QUICK ANALAYSIS BREAKDOWN OF EVERY STATUE/CRIME
I.
II.
III.
IV.
Justification for criminal punishment
Sources of criminal law
I.
Common law v. MPC
II.
Statutes, and statutory interpretation.
Basic elements:
I.
Actus reus (what defendant has to DO)
a. Voluntary act requirement
b. Causation & concurrence requirement
II.
Mens rea: ensures defendant acted culpably
a. Presumption against strict liability
b. Common law has many mens reas, MPC just four
c. Transferred intent and willful blindness
What is going to happen in court and why
I.
How courts would sentence.
II.
What the fact finder would be responsible for determining
BASICS
III.
What distinguishes criminal law?
I.
Other areas of law often incentive setting and efficiency.
a. Contract law recognizes there may be an interest in breaking a contract in
circumstances where it is more effective or other benefits are present. Contract law has
efficient breach.
b. Tort law takes into account the cost of a reasonable person to take precaution against
the ability to take those precautions. Like risk utility analysis applied to torts in general.
Tort law has learned hand formula.
II.
Criminal Law is different because there is a much stronger condemnatory aspect because crime
are viewed as significantly and morally wrong.
a. Harsh penalties
b. Categorically prohibits
c. Gives criminals just deserts
d. Stabilizes social cooperation under the rule of law
e. Channels moral condemnation of the community
f. Incapacities - prevent future wrong doing from that person.
g. Often focuses on public moral wrongs
IV.
The Method of Criminal law: below are the characteristics of the method. In book, not discussed in class
I.
The method is a series of commands and directions
a. "musts" - ex: file taxes, register car
b. "must nots" - ex: do not murder, do not rape, do not rob.
II.
The commands are taken as calid and binding to those in the community to which they apply.
They are backed by the "prestige and power of the community".
III.
The commands are subject to sanctions for disobedience, and the community is prepared to
enforce the sanctions.
IV.
The difference between criminal and civil sanctions: The judgement of condemnation which
accompanies and justifies criminal sanctions.
V.
Should the law criminalize everything that society agrees is immoral? NO
I.
II.
III.
IV.
Should not be criminally punished for lying or cheating, there are social punishments (isolation,
etc) for this so the criminal law is not needed and would be excessive and unnecessary.
School of thought does change
If we are in the business of punishing all moral wrongs it becomes metastasizes and we become
an authoritarian society.
The criminal law may not be refined enough to regulate some immoral wrongs because it is too
harsh.
o This would consider if Consequences are desirable of the enforcement?
A Crime - is conduct, which if duly shown to have taken place, will incur a formal and solemn pronouncement of
the moral condemnation of the community.
A crime is not solely a. Anything the legislature chooses to call a crime
b. Anything the legislature gives a criminal penalty
c. Antisocial conduct which public offenders are given a responsibility to suppress
VII.
Sources of criminal law:
I.
All 50 states, the district of Columbia, the military, and the fed government, each have their own
criminal code (aka penal code).
II.
Most criminal law is state law and most criminal prosecution are brought by states.
III.
There are basic principles that are the foundation for most penal code, allowing generalizations
to be made in most jurisdictions about the elements most crimes and defenses.
IV.
All criminal law in U.S. jurisdictions are subject to the constraints of the U.S. constitution.
V.
Statute:
a. The interpretation of the statutes by the specific jurisdiction and judges within that
jurisdiction have interpreted that statute
VI.
Interpretation by jurisdiction:
a. Some jurisdictions interpret the law based on their common law
b. Some jurisdictions interpret the law based on the model penal code
VII.
The Model Penal Code (MPC) a. Created by the American law institute (ALI) in 1962, after 10 years and 13 drafts.
b. This has been highly influential for state legislatures
c. No state has fully adopted the Model Penal code
d. After the code was published 34 states released new criminal codes that were
influenced by the MPC.
VIII.
Federal law
a. Influences a lot of the MPC and state penal codes.
b. Constitution - most important source of federal law
1. Other than treason, it does not outline any crimes or defenses
2. Constitutions sets limitations on the way governments actors can punish
criminal behavior.
VIII.
The Presumption of Innocence and Proof Beyond a Reasonable Doubt:
I.
The prosecution has the responsibility of establishing the defendants guilt.
a. Said by the supreme court: the presumption of innocence is the "bedrock axiomatic and
elementary principle that whose enforcement lies at the foundation of the
administration of our criminal law.
b. Aka - the prosecution bears the burden of proof.
II.
The standard of proof (the level of certainty the factfinder must reach before ruling for the party
with the burden of proof) - Beyond a Reasonable Doubt
a. MPC § 1.12 proof beyond a reasonable doubt:
II.
III.
IV.
III.
IV.
V.
IX.
1. No person my be convicted of an offense unless each element of such offense
is proved beyond a reasonable doubt. In absences of such proof, the innocence
of the defendant is assumed.
2. Subsection (1) of this Section does not:
(a) require the disproof of an affirmative defense unless
and until there is evidence supporting such defense; or
(b) apply to any defense which the Code or another
statute plainly requires the defendant to prove by a
preponderance of evidence . . . .
Reasonable doubt - A reasonable doubt would cause a reasonable person, after careful reflection, to
hesitate to act in the more important matter in life.
I.
Reasonable doubt is the state of the case, after the entire comparison and consideration of all
evidence, leaves the minds of the jurors in that condition that they cannot say they feel an
abiding conviction of the truth of the charge.
II.
Doubt based on a reason that is evaluated by impartial consideration of the evidence
III.
Based on evidence or lack of evidence
IV.
Reasonable doubt is not:
a. Imaginary
b. Possible doubt
c. All doubt
d. Based on speculation or guess
e. Measured to a mathematical or scientific certainty
This is the most difficult standard to reach
The purpose of the heavy burden of the standard of proof is I.
Reduce the risk wrongful convictions from factual errors
II.
Support public policy that society values the good name and freedom of every individual , and
society should not condemn a good man when there is reasonable doubt about his guilt.
III.
Winship - the case held the due process clause of the fifth and fourteenth amendments of the
US conts. "protects the accused against convictions except upon proof beyond a reasonable
doubt of every fact necessary to constitute the crime with which he is charged".
Proving the elements of a crime - The prosecution must prove every element at jury trial
Convictions I.
Most felony convictions are result of plea bargains (94 % at state level and 97 at federal level)
II.
Studies estimate 6% false conviction rate against Pen. State prisoners.
III.
Death sentences are falsely convicted about 4.1% of the time.
The defense use of standard of proof I.
"Case in chief defense" (aka prima facie case defense) - The defense often attempts to create
reasonable doubt about some element of the crime. '
a. This only requires that the defense 'poke holes' in the prosecutions story
II.
Affirmative defense -defendant admits guilt as to charged offense but claims she nevertheless
should be acquitted of that offense because she was justified in acting the way she did or
because she should be excused.
a. Legislatures may place the burden of persuasion on defendants for affirmative defenses.
1. In these situations, the defendant is usually required to prove the affirmative
defense by a preponderance of the evidence standard of proof.
Standard of reviewI.
Directed verdict: the trial judge must evaluate if the prosecution has introduced sufficient
evidence such that a rational jury could decide the prosecution has proved its case beyond a
reasonable doubt.
II.
Appeal - whether a rational jury could have, on the evidence presented found the defendant
guilty beyond a reasonable doubt.
a. The court give the prosecution (rather than the defense) the benefit of the doubt upon
appeals
JUSTIFICATIONS OF PUNISHMENT
V.
VI.
Philosophical moral reasoning for punishment:
I.
Consequentialist - actions are morally right if, and only if, they are in result in desirable
consequences.
a. Utilitarianism (primary theory of consequentialist punishment) - look forward to the
predictable effects of punishment on the offender or society.
1. Weigh the cost v. benefit of the punishment.
b. Consequentialist justifications: there positive effects that come from punishing the
offender
1. Deterrence (consequentialist)- dissuade would-be offenders from offending in
the future by threating sanction
i.
Specific deterrence - prevent the specific offender from repeating the
same or other criminal act.
ii.
General Deterrence - prevent the general public from committing crime
iii.
Argument against deterrence - Not effective
2. Rehabilitation (consequentialist)- reform offenders so they are no longer
disposed to commit crime
i.
Argument against rehabilitation - doesn’t work well
3. Isolation /incapacitation (consequential) - separate the individual from the
general public to prevent reoffending
II.
Non-consequentialist - actions are morally right or wrong in themselves, regardless of the
consequences
a. Non-consequential punishment justifications: you committed a moral wrong so you
deserve to be punished.
1. Retribution (primary theory of non-consequentialist punishment) - the
reaffirmation of societal norms for the purpose of maintaining respect for the
norms themselves. Community condemnation and the communities emotional
desire to punish the offender. Giving the offender their just desserts
i.
A sort of vindication for the victim, "getting justice" … Olivia Benson.
ii.
Negative aspects of retributivism 1. often used with expressivim (emotional input and effect on the
punishment)
2. Lack of purpose - not expected to result in any positive aspect.
2. Expressivism (can sometimes be consequentialist) - censure/condemn the
offender IN PUBLIC, to make a display.
b. There does not need to be a serious negative effect, there just has to be a morally
wrong act to warrant punishment.
c. Precondition to a moral wrong is that the person can make a moral judgement
Overall purposes of punishment I.
Moral condemnation/societal accountability
II.
The exercise of power (prema facie - based on first impressions accepted as correct unless
otherwise provided)
CRIMINAL INTERPRETATIONS
I.
Interpreting Criminal Statutes
I.
Judges when interpreting a. Have a ton of discretion to decide what punishment each justification warrants and
which justifications are important
1. Limits of discretion:
i.
Mandatory sentencing
ii.
Constitutional requirements (8th amd, 14th amend)
iii.
Sentencing guidelines
2. Plain meaning
3. Legislative intent
4. Consistency across cases - cardinal (punishment propotionat to the crime) and
ordinal (piunishement propotionate to the preveious punishment)
II.
Canons of Interpretation - informal rules of interpretation (In order of how the text should be
analyzed)
a. Plain meaning rule - what does the ordinary person think this word means
b. Constitutional avoidance - if there are two meanings of this work, and one of them
would invalidate the constitution, we will interpret it in the way that is constitutional
c. Avoiding absurdity - if there are two interpretations, and one leads to an absurd
results, the statute should be interpreted in a way that do not lead to absurd results
d. Undefined Terms have common law meaning - if the legislature takes a common law
term, and puts it into the statute, we can assume they meant to use the common law
meaning unless otherwise indicated.
e. Ejusdem Generis (of the same kind) - when there is a list of things followed by a
common term
1. Ex - goat, lambs, cows, and other farm animals.
f. Noscitur a Sociis (known by the company it keeps) - when cooking salt does not refer to
driveway salt, but to cooking salt.
g. Expressio Unius - the expression of one thing is the exclusion of others/another
h. Statutory structure - a statute is to be considered in all its parts when construing any
one of them.
i. Statutory amendment - a statute should be construed to be consistent with
subsequent statutory amendments
j. Rule of Lenity - if there is ambiguity in the statute all doubt should be in favor of the
defendant, because the defendant is presumed innocent.
1. This unresolved ambiguities are construed against the drafters and in favor of
the defendant.
2. Rule of last resort
3. Not present in other areas of law (except analogous to interpreting ambiguities
in contracts against drafters)
4. Dauray case - US appeals 2d Cir. 2000
i.
Facts: Dauray was arrested in possession of 13 pieces of child
pornography that had been cut out magazines.
ii.
Statute: 18 USC § 2252(a)(4)(B) - punished possession of " 3 or more
books, magazines, periodicals, films, video tapes, or other matter which
contain any visual depiction" showing a minor engaged sexually explicit
conduct that have passed in interstate or foreign commerce.
iii.
Reasoning: Rule of lenity applied because the statute could be read to
support the conviction (if the 'other matters contain' includes pictures)
or the statute can be read to defeat the conviction (if other matters
contain does not include pictures, because pictures are visual
representations themselves and picture cannot contain a picture).
iv.
Notes:
1. Ejusdem Generis and Noscitur a Sociis to evaluate the lists and
associated terms to determine what other matter means.
2. Statutory structure evaluated.
3. The defendant argued that listed terms form a category of
images containers.
4. The government argues that the level of generality is supposes
to be a catch all.
ACTUS REUS (basic element of crime #1)
A voluntary act, or omission when there is a legal duty, that results in some kind of social harm
I.
Actus Reus Ideals:
I.
A person should not be convicted solely based on the basis of his thoughts but also must have
done something that caused some sort of social harm
a. Inchoate crimes - when the law attempts to criminalize conduct leading up to a the
completed social harm so that the police may apprehend a person before the social
harm occurs.
II.
The defendants acts must have been voluntary
a. Voluntary act - is a movement of the body willed by the actor.
b. Martin case - (Alabama court of appeals, 1944)
1. Facts - Officers arrested the defendant in his home and took him onto the
highway, where he committed the act of being drunk in public.
2. Statute - any person who, while intoxicated or drunk, appears in any public
place where one or more person are present, and manifests a drunken
condition by boisterous or indecent conduct or loud or profane discourse, shell,
on conviction, be fined.
3. Rule - an Actus Reus must be voluntary
4. Holding - reversed
5. Reasoning - a voluntary appearance is presupposes. Thus when someone is
intoxicated and forced into the public, the public intoxication is involuntary
c. Decina case - Court of appeals for New York, 1956
1. Facts - a man who had a history of seizing unconscious, was driving when he
noticed his arm started convulsing (which usually indicates he will start
convulsing). He then had a seizure while driving on the highway, he hit a group
of school girls killing 4 of them. He was convicted of violating section 1053 of
the penal law.
2. Reason - He knew he had a history of having seizures, thus he knowingly
partook in a dangerous act while knowing he could become unconscious. The
majority equated it to drunk driving.
3. There is a substantial dissent (to right if needed)
III.
There can be no criminal liability for an omission unless the person who failed to act had a
legal duty to act
IV.
Status crimes are unconstitutional (in theory and ideals):
a. People should only be criminally punished for their conduct, not simply being a certain
type of person.
1. A prohibited mental state (mens rea or guilty mind)
2. A chain of causation that links the defendants actions to the social harm
3. Concurrence between the mens rea and the actus reus.
II.
Liability for omissions - criminal liability can be based upon an omission if the defendant had a legal duty
to act and was physically capable of acting.
I.
II.
III.
IV.
Requirements for omission liability:
a. Must be physically capable to act
b. Must have a legal duty to act
c. Must be aware of the act
Individuals have a legal duty to act when: Common law recognizes all of these.
a. There is a special relationship between the defendant and the victim
b. When the defendant enters into a contract which requires him or her either explicitly of
implicitly to act in a particular was
c. When there is a statutory duty to act
d. When the defendant creates the risk of harm to the victim
e. When the defendant who would otherwise not have the duty to act, voluntarily
assumes care of a person in need of help.
MPC 2.01(3) - legal duty to act when imposed by law.
Howard case a. Facts - There was a history of abuse from the moms boyfriend, the mother knew about
the beatings, witnessed the beatings, and did nothing. The child died from the beatings,
and the court accuses the mother (defendant) of not preforming her legal duty to
protect her child, who she had a special relationship to protect.
b. Charge - involuntary manslaughter
c. Omissions liability elements:
1. Physically capable
2. Duty - child/parent relationship
3. Knowledge of facts
MENS REA (basic element of crime #2)
The particular mental state provided for in the definition of the offense
I.
Mens rea basics:
I.
Ensures the actus reus was undertaken culpably
II.
Most central mens rea is intent (the result was your conscious object)
II.
Common law - has many varying terms to describe mental state but is not consistent among the courts.
I.
Specific intent and general intent are commonly used, but often the courts assign it in conflicting
ways.
II.
Over 100 types of mens rea in common law (willfully, maliciously, corruptly, etc.)
III.
Cunningham case - (court of criminal appeal, QB 1975)
a. Facts - The defendant stole the victims gas meter and did not turn the gas off. The victim
was in her home and the gas seeped in and endangered her life.
b. Procedural history - Convicted at trial because the trial court defined malice as 'wicked'
(defined as something which he has no business to do and otherwise well knows it).
c. Rule 1 - The jury shall decide if the actions met the required mindset, not the judge.
d. Rule 2 - when there is a common law term, you must look to see how it is defined.
III.
If no mens rea is specified - generally assume the drafters meant to require intent.
I.
Intent (mens rea meaning) - moral blameworthiness that ought to make a person criminally
responsible for there actions.
a. Equated to 'conscious object' or ' knowledge to a virtual certainty'
IV.
When mens rea is specified - use statutory interpretation cannons to determine its meaning
V.
Mens rea Doctrines:
I.
II.
III.
VI.
Natural and probable consequences doctrine: (MPC & Common law)
a. Mens rea may be assumed from the circumstances
b. Natural and probable consequences of the wrongful acts assumed to be within the
scope of purpose.
1. Look at subjective actions objectively to determine intent.
c. The element of intent may be determined from attendant circumstances.
1. Fugate case:
i.
Facts: The defendant broke into the victims house, he hit him multiple
time in the head with a shotgun and then took him to the garage and
shot him, killing him. The defendant claims that the fatal shot was an
accident and he appealed his conviction on the ground that the killing
was not purposefully done.
ii.
Rule - The element of intent may be determined from attendant
circumstances.
iii.
Holding - convicted
iv.
Reasoning: ∆ took him to the garage before he shot him (presumably
because it was a big enough area or because it would be muffle the
sound). These facts add allow the totality of the circumstances to show
he purposefully did this.
Transferred intent Doctrine - when the crime happens to an unintended recipient. (MPC &
common law)
a. If the transferred intent is worse than the original intention, the individual is not legal
culpable
b. If the transferred intent is not as bad as the original intention, the individual is legally
capable.
c. MPC 2.03 (2)(a):
1. A defendant still counts as purposely or knowingly causing a particular result if
the actual result differs from the that designed only in the respect that a
different person or a different property is injured.
2. Or the injury or harm would have been more serious than that caused.
Willful blindness doctrine:
a. Knowledge is central to mens rea
1. Awareness of fact; Belief in its truth
b. Willful blindness (deliberate ignorance) - requires showing a defendant:
1. subjectively believes there was a high probability that the fact existed and
2. took deliberate actions to avoid learning the fact.
c. Jewell case - (US court of appeals the 9th cr. 1976)
1. Facts: defendant was charged with drug smuggling over the border. He was
given $100 at a local bar to drive a strangers car across the border. The
defendant did not know what was in the car.
2. Statute: "knowingly importing … substances"
3. Rule: When the knowledge of the existence of a particular fact is an element of
an offense, such knowledge is established if a person is aware of a high
probability of its existence, unless he actually believes it does not exist. A court
can properly find willful blindness only where it can almost be said that the
defendant actually knew.
d. MPC (2.02(7)): “When knowledge of the existence of a particular fact is an element of
an offense, such knowledge is established if a person is aware of a high probability of its
existence, unless he actually believes that it does not exist.”
1. No need for affirmative steps or deliberate avoidance
Model Penal Code I.
recognizes only four mental states
II.
I.
II.
III.
I.
Purposely - if the element involves the nature of his conduct or a result thereof, it is his conscious object
to engage in conduct of that nature or to cause such a result … OR if the element involves the attendant
circumstances, he is aware of the existence of such circumstances or he believes or hopes that they exist
Knowingly - aware that it is practically certain.
Recklessly - consciously disregards a substantial and unjustifiable risk that the material element exists
or will result from his conduct.
I.
The risk is a gross deviation from the standard of conduct a law abiding citizen would observe
in the actors situation.
Negligently - should be aware of a substantial and unjustifiable risk
III.
Mental state hierarchy: 2.02(5)
I. Purpose satisfies knowledge
II.
Purpose and knowledge satisfy recklessness
III.
Purpose, knowledge, and recklessness satisfy negligence
IV.
Presumption of Intent does not apply to:
I.
Statute explicitly says it imposes strict liability
a. Strict liability crimes - crimes that do not require a mens rea to be punishable
1. Retributivist might be against punishing these crimes if there is no obvious
moral wrong
2. MPC strict liability:
i.
If there is no mens rea in the offence, the default it "recklessly"
ii.
Exceptions - when the legislature specifically says that there is
absolute liability (2.05)
2.02(1): “[A] person is not guilty of an offense unless he acted purposely,
iii.
knowingly, recklessly or negligently, as the law may require, with
respect to each material element of the offense.” 2.02(3): “When the
culpability sufficient to establish a material element of an offense is not
prescribed by law, such element is established if a person acts
purposely, knowingly or recklessly” Unless, 2.05(1)(b): “offenses that
constitute violations”; “a legislative purpose to impose absolute
liability . . . plainly appears”
II.
Public welfare offenses: common law
a. Started during industrial revolution, when injury could be impersonal and widely
distributed.
b. No precise definition of a PWO
iii.
The assumption of mens rea does not apply to public welfare offenses of if the statute
specifically says it is not required
iv.
PWO general criteria: REVIST THIS (MALA PROBITA) (Morrissette case need to have,
jist - did not need mens rea bc strct liablity, he got off bc the statute was silent on
mens rea and criminal liablity needs mens rea) whens there is no mens rea specifies
what will there be strict liablity
1. Someone standing in a responsible relationship to public
2. Defendant is least cost avoider (big factory dumping chemicals - easiest way to
keep clean is to not dump)
3. Generally not positive aggressions or invasions
4. No direct injury to person or property, but just a probability of such Accused in
a position to prevent with little care
5. Penalties are generally small
6. “No grave damage” to reputation upon conviction
CAUSATION & CONCURANCE
I.
Causation - a component of the actus reus requirement (often treated as a separate element of the
crime)
I.
Not the same standard as torts
II.
Two types of causation but be proven to establish criminal liability:
i.
Factual causation - the defendants conduct must be an actual or but for cause of the
social harm
1. Determines if the defendant's voluntary act or omission is one of the causal
factors.
2. Does not show the defendant is the primary cause of the harm. (just narrows
down who might be criminally liable)
3. 'But for' test - but for the defendants voluntary act would the social harm have
occurred when it did? (if the answer is no there is actual cause).
ii.
Proximate cause - the defendants conduct must be the proximate or legal cause of the
social harm
1. Fairness test - is the result causally so remote that it would be unfair to
attribute the result to the defendants conduct. This is evaluated in common
law by 6 factors as a balancing test (#1 is most important):
i.
Foreseeability by the intervening cause:
1. When looking at foreseeability courts differentiate types of
intervening causes:
1. Responsive intervening cause - an event (usually an act)
that occurs as a reaction to the defendant's conduct.
Does not relieve the defendant of criminal liability
unless the responsive act was unforeseeable and highly
abnormal.
2. Coincidental intervening cause - not in response to
victims conduct, but places victim in wrong place at
wrong time. This would relive ∆ of criminal liability
unless the intervening cause was foreseeable.
ii.
Apparent safety-doctrine - looks to see if the victim was in a poaition of
apparent saftey when the intervening cause affected her.
1. Position of safety - means the active, dangerous forces and
events the defednants conduct set in motion have subsided or
come to rest, so that the victim is no longer imperiled.
iii.
Free, deliberate, informed human intervention:
1. A ∆ is more likely to be relived of criminal responsibility where
the intervening cause is a voluntarily, knowingly, and intelligent
human actor, as opposed to a natural force.
iv.
De minimus (minor) causes - looks at if ∆ conduct was a very minor butfor cause in the social harm.
II.
1. The law generally does not hold ∆s liable for very minor but-for
causes when there is a fare more substantial cause to whom
responsibility can be more fairly attached.
v.
Omissions - was the act an omission or affirmative act?
1. Omission rarely supersede an earlier wrongful act.
vi.
The intended consequence doctrine - if an intended wrongdoer gets
what she wants in the general manner she wants it, she cannot escape
criminal responsibility even if an unforeseeable event intervenes.
2. Proximate cause Analysis:
i.
Direct cause - defendant is a direct link in the causal chain
1. Satisfies the proximate cause requirement
ii.
Intervening cause - links in the causal chain between defendant and
result
1. Dependent intervening cause - dependent upon or responsive
to defendant's act.
1. Does not break the causal chain unless it is really
bizarre. Ex: A man tries to shoot his wife, the wife takes
off on a horse to go to her parents house, she falls off
the horse and dies (this would break the causal chain).
2. Independent intervening cause - independent of or
coincidental to defendant's act.
1. Does Break the chain of causation unless it is
foreseeable
III.
Gavon Case i.
Facts: the defendant shot the victim in the neck, without looking or aiming where he
was shooting. The victim was paralyzed from the neck down. After the defendant and
victim married, the victim came down with pneumonia as and died because her
paralyzed condition put her at risk of increased suffering from complications and
needed constant care. The victim died a year after being pearlized by the shooting from
the defendant. The defendant was convicted for manslaughter at the trial court.
ii.
Holding: There was no superseding intervening event because the shot caused the
quadriplegic state and the quadriplegic state gave rise to the pneumonia that resulted in
her death. There is plenty of evidence that the shot caused the quadriplegic state. So
the BUT FOR test is satisfied.
Concurrence - a requirement that there must be a connection between the actus reas and mens rea.
I.
Temporal concurrence - The defendant must possess the mens rea during the actus reas
II.
Motivational concurrence - mens rea must be the motivating force behind the actus reus
HOMICIDE OFFENSES
I.
II.
Homicide - conduct causing death of a human being
Homicide crime - conduct causing death of a human being & accompanying mental state
I.
Actus reas - killing a human being
i.
What is a human being?
1. Common law rule: someone who is born and alive
2. States differ on treatment of fetuses
3. But cannot infringe Constitutional protections for abortion
4. “Alive” means not “brain dead"
II.
Mens rea determines which kind of homicide has occurred
i.
COMMON LAW CRIMINAL HOMICIDE :
1. Murder Requires "malice aforethought," including:
i.
Express malice - intent to kill (not always first degree murder)
ii.
1. Intent to kill murder - requires the mens rea of to be both
purposeful and knowing conduct with respect to death.
1. Defendant is generally presumed to intend the natural
and probable consequences.
2. Deadly weapon - juries often told they may infer intent
to kill from the use od a deadly weapon directed at a
vital part of the human anatomy.
Implied malice : (2nd degree murder, but can be 1st degree by statute.)
1. Intent to commit serious bodily injury
1. Mens rea - the intent was only to injure, not kill
2. Depraved heart murder - murder resulting from such extreme
carelessness that the killer is seen as just as blameworthy as
someone who intended to kill
1. Extreme recklessness - extreme indifference to human
life
1. Ex: You shoot into a room full of people when
you intend to hit the wall.
2. Malice is implied when an individual kills with an
abandoned and malignant heart
3. Felony murder - a killing which results from a felony one
commits or attempts, for which the killer is held strictly liable
as long as he had the mental state required for the felony
1. Types of felony murder (not all felonies trigger felony
murder):
1. Enumeration - felonies that are contained in
statute that support felony murder. (most
common: rape, robbery, burglary, arson, and
kidnapping). (many jurisdictions upgrade this to
1st degree murder based on stautute)
2. The inherently dangerous rule (two different
interpretations) (categorical test)
a. Abstract/Per se : a felony is inherently
dangerous only when there is no way
the felony can be committed without
creating a substantial risk to death.
b. Manner of commission: a felony is
inherently dangerous if it was
committed in a dangerous manner that
created a substantial risk of death.
2. Felony murder requirements:
1. Independent felonies - the felony must be
independent of the resulting homicide.
Otherwise deemed to "merge" into the
homicide. Felonies that are included with the
homicide are such as assaultive crimes and that
have no independent felonious purpose merge
with the homicide and do not create felony
murder liability.
a. Enumerated felonies are not subject to
the independent requirement
2. Causal relationship - the killing must be within
the "thing done" (res gestae).
a. Time and place rules - the death must
relate in time and place to the felony
b. Logical relationship: the killing must be
logically related to the felony
i.
Act committed in furtherance
of the felony - the act causing
the death needs to have
furthered the felony in some
way
1. The agency rule: a third
party who commits a
commits a murder ,
while the defendant is
commits a crime, will
not impose felony
murder on the
defendant.
1. Not accepted
by all state
(case: kids
stealing car and
one of them
was shot a
killed by
homeowner,
and other kids
were charged
with Felony
murder bc
Illinois did not
have agency
murder.)
2. States without
the agency rule
will put cirminal
liabity on the ∆
for an
unrelated 3rd
party's killing
ii.
Logical Nexis - using this test,
time and place are only factors
3. Causation - most jurisdiction don’t require both
for FM:
a. Actual cause - but for the felony the
death would not have occurred
b. Proximate cause - the death was a
foreseeable or natural result of the
felony
3. Merger doctrine (for felony murder): when you are
committing an assaultive crime you can not be charged
with both assault and murder.
1. Felony murder does not apply to assaultive
crimes.
iii.
II.
2. Rational - if we did not have the merger
doctrine any assault that results in death would
result in a murder charge regardless of intent.
No need to jack everything up to murder,
when it is just an assault. There should be less
severe homicide offenses.
a. Bc a bitch slap that results in death only
has the mens rea for a bitch slap, but
beating someone to death has the meas
rea for murder.
i.
SO murder is charged if there is
intent for death
ii.
But bitch slap could be
manslaughter
iii.
Want there to be less severe
homicide offenses.
4. Hypo - if four teens were stealing a car, and the car
owner comes out and shoots one of the teens (killing
him) is it correct for the other three teens to be charged
with felony murder?
1. Agreement argument - the risk of death was
there because of the reckless nature of
committing this felony.
2. Disagree - rewrite the statute
3. Rule: is a this party was proximate cause of
death, no felony murder.
Degrees of murder:
1. First degree murder:
1. Committed by a particular means specified by statute
2. Committed during another crime specified by statute
3. Committed with premeditation and deliberation
2. Second degree murder - Every murder that is not first degree
Manslaughter: 2 kinds in common law, Manslaughter requires something like recklessness
I.
Voluntary manslaughter :Intentional killing but mitigated by heat of passion
i.
The doctrine of provocation/Heat of the passion defense - one who kills in response to
a legally adequate provocation is treated as having acted without malice aforethought
ii.
The defendants culpability is mitigated due to culturally sanctioned sympathy for the
defendants loss of control
iii.
There are other forms of voluntary manslaughter, ex. Diminished compacity (not on
exam, not to worry about).
d.
Moral behind it - Societal sympathy to the killing
e.
Approaches to determining if someone should be charged with voluntary manslaughter
i.
The early common law categorical test: Outdated approach, intentional killing in
specific culturally sanctioned context, was about one's honor and very cultural
1.
Claim provocation motivation if:
a. An aggravated assault or battery
b. The observation of a serious crime against a close relative
c. An illegal arrest
d. Mutual combat
e. Catching one's wife in the act of adultery
2.
Question of law, not of fact
3.
ii.
II.
Mere words rule - words are never enough to constitute legally
adequate provocation
The modern "reasonable man" test:
1.
The jury must find these requirements:
a. The defendant acted in a heat of passion
b. The defendant was reasonably provoked into a heat of passion
c. The defendant did not have sufficient time to cool off between
the provocative act or event and the killing
d. A reasonable person in the defendants shoes would not have
has sufficient time to cool.
2.
Must be a causal connection between the provocation, the passion,
and then killing.
a. The person killed has to be the provoker
3.
How could it be a 'reasonable person' if they killed? Two approached to
determine who is a reasonable person:
a. Statistical - looks to how most people actually act
i.
standard common law favors this test
ii.
Still informed by cultural biases
b. Normative - looks at how people should behave
i.
What would someone who responds to good moral
reasons do?
ii.
Still informed by cultural biases
4.
Major inquiries
a. How to instruct the jury to find a reasonable person?
b. Can you apply a reasonable prudent person test to a child? maybe only if they are being charged as a juvenile.
c. How do hate crimes fit in to the reasonable person test?
5.
People v Berry case a. ∆ originally Convicted of 1st degree murder of his wife
b. Issue - was it appropriate for the judge to instruct the jury to
consider voluntary manslaughter
c. Facts - was mad at wife for hoeing around and sexual taunting.
He strangled her twice, and was cooling for 20 hours while
waiting for her to return.
d. Reasons against heat of passion argument (prosecution) - he
had a cooling period, knew about the infidelity for 2 weeks, had
a history of this type of violence, and had building rage.
e. Argument for heat of passion (defense) - the wife was sexually
taunting him because she wanted to die and this works to
invoke his heat of passion. He picks abusive women so his
history should be void.
f. Holding - the jury should have herd the argument and decided.
g. Considerations - judge was male so there are gender and sexual
norms
h. General rule - cultural norms have a strong effect on the
rulings either way. Look to cooling down period when
determining heat of passion.
Involuntary manslaughter - killing through criminal negligence (recklessness or gross negligence)
I.
The defendant had the mens rea:
a.
Criminal negligence - legal term of art, many definitions, but something more than
ordinary negligence is required. Depending on jurisdiction could be:
i.
Regular negligence
II.
II.
ii.
Gross negligence - extreme deviation from the normal standard of care.
iii.
Recklessness
Commonwealth v. Welansky case a.
Facts - lots of people died in a nightclub, the business owner is liable for the deaths from
a fire. The defendant was in the hospital when it happened.
b.
Mens rea - The defendant had a duty to act and he had a knowledge of the reckless
conditions, lack of exits, and dangers.
c.
Actus reas -It could have been happening on any night, the fact that he was not there
did not make a difference, thus there was no intervening superseding cause that would
break the chain between him setting it in motion. Thus he is subject to omission liability.
d.
The standard in Massachusetts at this time - wanton and reckless conduct, distinguished
from negligence (but its actually not).
i.
Wanton and reckless conduct 1.
Knowing facts that would cause a reasonable man to know the danger is
equivalent to know the danger. (closer to recklessness)
2.
Wonton and reckless conduct does not pass the threshold of criminal
until it is negligent or grossly negligent.
MPC: Article 210 criminal homicide - Criminal homicide is murder, manslaughter or negligent
homicide.
I. Criminal Homicide (§210.1) - a person is guilty of criminal homicide when he
purposefully, knowingly, recklessly, or negligently causes the death of another human
being.
II.
Murder (§210.2):
a. (1) Except as provided in Section 210.3(1)({Manslaughter.], criminal homicide
constitutes murder when:
i.
it is committed purposely or knowingly; or
ii.
it is committed recklessly under circumstances manifesting extreme
indifference to the value of human life. Such recklessness and
indifference are presumed if the actor is engaged or is an accomplice in
the commission of, or an attempt to commit, or flight after committing
or attempting to commit robbery, rape or deviate sexual intercourse by
force or threat of force, arson, burglary, kidnapping or felonious escape.
(MPC's version of felony murder).
b.
c.
I.
Mens rea murder (simplified) - three possibilities
i.
Purposely and knowingly
1.
Resembles common law premeditation and deliberation.
ii.
Recklessness manifesting extreme indifference to the values of human life
1.
Resembles common law depraved heart
iii.
Can presume recklessness if killing causes while committing a listed crime (rape,
kidnapping, etc..)
1.
Resembles common law felony murder.
No degrees of murder. (unlike common law)
iv. Murder is a first degree felony
Manslaughter (§ 210.3.):
i. (1) Criminal homicide constitutes manslaughter when:
(a) it is committed recklessly; or
(b) a homicide which would otherwise be murder is committed under
the influence of extreme mental or emotional disturbance for which
there is reasonable explanation or excuse. The reasonableness of
II.
such explanation or excuse shall be determined from the viewpoint
of a person in the actor's situation under the circumstances as he
believes them to be.
Mens rea manslaughter (Simplified) - two possibilities
I. Recklessly
II.
III.
4.
5.
Or MPC extreme mental or emotional disturbance test - § 210.3(1)(b) permits a homicide that
would otherwise be murder to be considered manslaughter when it is committed "under the
influence of extreme mental or emotional disturbance for which there is reasonable
explanation or excuse."
i.
The reasonableness of such explanation or excuse shall be determined from the point of
view of a person in the actors situations under the circumstances as he believes them to
be.
ii.
Much more subjective than the common law approach.
iii.
Extreme emotional disturbance - an emotional state of an individual, who:
i.
Has no mental disease or defect that rises to the level established by section
30.05 of the penal law
ii.
Is exposed to an extremely unusual and overwhelming stress.
iii.
Has an extreme emotional reaction to it, as a result of which there is a loss of
self-control and reason is overborn by intense feelings (passion, anger, distress,
grief, excessive agitation or similar emotions).
iv.
Reasonable person test - from the viewpoint of a person in the actor's situation as he
believes it to be.
i.
The actor's sex, sexual preference, pregnancy, physical deformities, and similar
characteristics must be taken into account.
v.
State v. Dumlao case i.
Facts - defendant shot his wife while under the paranoid delusion that she and
all the men around her were romantically involves
ii.
Conviction - murder
iii.
Issue - should the court have allowed the jury to decide whether dumlao under
the influence …
Manslaughter is a felony of the second degree.
Negligent Homicide (§ 210.4):
(1) Criminal homicide constitutes negligent homicide when it is committed
negligently.
(2) Negligent homicide is a felony of the third degree.
MPC 210.5 (criminalizing assisted suicide): a Person may be guilty of criminal homicide for
causing another to commit suicide only if he purposely causes such suicide by force, duress or
deception.
THEFT OFFENSES
I.
Larceny a. Atus reas Elements:
i. Unlawful (“trespassory”) taking - actor must have no right to use property
ii. Carrying away (“asportation”) - assertion of control over and some movement
of the item contrary to the possession of the owner, no matter how slight.
1.
moving the object, however slightly
iii. From the possession of another
b. Mens rea: intent to permanently deprive owner
i. Specific intent
ii.
Mistakes of fact about ownership, even unreasonable ones, can negate liability
II.
Larceny by trick - Taking with consent obtained through fraud or deception
a.
No trespassory component
b.
With fraud or deception is big difference
III.
MPC THEFT (223) - defines a single offense of 'theft' with many variants (page 999)
a.
Why does MPC define it all under theft?
i.
Allows for uniform grading
ii.
Allows for uniform defenses.
1.
Unaware the property belonged to another (mistake of fact)
2.
Honest claim of right
b.
Theft grading:
i.
Felony - it exceeds $500, OR if the theft is in the business of buying and selling
ii.
iii.
stolen property OR if the stolen item is a firearm, car, airplane, motorcycle,
motorboat, or other motorized vehicle. (3rd degree felony)
Misdemeanor - $50-500 that are not specified otherwise by statute
Petty misdemeanor - theft below 50$
IV.
Burglary :
a.
Traditional common law: (old)
i.
Breaking and entering
ii.
A dwelling
iii.
At night
iv.
With the intent to commit a felony
b.
Modern common law:
i.
Breaking and entering into a dwelling
ii.
The intent to commit the felony is the essential element.
1.
if there is an intent and you do not complete the felony, there is still burglary
2.
The completion of the crime is not relevant, only the intent.)
c.
MPC (221.1)
i.
Elements:
1.
Unlawful Entering
2.
Building or occupied structure
3.
With purpose to commit a crime
ii.
Possibility for an affirmative defense for an abandoned building.
iii.
Burglary grading:
1.
2nd degree felony (any of the following will qualify):
i.
broke in a dwelling at night
ii.
Purposefully, knowingly, or recklessly inflicts or attempts to inflict bodily
injury on anyone
iii.
Is armed with a deadly weapon or explosives
2.
3rd degree felony: any burglary that is not 2nd degree
iv.
If there are other offenses being charged with burglary look to 221.3 to see if charges
merge or not.
d.
Eichmann case i.
Facts - defendant 'entered' a building to get a US flag and then burnt it. The defendant
was not supposed to be in building, but scaled the roof to get it and did not enter the
building.
ii.
Issue - does trespassing on the roof count as entering.
iii.
Canon - rule of lenity
V.
Robbery :
a.
b.
Common law elements:
i.
Theft (larceny) + force or threat of force
ii.
From victims person or immediate presence
MPC (222.1) p.998
i.
Theft
ii.
Inflicting or threatening serious bodily injury (or to commit a first or second degree
felony)
SLIDE 17 has a short overview of specific offences
Inchoate crimes
Crimes where you can be guilty without actually succeeding in the intended crime
I.
Attempt a.
Actus reas:
i.
Common law 1.
Actus reas must be an overt act
i.
Ex: Scoping out the place, Making a list of tools
ii.
Must be more than just thinking
iii.
Jurisdictions do not agree about If omissions can be an overt act.
iv.
Must be more than mere preparations. Two approaches to looking at
what constitutes an overt act:
II.
Rizzo case a.
Statute - an act, done with intent to commit a crime, and tending but failing to effect it
commission
b.
Looking more at how much more there is before the crime would have been complete (more
common approach)
Staples case - Looked more at what the person was thinking, and if they could prove it.
MPC - 5.01(1)©
a.
Actus reas - act or omission that constituted a substantial step in carrying out the crime.
Mens rea:
a.
Intent is needed for an attempt. The mindset cannot just be reckless
b.
Common law:
i.
Intent to commit the target offense, and
ii.
Intent to take the overt acts
iii.
Hinkhouse case - appeals ct
1.
Facts - defendant knowingly has unprotected sex with many women while
infected with HIV. He had the
2.
Lower court Conviction - attempted counts of attempted murder
3.
Reasoning - with all the combined evidence, the
4.
Issue - whether there was sufficient evidence of intent to cause death or serious
physical injury
III.
II.
II.
5.
I.
IV.
e.
b.
Holding - there was sufficient evidence, including refusal to use condoms,
knowing about infection and transmission, having rough sex with victims, having
protected sex with woman he loved, saying he wanted to spread aids.
6.
Note - if no one actually got infected he would still be liable because it is about
intent.
iv.
Harris case - Appeals ct
1.
Facts - Harris was in a heated argument in a car with victim , threatened to kill
her, held a gun on his lap pointed at her, she escaped the car, but had to come
back after getting tangled in barbed wire, she got into the car and drove off,
leaving Harris behand, the bullet hit the back window, but missed the victim.
2.
Lower court Conviction - attempted murder
3.
Issue -was right to instruct jury that they could find the defendant guilty of
murder or eben if he only intended to do great bodily harm
4.
Holding - attempt statute requires "intent to commit a specific offence".
c.
MPC (5.01)
i.
Kind of culpability otherwise required for the commission of the crime
ii.
Purposely taking substantial step
iii.
Planned to commit crime
4.
There is no such thing as attempted reckless or negligent homicide because the
purpose behind the act has to be the killing.
a.
Attempted statutory rape - the court differ on if this can happen
b.
Attempted voluntary manslaughter can happen - if the individual is provokes and intends to
commit murder but the result does not happen.
f.
Felony murder can not be an "attempt" because it requires a preceding felony
Defenses to attempt liability i.
Renunciation doctrine: voluntarily abandoned the attempt and renunciation is complete
1.
Some common law jurisdictions implement this, all MPC implement this.
2.
Elements:
a.
Voluntary abandonment the attempt and
b.
Renunciation is complete
ii.
Impossibility:
1.
Factually impossibility - there is no way for the offense to be carried out (ex. A pick
pocket tried to steal a wallet but the victim does not have a wallet). THIS IS
ACTUALLY NOT A VALID DEFENSE.
2.
Inherent factual impossibility - foolish to the point that the attempt is not able of
carrying out the crime to completion.
a.
Defense at common law
b.
Death spell (if mythological look to this)
c.
MPC 5.05(2) - mitigation but not a defense
i.
The court shall exercise its discretion to convict of a lower crime or
dismiss the case.
iii.
Legal impossibility:
1.
Hybrid legal impossibility - criminal intent but mistaken about attendant
circumstances (common law defense)
2.
Pure legal impossibility - criminal intent but the action is legal (common law defense)
The MPC rejects impossibly defenses but recognizes pure legal possibility defense.
Thomas case 1.
Facts - the victim had died before the attempted rape.
2.
Reasoning - the court looks to the MPC , in a common law jurisdiction, to understand what the
modern approach should be because the common law is dated on this subject.
Accomplice Liability - generally punish people who help others commit crimes
1.
Principal - person who commits crimes
2.
Accomplice - person who helps
3.
Derivative form of liability - accomplice is guilty of the same crime as the principle
4.
5.
6.
7.
8.
9.
Accomplice can generally be punished as harshly as principles (except those who merely help
principal evade the law).
Actus reas - some assistance
i.
Physical assistance (ex - lifting someone through a window when they are about to
commit robbery)
ii.
Encouragement
iii.
Omission (in some circumstances)
1.
Pace case:
a.
Facts - the principle is sitting in the back seat and the hitchhiker was
robbed. The alleged accomplice was driving the car and his wife and
children were also there.
b.
Issue - did the defendant do enough to be an accomplice?
c.
Holding - NO, mere presence is generally insufficient
iv.
Being at the offense, without any other action/inaction, (mere presence) usually doesn’t
amount to accomplice unless there is a common motivation, purpose.
1.
This can vary by jurisdiction
Mens rea i.
General rule:
1.
Intent to do the acts that assist the principal and
2.
Intent that the principal commit the crime
ii.
Break out discussion hypo result - case on p.837
1.
There is an argument to be made on Alice's behalf about creating the possibility
of harm or having the motive.
iii.
Wilson case 1.
Look to the ppt for quick facts too many to write.
2.
Rule - any assistance to the principal is criminal and the mens rea is criminal
intent to burgle (the same intent as the principle).
3.
Holding - no intent , not sufficient mens rea to commit felony
4.
Reasoning - he just wanted to get his friend caught and did not actually want to
steal anything.
MPC (2.06)(3) Liability for Conduct of Another; Complicity
iii.
A person is an accomplice of another person in the commission of an offense if;
1.
With the purpose of promoting or facilitating the commission of the offense,
he
a.
solicits such other person to commit it, or
b.
aids or agrees or attempts to aid such other person in planning or
committing it, or
c.
having a legal duty to prevent the commission of the offense, fails to
make proper effort so to do; or
2.
his conduct is expressly declared by law to establish his complicity.
iv.
When causing a particular result is an element of an offense, an accomplice in the
conduct causing such result is an accomplice in the commission of that offense if he acts
with the kind of culpability, if any, with respect to that result that is sufficient for the
commission of the offense.
MPC 2.06 simplified:
i.
Mens rea - purpose of promoting or facilitating the commission of the offense.
(ultimately same as common law above, in different words)
ii.
Actus reas - some assistance, basically same as common law.
1.
But MPC sees an attempt at assistance (aid, abetting, etc.) as sufficient for
culpability
Natural and probable consequences doctrine - if an accomplice aids in an offense and that offense
leads to further natural and probable consequences the accomplice can be culpable for those
results as well.
i.
Roy case:
1.
Principal acts - robbery during an illegal gun sale.
2.
Defendant act - helped set up illegal gun sale
3.
4.
5.
6.
c.
Issue - was the robbery a natural and probable consequence of the crime that the
defendant aided?
Holding - no
Reasoning - its conceivable but it is not reasonable predictable.
Rule - must be more than conceivable.
Conspiracy - punishes people who agree to commit crimes
1.
Overview
i.
Co-conspirators: all parties to the agreement
1.
Don’t have to be the one who commits the crime to be a co-conspirator
ii.
Not derivative: conspiracy is it own crime
iii.
Rationales:
1.
Common law - collective crime is more dangerous
a.
Consequently punish more harshly
b.
Broad punishment
2.
MPC - agreement reveals determination to offense
a.
person entering a conspiracy demonstrates commitment to commit
criminal act
b.
Consequently no additive punishment because of merger doctrine.
iv.
2.
Actus reus
i.
Early common law:
1.
A conspiracy is committed as soon as two people form an agreement to commit a
crime or immoral act
2.
the scope of conduct that could be punished was very broad.
3.
Conspiracy - an agreement by two or more persons to common either one or
more criminal acts or one ore more acts that might not constitute a crime but
were corrupt, dishonest, fraudulent, immoral, and in that sense illegal.
ii.
Common law:
1.
Requirements/Elements:
a.
Agreement to commit a crime (Most jurisdictions)
b.
Overt act (Most jurisdictions)
i.
Can be performed by the defendant or by one of the coconspirators.
2.
Procedurally:
a.
The trial can be held where the agreement was formed or where the overt
act took place (prosecutions choice and benefit)
b.
Co-conspirators may be tried together (increases the possibility the jury
will transfer suspicion of guilt to other defendant)
c.
Do not need to prove the defendant came close to actually committing
the crime he conspired to commit.
d.
Can be charged and convicted with both the crime and conspiracy in
common law.
iii.
MPC 5.03:
1.
Merger doctrine: Cannot be charged with both the target crime and conspiracy,
they 'Merge' into one offense in MPC states. The lesser crime will fall off.
a.
This is not applied in most common law states, only MPC
2.
3.
4.
3.
4.
The MPC attempts to punish individuals who's conspiracy has demonstrated a
firm commitment to criminal activity (and therefore poses a greater threat of
actual social harm than a person who had not so agreed)
You only need an overt act for a 3rd degree felony or lower. 1st and secound
degree felonys do not require overt act.
Defenses:
a.
Renunciation can be used as an affirmative defense to conspiracy if the
∆ thwarted the success of the conspiracy
b.
Abandonment: can be used against the target crime but rarely agains
the conspiracy it self, only if the ∆ notifies his co-conspirators of his
abandonment and informs the police about the conspiracy (and his
participation in conspiracy) . Not sure if this works
Mens Rea:
i.
Specific intent crime, requires (MPC & Common law are same):
1.
The intent to enter into an agreement
2.
The intent to commit or aid in the commission of the act or acts constituting
each target crime.
ii.
Bilateral agreement (Common law) - both parties intend and genuinely agree to the
conspiracy
iii.
Unilateral agreement (MPC)- an agreement one person had made with another (a way
to punish one individual for their intention to commit a crime through conspiracy,
without needing the co-conspiracy to be punished)
iv.
Swain case 1.
Facts - victims died from drive by shooting. The defendant's gun was used in
shooting but facts are cloudy.
2.
Lower court conviction - conspiracy to commit second degree murder.
3.
Issue - can you be convicted of conspiracy to commit secound degree murder,
which requires implied malice.
4.
Holding- no, overturned/revesed.
5.
Reason- conspiracies requires intent to commit underlying crime.
Pinkerton liability: each member of a conspiracy liable for crime that other members commit to
further their joint criminal design.
i.
Pinkerton rule - A conspirator may be held liable when an offense outside the agreed
upon target offense occurs, even if that other crime was not a part of the original
agreement, if the crime was:
1.
In furtherance of the conspiracy
2.
Within the scope of the conspiracy
3.
A reasonably foreseeable consequences of the original agreement.
ii.
The MPC rejects Pinkerton rule
iii.
Mothershil case1.
Facts - an officer was killed by a microwave pipe bomb during a traffic stop.
Defednatns runs the drug ring, that the car driver was involved in. the defendant
did not have specific knowledged of the pipe bomb.
2.
Issue - should Pinkerton liability apply to defendant?
3.
Defendant argues - he didn’t intend to kill the officer, he just wanted to make
money in his drug ring.
4.
Holding - Pinkerton liability does apply
5.
Reason - because it is reasonably foreseeable from the defendants drug ring
operation for something like this to happen.
Defenses
a.
The defense use of standard of proof 1.
"Case in chief defense" (aka prima facie case defense) - The defense often attempts to create
reasonable doubt about some element of the crime. '
i.
This only requires that the defense 'poke holes' in the prosecutions story
2.
a.
Affirmative defense -defendant admits guilt as to charged offense but claims she nevertheless
should be acquitted of that offense because she was justified in acting the way she did or
because she should be excused.
i.
Legislatures may place the burden of persuasion on defendants for affirmative defenses.
1.
In these situations, the defendant is usually required to prove the affirmative
defense by a preponderance of the evidence standard of proof.
Justification v. Excuse:
1.
Justification - way for the defendant to argue that what he did was acceptable/justified under
the circumstances. (no moral/legal wrong)
2.
Excuse - there was a moral/legal 'wrong' but there is a reason and the reason makes the
individual not morally culpable.
3.
b.
Intoxication (excuse)
1.
You can bring a intoxication defense if the drug is illegal.
2nd, 3rd, and 4th offenses are punished much more harshly than the first time.
2.
3.
4.
Voluntary intoxication:
i.
States are mixed on whether they accept it as a defense at all:
1.
For those that do, the availability of the defense depends on the type of crime
at issue
2.
Determining if voluntary intoxication can be applied to the crime in question:
a.
Common law:
b.
i.
Specific intent crimes: available
a.
c.
Crimes that require an intent to do some further
harmful act (beyond he crime itself) or achieve some
further harmful consequence
b.
Often have language like “with the intent to” or “for the
purpose of”
ii.
General intent crimes: not available
a.
All other crimes
b.
Require only intent to perform the harmful act
c.
Recklessness crimes
iii.
People v. Atkins
a.
FACTS - ∆ set forest fire, ∆ fled, ∆ plead that he didn’t
intend to light the fire (pile of leaves), yet he did so
regardless, ∆ was charged with arson
b.
ISSUE - Whether or not INTOXICATIOIN was a
defense to the crime of arson.
c.
HOLDING - He did not have the intent to commit
Arson.
d.
Rule - In voluntary defense jurisdictions, it depends on
whether the crime is: GENERAL INTENT CRIMES; or
SPECIFIC INTENT CRIMES
MPC: (2.08) p. 964
i.
ii.
iii.
5.
6.
iv.
Involuntary intoxication:
i.
Similar for common law and MPC. Elements:
1.
Defendant was involuntarily intoxicated, and
2.
Intoxication made defendant temporarily insane
a.
Temporary insanity - goes by insanity test.
MPC (2.08(4)) i.
involuntary intoxication is a defense if:
1.
it made defendant was unable to appreciate the criminality of his
conduct or to conform his conduct to the requirements, and
2.
defendant did not intend to intoxicate and Temporary insanity
ii.
7.
c.
Simpler
Scraps the general/specific intent distinction
Provides an excuse if it negatives an element of the
offense 2.08(1)
Not available to disprove recklessness 2.08(2)
Someone involuntarily intoxicated LACK THE INTENTIONALITY to be in the riskprone situation.
1.
There is an affirmative defense
2.
There is a lack of ACTUS REUS to have culpability in your choices
Common law i.
Someone becomes Involuntary intoxicated under Four circumstances:
1.
Intoxication was the fault of another (force, fraud, duress)
2.
Innocent mistake (didn’t know the substance was an intoxicant, unless
ought to have known)
3.
Defendant unknowingly suffered from psychological condition that
made him abnormally susceptible to alcohol
4.
Unexpected intoxication results from medically prescribed drug
Mistake of fact: (excuse)
1.
2.
3.
d.
MPC: (2.04)
i.
Mistake of fact is a defense whenever it negates the mental state element of
the crime (MPC 2.04(1))
ii. Mistake need not be reasonable
iii. May still be guilty of a lesser crime:
1.
Mistake may negate knowledge (murder), but not necessarily recklessness
(manslaughter)
iv.
Legal wrong test: No defense if, under the circumstances as defendant
supposed them to be, defendant was still committing a crime (2.04(2))
1.
However, defendant would be punished at level of crime he thought he
was committing under those circumstances
Common law:
i.
Same general rule: mistake of fact is a defense if it negates the mens rea of the
crime
ii. Difference is in how it treats unreasonable mistakes:
1.
Specific intent crimes: mistake can be unreasonable and still provide a
defense
2.
General intent crimes: mistake must be reasonable
iii. Legal Wrong Test: As under MPC, no defense if, under the circumstances as
defendant thought them to be, he was still committing a crime; unlike under
MPC, can still be punished at level of crime would have committed if he knew
the actual facts
1.
varies with jurisdiction.
2.
Basically not a defense, usually what you believe is irrelevant
Insanity (excuse)- is a complete defense (no punishment if it works). Focuses of mental states at time
of crime.
1.
Successful insanity defense avoids conviction and prison, but generally lands
defendant in mental health institution
2.
Justifications:
i.
Retribution -> Insane aren’t fully morally responsible, so lower retributive interest
ii. Specific deterrence -> Undeterrable
iii. General deterrence -> Public don’t identify
iv.
Rehabilitation -> Can’t rehabilitate by punishment; prison worsens mental health
v.
Incapacitation:
-> Just need to separate from public, not necessary to do through jail
-> Prisons not equipped to manage danger posed by mentally ill
c.
During trial - not guilty by reason of insanity.
1.
Wild beast - a man that is totally depraved of his understanding and memory and doth not know
what he is doing, no more than infant than a brute, or a wild beast, such a one is never the
object of punishment. (1724)
i.
Very old traditional common law.
2.
1.
McNaughton rule - an individual can be found not guilty be reason of mental insanity if at the
time of the committing of the act, the party accused was laboring under such a defect of reason
from disease of the mind as not to know the nature and quality of the act he was doing, or , if
he did know it, that he did not know he was doing what was wrong.
i.
Prongs:
1.
laboring under a defect of reason,
2.
from disease of the mind as
3.
not to know the nature and quality of the act he was doing,
4.
or, if did know, it, that he did NOT know what he was doing was wrong
ii.
Criticism:
a.
Binary
b.
Another one that you missed
c.
Another one that you missed
i.
This is the most common test
Volitional test - extends defense to ∆s who were driven by an "irresistible impulse" to commit
crime (extension of McNaughton test)
i.
Criticism:
ii.
a.
Makes it sound like crime must be explosive to be insane
b.
Doesn’t come in degrees
c.
Science of urges?
d.
Are there such things as irresistible impulses?
Only available in a minority of states now
3.
4.
Hinkley successfully used this defense (attempt to kill the president to impress Jodi
foster)
a.
In response most jurisdictions got rid of this defense.
Durham Test - defense is available if "the unlawful act was the product of mental disease of
mental defect"
1.
2.
3.
5.
Defense available if “the unlawful act was the product of mental disease or mental
defect”
Criticisms:
a.
Causation determination challenges like those that face irresistible impulse
test
b.
Test too susceptible to current medical fads about whether a condition is a
“mental disease or defect”
c.
Overly broad
Very few jurisdictions use this version
MPC test (4.01) - "a person is not responsible for criminal conduct if at the time such conduct as
a result of mental disease or defect he lacks substantial capacity to either appreciate the
wrongfulness of his conduct or conform to his conduct to the requirements of law."
1.
Excludes abnormalities manifested only by repeated criminal or antisocial conduct:
a.
Drug addiction:
i.
(view it as involuntary in a certain manner)
b.
Psychopathy:
i.
Personality disorder
ii.
Egotistical trauds
iii.
Lacks ability to see their actions
2.
Significant differences (MPC and common law McNaughton/majority rule):
a.
b.
c.
3.
Uses “appreciate” rather than “know,” so people can know something
is wrong, but not internalize its wrongfulness
Uses “substantial capacity” rather than black-and-white test for knowledge
Incorporates both volitional and cognitive
MPC justification view: (I think?, maybe the same as above)
a.
b.
c.
d.
e.
e.
Retribution - there is no retribution when they are not morally responsible, so
low retributive interest.
Specific deterrence - Undeterrable
General deterrence - public don’t identify
Rehabilitation - cant rehabilitate by punishment
Incapacitation - prison is not equipped to manage the mentally ill.
Infancy (excuse) - Infancy is a complete defense to adults criminal charges but may result in
subsequent preceding in juvenal court.
1.
Why should infancy be a defense?
1.
Retribution: not as reasonable for their conduct
a.
Society bears a larger role for shaping them into criminals
2.
Deterrence: hard to deter because young minds not good at assessing risk
3.
Rehabilitation: very malleable, so rehabilitative treatment rather than punishment may
be most effective.
2.
3.
Infancy in common law:
1.
General test - did defendant know his acts were wrong/criminal? (half of the
M'Naughten test for insanity).
2.
Age categories:
a.
Under 7: infancy is a defense
b.
7-14: defendant presumed infant.
i.
Apply the general test to determine
ii.
Prosecutor has the burden of overcoming infancy
i.
Prosecutor can overcome burden by providing evidence
permitting a reasonable inference that defendant knew right
from wrong.
c.
Over 14: infancy is not a defense
3.
In re Devon T case:
a.
Facts: 13 year old (and ten months) came to school with 13 baggies of heroin,
and is charged with intent to distribute.
b.
Issue: was there legally sufficient evidence that he should not get an infancy
defense?
c.
Holding: yes
d.
Reasoning:
i.
Relevant evidence: soloistic attainments, IQ, social maturity, social
adjustment, basic personality
ii.
Circumstances of the crime:
i.
ii.
iii.
4.
Efforts to conceal: was hiding with friends in grandmas
basement
Nature of the crime itself: it is almost inconceivable that such a
crime would be engaged in without the drug pushes being
aware that it was against the law
Consulting with attorney (this is fucked up, probably racial
discrimination attached)
MPC infancy defense:
1.
Under 16: infancy is a defense
2.
16-17: presumed infancy
a.
Unless juvenal court has no jurisdiction over ∆ or had waived jurisdiction over ∆
3.
Over 17: not a defense.
f.
Consent (justification):
1.
Samuels case 1.
Conviction - preparing and distributing obscene material, and assault by means of force
likely to create great bodily injury.
2.
Facts - defendant is a self proclaimed sadomasochist, goes to store to develop the BDSM
films. The film shows the beating and the 'victim' is chained. Up.
3.
Issue - is consent a defense in this case?
4.
Holding/reason - NO, “It is a matter of common knowledge that a normal person in full
possession of his mental faculties does not freely consent to the use, upon himself, of
force likely to produce great bodily injury.”
5.
Rule - consent is not a defense to assault crimes, because someone cannot consent to
be chained up and beaten.
2.
MPC and common law agree that consent is a defense if it negates an element of the offense
or precludes the harms sought to be prevented.
1.
Common law (generally): No consent defense available for assaultive crimes UNLESS
it’s a contact sport
2.
MPC (2.11): No consent defense available for assaultive crimes UNLESS it’s a contact
sport (joint participation) or not serious injury
g.
Self Defense (justification):
1.
2.
Common law:
1.
Requirements:
a.
Defendant must have an honest and reasonable belief that:
i.
Imminence requirement - imminent threat of unlawful force
ii.
Necessity requirement - force necessary to repeal threat
iii.
Proportionality requirement - use of force was proportionate to the
force threatened
2.
What does "reasonable" mean?
Statistical v. normative
a.
 Statistical - Looks to how most people actually act
 Normative - looks at how people should behave
Subjective v. objective
Exception - the defendant was the initial aggressor (defense cannot be used here).
I start the fight but the other party escalates it, I am no longer the initial aggressor.
EX: If I punch someone and they pull out a gun, can I pull out a gun in self defense or am I the initial aggressor,
or does each escalation of the aggression have a new initial aggressor? Answer: once the gun is pulled out, the defense
can be used again.
MPC (3.04):
No reasonableness requirement
General rule for force 3.04(a) –justifiable if:
Actor believes
Force is immediately necessary
To protect himself against unlawful force by the other person
No general proportionality requirement UNLESS self defense is deadly force
iv.
General rule for deadly force 3.04(b):
1.
Actor believes
2.
Deadly force is necessary
3.
To protect himself from death, serious bodily injury, kidnapping, or
forcible rape
1.
Duty to retreat before using deadly forces.
i.
ii.
iii.
h.
Common law:
1.
Historical rule - must retreat if possible and safe
2.
Stand your ground law - you are not required to retreat
a. Most states have it. (majority)
3.
Castle doctrine - no retreat necessary at your home
a. If state does not have stand ground, they have castle doctrine.
MPC (3.04) - you may not use deadly force if you know you can avoid the need for
deadly force by retreating, surrendering an object, or refraining from an action her has
no duty to take
1.
No duty to retreat from dwelling or place of work.
Duress (Excuse) - ∆ has a reasonable fear the threat would be carried out until she committed the
crime. (Affirmative defense)
1.
Defendant is under Coercion/cumpulsion
Person committing did not INTENTIONALLY invade other’s rights (lacks Mens Rea)
2.
3.
Lacks the voluntary requirement required in Actus reas.
Different from Necessity BECAUSE it is in apprehension of DEATH/ BODILY INJURY
4.
Defense to assaultive or non-assaultive Crimes (unlike self-defense ONLY assaultive Crimes)
5.
6.
7.
8.
9.
i.
Common law:
i.
Defendant had a reasonable fear the threat would be carried out unless she committed
the crime
ii.
Responding to Reasonable fear of imminent threat of death or serous bodily harm
1.
Can be a threat to you, or others. (some common law states limit who the
threat can be toward. Ex. Family member)
iii.
Had no reasonable opportunity to escape. (fact finder question)
iv.
Most jurisdiction do not allow duress as a defense to murder.
MPC (2.09(1))- a person of reasonable firmness in his situation would have been unable to
resist
i.
Allows this as a defense to murder
ii.
Need not necessarily be deadly force
iii.
No limit on types of crimes that can be excused
iv.
No limit on who must be threatened
v.
No imminence requirement
vi.
There is not a 'No opportunity to escape' requirement.
Contento-Pachon case- MORE DETAILS TO RIGHT
i.
Facts - ∆ was threatened to traffic drugs across border.
ii.
Prosecution argued - he did not have a reasonable fear because it was a vague threat of
an unspecified harm. he could have gone to the police or fled.
iii.
Defense argued - the individual who was threatening the defendant had done research
about the defendant and had a financial interest in the drug trafficking. It is
unreasonable that to expect the defendant to flee and the defendant was worried about
the police being corrupt as well.
iv.
Holding - this can go to the jury.
Necessity (justification)- when a person is faced with two evils and must then decide whether to commit
a crime or an alternative act that constitutes a greater evil.
1.
2.
3.
Ex. Burning down a building so the wildfire doesn’t spread.
Common Law:
i.
Requirements: 6 prongs test
1.
Balance of harms - ∆ must have avoided harm that was greater than the harm
produced by him breaking the law.
2.
∆ avoided imminent danger
iii.
Casual connection between∆ illegal act and the harm ∆ was avoiding.
4.
5.
6.
7.
iv.
No legal alternative
v.
Legislature does not rule agaisnt ∆ act
vi.
∆ did not create the orginal danger
MPC (3.02) i.
No immense requirement
ii.
Can use necessity defense for homicide.
iii.
Conduct actor believed to be necessary to avoid harm is justifiable if:
i.
BALANCE OF HARMS
ii.
Neither CODE nor LAW provides exception to defense dealing with situation
iii.
Legislative purpose to exclude justification is not plainly clear
U.S v. Schoon case i.
Facts - ∆ Appealed a sentence for obstructing IRS activities when they vandalized the IRS
office to stop the funding of El Salvador hostility by the US. They claimed a defense of
necessity to an indirect civil disobedience
ii.
Issue - Can an Indirect Civil Disobedience quality for a defense of necessity when the
necessity was not in the direct commission of the crime the disobedience entailed but
instead the commission of an additional crime that protests indirectly the wrong the civil
disobedience aims to deter?
iii.
Holding - No.
iv.
The Ninth Circuit found that the District Court was correct in its holding that the offense
cannot qualify under a necessity defense because it lacks the test to ensure that the wrong
that was committed did not extinguish all possibilities to deter a greater wrong from
occurring without legal alternatives.
v.
The Ninth Circuit based this on 3 views:
i.
The Balance of Harms
ii.
Causal Relationship between the Criminal Conduct and gthe Harm to be Averted
iii.
Legal Alternatives
vi.
Rule - an indirect (indirect protest) civil disobedience can never qualify under the
stricture of the affirmative necessity defense.
vii.
New terms introduced in the case: You only have a civil disobedience justification if
you are committing a direct protest.
i.
Indirect protest - trying to change a law by doing something other than breaking
the law (could be breaking another law)
ii.
Direct protest - try to change law by directly breaking the law.
viii.
Legal alternative to petition congress is always an option.
ix.
Rule : there is never an absence of legal alternative when the goal of a protest is to
change the law.
Commonwealth v. Hutchins case i.
Facts: ∆ was Vietnam Vet with a FUCKTON of problems that he got from the service,
He used weed to help with pain/inflammation. Some of his VA docs said that his
inflammation went down with weed use. He asked for a legal exception to the weed
prohibition. One doc said “that’s bologna.” The Court took that one doc and used it as a
defense against his claim for a jury trial to prove the necessity defense.
ii.
holding - No. you cannot have a legal pass to use weed when it is illegal. (You’re a dirty
drug user and you’ll burn in hell for your pot smoking.)Judge sided with traditional view
and disallowed the use of a jury trial claiming he couldn’t use the necessity defense.
iii.
Reason: the harm scale was not in defendants favor. Court thought this would negate
the prohibition of all drugs. TOO MUCH OF A SLIPPERY SLOPE
iv.
Dissent - said Fuck the above judge bc He most definitely could prove the 4 prong test
Eichhorn case: an involuntary defense is available to a homeless person against anti-camping
laws.
i.
Facts: ∆ was a homeless vet, trying to get a job, fell asleep on the sidewalk while trying
to get to the shelter.
ii.
violation: ∆ was charged with camping violation for being homeless in public; Law: no
sleeping on the sidewalk
iii.
iv.
v.
vi.
vii.
viii.
ix.
x.
j.
His defense: he took every step to avoid sleeping on the side walk
Lower court (trial) - said ∆ could not prove the imminent threat doctrine of NECESSITY.
∆ was given 40 hours of community service, and was denied the ability to bring in a
sleep specialist. ∆ lawyer moved forward without a jury to prove unconstitutionality for
being dinged for being involuntarily homeless.
At trial, ∆ proved he was involuntarily homeless, and took multiple steps to avoid the
sleeping in public, but ultimately failed in his attempts to avoid the anti-camping law
abiding.
ISSUE - Does an involuntarily homeless person have a necessity defense for breaking
the anti-camping law?
HOLDING - Yes.
Necessity is a QUESTION OF FACT
i.
The ∆ needs to prove the 6 prong test of the necessity defense, and ∆ showed
it sufficiently
Law - no sleeping on the sidewalk
He was able to use on of the 6 prongs of the necessity justification in common law.
Cruel and unusual punishment 8th amendment : HIS RESEARCH IS ON THE Proportionality of the prison.
1.
2.
3.
4.
NO “Excessive bail shall not be required, nor excessive fines imposed, nor cruel and
unusual punishments inflicted.”
In applying 8th Amendment, courts must look to “the evolving standards of decency
that mark the progress of a maturing society” (Trop v. Dulles)
“Categorical” test: Capital cases (traditionally)
i.
Asks whether (capital) punishment is constitutional for an entire category of
offenses or offenders, ask whether is it wrong or right for everyone to die for this
crime (kids cant die/non- murders cant die)(leans non-consequentialist). This is
done in two steps:
i.
Evaluates "how prevalent is this type of test to this type of crime" by
looking at:
1. Do they allow this punishment?(they = court or constitution, I
think)
2. Do they actually impose this punishment?
ii.
Next the categorical test weighs the GRAVITY of OFFENSE v. the
GRAVITY of the PUNISHMENT.
ii. Capital punishment is unconstitutional for juvenile offenders and offenders
with severe mental disabilities
iii. Categorical test: " a sentence practice itself is in question"
“Non-categorical” test:( Noncapital cases) tests whether all the sentencing is
constitutional:
i.
Very open to consequentialists justifications.
i.
(ex. Is three strikes right?)
ii. Non-Categorical test (very deferential to the legislation)
i.
Step 1: Does the sentence advance at least one of the theories of
punishment? Retribution, specific deterrence, etc.
ii.
Step 2: (Very rare step) if sentence fails step one, compare to sentences
in the same and other jurisdictions (see 3 tests below).
1. Uses 3 TESTS as steps, in order:
1.
The gravity of the offense and the harshness of the penalty.
2.
Similarity in sentencing within the same jurisdiction from
precedents.
3.
Similarity in sentencing other jurisdictions
iii.
iv.
v.
vi.
Much less demanding review; considers “gross proportionality challenge to a
particular defendant’s sentence” (Graham).
Ask whether it is right or wrong to this particular person for the offense. Is the
punishment reasonable?
Proportionality test for a singular offender's offenses and punishments
Ewing v. California case :
Facts: Defendant stole $1200 worth of golf clubs. Had a rap sheet and would be
i.
on his third strike under the three strikes rule. Sentenced to 25-life
ii.
vii.
Issue: is the three strike rule consistent with the 8th amendment In This
Case?
iii.
Reason: Non-Categorical test (very deferential to the legislation)
1. Step 1: Advances specific deterrence
2. Don’t need to look at step 2
Only one non-capital case has ever been considered cruel & unusual