person standard and cooling time
1. Use reasonable person standard b/c we want to find out how blameworthy D is
a. If reasonable person would have done act, he is less blameworthy
b. We only allow mitigation if we are sure that D isn’t as blameworthy as a murderer
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2. We want to avoid punishing people as harshly if they have reasonable provocation, but not
if they are unreasonable “hotheads”
iii. CL standard
1. Much more strict view of cooling time. No consideration of subtleties in psychology for the
individual. Solely objective approach where individual characteristics (such as being a
“brooder”) are not taken into account in jury determination
2. CL is firm “reasonable person standard”
3. At CL, re-provocation was not adequate provocation, especially if it was only verbal.
a. Cooling time was measured from initial provocation (such as rape in Gounagias)
iv. MPC and modern courts
1. Factors about individual D’s psychological make up referring to how much cooling time is
needed can be considered.
2. Courts also more likely to view time of provocation less strictly
3. MPC is “reasonable person under circumstances of actor” standard
a. More flexible
4. MPC and more progressive modern courts more likely to look toward re-provocation
favorably.
a. However, provocation must still be adequate
v. Cooling Time Establishing Case
1. Ex Parte Fraley (Victim acquitted for murder of D’s son; 9 months after his son was killed, D
shoots him in street; convicted of 1st degree)
a. Adequate provocation from killing of son, but court upholds 1st degree murder and
refuses to mitigate
b. Cooling time issue
i. Period of 8-9 months is much too long
ii. Looks more like a revenge killing that heat of passion killing
iii. If D had killed victim immediately, likely VM
iv. Victim did not provoke him at the time of the shooting or any time in the
past 8 months.
c. Court measures cooling time from period of murder of D’s son, but D could have
learned after this (CL standard)
d. Court refuses to consider possibility that victim’s acquittal was actual provocation
(CL)
i. Had the victim been acquitted on a technicality as opposed to on the
merits, it may have been a better case for Fraley.
e. Evidence that D premeditated and deliberated killing
i. D brought the gun
ii. D emptied gun (overkill can be evidence of premeditation)
iii. 7 eyewitnesses said D brooded and told victim that he promised he would
kill him
f. Under MPC today: deliberation would be mitigating factor. So we would give much
more consideration to Fraley’s argument.
vi. Re-provocation Case
1. State v. Gounagias (D raped by another man while unconscious; rapist brags around town; D
chastised until snaps and kills him)
a. Issues w/ mitigating from 1st degree
i. If provocation is the initial rape, there is problem with cooling time
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ii. If provocation is taunting, there is a problem w/ CL adequate provocation
b/c words are never adequate. Here only the first time he was informed he
had been raped could have been provocation.
b. For these reasons, courts don’t allow mitigation
c. Today, D more likely to mitigate to VM or 2nd degree b/c courts more likely to look
at difficult psychological issues more readily.
g. Adultery as Adequate Provocation (VM)
i. Modern Approach Also existed a common law. p. 361
1. Mere words that indicate adultery took place may be enough if a reasonable person’s
reaction would have been an extreme passion
ii. History
1. Adultery didn’t used be just a mitigating factor in TX, GA, and PA; in those states it was a
justification for murder.
2. Being informed of sexual infidelity is generally adequate provocation in most states.
iii. Cases
1. Rowland v. State (Old case: D and victim living in separate homes; D caught wife after
adultery, shot at paramour and killed wife)
a. Intentional murder conviction reversed on account of jury instructions
i. Jury instructions said “if you find D killed the deceased, he is guilty of killing
by deliberate design and is guilty of murder”
ii. Doesn’t allow issue of provocation to reach jury
b. Statute here is based upon wife’s adultery and acts mostly as an excuse for male
homicide and violence against women
2. Price v. State (Case later overturned)
a. In some cases in some states, sexual jealousy provided justifiable homicide; TX, GA,
and PA
3. Clara Harris 2003 Texas case (not in casebook)
a. Clara confronted husband about affair, he promised to give up mistress.
b. Clara followed him one day & saw him coming out of hotel with mistress. Clara ran
over him 3 times & killed him.
i. had 16 year old stepdaughter in the car with her
ii. Overkill
c. TX--no voluntary manslaughter distinction, it’s all murder. Punishment can be
anywhere from probation to 99 years, so mitigation comes in at sentencing trial.
d. Clara had provocation, got 20 years in prison with possibility of probation after 10.
i. Basically the equivalent sentence of manslaughter but at the higher end of
the scale.
ii. Denied probation in April 2013, has to wait another 2 years to reapply.
h. Provocation Under Reform Rules (VM)
i. Rule in Modern Law:
1. Adequate provocation is anything that could cause a reasonable person to act in passion
a. Mere words can constitute adequate provocation if they inform D of events that
would provoke D to act out of reasonable passion had he actually witnessed them.
This is also a common law rule.
2. Jury should decide if provocation was adequate and if the cooling time was reasonable
a. MPC: Kick everything relating to adequate provocation and cooling time to the jury
and let them decide
b. CA is the standard for the modern trend of provocation
ii. CA standard of provocation
1. Provocation
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a. Provocation must be such as would naturally be aroused in reasonable person
under such circumstances
b. Passion must be aroused to such an extent as would render ordinary men unable to
act rationally
c. Cannot be revenge
d. May be anger, fear, or any high wrought emotion
e. May be words
f. Provocation may be existent over long period of time if there was not a substantial
cooling period
2. Cooling Period
a. D must not have cooled
b. Reasonable ordinary person must not have cooled under D’s circumstances
iii. Who is the reasonable person? (modern trend toward subjectivizing reasonable person standard)
1. Ordinarily, reasonable person in practice is the reasonable juror, however, the modern trend
is to increase the subjectivity of the reasonable person and tailor it to the individual D.
2. Problem is that once we open to door to tailoring reasonable person standard, we start to
lose the objectivity of it
a. Under a more subjective system, jury can consider whatever background
characteristics they choose and decide what is relevant or not
b. Jury may determine certain background characteristics are not credible, and thus
shouldn’t have any effect on standard
3. Judges can often help out jury in determining who reasonable person is
a. In Camplin, court defined reasonable person standard as reasonable for a person of
D’s age (15)
4. Problems
a. Does it matter if the victim knows of special circumstances of D?
b. Do we really need to tell jury that D is special by age, gender, etc.? Isn’t it fairly
obvious
i. Not really. Lawsuits can be very long, and circumstances such as age can
change throughout, so we must instruct on age at time of incident
5. Gender
a. In the past, it generally has been taken into account
i. Very few 1st degree murders in women
ii. Manslaughter has been overwhelmingly male
iii. Reasonable female perspective makes it difficult to understand how female
could kill out of heat of passion
b. Reasonable person standard benefits men overwhelmingly
6. MPC says we should allow physical handicaps in consideration of reasonable person, but not
deviant moral or political beliefs
a. Jury can consider these circumstances only if they believe D’s evidence; otherwise,
they can disregard them. The MPC does not mean that jurors MUST take these
circumstances into account, only that they CAN.
b. MPC has been criticized for this stance.
iv. MPC § 210.3
1. Criminal homicide constitutes manslaughter when a homicide which would otherwise be
murder is committed under influence of extreme mental or emotional disturbance for which
there is a reasonable explanation or excuse. The reasonableness of such explanation or
excuse shall be determined from the viewpoint of a reasonable person in the actors
situation, under the circumstances as he believes them to be
a. Once again, jury determines what is relevant
b. Clearly a very subjective standard
v. Cases
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1. People v. Berry (wife comes home from Israel; told D she wanted to leave him and gave him
mixed signals; repeatedly threw her affair in D’s face over a two week period of time; D
strangled her)
a. D claims he had adequate provocation and court agrees
b. Court applies modern trend to reasonable person test to say that even words can
be adequate provocation if they would provoke anger and action in reasonable
person in D’s situation.
c. D raised expert testimony about victim’s own suicidal tendencies and how she
provoked him
i. Court finds adequate provocation
ii. If D had been initially convicted of manslaughter, it would have been partial
justification b/c the “she deserved it” defense focuses on the victim
d. In reversing conviction, CA court regards provocation as an excuse, not a
justification
i. Focusing on D, not victim
ii. Focused on psychiatric testimony about D that he was emotionally wrought
and in volatile state
e. Adultery is CL category, but this wouldn’t fall in CL as adequate provocation b/c the
information could only amount to adequate provocation the moment D learned of it
the first time.
i. Courts today more willing to consider tormenting spread out over a period
of time as adequate provocation.
ii. Test of adequate provocation under modern law: Courts view adequate
provocation as anything that could cause a reasonable person to act in
passion
f. Judge takes view that jury should decide whether there was adequate provocation
and reasonable cooling time, so he kicks it to the jury (CA standards: see above)
g. Expert Testimony submitted about psychiatry
i. Normally this wouldn’t be allowed in many state courts, but CA takes
stance that jury should decide whether or not to consider it
ii. Most courts would only allow it if D was in the care of that psychiatrist
before the incident occurred.
iii. If it’s psychiatric testimony about the victim, many judges think that is too
prejudicial to essentially put the victim on trial.
h. Judge allows jury to determine whether reasonable person would have acted in
passion if they were in D’s circumstances
2. Camplin (15 y.o. boy raped; kills the rapist; similar facts to Gounagias)
a. Court is instructed that “reasonable person” should be a reasonable person of the
age of 15.
i.
Cultural Norms and the Reasonable Person
i. Rule:
1. View of states are different in allowing cultural norms defense instruction into a trial
a. States w/ liberal, innovative views have judges more likely to allow consideration of
more circumstances about the individual
b. Other states have problems w/ allowing these types of evidence into trial. Why?
i. It puts “stamp of approval” on D’s actions simply because they are from a
culture, even if those values are not accepted in the U.S.
2. MPC
a. A killing that would otherwise be considered murder can be reduced to
manslaughter if it was done under EED in which there is a reasonable explanation
(See definition above § 210.3)
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i. We kick everything to jury and let them decide if actions reasonable under
circumstances.
ii. Fairly subjective standard.
b. In general, cultural defense evidence can get to jury
i. Jury decides whether or not to use it
ii. Problem is legitimizing views different from ours
iii. Factors jury may consider in determining whether or not to use cultural
background as partial excuse
1. Whether person had been in country for a while
2. Whether they are insulated in culture of other people from their
nation
3. Whether the culture is a recognized one
4. Whether they are actually conforming to that culture
a. Would reasonable person in that culture act in this way?
3. Evolving trend to allow cultural defense, but still minority
a. Manslaughter doctrine continues to evolve from very strict levels of cooling time
and provocation to looser standards
b. Trend toward idea that if the defense is at all plausible, we kick it to the jury in
general and let them decide if provocation and cooling time is adequate under the
circumstances of the individual
i. This will increase VM charges, but decrease 2nd degree murder charges
ii. Still chance that jury won’t understand the culture or respect it, so still
possibility it won’t be actually considered.
iii. Jury is more likely to grant the cultural defense if D’s arguments align with
jury’s previously held beliefs about culture.
ii. Case
1. People v. Wu (Chinese woman strangles son living in America b/c worried he will be abused
by father and treated poorly b/c illegitimate)
a. D says she killed b/c boy’s father abused and discriminated against victim, she
couldn’t take him back to China b/c he was out of wedlock, and only person who
treated boy well (grandmother) was dying of terminal illness
i. Said she killed him in attempted suicide so she could care for him in
afterlife
b. 2 instructions: unconsciousness and cultural defense
i. Court allows unconsciousness, saying reasonable jury could have concluded
D was unconscious b/c in a “fugue” state
ii. D said she couldn’t think clearly and didn’t remember killing
iii. Doesn’t matter that she planned killing and prepared the instrument to kill,
b/c for intent we have to look at point in which killing took place. In that
time, she was in fugue state, so it was involuntary.
1. Could we have “time framed” it out; could she have known
something could cause her to lose her consciousness?
iv. Jury should have determined fact of whether she was actually in fugue
state considering surrounding circumstances
c. Cultural defense
i. Court allows instruction of “you may (but are not required to) consider
cultural background in respect to mental elements of the crime”
1. Trial court didn’t b/c they didn’t want to put “stamp of approval”
on unacceptable conduct just b/c it was from another culture
2. But it doesn’t really put stamp of approval on her actions. Instead,
the provocation here constitutes an “excuse” and that is
individualized to Wu. Explains that wrongdoing as being caused by
something other than her bad behavior.
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ii. Cultural background established her despair b/c of inability to care for son
and guilt referring to not being able to care for him in past
1. D was incapable of caring for son in China b/c culture deems
illegitimate children as lesser
2. CA court says we should put ourselves in the position of D when
determining whether reasonable under circumstances-MPC rule
3. Important because it identifies a motive other than
malice/will/revenge if you believe her story. Establishes her
despair at her inability to care for her son, and guilt for her inability
o care for him in the past. Also relevant circumstances surrounding
the killing. She couldn’t stay with father because she had no
money. She had a benevolent motive-she believed she was doing
her son a favor.
4. Confirms the temporal proximity of provocation. Son had just told
her about the abuse, the grandmother had hinted at it. Shows heat
of passion.
d. The provocation here was when son told her about the abuse he suffered.
i. Though D had already heard of abuse, this is the moment she snapped
ii. Reflects modern view of courts to allow gradual provocation
iii. Also establishes that there is not sufficient cooling time
IX. Unintentional Homicide
a. Involuntary Manslaughter
i. Lesser offense than voluntary manslaughter
ii. mens rea standard is usually recklessness, sometimes criminal negligence, rarely simple negligence.
iii. Involuntary manslaughter cases are troubling
1. under different circumstances, they could be viewed as an accident with no real criminal
liability
2. where we run into criminal liability is where someone has a duty to act to ensure safety of
others and carelessly fails to act in that duty.
a. in these cases, may be civil liability as well
iv. CL level of mens rea: at least gross negligence, usually recklessness
v. Courts often say they engage in a balancing test in determining whether there is recklessness or
negligence sufficient for involuntary manslaughter.
1. How probable was the harm?
2. How serious was the harm?
3. How easy would the precaution have been?
vi. Negligent & Reckless Homicide (Commonwealth v. Welansky)
1. Accidental night club fire in Boston, people trapped inside
2. Problem: club inadequately provided fire exits
3. D--owner and operator of the club, but was in the hospital at the time of the fire.
4. D convicted of involuntary manslaughter, 12-15 years hard labor
5. Mental element of involuntary manslaughter is recklessness- displayed reckless disregard for
lives and safety of others
a. This is a subjective standard typically, but court uses a reasonable man standard so
they actually use an objective standard
b. Probabilities
i. probability of fire: low
ii. precautions: low
iii. gravity of harm if fire: high
c. Jury instructions: wanton or reckless conduct instead of negligence.
i. D was negligent under the circumstances rather than reckless.
d. Retributivism: D might not be so blameworthy since he was in the hospital and the
fire was a fluke.
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e. Open up time frame to find more blameworthiness:
i. intentional acts--more fire exits planned than installed, so D assumed risk in
not providing them.
ii. existing exits were blocked or unusable. Exit doors opened inward instead
of outward
iii. Fire plugs weren’t in place, staff wasn’t trained
iv. Club was over capacity
f. Objective standard may be justified since D could’ve taken steps to alleviate the
deaths at low cost to him. Actions could’ve been deterrable with little effort
vii. State v. Williams
1. Native American couple failed to get medical care for infant with tooth infection because of
fear that child services would take her away.
2. Normal standard is recklessness; in Washington state, just need to show simple negligence
(much lower standard, very objective)
a. Simple negligence is the standard for tort level negligence; it’s usually insufficient
for criminal liability, so Washington is in the minority.
b. MPC 210.3 (manslaughter) did not apply here; if it did, Ds wouldn’t have been
convicted of murder since they did not realize the seriousness of the situation. They
were not reckless.
c. CL mens rea standard for involuntary manslaughter: at least gross negligence.
3. Cultural values applicable here like Wu?
a. Judges are reluctant to consider cultural views, circumstances, and heritage since it
kills objectivity and become more of a subjective standard
b. Insular life, not well educated BUT had taken baby to doctor before
c. Jury could probably not understand Native American fear of kids being taken away
d. If we judge D by ordinary reasonable person standard instead of ordinary insular
minority standard, is that racist?
e. Court here held much more objective reasonable person standard than CA court in
Wu, who used a more subjective approach.
b. Reckless Murder (2nd Degree Murder)
i. Higher than Involuntary Manslaughter
ii. 2nd degree murder usually has a mens rea level of malice.
iii. 2 forms of malice:
1. express (malice expressed in statute, historically ill will and evil motive)
2. Implied (something less than ill will and evil motive)
iv. Malice encompasses 4 mental states:
1. intent to kill
2. intent to inflict grievous bodily injury
3. extreme disregard for the value of human life
4. intent to commit a felony during the commission or attempted commission of which a death
results (felony murder)
v. All 4 mental states have 1 thing in common: extreme disregard for the value of human life.
1. so killing without justification, mitigation, or excuse
vi. Reckless murder requirements
1. An extreme disregard for the value of human life
a. Many states deem this as gross recklessness, or malignant heart murder
b. While you didn’t intentionally kill someone, you intentionally took part in conduct
that is so obviously dangerous, with such probability of great harm to warrant a
conviction for murder.
2. Many courts look to see if D’s actions had any redeemable social purpose; if not, they are
not justifiable in any way and if the recklessness is great enough, they constitute murder.
3. Remember, recklessness is determined by whether the potential cost of the conduct greatly
outweighs the societal benefit
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c.
vii. Cases
1. Mayes v. the People (1883)
a. Drunk guy throws beer mug at wife holding lamp; she is burned and dies
b. D claims he had no intent to kill her, but he took the chance and showed extreme
disregard for value of human life.
c. why a murder charge and not voluntary manslaughter?
i. usually if mens rea is reckless, it’s some form of manslaughter. Most
reckless homicides are voluntary manslaughter, some are involuntary
manslaughter.
ii. Here, there was no adequate provocation for voluntary manslaughter. No
reason for him to have thrown the glass.
iii. reacted in a way to bully or even harm his wife, didn’t take into
consideration that his kid and mother in law in the room.
iv. Here, he acted with no redeeming social purpose. We can’t understand at
all why he did what he did.
v. “Abandoned and malignant heart”
1. links extreme risk of death with a lack of redeeming social purpose.
2. aka reckless abandon, aka depraved heart
3. underlies the modern statutes for vehicular homicide
4. Extreme recklessness that rises to the level of second degree
murder.
5. We don’t care about probability of the harm. We care about the
result.
vi. Constructive intent--implied malice. The actor is willing to take the risk that
someone may be hurt or killed.
2. Cases of Russian Roulette
a. usually 2nd degree murder charge since there is no redeeming social purpose to this
game.
b. Looking more at result than at probability here. Actor is willing to take the risk.
Vehicular Murder
i. 2nd degree murder charge-not an actual separate statute, just an instance of a killing with a vehicle
while drunk amounting to 2nd degree murder.
ii. Many jurisdictions have a separate vehicular manslaughter or homicide statute, which is a lesser
offense than most other homicide charges. Often just an unintentional homicide; GA has vehicular
manslaughter charge.
1. Vehicular murder much more common when the D was drunk driving; this could be
considered grossly reckless conduct
iii. Historical Development of vehicular murder/homicide charges
1. 30-40 years ago, drunk driving Ds would not be convicted of murder in any court
a. courts reluctant to convict reckless drivers
b. courts also reluctant to convict of manslaughter because drunk driving laws not as
strict as they are today.
2. over time, legislatures created death by vehicle (vehicular homicide). Every state has a
version of this law either as specific statute or under existing statute.
a. penalties are usually lower
b. Vehicular homicide statutes do not have to carry entire weight of deterrence,
because drunk driving and reckless driving are already illegal and prosecuted.
c. MADD--successful lobbying
d. Demonstrates the responsiveness of laws to the changing conditions of
blameworthiness
e. Laws tend toward the utilitarian viewpoint: deter drunk drivers in the future and
make roads safer.
iv. Cases
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1. People v. Watson
a. drunk driver ran through 2 intersections, hit van, killed 2 people. BAC of 0.23.
b. California’s vehicular homicide statute is ignored here, b/c court held that D’s
conduct went beyond gross negligence.
c. Implied malice (reckless murder)
i. no redeeming social purpose in drunk driving
ii. extreme indifference to the value of human life.
iii. mens rea of drunk driving is usually negligence or recklessness, but the
murder charge indicates that society is serious about deterring it.
1. Overrides fairness argument that 20 years and stigma of murder is
too harsh a penalty for a mens rea less than purpose or intent.
d. Balancing Test
i. Even if probability of D causing traffic death increases by 25 times, it still
only goes up to only 0.005 at this time in CA.
ii. Also, court doesn’t take into account that this accident happened at night
in a small town where probability of hitting someone wouldn’t be high.
e. Although courts do talk about probabilities and do seem to engage in some kind of
balancing test, in reality the risk may not be that great.
i. what they’re focusing on is if the conduct exhibits extreme indifference to
human life, rather than the probability of human harm.
ii. Probability of harm seems to be a mere justification to justify the conviction
of 2nd degree murder for an abandoned and malignant heart killing.
f. Although there are separate vehicular homicide that generally have lesser penalties,
these statutes don’t bar more severe charges.
2. Case in Class: Heatley hockey player
a. Heatley lost control of his car, hit a concrete column in Atlanta, and teammate
passenger was killed.
b. Never proven that Heatley was driving under the influence, he claimed car
malfunctioned.
c. High profile case, only had to perform community service and talk to kids about safe
driving.
X. Felony Murder
a. Definition
i. Unintentional homicide where the killing occurs during the commission of a felony.
ii. CL- The predicate felony provides the malice prerequisite for murder.
1. Essentially strict liability. Important concept is transferred intent.
2. In some ways more than strict liability. Guilt for deaths you did not directly cause.
b. Pure v. Impure
i. Pure Felony Murder Rule
1. No limitations. Problems with this have resulted in limitations such as the NJ rule in Martin.
2. Georgia follows this pure rule.
a. If committing any felony and death occurs, you’re liable
b. Felony is always the proximate cause of the death
ii. Impure Felony Murder Rule
1. Anything which imposes limitations on the FM rule.
2. Generally limits based on 1) Who is killed 2) who does the killing 3) the predicate felony 4)
The foreseeability or 4) Some affirmative defense
3. Examples of Impure felony murder:
a. State v. Canola-felony murder does not apply to deaths caused by non-participants
b. Legislature overruled that case and said felony murder applies to deaths caused in
furtherance of the felony. Deaths occuring as a result of self-defense or retaliation
are not too dependant on another’s volition, but are forseeable.
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c.
c.
d.
e.
f.
g.
h.
i.
People v. Morris - Felon not guilty of felony murder for justifiable killings of cofelons.
MPC § 210.2(1)(b)
i. The MPC doesn’t endorse a felony murder rule, but states that if a homicide occurs in the
commission, attempt to commit, or acting as an accomplice to these predicate felonies; rape,
robbery, burglary, felonious escape, arson, and kidnapping, then D is presumed to be recklessly
indifference to human life, and D has to rebut the presumption in a murder charge.
Typical sentence: same as premeditated murder, up to life in prison or death.
i. 1st degree murder in most states that have a division of degrees
Justifications for a felony murder rule
i. Utilitarian Principles
1. Deters people at the front end. If you commit this act, you better make damn sure that no
one gets killed or you’re on the hook
a. Converse is that if you kill one, you might as well kill everyone.
2. Also may deter people from committing dangerous felonies at all
ii. Retributivist Principles
1. If someone is dead, someone must be punished
a. D is already morally reprehensible for committing a felony.
b. Is the punishment logical or fair?
2. Proportionality
a. Punishment must fit the crime.
i. Although there is a wrong here, should it rise to murder?
ii. Should we use sentencing enhancers here instead?
Implications
i. State does not have to prove any culpability at all with respect to the homicide. Instead, culpability is
presumed.
1. This makes it much easier for the prosecution
2. Under common law, the predicate felony provided the malice
ii. Questions Raised:
1. Sometimes D would not have been convicted of a homicide offense at all, then is suddenly
faced with a 1st degree murder charge.
2. Should there be consideration of proximate cause?
3. What should the punishment be here?
4. These questions have caused some states to abolish the rule, while others have imposed
limitations.
5. REALLY MAKES A DIFFERENCE WHAT JURISDICTION YOU ARE IN
Redundance Problems
i. Deprave heart killing (reckless murder) covers most of the legitimate cases.
1. Evident by MPC provision
ii. The only cases where we need felony murder rules, are the cases where the conviction would be
unfair.
iii. We have mechanisms in place to convict people of deaths resulting from all other circumstances.
1. So do we really need the felony murder rule?
Application of the FM rule
i. Only works well in situations where there is a pure form, but this leads to convictions that we are
uncomfortable with. If states are not committed to it, they should get rid of FM and use it as a
sentencing enhancer instead.
Cases: Pure v. Impure FM
i. State v. Martin (Intoxicated D, fire set either with kerosene or a bag of trash. Girl dies from smoke
inhalation). NEW JERSEY RULE
1. Predicate felony here is arson.
2. Mens Rea here could be negligence, reckless, or none at all.
3. General Rule: Death caused by felony=murder
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j.
4. Flawed jury instructions
a. But-for causation is not enough here. Need something involving foreseeability,
death not too remote or accidental an occurrence, or not too dependant on
someone else’s volition to have a fair effect on defendant’s culpability.
b. Limits of felony murder present here
i. The death must not be too remote or accidental, or too dependent on
another’s volition.
ii. NJ Rule: Impure Rule. If someone commits a felony and causes the death of
someone other than a co-felon, and the death is foreseeable, then he can
be guilty of murder.
1. Closest to the majority rule.
2. Established affirmative defense. Where D is not the only actor, D
can defeat felony murder by proving that:
a. D did not commit the homicidal act or in any way solicit,
cause or aid in it; and
b. D was not armed with a deadly weapon; and
c. Had no reason to believe any other participant was armed
with a deadly weapon; and
d. Had no reason to believe any co-felon would engage in
conduct likely to kill or seriously harm.
c. Mens Rea: Some states require recklessness, others don’t require anything.
ii. People v. Stamp (Pure Felony Murder)
1. Cali case. Bank manager got so excited about an armed robbery that he dropped dead 20
minutes after it ended from heart attack.
2. Holding: All robbers were guilty of felony murder.
a. Absent FM they probably would not have been guilty of any homicide, no direct
actions toward him, never touched him, never even set eyes on him.
3. Under Martin: Questions Raised
a. Did Stamp do anything to prevent Honeyman (manager) from seeking medical
attention? No.
b. Did Honeyman cause any intervening factors that would alleviate their guilt?
Possibly, he had heart disease.
c. Foreseeability? Maybe...
Limitations in Impure FM
i. Enumerated felonies limitation
1. Why these specific felonies?
a. Many of these crimes include those with face to face contact, but some don’t, such
as arson.
b. Inherently dangerous crimes
c. Transfer intent from felony to the killing.
ii. MPC 210.6(3)(e) - aggravating factors of a murder conviction
1. Enumerated felonies: Robbery, rape or deviate sexual intercourse by force or threat of force,
arson, burglary or kidnapping.
2. Death must have been reasonably foreseeable or the probable consequence of the felony. If
so, then the commission of the felony = grossly reckless murder.
iii. Causal Limitations
1. States have different conceptualizations of the causation element.
2. Intent to commit the underlying felony that is transferred to the killing, similar to
transferred intent.
3. Death cannot be too remote or accidental. Must be probable consequence of unlawful act.
Martin case.
a. Not necessarily foreseeable. A person who causes fatality directly can be guilty of
felony murder even if death was not foreseeable. Francis v. Franklin.
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iv. Cases: Causal Limitations
1. People v. Hickman (Group breaks into unoccupied warehouse, caught by cops, in their flight
a police officer was shot by a fellow officer): Illinois Case PROTECTED PERSONS THEORY
LIMIT
a. Charged with Burglary and attempted escape as well as murder
b. How foreseeable was the death here?
i. Breaking into an unoccupied warehouse is typically not a high risk of death
crime.
ii. Hickman was not armed, no reason to foresee that a death might occur
c. Does Illinois impose any limitations on causation? Limits mainly refer to who gets
killed and who kills. This is Protected persons theory.
i. Very minor.
ii. Excludes liability for justifiable killings of co-felons(Morris case) by innocent
parties.
iii. Court doesn’t allow Morris as precedent. In that case, felon was killed by
innocent party, which doesn’t establish liability on part of other felon. Here,
though, an innocent party was killed. Each felon is liable when innocent
party was killed.
1. Liability can only be transferred where the victim is in a protected
class: Innocent people, not guilty felons.
2. In this court, it doesn’t matter if killer was felon or innocent party
if victim is innocent party. If one felon was victim, killer matters.
Innocent party killing felon would not establish liability on living
felon, but felon killing felon would.
iv. Transferred intent here. Consider the killer and the victim.
1. Problems with this doctrine: Depends on lots of outside factors, ie:
Marksmanship.
v. Courts reject assumption of risk argument for death of felons, but they do
say that the dead felon brought it upon himself.
vi. If the victim is an innocent party, then we focus on the innocent party not
the shooter. If it is an innocent party we use but-for causation (Pure FM
Rule) if it’s a dead felon we don’t.
1. If the killer of the felon is a felon, then we have transferred intent
and FM applies.
2. If felon kills innocent party or if innocent party accidentally kills
innocent, FM applies.
3. If innocent kills felon, FM for other felons doesn’t apply b/c he
“brought it on himself”
vii. But-for causation is the general rule today, pure but-for causation is
probably the minority rule today.
2. People v. Gladman RES GESTAE THEORY LIMIT
a. FM in its most classic context: Armed Robbery
b. D robbed deli with gun, fled. Found by police in a parking lot nearby. D pulls gun on
officer and kills him.
c. Automatic FM
d. We don’t look at parties here
i. We look at whether the felony had ended at the time the killing occurred.
1. Killing took place 15 minutes after robbery. He argues that the
events are separate and individual.
ii. In order for FM to apply
1. Killing must occur during commission or attempted commission of
the felony
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2. Res Gestae theory: Whether the killing was committed in, about,
and as a part of the underlying transaction, not after completed,
but immediate flight is included in transaction.
3. Elements of RG:
a. Must be close enough connected that the malice from the
felony can be transferred to the killing.
b. When has the felony been completed?
i. When D has reached a place of temporary safety.
ii. Loot from felony must not have been reduced to
possession, or abandoned.
iii. Killing here occurred during the immediate flight
from the felony.
iv. Question of immediate flight is a question for the
jury
v. Jury must decide whether the death occurred on
the same premises as the felony and if it did not,
how great was the distance?
vi. Unity of time, place, distance between felony and
the killing
vii. Here we look at the totality of the circumstances.
Sliding scale test?= This phrase means that it is a
jury question
c. Must also be a causal connection between the felony and
the homicide
d. Malice from the original crime carries over to the killing
and FM applies.
e. Strictly construed, this is a limitation to FM. If not strictly
construed, it could be an expansion.
f. This rule has a temporal and geographic proximity
component
i. Must be close proximity in terms of time and
place of the felony and the homicide.
3. People v. Cavitt LOGICAL NEXUS THEORY LIMIT
a. Defendants caught the step-mother, tied her up, beat her, and stole her jewelry and
other property. She was left tied up on the bed and either died of asphyxiation from
being tied up, or strangled by co-felon. Ds liable either way.
b. This is accomplice liability
i. If you are an accomplice to a felony you are just as guilty of the felony as
the principal actor.
c. Conflicting evidence here as to what really happened, however, Ds are liable either
way. If she died from asphyxiation, they directly killed her during her felony. If cofelon killed the step-mother that she had told them to up, beat, burglarize and rob,
that murder was foreseeable, and the co-felon Ds aided it by leaving the stepmother defenseless, so still liable for felony murder.
d. “One would hardly be surprised to discover that targets of inherently dangerous are
selected precisely because one or more of the participants in the felony harbors a
personal animus towards the victim. “
e. “Even if Ds conditioned their participation in the burglary-robbery on the
understanding that the step-mother not get hurt, it would not be a defense to
felony murder.”
f. Logical Nexus Theory
i. There is a logical nexus between the felony and the death
ii. Hypo from court:
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1. Would-be burglar spots an enemy through a window and shoots
him through the window. Here the harm did not occur during the
commission of the crime.
2. If the victim suffocated from the sheet and bindings, then the
defendants are directly liable
3. If the step-daughter strangled the step-mother
a. There is a logical nexus here
i. By virtue of agreeing to commit this crime, these
other accomplices were essentially giving the
step-daughter permission to commit violence
against the step-mother. Their act of binding the
mother, made it easier for the daughter to do
what she did. They made the mother prey to the
daughter.
ii. Killing must occur during the commission of the
felony
v. Dangerous Felony Limitation (Predicate Felonies)
1. Basic concept of FM is transferred intent
a. At CL this made a lot more sense. Most of our felonies were capital offenses. No big
leap to transfer intent to killing.
b. Modern day, many felonies and homicide crimes are not capital offenses.
2. Focus on Predicate Felonies
a. Ones that would trigger FM doctrine
b. Must have an inherently dangerous felony
i. Must be something where the foreseeability of the risk of death is great
ii. Degrees of FM
1. There is such a thing as 2nd degree FM.
2. There are a few states with only 1st degree that do not have
delineated predicate felonies
iii. Where there are no delineated predicate felonies (typical of 2nd degree
FM)
1. It is up to the court to decide what felonies are dangerous enough
to trigger a felony murder charge
2. 2nd degree triggered by a felony that carries a serious risk of
death.
3. California has delineated felonies for 1st degree FM
3. Two ways to determine what is a predicate felony in states without enumerated predicate
felonies or who allow dangerous ones.
a. Danger in the abstract
i. The court does not look at the facts of the particular case, but the inherent
danger in the felony in general.
ii. Usually occurs when there is a set of felonies for something like drug
distribution, but the set includes activities that are dangerous and not
dangerous.
iii. When a particular felony murder charge comes to court, court separates
felony from facts and determines whether felony is dangerous enough to
be a predicate.
1. Once deemed a predicate, it is forever a predicate.
iv. Example: statute makes it felony to sell marijuana and in same section
makes it illegal to sell meth. Court may deem selling meth much more
dangerous, and therefore a predicate where selling pot isn’t.
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1. Must be high probability that commission of felony will result in
death in the abstract for some states. Many states only require
some probability of death.
v. Seemingly less attractive method as far as mens rea, but it does allow
felony murder to remain rigid and strong.
b. Danger in the commission
i. The court will look at the facts surrounding each particular case.
1. Was the felony we are asking about dangerous enough in the way
it was performed to warrant the court making it a predicate?
ii. For example, a cocaine sale is not a predicate felony, but in a certain case
where the sale is violent, it may serve as one.
iii. The court observes each case independent of another with the same felony
and decides whether it was dangerous enough to be predicate.
iv. Attractive method, b/c it essentially adds in mens rea element, but this
method leads to collapse of felony murder into grossly reckless murder.
4. Cases: Inherently Dangerous Standard
a. People v. Patterson DANGER IN THE ABSTRACT
i. D furnished cocaine to friend and the friend overdosed. D charged with
wrongful death. D’s actions violated act prohibiting furnishing nearly 100
different substances.
ii. Inherently dangerous act that causes death is the standard here.
iii. Statute lists a ton of substances. Some are extremely dangerous, some are
not.
iv. How do we evaluate dangerousness?
1. Court had to first determine what the underlying felony was
2. Court decides to find one violation of the statute committed here.
3. Felony inherently dangerous to life with high probability of death
a. We need high prob. of death because there is no mens rea
in felony murder. It’s essentially strict liability.
i. Where you have an inherently dangerous offense,
it acts as a proxy for the mens rea requirement.
ii. We ensure that we are convicting someone who is
a bad person
iii. Way that we ensure the prosecutor meets some
form of mental state requirement
4. Few States have such a stringent standard as this
a. Some require only a probability of death
b. Some states have no inherent dangerousness limit
i. Georgia
v. We are looking at anti-social behavior here, it’s illegal behavior, but the risk
does not seem to be that high
vi. Courts list what has been determined to be inherently dangerous
1. Burning cars, kidnapping, selling heroine, poisoning food
2. Not Dangerous: Possession of a firearm by a felon, possession of a
concealed weapon by an alien
vii. Should we examine individual facts of case or consider the felony without
any reference to the facts of the particular killing? (Abstract v. Commission)
1. Facts method is attractive because it seems to allow for a mens rea
analysis, but this would collapse FM into gross recklessness murder
2. Every time there is a death, there is some form of wrongful
conduct, typically gross reckless murder
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3. California and other states apply the “abstract” method. We look
at the felony itself, not how the particular death occurred.
viii. What about a kidnapping victim who dies from fright? What about a felon
who is illegally carrying a gun that accidentally discharges in a bar fight?
1. Kidnapping is inherently dangerous (predicate felony. After we
decide this, facts don’t matter.
ix. Some states do consider the facts surrounding a specific felony to
determine if it is inherently dangerous. Others do not b/c any felony
which results in death will seem in the specific case to have been
inherently dangerous.
b. People v. Chambers DANGER IN THE COMMISSION
i. Death during the stealing of a vehicle
ii. 2nd degree murder charge here b/c though stealing of vehicle may not
always be predicate felony for FM, the actor here did it in an extremely
dangerous way, enough to warrant it dangerous enough to make it a
predicate felony for FM.
vi. Independent Felonious Purpose- Merger Rule
1. Case
a. State v. Shock
i. Court won’t allow collateral felonies for FM. Directly violent felony: Assault
1. Such a high risk of death that regular homicide law should apply,
not felony murder
b. State v. Walker
i. Hobo knife fight case
ii. Not a justified or excused killing because the victim had been disarmed and
was on the ground
iii. This was an intentional homicide
c. State v. Jenkins
i. Shock overturned this case
ii. Would have allowed Walker to be convicted of murder
1. It was a killing with provocation so the court allowed mitigation
2. The act was not morally worse than voluntary manslaughter
vii. IFP Rule
1. The big issue we run into w/ inherently dangerous predicate felonies is that if it isn’t
dangerous enough, most states won’t let FM be derived from it. However, if it is extremely
dangerous, like battery, many states allow it to merge w/ FM so FM can’t be used there
either.
2. Underlying felony must involve some other purpose than death, some independent
purpose. To hold otherwise would collapse all homicide charges into felony murder.
a. We don’t need FM when the offense addresses the death
b. Main purpose of FM rule is deterrence
i. This wouldn’t apply to cases in which the offense addresses the death. It’s
impossible to commit manslaughter safely
ii. Automatically converts this lesser offense into felony murder
iii. Merger doctrine attempts to prevent this collapse of lesser homicide
offenses into murder, since every voluntary manslaughter is done through
the felony of battery. If we allowed battery to be predicate, VM wouldn’t
exist anymore.
c. For the felony to apply it must involve acting purposefully towards some result
other than the death of the victim.
i. Where the homicide is the natural result of the felony, the homicide
merges into the offense and the felony should not apply
ii. Need an independent felonious purpose.
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d. Standard Predicate Felonies- Is there an independent felonious Purpose?
i. Robbery
ii. Rape
iii. Burglary (entering a dwelling with the intent to commit a crime)
1. Entering at night is the more frequent charge for FM
iv. Kidnapping
e. Offenses where it is not so clear cut
i. Aggravated Assault
1. Can be a lesser included of the homicide
a. So typically we don’t allow it to be used for felony murder
i. Ga. is different of course. Agg. Ass. can serve as a
predicate felony for FM
f. Child abuse
i. IFP?
ii. Depends on how the courts regard child abuse
1. Cal. court has held that child abuse is not inherently dangerous to
human life.
a. Felony murder can’t apply since the act isn’t dangerous
enough
b. Many different kinds of child abuse offenses ie: neglect,
abandonment, assault, aggravated assault
2. State v. Lucas
a. Physical assault child abuse is so inherently dangerous that
it must merge into actual murder charges
iii. If felony is not dangerous enough or too dangerous it flunks the California
test or the merger doctrine respectively and FM does not apply.
k. CALIFORNIA! Not on the good side of felony murder rule. Typically a liberal jurisdiction.
i. People v. Washington (Cal) (Armed robbery case. D’s partner in crime is shot to death by the owner
of the store they were attempting to rob.) AGENCY THEORY
1. In Illinois, this would not have been felony murder b/c victim here is a felon, so he “brought
it on himself” (Morris rule)
2. California law says that felony-murder only applies to killings committed by a felon or
accomplice. It does not apply to killings committed by innocent parties.
3. Court here doesn’t look to transferred intent. Instead it looks at an agency theory.
4. The courts reasoning is that felony murder exists to deter killings by felons in the
commission of a felony. That purpose is not served by applying felony murder to killings
caused by the victims.
5. In perpetration of or furtherance of the felony. FM does not apply where the non-felon does
the shooting. Because the killing occurs to stop the felony not to perpetrate it. Felon only
guilty of felony murder when the killing is constructively authorized by one of his
accomplices.
6. Agency theory
a. Whether killing occurred in the perpetration of the felony, if this is the central
tenant of the felony murder rule, this is a surrogate for the intent to kill. It should
say that the killing must be a result of the felony. (Cabaltero: But-for causation)
7. Ferlin- One co-felon blows himself up on his own, vicarious liability says that the surviving
felon isn’t liable. The dead felon cannot be guilty of killing himself so nothing to impute to
survivor.
8. Cabaltero: But-for causation, Washington- agency theory/vicarious liability/ constructive
authorization, Stamp: But-for causation
ii. Taylor v. Superior (Armed robbery case. Felon A and Felon B both armed. C- Taylor was the get-away
driver/lookout. B threatens innocent victim, causing him to shoot A.) CA FINALLY GETS TO
PROTECTED PERSONS THEORY
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1. B and C charged with FM.
2. After conviction, appeal on the basis that it is inconsistent with Washington.
3. The court distinguishes from Washington. They say that here they provoked the killing.
a. But the store owner in Washington was also provoked.
4. Taylor convicted, B, the one who threatened the store owner with the gun, was
subsequently acquitted so the court overturns Taylor’s conviction.
5. California is uncomfortable with felony murder, this is why we have these nutty cases.
iii. CA shows how taking a liberal approach to FM and trying to find constant exceptions can ruin the
purpose of the FM rule. They should just leave it out.
XI. Defensive Force
a. Introduction
i. Defense applies when it is already established that D committed the offense
1. D says I did cause the death (or perform the act), but for whatever reason I shouldn’t be
punished for it b/c I was either justified or excused in the killing, so no blame should attach
and no punishment appropriate under the circumstances.
ii. Justification v. Excuse in self-defense
1. Justification
a. Focuses on the act and the victim
b. If offense is justified, law implicitly recognizing that criminal acts may not be
wrongful, and thus may not be a crime, if a greater good is achieved.
c. Some self-defenses, if viewed as justifications, can actually be praiseworthy. By
committing offense, D was decreasing danger to society
d. To some extent the victim deserved it
i. These include defense of others, law enforcement killings, wartime
casualties, and state ordered executions
2. Excuse
a. Focuses on actor.
b. If D pleading excuse, he is arguing that b/c of some infirmity special to him, he
shouldn’t be punished for what would otherwise be a wrongful act.
c. If D pleads an excuse it is still a crime, but D excused b/c of personal infirmity
i. Examples include insanity, duress, diminished capacity
3. Justification and excuse may overlap in some cases.
iii. Rule
1. For self-defense claim, actor must have
a. Actual or reasonable belief that force is necessary to prevent death or bodily harm
(SUBJECTIVE standard)
i. This force must be proportional to harm threatened
b. Threat must be imminent, with no ready alternatives (usually OBJECTIVE standard)
i. Some states require retreat except when in own home, except for when
person threatening is co-habitant
c. Exceptions
i. D can’t use disproportionaly more force than what is threatened
1. However, if you’re in own home and attacker is unarmed, courts
are lenient about use of deadly force. More and more courts are
allowing this. Can assume that person invading your home may
harm you. Right to feel secure in your own home.
ii. May be duty to retreat based on statute
1. Except if you’re in your own home
a. BUT this exception also has an exception: you may have to
retreat from own home when attacker is co-habitant
iii. Initial aggressor
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1. If you are the initial aggressor, it is not a justification to use deadly
force in response to the victim’s defensive use of force. However,
if you initially use only a small amount of force, and the victim
responds with deadly force, you regain your right to self-defense.
2. Actual or Reasonable belief that force is necessary
a. Somewhat subjective view.
b. D has to actually believe force is necessary first
c. If so, we instruct jury to determine whether a reasonable person in D’s shoes would
have used the force D did in the circumstances he was under.
3. Perfect v. Imperfect Self Defense claim
a. Perfect
i. If D actually and reasonably believed that assailant was going to cause
grievous injury or death and that such threat was imminent and such force
was required
ii. If force wasn’t required, but D still actually and reasonably believed it was,
still perfect
b. Imperfect
i. Deadly force not necessary, and D honestly but didn’t reasonably believe
that the threat was imminent and likely to cause grievous bodily harm or
death
1. In this case, a killing would normally be mitigated from murder to
unintentional homicide or manslaughter
2. MPC § 3.09 says if this is case, we assess whether D’s belief was
reckless or negligent, and assess which homicide he is guilty of
based upon this.
a. If grossly reckless, reckless murder
b. If reckless, manslaughter or involuntary manslaughter
c. If negligent, negligent homicide
c. Policy: We don’t require D to have actual knowledge of D’s intentions b/c it would
be unfair for him to have to wait around to find out intentions in a possibly
dangerous situation
i. We don’t care about the assailant’s (victim’s) actual intentions; whether he
planned to kill or do grievous bodily harm or not.
iv. Creation of Peril Exception to Self-Defense
1. General rule is that if you create the circumstances or are the initial aggressor, you cannot
then use self defense to justify retaliation against a victim using self defense on you. (There
is no self defense to the self defense).
2. Exceptions
a. Where original aggressor announces he is withdrawing and other person persists,
you have right of self defense
b. Where initial aggressor attacks victim w/ non-deadly force but victim responds w/
excessive or deadly force, original aggressor may use self defense.
i. However, initial aggressor must respond w/ proportional force.
Deadly=deadly. Non deadly=non deadly.
ii. Remember that victim’s use of force in response to initial aggression is not
dependant on whether it was actually necessary, but whether reasonable
person would have thought so. (Imminent and threat of grievous bodily
harm or death)
v. MPC § 3.04 Use of Force in Self-Protection page 525
1. Provides several limitations on when use of force is justifiable
a. Reinforces imminence and threat of unlawful force
b. Uses subjective/objective standard: Reasonable person in the circumstances D
believed himself to be in.
94
vi. Cases
1. People v. La Voie (D gets rear ended; deliberately antagonized. When he gets out of car one
guy approaches him menacingly and D kills him with gun)
a. Judge says no way jury could find D guilty of murder
b. D killed somebody, but he acted in self defense and all evidence tends to point to
that. Under those circumstances he has valid claim and no way jury could decide
otherwise.
i. No duty to retreat and no creation of peril; threat was imminent.
c. Victims may not have intended to do bodily harm, but the belief they would based
upon prior actions and the way they approached D would have created reasonable
belief in D’s mind that they did intend to do so.
i. We don’t make D wait around and find out.
2. People v. Gleghorn (D sets victim’s clothes on fire and threatens to smoke him out; victim
shoots arrow at him in self-defense; D beats victim to a pulp in defense to victim’s selfdefense)
a. D clams that he attacked victim w/ simple force but victim attacked w/ deadly force.
This disproportional force should mean that D was able to use proportionate force
to defend himself.
b. Court disagrees. D didn’t have right to self-defense because
i. He created the perilous situation for the victim
ii. Victim didn’t use disproportional force in self-defense b/c a reasonable
person in the victim’s circumstances would have believed his life was at risk
as a result of D’s initial actions.
1. We don’t require victims to make measured response
2. If victim is misled through no fault of his own, he is justified in
using force that would have been reasonably necessary at the time
c. Even if D did have right to self-defense, disproportionate force
i. He continued to beat victim after victim was incapacitated
b. Battered Spouse Syndrome (Subpart of Self-Defense)
i. Battered Spouse Syndrome is not a normal self-defense claim b/c it is inherently flawed. There is
usually no imminence of harm in the ordinary sense.
1. Usually, killings arising from battered spouse syndrome result from years of abuse and a
“snap”, usually occurring when there is no abuse taking place in the moment. Many occur
when abusive spouse is sleeping.
a. Imminence requirement is usually met if, by past experience, victim knows that
abuser will resume his abuse soon or in the near future.
i. We judge the imminence and reasonableness standard based upon a
reasonable person in the abused’s circumstances
ii. This view is less objective than for a normal self-defense claim; we look
more into the individual’s past experiences with the abuser.
1. Not what objective reasonable person would have believed, but
what D believed period.
iii. Reasonable belief that harm was imminent is a question for the jury to
decide.
b. Imminence isn’t required in normal self-defense meaning, but it can be used to
determine reasonableness.
i. Prosecution may argue that past beatings are too speculative in regards to
beatings in the future.
ii. However, spouse abusers are normally not very deterrable, so it could be
reasonable inference that he would do it again. Also, see learned
helplessness below.
2. Retreat Problems
95
a. Self-defense doctrine usually allows for self-defense when a person is an intruder in
D’s home. No duty to retreat.
b. An exception is where the aggressor is also a resident in the dwelling.
i. In many battered spouse cases, D acts in self-defense while spouse is in
their home. This creates a conflict of rights between victim and spouse
1. Many courts have issues getting around this “exception to the
exception” of the retreat rule.
c. Another issue is whether D had alternatives to acting, especially in cases where
abuser was sleeping. Couldn’t she just leave?
i. This is where expert testimony proves extremely useful. Would be required
to show that it was reasonable for battered spouse to think that retreat
wasn’t option and that other options were psychologically available.
ii. Would also be useful in showing spouse not able to resist beating.
1. The average juror would likely not understand the psychological
effects of continuous spousal abuse.
3. Components of Battered Spouse Syndrome
a. Cinderella Complex
i. Wife feels like it was her fault that she was beaten
b. Learned Helplessness
i. Vicious cycle of beatings, reconciliations, growing tension, and beatings
again
ii. Spouses come to believe there is no escape; fear and guilt pushes them to
submit to abuse.
c. Other reasons that victim of spouse abuse may not leave
i. Threat of losing kids to abuser who may treat them poorly
ii. Financial ties to abuser
iii. Some women try to leave but abuser chases them down and brings them
back.
4. What if jury determines that victim’s beliefs were unreasonable?
a. MPC § 210.3(1)(b)
i. If found unreasonable in subjective standard, which is used by MPC in
determining whether belief was reasonable, homicide gets mitigated
depending on whether misbelief was reckless or negligent (reckless murder
-- negligent homicide)
ii. This would be imperfect self-defense claim, which is often chosen to be
manslaughter.
ii. Cases
1. State v. Leidholm (abused wife kills husband in his sleep; husband had been abusing wife for
several years)
a. Court says in self-defense claim, 1st question is whether D honestly and reasonably
believed that conditions were present that give rise to self-defense.
b. Court uses flexible, subjective view of self-defense
i. Jury should consider characteristics specific to D including history of abuse
and its’ psychological effect
1. We use surrounding circumstances to determine whether D
actually and reasonably believed threat was imminent
ii. Court ruled that normal self-defense claim would provide for subjective
view of reasonableness
c. Expert testimony required to establish what D actually believed as far as threat
i. This is necessary b/c jury is full of people that aren’t similarly situated
d. Subjective standard also refers to whether D believed they could safely retreat, as is
required by statute
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c.
i. If D, due to situation, had honest and reasonable belief that they can’t
retreat from assailant with safety to herself and others.
2. State v. Norman (D kills husband while he was sleeping)--N.C.
a. Example of court struggling with “exception to the exception” of retreat.
i. Court says that though there is no duty to retreat from own home (for
abused), if aggressor is also living in that home, abused still has duty to
retreat.
b. Forbids self-defense for battered spouse when abuser is sleeping.
i. Even if battered spouse reasonably presumes that beatings will occur when
he wakes up, she becomes the aggressor against sleeping victim
c. Good example of how courts have trouble dealing with battered spouse defense,
particularly with not having to retreat from home except when aggressor is
resident.
Self Defense of property: using deadly force when not present
i. General Rules
1. Courts generally don’t allow deadly force in defense of property when nobody is home. Two
reasons
a. Automatic deadly force for intruders is too indiscriminate. Spring guns (and other
similar instrumentalities) cannot discriminate between an intruder or someone that
is justified in being there, such as a firefighter or child.
b. Imminence Issue: Resident is not in immediate threat when he isn’t at home.
2. Life versus Property
a. When situation is life threatening, you may use proportionate force in defense
b. Generally, deadly force in defense of property not allowed
3. If using deadly force to defend property when not present, it looks better if you have
invested several other security measures or have attempted to keep intruders out using
non-violent means.
4. Just because the homeowner would have been reasonably justified in using deadly force
against the intruder had he been present at the time of intrusion does not mean that he
may use such force if not present.
a. Some states allow remote use of deadly force only if the homeowner was correct in
the fact that intruder would have been threatening deadly force.
i. If you’re right about intruder, you’re not guilty. If you’re wrong about
threat of harm, you are.
ii. Cases
1. People v. Ceballos (D sets spring gun in dwelling to shoot intruder who was committing
burglary)
a. D tries to say that he is justified in setting spring gun b/c he would be justified in
using deadly force had he been present
i. Court disagrees. Trap guns are too indiscriminate. If D was home he could
have judged for himself whether deadly force necessary. Imminence issue
as well. D was not threatened at time.
b. It would have looked better for D had he invested in other types of security before
going to the trap gun or if he had sufficiently warned of the trap gun.
c. CA statute referenced seems to allow this type of defense (can use force remotely if
you would be justified in using it if you were there), but court says this is
undesirable reading.
i. At CL, most felonies (burglary) were capital offenses, so deadly force was
authorized
ii. Rule of lenity may have applied, but legion of cases showing that remote
deadly force not desirable for indiscriminate nature.
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XII. Inchoate Offenses
a. Attempt-Attempt to commit a crime without completing it
i. Under MPC, attempt receives the same punishment as the crime
1. Except first degree murder
2. MPC § 5.01 - D defendant must have mens rea and:
a. engages in conduct that would constitute the crime if the circumstances were as he
believed them to be; or,
b. when causing a particular result is an element, does or omits to anything believing it
will cause such result, without further conduct on D’s part; or,
c. does something constituting a substantial step in a course of criminal conduct
ii. Question as to crimes that can be attempted
1. Some states claim it is impossible to attempt to be reckless; State v. Lyerla.
2. Other states hold that extreme recklessness can constitute constructive intent.
iii. Reasons for punishing attempt
1. Because the actor has mens rea and may try again.
2. We do not always need a harm to have a crime anyway
a. Examples: DUI, possession, forgery
iv. Problems with punishing attempts
1. Possibility of punishing mere thoughts. (like Proctor)
2. Problem in proving what someone was thinking
v. Types of attempts
1. Screw-Ups-mere failure
a. aEx: miss shooting and killing someone.
b. this is an easy case for the prosecution since D did everything he set out to do but
was just bad at the execution of it.
2. Impossibility (old view)-What criminal set out to do was impossible.
a. Factual v. Legal impossibility
i. Legal impossibility results in no liability
ii. Factual impossibility may result in attempt
iii. There is no real difference between the two.
b. Ex: Shooting at someone’s bed, but person D meant to kill was not there.
3. Impossibility (modern view)
a. Objective equivocality test
i. Would a rational law abiding person have engaged in this activity had they
known of the mistake? If yes, not an attempt.
b. Subjective test
i. Focus only on what D thought he was doing. If what D believed he was
doing was illegal, then D is guilty. MPC approach
ii. Trend is to follow this subjective test.
iii. Even though legal impossibility isn’t a defense under this test, it can be a
mitigating factor.
4. Actus Interruptus-stopped on route to commit a crime
a. D must have mens rea of crime
b. D must have acted in furtherance of that intent
c. Proctor problem, punishing bad thoughts, most likely to happen
vi. Tests for determining if act constitutes an attempt
1. Last step/stop-physical proximity doctrine
a. act must be proximate to completion of crime, or directly tending toward
completion of crime, or must amount to the commencement of the consummation
b. Most favorable test for D since the line is drawn so late in the game
2. Indespensible element test
98
a. variation of the proximity test-emphasizes any indispensable aspect of the criminal
endeavor isn’t yet under D’s control. If yes, acquit. If no, criminality.
3. The dangerous proximity doctrine
a. the greater the gravity and probability of the offense, and the nearer the act to the
crime, the stronger the case is for calling the act an attempt
4. But-for interruption, a.k.a probably desistance
a. an attempt if, in the ordinary course of events, but-for the interruption, the crime
would have been committed
b. criticized for encouraging speculation
c. Jury must decide whether most law abiding people would’ve had a conscience and
stopped, but this is flawed since most law abiding people wouldn’t be engaged in a
crime anyway.
5. Abnormal step
a. an attempt is a step that goes beyond the point where a normal citizen would think
better of his conduct and desist.
6. Unequivocality test
a. Attempt committed when actor’s conduct manifests an intent to commit a crime.
7. Substantial step test- MPC § 5.01(2) supra
a. examples: waiting for, looking for, following, or enticing victim; casing the location;
possessing materials usable in crime with no lawful purpose; soliciting another to
commit crime.
vii. Defense to attempt: abandonment (Impossibility is other defense)
1. Common Law: No defense of abandonment
a. Because attempt requires an act in furtherance of the underlying crime plus the
intent to commit the underlying crime, once you have those elements established,
then the state has made its case against D.
b. Deterrence: D has willingness to engage in criminal conduct, so if we don’t punish
him, he maybe willing to try again.
2. Modern View
a. Some states allow an affirmative defense of abandoning the attempt to commit a
crime. However, the abandonment is not valid if it is caused by the D learning of a
new factor that would increase getting caught or make committing crime more
difficult.
i. Only valid if D changed his mind through genuine remorse. Proof of actual
change of heart.
ii. Burden is on D to prove this by a preponderance.
b. Abandonment must be complete: postponing to commit at a better time does not
count.
c. Policy
i. The defense may encourage criminals to change their minds and not
complete the crime, so it saves society from more serious harm.
3. MPC § 5.01(4)
a. D can introduce evidence of abandonment if he completely and voluntarily
renounced his criminal purpose.
b. This defense is strictly limited.
i. Available only when target offense has specific result (a killing) or a
circumstance as a material element (statutory rape)
ii. Not available when only a certain conduct is the element of the offense
(solicitation)
iii. Abandonment must be voluntary and complete.
c. MPC encourages moving the timeline of the CL test back and letting in more time.
viii. Cases
1. 1. People v. Staples
99
a. Burglar claims he abandoned his attempt to drill a hole through the ceiling of a
bank.
b. D argued he was trying to break in but then had 2nd thoughts and abandoned the
activity
c. Holding: convicted anyway because he abandoned his attempt only because he
knew he was going to be caught.
2. Booth v. State
a. Defendant not guilty of attempt to buy a stolen coat, when he believed the coat was
stolen, but it had been recovered by the police, making it no longer stolen, and
then used to catch D for buying stolen goods.
b. holding: legal impossibility for D to buy a stolen coat when coat was not stolen.
c. Court says legal impossibility is a defense, but factual impossibility is not.
3. State v. Lyerla
a. a. D convicted of attempted 2nd degree murder for shooting at a car with three
women in it after they cut him off, while he himself was driving as well. D
contended he feared for his life.
b. D hit one girl but missed the others, so this is a “screw up” type of case
c. b. D’s conviction was reversed on the grounds that he only recklessly almost killed
them. The court held that it is impossible to attempt to act recklessly, b/c that
would be intending to intending to perpetrate an unintentional killing.
4. People v. Murray
a. D prepared to marry his niece and was charged with attempted incestuous
marriage.
b. Holding: D not liable for attempt because he was merely preparing until he was at
the last stop; minister commencing the ceremony. Only at the last stop could he be
guilty of attempt.
c. This is an actus interruptus type of case since the arrival of police meant the
wedding was not completed.
b. Complicity
i. Complicity by itself is not a crime, it is a theory of liability-accomplice liability is derivative of the
principal actors liability. This is different from conspiracy and attempt.
ii. Acts that make D complicit include:
1. aiding and abetting- physically helping the one committing the crime by doing things such
as; being a look-out, getaway driver, or aiding in commission of the crime
2. encouraging, soliciting-encouraging actor to commit crime
3. procuring something to aid in the crime
4. soliciting the crime
iii. Types of principal accomplices-mostly abandoned common law
1. Principal in 1st degree. Personally committed crime or used an innocent agent to commit a
crime.
2. Principal in 2nd degree.
a. Helped Principal in 1st degree commit the crime while being at the scene of the
crime.
iv. Types of accessory accomplices in mostly abandoned common law (now all treated as “party to the
crime”)
1. accessory before the fact
a. Helped before the crime, not present at crime.
2. Accessory after the fact
a. Not part of planning or commission of crime. Ex: Harboring.
b. Usually only found guilty of obstruction of justice.
v. Cases
1. State v. Ochoa
100
2.
c.
a. Ds, two members of a mob, assault the deputy while another two members shot
the sheriff. Court held that Ds incapacitated the deputy in order to prevent him
from aiding the sheriff, making them accomplices to the murder of the sheriff.
Gains v. State
a. Driver of getaway car for robbery had his conviction reversed. Court held that
circumstantial evidence in this case was insufficient to prove that D knew the
people he was driving had committed a robbery. D probably argued duress.
Conspiracy
i. Like attempt, it punishes anticipatory action that aims at, but does not necessarily reach, a criminal
object. Second, it is a doctrine of accessorial liability--implicates all the co-conspirators in each
other’s acts.
ii. Conspiracy criminalizes the agreement to commit a crime.
iii. Pinkerton Doctrine--Conspiracy is a derivative offense that generally matches punishment level of
target offense. Can never be a capital offense.
1. Pinkerton extends culpability of on party’s act to co-conspirators if that act was:
a. In furtherance of the conspiracy; and,
b. Within the conspiracy’s scope; and,
c. Reasonably foreseeable as a consequence of the agreement to conspire.
2. In Pinkerton case, D was sitting in jail but was still liable for crimes of co-conspirators.
iv. Three aspects of Conspiracy (Arizona)
1. Agreement
a. Agreement does not need to occur before the act. It is enough that Ds agree at the
time of the crime.
2. Intent to commit offense
3. Some overt act in furtherance of the agreement.
a. This does not have to be much of an act
b. May even be a legal act
c. Acts that are mere preparation in Attempt are enough to be an act in furtherance of
a Conspiracy
i. Why Require an act in furtherance?
1. Some jurisdictions have this requirement merely as proof of the
conspiracy. However, if a participant turns state witness or the
State has other proof of conspiracy, there is no more need for the
act requirement
2. Other jurisdictions view the act requirement as the actus reus,
essential to the conviction.
v. Wharton’s Rule - Where an offense takes two or more parties to commit an offense, Ds cannot also
be guilty of conspiracy, as that would be double-counting of the offense.
1. Ex: Dueling.
2. If Ds conspire w/ a greater number of people than necessary to commit the crime, Ds may
still be guilty of conspiracy.
vi. RICO- Powerful and severe anti-mafia type Federal conspiracy law
1. A RICO violator must commit at least 2 crimes before he falls under scope of the law.
2. Any crime under RICO has an automatic 20 year sentence.
3. Harsh forfeiture provision- if one lets someone borrow their car, not knowing it is going to
be used in a RICO crime, she still loses her car.
4. Some states have laws modeled after RICO.
vii. Majority Rule-Federal Rule
1. Conspiracy is a separate offense, not a lesser included.
2. A D may be convicted of both conspiracy to commit a crime and the crime itself.
3. No one may be convicted of the same act twice, so these jurisdictions view the agreement
to commit the crime as a separate act from the crime itself.
4. Blockburger v. U.S.
101
viii.
ix.
x.
xi.
a. If each crime contains at least one element not in the other and is not a lesser
included offense, D can be convicted of both crimes.
b. There must be enough evidence to establish each crime separately.
Minority Rule (Georgia, MPC)
1. Conspiracy is a lesser included offense
2. A D cannot be convicted of both conspiracy to commit a crime and the crime itself.
3. These jurisdictions believe this is punishing the same offense twice.
Abandonment Defense
1. At Common Law and Majority Modern View
a. No defense. Cannot abandon a Conspiracy to avoid punishment for it.
2. Minority Modern View (MPC)
a. Abandonment Affirmative Defense
i. Cannot avoid liability for Conspiracy or crimes of co-conspirators while you
were in the conspiracy. However, if D leaves he is no longer liable for the
acts of his co-conspirator.
ii. Many different requirements for abandonment
1. Some Jurisdictions require D informs a few co-conspirators of your
abandonment.
2. Others require D tell every co-conspirator of his abandonment
3. Some go even further and require the D attempt to dissuade coconspirators, or go to the police
a. Watson does not like stringent requirements of informing
all co-conspirators and attempting to dissuade, b/c it puts
the D at risk of harm from his co-conspirators
b. Why allow abandonment defense?
i. Without abandonment defense, especially in jurisdictions like MPC where
there conspiracy is not a separate offense, it encourages Ds to continue the
crime. If they cannot escape liability, why not just finish the crime?
Application of Law
1. Major participants to a conspiracy will likely be charged with everything their coconspirators do.
2. Minor participants are likely to receive some leniency.
a. However, prosecutors may threaten to charge them with everything to force them
to accept a plea bargain where they testify against their co-conspirators.
3. Bilateral Application- Common Law Rule/MPC Rule
a. D cannot be convicted of conspiracy to commit a crime if none of his coconspirators could be convicted of conspiracy.
b. The reasoning is it takes two to make an agreement.
c. This is an impossible attempt
d. MPC Section 5.03(2)
i. Conspiracy liability focuses on the same crime
ii. Elimination of Pinkerton doctrine makes extending scope of a conspiracy
less useful, b/c Ds not liable for crimes of co-conspirators.
4. Uni-Lateral Application- Modern Rule/ Majority Rule
a. D can be convicted even if co-conspirators are not convicted or cannot be
convicted.
b.
Why Punish Conspiracy?
1. It makes sense b/c D has guilty intent.
2. When criminals conspire together it makes them much more likely to follow through with
their crime and much more likely to succeed, so conspiracy is something the government
has a strong interest in deterring.
3.
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xii. Types of Conspiracies: Wheel or Chain
1. In a Wheel Conspiracy, one main conspirator, the hub, works with a bunch of individuals, the
spokes.
a. Each spoke can be a separate conspiracy charge against the Hub; or,
b. If the spokes know or should infer the existence of the other spokes, then they can
all be charged w/ one large conspiracy
i. Spokes should infer existence of other spokes when their dealings are too
small to be economically viable on their own, or too small to justify the risk.
c. Rimming the wheel depends on what the prosecutor can prove.
i. Showing a community of interest among all the spokes (did they knew each
other, did they profit from the others, etc.).
2. In a Chain Conspiracy each individuals’ actions are dependant on the ones before it or after
it for the conspiracy to work.
a. This should always be one large conspiracy, as D’s know or should know of the other
conspirators existence, b/c their act by itself accomplishes nothing.
b. Drug deal: grower + distributor + dealer + customer
c. Everyone knows about the existence of everyone else since if one person is omitted
then the offense cannot be committed.
3. Chain Wheel Conspiracy
a. There is a central hub with the main D.
b. Each spoke of the wheel is a separate chain
c. This type is best illustrated by U.S. v. Perez where there is a central man at the hub
and each spoke is a different auto insurance chain. The wheel in this case was
rimmed because Perez reused doctors and so they knew about the other spokes’
existence.
d. Chain Wheel usually happens in highly complex cases.
xiii. Advantages for P of charging one Conspiracy
1. Pinkerton Rule greatly extends each Ds liability.
2. Evidence of other conspirators’ actions can come in, which makes the jury dislike the D/
more likely to convict.
3. Much easier for P to get someone to turn state’s evidence
a. usually someone with a minor role
4. Gives P more control over which venue to put Ds in.
xiv. Advantages of Charging multiple Conspiracy charges
1. In a Wheel conspiracy, the hub can be charged with many conspiracy charges, which
increases the length of his sentence.
2. The P may have a greater interest in punishing the main conspirator as much as possible,
than in punishing the more minor conspirators.
3. Sometimes Judges and Juries do not like when P try to over-extend a conspiracy charge,
leaving the P no choice but to charge more limited conspiracies in order to get convictions.
xv. Problems with the Scope of the Conspiracy
1. Fixed Parties w/ Multiple Objectives
a. Parties that work independently of one another are not liable for conspiracy w/
each other. See Caldwell
i. It must be the case that each would be economically viable on his own.
2. Multiple Sets of Parties w/ Multiple Objectives
a. ?
xvi. cases
1. State v. Verive
a. D was paid by someone to beat up a witness in order to scare him out of testifying
and is found guilty of conspiracy.
b. Court holds that conspiracy to dissuade a witness and attempt to dissuade a witness
are distinct offenses, so a D can be found guilty of both.
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2. Griffin v. State
a. D found guilty of conspiracy for beating up an officer along with co-conspirators
b. The agreement to conspire together can be inferred from the facts and
circumstances.
3. U.S. v. Diaz
a. D charged with conspiracy to have a firearm during a drug deal, even though he did
not have the firearm and did not know anyone else did
b. Still guilty, b/c under the Pinkerton rule it was in furtherance of the crime, and
within the crimes scope, and reasonably foreseeable (gun violence in a drug deal
always reasonably foreseeable), so D guilty through the conspiracy.
4. U.S. v. Alvarez
a. Undercover cop was shot and killed. Co-conspirators were convicted of 2nd Degree
murder.
b. Gun violence is a reasonably foreseeable result of a drug deal.
5. Evanchyk v. Stuart- Not in book
a. Robbery when bad and someone was killed. D was not the shooter, nor was he
present at the scene.
b. D convicted of 1st Degree Murder anyway at trial court.
c. P had extended Ds liability to the liability for robbery of co-conspirator, then applied
felony murder to make D liable for 1st Degree murder. P could not have gotten him
for the murder on conspiracy alone
d. On appeal, court held that P cannot extend liability through a chain of conspiracy
and felony murder, only through one or the other for a given offense.
6. U.S. v. Fox
a. D plead guilty to conspiracy, but then his co-conspirators got off at trial due to a
hung jury.
b. D argued that he could not be guilty of conspiracy if no one else was.
c. D still guilty under the uni-lateral application of Conspiracy.
7. Gebardi v. U.S.
a. D violated Mann Act by transporting a woman across state lines for the purpose of
sex. Charged w/ conspiracy w/ the woman.
b. The woman, under this act, is an immune party, though, and D can’t conspire with
an immune party, so not guilty of conspiracy.
8. U.S. v. Perez
a. Chain-Wheel Conspiracy- Insurance fraud scam involving the organization of fake
car accidents, that went to corrupt doctors and lawyers who filed phony medical
and legal reports.
b. The accident victims were wheel participants in that they were regularly switched
out, to avoid detection. The insurance company would be very suspicious of the
same person getting injured in an accident over and over.
c. Each participant, even the ones that pretended to get hurt and did not participate in
the scam for long, are guilty for all the crimes of the others, b/c the participants
should have known this whole scam could not exist based on one faked car
accident.
i. If they claim they did not know about the size of the scam, that is Willful
Blindness.
9. U.S. v. Caldwell
a. Govt tries to convict a marijuana distributor and two of his dealers of one large
conspiracy.
b. Appellate court holds that the dealers were independent and so could not be guilty
of conspiracy with the other.
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