CRIMNAL LAW OUTLINE
Purposes and Limits of Punishments
1.
Utilitarianism a.
Purpose: Something is right or wrong if they benefit or hurt society. Underlying goal increase happiness. Well being of strangers and friends are the same. No difference between acts and omissions. b.
Strict Utilitarianism: Does not care at all about retribution c.
Proponents: i.
Jeremy Bentham:
1.
4 Times When Punishment Would not Be Good a.
If the punishment does not maximize social gain. W b.
Punishment would not deter. (If people don’t know what they are doing is wrong) c.
Where you can effectively prevent the harm by means other than punishment.(Rewards, instructions, examples) d.
Where the punishment causes more harm than good.
2.
Evils Created By Every Penal system a.
The denial of the pleasure which the thing forbidden has the power of conferring. b.
The suffering caused by the punishment when it is imposed. c.
The fear of apprehension by those who have violated the laws. d.
The evil of false persecution of the innocent e.
Derivative evils suffered by the parents and friends of the person that is harmed. ii.
John Stuart Mill
1.
Wants to maximize social welfare a.
Benefits: Deterrence, people know what the other person did. You experienced the pain, you don’t want to do it again. Also the person is rehabilitated. b.
Costs: Expensive to incarcerate people, prisons could make you way more effective as a criminal. Makes person unhappy. It also makes the criminals family members sad.
2.
Deterrence a.
General Deterrence: The punishment of one person deters other people from wanting to commit the crime because the punishment is a signal. b.
Specific Deterrence: Deters the person from committing the crime again. c.
Deterrence Equation: Harshness of the punishment X the probability you will be caught i.
Ways to increase deterrence:
1.
Problem: People want to increase severity of harm because tougher sentences create political capital, easier to and cheaper and other people have to deal with the problem. Increasing percent arrested means paying better cops, you have to pay for police right now. Cops arresting is more effective, no one does it. ii.
Does Deterrence Work
1.
To some extent, (parking ticket example)

2.
Marginal Deterrence : More serious penalties for more serious crimes so people do less serious crimes. (Drug Trade Without A Gun - Criticism of 3 strikes Law)
3.
Reduce Benefits of Crime: Take away rights, harder to sell goods, inking money.
4.
Create Alternatives To Crime : Jobs d.
James Q. Wilson
1.
Lots of Arguments that deterrence doesn’t work but common sense suggests deterrence works, we live in reward/punishment based system. e.
Dan Kahan i.
Broken Windows Theory: People more likely to commit crimes if they see criminal activity everywhere. (Stanford Study with Car), New York crime dropped after Guiliani cleaned up the city. ii.
Criticism:
1.
Guiliani also hired more cops and was more effective with police force, so
BROKEN WINDOWS NOT PROVED SCIENTIFICALLY.
2.
Displacement Effect: Crime does not disappear, it just moves it someone else.
3.
Rehabilitation a.
Does it work? i.
Between Conservative and Liberal prisons, criminals act the same when they get out into the workforce. Initially prisons were made for rehabilitation. ii.
Purpose, initially wanted to make the criminal a citizen again, every person has natural rights of a political nature, personality development was a secular phenomenon, not about going to heaven or hell. iii.
Francis Allen: Rehabilitation has actually led to much longer sentences because we are incapacitating until they get better, instead of actually helping them. Was an affront to the prisoner’s personality (shock treatment…etc) iv.
Rubin: Still hope for rehabilitation, its difficult but you have to address the initial problems in society, illiteracy, mental illness and get back to the roots of why we wanted to rehabilitate in the first place. Criticism of Allen. b.
Racial Disparities i.
Since rehabilitation allows for discretion in sentences, gave judges the ability to be racist.
Judges were creating determinant sentences based on prior record, drugs, if you used a gun-led to racial disparities. c.
Drug Treatment i.
Rehabilitation a lot more effective than tougher sentencing and stopping drugs at the source. Drug treatment doesn’t work on a lot of people but does work on some people. d.
Americans idiosyncratic, they all say rehabilitation should happen but they want meaner prisons.
4.
Incapacitation a.
Offenders cannot commit crime against people if in jail. b.
Wilson’s 3 Requirements i.
Offenders would commit more crimes if released ii.
Offenders aren’t immediately replaced by new offenders. (drugs) iii.
Prison does not make offenders worse when they are released they make up for lost time c.
Selective Incapacitation and Recidivist Statutes: Give long prison terms to those who would be high rate serious offenders if not in prison. RAND study found you could predict this up to 82%
Elements to determine who is high or low risk to repeat.

i.
ELEMENTS: Juvenile conviction, used drugs as juvenile, used illegal drugs in past 2 years, unemployed for 50% of time over past two years, incarcerated for 50% of time in past two years, was previously convicted of present offense. ii.
Criticisms:
1.
Maybe heard to predict
2.
Most high rate offenders already in prison
3.
Maybe unfair to punish based on future crimes that may/may not happen d.
The Minority Stigma i.
Incarceration rate is so high for AA, the social stigma of that has been reduced. e.
Abortion i.
Unwanted children are high offenders and you’re cutting the criminality at the source. f.
Prison Violence i.
Incapacitation only works if you think crime does not happen in prison, or prison crime does not count. Retributivists think this is ok because the prisoners are paying the price, utilitarian would have a problem with saying that they don’t count.
5.
RETRIBUTION a.
People should be punished only if they deserve it. Only 11% of people want death penalty for deterrence reasons, the rest of the society want retribution. b.
Utilitarian would put an innocent man in jail to increase social happiness, problem, this argument would never come up in reality. c.
Hamilton i.
By inflicting a crime on someone you demean them. The punishment reaffirms the victim’s worth. d.
Problem: i.
Doesn’t take into account past injustices on the criminal, that may have nurtured him into his criminality. ii.
Either your genetics or your nurturing make you a criminal, in neither case do you deserve your punishment.
ACTUS REUS
1.
Doctrine: To be convicted of crime, there must be a criminal act, not merely an intention. (Proctor v.
State∆ convicted of owning property with intent to sell liquor, ∏ said actus reus was owning house, actus reus must be wrongful, and owning property not wrongful)
2.
Reasoning a.
Punishment should be limited to failures of self control. Punishment must be done for past conduct. Moral choice implies voluntary nature, we want to restrict punishment to voluntary acts.
Hard to prove only intent and we have a fear of government having too much discretion, limits their power. There also needs to be a point of no return so people can be free in their life.
3.
The Omission Exception a.
Omission is actus reus if legal duty to act. i.
Imposed by statute-(tax returns, draft) ii.
Status Relationship-(Wife, Child, caretaker, innkeeper. NOT OTHER RELATIVES) iii.
Contractual Relationships-Babysitter/nurse iv.
Voluntary Assumption of Care - When your care isolates victim from other care.

1.
Jones v. US, Jones voluntarily assumed care of baby, then did not continue that care. Debatable whether care was continued and whether baby was isolated. v.
When ∆ caused victim pain - and could help them without hurting themselves.
4.
Why not unlimited duty to aid? a.
We have limited duty to prosecute crimes, would be difficult to enforce. b.
People would be less willing to report crimes, for fear they may be prosecuted. c.
Potential retaliation by the violent offender. Criticism: Just add a line in statute making reasonable fear of retaliation an exception. d.
Lawmakers don’t like to legislate morality. Criticism: All laws legislate morality, especially prostitution. e.
Argument in favor of duty- i.
Efficient, small cost to save a life. ii.
Provides an educative effect, people will start thinking it’s a good thing to save people.(MADD is example of this effect) iii.
Other societies believe there is a duty to aid. f.
Statutes in Wisconsin and California, Cali very limited to children under 14.
5.
Voluntary Acts a.
MPC. 2.01
(1) A person is not guilty of an offense unless his liability is based on conduct which includes a voluntary act or the omission to perform an act of which he is physically capable.
People v. Newton, guy boards plane w/gun, plane rerouted to NY, charged with breaking NY LAW, he did not voluntarily go to NY. CT: Voluntary requirement imputed into a statute. Not enough relation between voluntary act and involuntary crime. b.
Voluntary Acts i.
Voluntary act must have the same menus reus as the criminal act. If criminal act requires knowledge, voluntary act must require knowledge.
(People v. Grant, ∆ fought with police during an involuntary rage, remanded to determine whether ∆ knew the rage would come about when he got drunk.
) ii.
Habits, actions while drunk are voluntary. iii.
Every Element in Crime Must be Voluntary
1.
(Martin v. State, ∆ must have been drunk in public voluntarily, cops can’t just pull him out of his house. Can’t get him on being drunk, because not culpable act.) c.
Involuntary Acts i.
Reflex and Convulsion
1.
Shock (People v. Huey, Black Panther was shot and then fired his gun at a police officer, court held that he could be innocent if shots were involuntary convultion) ii.
Sleepwalking iii.
A bodily movement during unconsciousness or sleep iv.
Conduct during hypnosis or resulting from hypnotic suggestion
1.
Unless you have a predisposition to do the wrongful act.
2.
Most states don’t have this exception. v.
A bodily movement that otherwise is not a product of the effort or determination of the actor, either conscious or habitual. d.
Anticipating Involuntariness i.
If the ∆ should have known that his voluntary act, BACK IN TIME, would lead to a culpable involuntary act, then he can be found guilty.

1.
People v. Decina, ∆ was culpable for his epileptic seizures because he should never have driven in 1 st
place. e.
When determining Voluntariness: i.
Look at public policy ii.
Go back in time to find a voluntary act, iii.
Maybe only one element has to do with voluntariness. iv.
Will excusing this criminal act open up the floodgates.
6.
Status Crimes a.
Doctrine: Cannot be Held Liable for your status or your propensity to commit a crime. b.
Drug/Alcohol Addiction i.
No liability for being addicted to alcohol or drugs.
1.
(Robinson v. California, Heroin addict cannot go to jail for being addicted to heroin) ii.
Liability for taking alcohol or drugs while addicted, contradictory!
1.
(Powell v. Texas, ∆ was convicted, not for being an alcoholic, but for being drunk in public) iii.
Fingarette
1.
Denies “involuntary” consequences of drug use. People have need to belong. For alienated people the search for something to authenticate their identity. This is what motivate the drive for drugs and the “addiction”. The notion that drug use is involuntary is a misnomer. Penalties for addiction are good thing. c.
You cannot be guilty for your status but you can be guilty for your act. Must be punished for past acts, not future conduct. d.
Homelessness i.
Because generally homelessness is involuntary, you cannot be punished for the acts that result from homelessness. (Pottinger v. City of Miami) Hypocrisy between addiction and homelessness status crimes, but acts of homeless people are not culpable (sleeping, peeing) e.
Statutory Interpretation of Status i.
(Johnson v. State, ii.
POINT OF JOHNSON V. STATE and discuss? iii.
DOES EVERY ELEMENT HAVE TO BE VOLUNTARINESS
7.
SPECIFICITY a.
Doctrine: Criminal Act must be specific enough so that people know how to act, or due process is violated. b.
Gang Activity i.
Cannot make statute for loitering if gang member.
1.
Chicago v. Morales, Chicago loitering in a gang statute, no apparent purpose
(purpose hard to determine), thousands were arrested for this statute, S. Ct.
declared unconstitutional, unclear what acts prohibited or not. ii.
Problem with vague gang statutes: Allows too much discretion for police officers, only if complete trust in police.
1.
Mears and Kohane: Now police are racially diverse and they also have political power. Police need broad discretion to deal with gangs. Was only gang task force responsible for policing. a.
Argument Stupid Because:

i.
Because you don’t have to be white to have stereotypes. ii.
Ramparts were gang enforcement district. iii.
Everyone, at a young age, like to say their in a gang or if you are hanging around with a gang member you are in a gang. c.
Vague Activity i.
Must be able to know what the law commands or forbids.
1.
(Papachristau v. Jacksonville, law that outlawed rouges, vagabonds, persons who use juggling, common nightwalker, lewd persons, common railers and persons wandering from place to place, habitually loafers, disorderly persons, persons able to work but habitually living off the earnings of your wife shall be convicted of class D offenses, deemed unconstitutional)
2.
Papachristau unconstitutional because many of the criminal offenses are deemed normal, even virtuous, criminal offenses are amenities of life as we know it.
Police are trying to force an “appropriate lifestyle”.
No MENS REA a.
Strict Liability Offenses: i.
Usually for regulatory offenses, necessary for functioning society. ii.
Public Policy: When Mens Rea would make enforcement difficult. (Parking Tickets) ( People v. Dillard, ∆ had no reason to know gun was loaded, convicted of carrying loaded firearm, court held that carrying loaded firegun was more destructive to society than knowingly carrying one. PP reasons for strict liability [Bad, rape/murder destructive to social order]) b.
Model Penal Code 2.05: i.
SL: Only for violations. Violations are not criminal offenses, nec. For social order. ii.
Should at least be for negligence, but if people are supposed to be morally bad the standard should actually be recklessness. Should be violation because criminal offenses means you give up civil liberties and indicates moral reprehensibility. c.
Factors if Strict Liability Offense i.
Low level of punishment ii.
If Regulatory offense, one not found in common law.
1.
(Morrisette v. United States, man legitimately thought gov. had abandoned junk metal, because statutory violation was criminal offense, unconstitutional)
2.
Fork: (US v. Wulff, criminal offense to sell migratory bird parts, court=against due process to make SL for felony crimes)(US v. Engler, opposte exactly to Wulff. Held felony to be constitutional with SL) iii.
Can law be strictly enforced without SL iv.
Is offense traditional criminal offense or statutory offense not found in common law. v.
NO SL vi.
SL
1.
Heavy penalty
2.
Traditional Crime
1.
Light Penalty
2.
Regulatory Offense
3.
Difficulty of Proof
4.
Legislative Offense d.
Ignorance of Law no Excuse

i.
Exceptions:
1.
When statute requires knowledge of law. (Tax Violations)
2.
When reasonable person would not be put on notice/no proof they did possess knowledge and the act itself is not per se blameworthy, then lack of mens rea could be an excuse of the law. a.
(Lambert v. California, statute made unlawful any convicted person to be in
Los Angeles for a period of time of more than five days without registering. ∆ lived there for 7 years. Court help mistake of law was an excuse)
MENS REA
1.
Overview e.
State of Mind when performing the actus reus. f.
Material state must apply to any material element of the Offense. A material element relates to the harm being caused. i.
Material Element MPC 1.13
1.
An element of the offense that does not related exclusively to the SOL, jurisdiction, venue or other matter.
2.
A matter similarly connected with the harm or evil, incident to conduct, sought to be prevented by the law defining the offense or the existence of a justification for excuse for conduct.
3.
Applies to conduct, attendant circumstances, and results of every offense. g.
MPC 2.02(4): if a mental state is explicit anywhere in statute without distinguishing it among the elements

applies to all material elements of the statute unless obvious contrary purpose appears.
2.
Categories of Culpability – MPC 2.02 h.
Purpose i.
∆’s conscious object or specific goal to do the act or cause of the result. ii.
If element involves attendant circumstances and ∆ is aware of the circumstances or he believes or hopes they exist. (Could be intent) i.
Knowledge i.
∆ is practically certain that the result will follow from his act even though the result may not be his goal. (Could be intent) ii.
Willful blindness
1.
The equivalent of knowledge.
2.
MPC2.02(7): Knowledge established if person is aware of high probability of its existence, unless he actually believes that it does not exist.
3.
(US. v. Jewell, ∆ willfully decided not to find out whether secret compartment had weed stashed, was ruled as having knowledge) j.
Recklessness i.
∆ consciously takes a substantial and unjustifiable risk where taking such risk is a gross deviation from the behavior of a law abiding citizen. ii.
When no mens rea is prescribed, recklessness or above should be imputed (State v.
Lima, RI imputes knowledge for woman who scalded her child in hot water.
1.
Four Elements a.
∆ is aware of the risk b.
Risk is substantially unjustified c.
∆ consciously decided to take a risk

d.
Taking a risk is a gross deviation from the behavior of a law-abiding citizen. k.
Negligence i.
∆ takes a substantial risk where taking such risk is a gross deviation from the behavior of a reasonable person. ii.
Four Elements
1.
The risk is substantial and unjustifiable
2.
∆ is not aware of the risk
3.
A reasonable person would be aware of the risk
4.
Taking the risk is gross deviation from the behavior of the reasonable person. iii.
Imputing Negligence
1.
MPC only permits legislature, not courts to make mens rea negligence, and only when done so explicitly.
2.
Critics say we are punishing character rather than voluntary conduct.
General v. Specific Intent
1.
General Intent: a.
No intention to do some certain act or to accomplish some further result. i.
Example: Unlawfully taking the property of another.
2.
Specific Intent: Unexecuted intention to do some certain act or to accomplish some further result. i.
Examples: Entering building without permission with purpose to commit a felony therein, possessing marijuana with the intent to sell.
3.
Point: Some JX state that certain defenses (Intoxication) are only defenses for specific intent crimes.
Mistakes and Mens Rea
1.
Analyzing Mistakes a.
Traditional Legal rule - Makes No Sense i.
Mistake of fact is a defense. ii.
Mistake of law is not a defense. “Ignorance of the Law is not an excuse”
1.
In general this is true, not a defense to say, “I did not know what I did was illegal.”
Lambert an exception. b.
MPC Rule- Ignorance or mistake as to a matter of fact or law is a defense if the ignorance or mistake negates the purpose K, R, N you are not guilty.
2.
Mistakes of Fact a.
MPC: A reasonable belief of a certain set of fact can be a defense if it negates a requisite mens rea. b.
(State v. Guest, statutory rape case where the prosecution must prove negligence as mens rea, and ∆ reasonably believed the chick was 16, so not guilty)
3.
Mistake of Law a.
Usually – mistake of the law is no excuse. (US v. Baker, ∆ did not know that counterfeiting was against the law, court says that not knowing the law is not valid excuse) b.
Exceptions: i.
When a mistake of the law negates a requisite mens rea. (Has to be explicit in the statute)
(People v. Bray, ∆ did not know he was a felon, court interpreted statute as knowledge being mandatory to establish mens rea).

ii.
The statute is unknown to the actor and has not been published or otherwise reasonably made available prior to the conduct alleged. (Rare) iii.
Official Statements
1.
MPC: ∆ acts in reasonable reliance upon an official statement of law afterward determined to be invalid or erroneous contained in a statute or other enactment.
Could be from judicial officer or person charged with prosecuting the law.
(Commonwealth v. Twitchell, Christian Scientists whose child died, who relied on advice in pamphlet based on words of the Attorney General, mistake of law was defense)
2.
Common Law: Only S. Ct. interpretations could be relied upon. (Hopkins v. State,
Minister asked State Attorney if marriage sign was legal, relied upon that advise to his disadvantage)
3.
Both Cases: Could not rely on a police officer.
4.
“Willing Cases”- When a statute says ∆ must willingly do something, court have imputed ∆ must have known of his duty and then intentionally violated that duty.
(Cheeks v. US, if ∆ had a good-faith belief about the law, however wrong, and the law requires willingness, believing that wages did not count as income is a mistake of law) c.
Capacity (Same as Mistake, not defense) i.
Fork:
1.
MPC 4.02 – Ten States a.
Evidence that ∆ suffered from mental disease or defect is admissible whenever it is relevant to prove that ∆ had/did not have requisite mens rea for the offense. b.
(Lee v. Hendershot, ∆ assaulted girlfriend, wanted to introduce evidence of adult minimal brain disorder, because requisite mens rea was knowingly, evidence was admissible)
2.
Most States a.
Evidence can only negate specific intent crimes. d.
Incapacity – Drugs and Booze i.
MPC 2.08
1.
If due to intoxication ∆ lacks requisite mental state for the offense then ∆ is not guilty. (State v. Cameroon, although ∆ was drunk did not negate mens rea because she new she was going to assault someone and knew that a bottle was a weapon)
2.
Exception: Not applicable to recklessness. Alcohol can not make you unaware of the substantial risk. ii.
Involuntary Intoxication
1.
Is a defense. Doctor prescribed medicine is involuntary intoxication, if you take prescribed amount.
2.
Even when involuntarily intoxicated, ∆ still must be unaware of the risk.

HOMOCIDE UNDER MODERN STATUTORY SCHEME
1.
Murder -1st Degree a.
Doctrine i.
Purpose or Knowledge with
1.
“transferred intent”: Purpose to kill one person, end up killing another, the intent transfers, ∆ guilty of murder and attempted murder. ii.
Premeditation and deliberation.
1.
Premeditation: thought before acting and reached a definite decision to kill a.
Factors: i.
Motive (money, hatred, revenge, suggests a reasoned killing) ii.
Prior threats hostility iii.
Interruption/continuation of killing iv.
Stalking victim before hand v.
Bringing the murder weapon to the site
2.
Deliberation: Some appreciable amount of time elapsed, but no bright line rule.
a.
(Watson v. US, after tussle ∆ has control of officer who tells ∆ “its not worth it”, ∆ shoots a couple seconds later, court holds premeditation/ deliberation) b.
First Degree Felony Murder i.
Any listed felony and someone dies, even if murder wasn’t first degree, you are guilty.
Include burglary, arson, forcible rape or sex crimes, robbery, kidnapping. BARRK
2.
2 nd Degree Murder a.
Purpose or Knowledge without premeditation and deliberation.
a.
(Francis v. Franklin, ∆ wins faulty jury instruction-which allowed for conviction based on presumption that what happens is what you intended.
He fired gun, said it was accident) b.
Intent to do great bodily harm and the person dies. (Shoot person in the leg) i.
Courts usually require a deadly weapon to be used.
(Commonwealth v. Dorazio, ∆ was boxer and because of skill, size, duration and ferocity of attack, was guilty of 2 nd
degree) c.
Recklessness-with a depraved heart i.
Depraved Heart
1.
Is this person bad enough to go to jail for 15 years?
2.
(Mayes v. People, husband throws a beer mug at his wife who is holing lantern.
Burns and dies, depraved heart).
3.
(Commonwealth v. Malone, Russian Roullette)
4.
Shooting into an empty house, shooting over someone’s head to kill them.
ii.
Intoxication not a defense to depraved heart even though depraved heart is a higher mens rea than pure recklessness.
iii.
Vehicular Murder – Split in JX if vehicular murder can be depraved heart. d.
Second degree felony murder (Not one of the BARRK felonies, but you still commit it).
3.
Voluntary Manslaughter a.
Doctrine: i.
Murder reduced to voluntary manslaughter when
1.
Doctrine a.
Heat of Passion (Subjective Test) b.
Adequate Provocation (Objective Test)

i.
Rational
1.
Partial Justification (not an excuse), act was more right under the circumstances.
ii.
Legally Adequate Provocations
1.
Physical battery or mutual combat a.
( People v. Walker, ∆ slits guys thought who had threatened ∆ with knife and was then unconscious, court held that threats were adequate provocation)
2.
Husband witnessing his wife in the act of adultery
3.
Unlawful Arrest
4.
Violent/sexual assault on a close relative iii.
Mistake
1.
If mistake is reasonable, ∆ can get provocation defense. I thought my bitch was cheat’in but she wasn’t…oops. iv.
Accidental death of innocent while provocation
1.
No provocation defense. - 1 st /2 nd degree murder c.
No Cooling Time (Objective Test) i.
Doctrine:
1.
Where the reasonable person would have cooled off by the time the killing occurred.
a.
(Ex Parte Fraley, victim had killed ∆s son months earlier but was acquitted. ∆ shot the victim months later. Cooling time, existed) b.
(People v. Brooks, 2 hours O.K. if there was continuous frenzy)
2.
Rekindling: Provocation can re-occur through a reminding event. a.
(People v. Nesler, Man who raped her son gave a smirk and that rekindling was ok)
3.
No Gradual Provocation a.
(People v. Gouniginas, ∆ anally raped while unconscious, victim bragged about it, man receives brutal insults, no gradual provocation) ii.
Also reduced when Imperfect Self-defense or Imperfect Necessity
1.
(Honest belief you are acting out of self-defense or necessity but your wrong)
Example: Hear a noise and blast away, but its really your niece.
4.
Involuntary Manslaughter a.
Reckless Homicide i.
(Commonwealth v. Welanski, ∆ was reckless in an omission because as owner of nightclub he had duty to make sure exits were available) ii.
(Commonwealth v. Levenque, ∆ accidentally caused fire and failed to report it, definitely guilty of reckless homicide) b.
Negligent Homicide, must be gross negligence i.
You aren’t aware of risk but normal person would be.
c.
Contemporary Involuntary Manslaughter i.
Cultural Negligence is still negligence

1.
Minority status of the individual will not be taken into account.
2.
(State v. Williams, Indian were unaware that baby needed medical assistance when reasonable “white man” would be aware and willing to take baby to ii.
Hazing hospital, did not matter that babies were taken from Indians on a regular basis).
1.
Punishable if there is death and negligence.
2.
Griffith, likes it punished like vehicular homicide, we can maintain deterrence when death is not present by just punishing hazing.
iii.
Hunting/Skiing
1.
When behavior negligent and not grossly negligent, there is reluctance to charge with manslaughter.
5.
Vehicular Homicide – lower level than involuntary manslaughter a.
A small vehicular violation and someone’s death. Seems pretty severe.
HOMOCIDE UNDER THE MODERN PENAL CODE
1.
Murder a.
Purpose or knowledge. i.
Belief that premeditation does not make killing any worse. ∆ still as dangerous. (Sir
James Stephen) b.
Recklessness with extreme indifference to human life. (A recklessness so severe, not regular recklessness) c.
NO Murder charge for intent to do great bodily harm, covered under extreme indifference to human life). d.
NO FELONY MURDER (considered recklessness with extreme indifference to human life)
2.
Manslaughter a.
Recklessness without extreme indifference to human life. b.
Otherwise Murder but carried out under extreme emotional disturbance for which there is reasonable explanation or excuse. i.
Reasonableness shall be determined from viewpoint of ∆ under the circumstances ∆ viewed them to be in. (People v. Berry, man knew about his Israeli wife’s infidelity for days but was repeatedly provoked, whether there was heat of passion should go to jury) ii.
EED Examples
1.
Fear (People v. Tapia, heroin junkies who thought dealer was going to get them were under extreme emotional disturbance) iii.
From Viewpoint of ∆ in that situation
1.
If ∆ child, should be viewed as reasonable child. (Boy who was abused should be judged as a reasonable boy, not man)
2.
Blindness
3.
Strength
4.
Extreme Grief iv.
Unclear whether MPC will take into account:
1.
Religious Beliefs
2.
Sense of Honor
3.
Reasoning is that to take these into account would weaken the normative message of the criminal law.
3.
Negligent Homicide

a.
When you were unaware of the risk but your behavior was grossly negligent. (Treated less stringently than manslaughter.
FELONY MURDER a.
Doctrine a.
Any killing committed during the commission or perpetration of a felony is murder. b.
Felony Murder in the First Degree i.
Murder in conjunction with an enumerated felony ii.
Felonies
1.
Burglary
2.
Arson
3.
Robbery
4.
Rape
5.
Kidnapping b.
Mens Rea for Felony must be purpose or knowledge.
(State v. Martin, ∆ argued he never intended to commit arson, so not guilty of felony murder, faulty instruction) c.
Strictness of the liability? i.
Traditional: Usually ∆ guilty of felony murder no matter what the circumstances. ii.
Modern (NJ):
1.
Felony murder not applicable to death of co-felon.
2.
OR IF: a.
Did not commit homicidal act, or help b.
Was not armed with a deadly weapon c.
Had no reason to believe that any other participant had a gun d.
Had no reason to believe conduct was likely to result in physical injury d.
As long as felony accelerates death ∆ guilty of felony murder. (People v. Stamp, ∆s rob office, manager has heart attack, had weak heart already, dies, guilty of felony murder).
e.
Must the felon do the killing: i.
Agency JX: Killing must be caused by felon or co-felon for felon murder. ( People v.
Washington ) Enough for the felon to be extremely reckless, like starting a gunfight. ii.
Proximate Cause JX: Not necessary for felon to do the killing, just committing the felony.
(People v. Hickman, police think undercover agents were robbers and shoot them. ∆s did not have weapons and had fled scene.)
2.
Felony Murder Arguments a.
For: (All Weak) i.
Felony proves mens rea for recklessness with a depraved heart. ii.
Retributivist: A person who commits felony deserves to be strictly liable for any death that results from felony. iii.
Deterrence against committing felonies. iv.
Deterrence to commit felonies safely. b.
Against: i.
Can prosecute for murder anyways under depraved heart. Avoiding proving mens rea for a crime. ii.
Deterrence could also be solved by increasing punishment for crime itself.
3.
Murder must be in scope of felony a.
No Bright Line Rule

b.
Factors i.
Where killing occurred in relation to the felony?
ii.
Time lapse between felony and homicide iii.
Had the ∆ abandoned the loot.
iv.
Hot pursuit as opposed vs later investigation?
v.
Had the felons reached place of temporary safety.
c.
(People v. Gladman, ∆s who robbed deli and hid under car where not far from deli, time had not elapsed and had not reached temporary safety, were held in scope) d.
(85 year old woman who refused to eat and died after rape was still within scope)
4.
Second Degree Felony Murder a.
Doctrine i.
Not 1 st
degree bark felony and ii.
Inherently dangerous felony
1.
High Probability that commission of felony will result in death.
2.
Felony must be viewed in abstract, or there will be circular statistical problem.
Particular felony cannot be looked at. iii.
Merger Doctrine:
1.
Underlying felony must be independent of murder.
2.
There must be purpose other than causing a physical injury to another
3.
Assault, Mayhem both merge.
4.
(State v. Shock, boy beaten to death, father was not guilty of felony murder)
CAUSATION
1.
Doctrine a.
But-For i.
Combination of two acts
1.
When two acts, both which could cause death and unsure which one did no But-
For (Martin v. Dyas, ∆ blow to victim was one of two, unsure which killed him) b.
Proximate Cause or Foreseeability i.
Is there a close enough connection between action and harm that was created to make the person closely related ii.
Factors:
1.
Blameworthiness – is it fair to put this guy in jail? a.
(Hubbard v. Commonwealth, not really fair to put guy away for resisting arrest and cop, who knew he had issues, having heart attack)
2.
Consistent with the purposes of punishment
3.
Higher standard than tort liability. iii.
Generalize the risk when determining proximate cause. c.
Unbroken Chain of Causation – Intervening Cause i.
Normal Analysis
1.
Was someone else grossly negligent? a.
(Commonwealth v. Root, although ∆ was reckless, victim drag racer was grossly negligent for swerving into truck and was intervening cause) ii.
Alternative Analysis
1.
It fair or appropriate to hold person guilty of murder given the third party’s action.

2.
(US v. Hamilton, victim who had his face stomped in by ∆ was not grossly negligent when he pulled his tubes out. Fair to hold batterer liable)
2.
Duty Requirement for Omission a.
No duty to help if no relationship in the beginning. i.
(People v. Beardsley, bitch could take all the pills she wanted, ∆ had no duty to help her)
3.
Causation and Suicide a.
Suicide often not intervening cause if ∆ culpable. i.
(Presampieri v. Commonwealth, Husband gives wife the gun to shoot herself, no intervening cause when she does, husband culbable, wife not making rational decision) b.
Suicide is intervening cause if victim was rational, and did not contribute to suicidal state. i.
(Kevorkian, The patients had made considerable judgment that they wanted to die)
ATTEMPT
1.
Public Policy a.
Should Punish i.
Deterrence-Don’t want people to even try crimes. ii.
Incapacitation-People that try crimes and fail are inherently dangerous iii.
Rehabilitation-Seems to need rehabilitation the same way people that commit crimes iv.
Retribution-They are bad people, just for some reason they could not complete act b.
Shouldn’t Punish i.
People think about committing crimes all the time, and don’t go through on it. Net will be cast too large and inevitably prosecute people that would not have committed crime.
1.
(Mcquirter v. State, Black man in white neighborhood, simple presence where he should not have been was dangerous proximity to success and guilty of attempted assault with intent to rape, shows necessity for strict actus reus) ii.
Will punish people with no actus reus, just guilty thoughts iii.
Attempts will pick out disfavored groups randomly based on unfair classifications. iv.
People make threats all the time they aren’t going to carry out.
2.
Required Elements for Attempt a.
Actus Reus: Some voluntary act must be committed i.
MSS: Mere preparation not enough, must be dangerous proximity to success.
1.
(People v. Murray, ∆ eloped with niece, could not find magistrate to marry them so was not dangerously close to success, no attempt)
2.
(People v. Rizzo, ∆ who tried to rob a bank could not find manager, had guns and masks, not substantial step) ii.
MPC: ∆ takes a “substantial step” strongly corroborative of criminal intent
1.
Examples not insufficient as matter of law if corroborative of purpose: a.
Diary-not substantial step, b.
Sex offender talking on-line not substantial step, going to meet police posing as child, guilty of attempt
2.
As a Matter of Law a.
Lying in wait, following victim, seeking to entice victim to meet with them b.
Recon at the place contemplated for commission of crime c.
Unlawful entry onto property where crime is to be committed

d.
Possession of materials specifically designed for crime e.
Collection of materials, close to the crime scene that serve no lawful purpose under circumstances f.
Soliciting innocent agent to engage in criminal conduct b.
Mens Rea: Must be purpose i.
(State v. Lyerla, ∆ shoots into truck to scare girls, did not have purpose to kill so could not have attempt)
3.
Punishment a.
Under MSS: Less severe than completed crime by one grade. b.
Under MPC: Attempt and completed crime punishments the same, MPC based on mental states to determine level of punishment. Except first degree capital crime

become second degree.
4.
Renunciation a.
MSS: Once you’ve made attempt cannot enunciate. (People v. Staples, ∆ rented office to drill into bank vault, changed his mind, stopped paying rent, guilty of attempt) b.
MPC: Allows renunciation if: i.
Complete ii.
Voluntary
1.
Not Voluntary if: a.
Want to commit crime at later date. b.
More difficult than originally planned. i.
Problematic line drawing. Example: Sign that reminds criminal of their prosecution to full extent of the law would be voluntary.
5.
Impossibility Doctrine a.
Old Doctrine - Factual impossibility - Guilty. Legal Impossibility - Enunciation. i.
Factual: Impossible to complete because of physical or factual condition unknown to ∆. ii.
Legal: Where the act, if completed would not be a crime. iii.
(Booth v. State, Lawyer not guilty of attempt when he tries to buy coat which he thinks is stolen, and it really isn’t) b.
Under MPC: i.
Person is guilty of attempt if acting with culpability necessary, if the facts were as they seemed to be, the crime would have been carried out. Mens Rea important, not facts.
1.
(People v. Dlugash, ∆ shot victim five time in head, after victim had been shot three times already. ∆ thought he killed victim but in actuality other three shots killed him, since no impossibility rule, guilty of attempt) ii.
Exception: where the threat is so remote and unlikely that justice requires not punishing the person, no attempt. Example: Voodoo hexes, etc.

ACCOMPLICE LIABILITY – “aiding and abetting”
1.
Common Law a.
Actus Reus i.
Act must actually aid the perpetrator. (Even encouragement is aiding) b.
Mens Rea i.
Purpose to commit the crime.
1.
(Gains v. State, ∆ parked outside of bank did not know they committed robbery, but aided in their getaway, so accomplice after the fact)
2.
MPC a.
Actus Reus i.
Must attempt to aid the perpetrator, mere presence and mental approbation insufficient to establish liability.
1.
(State v. Ochoa, Mexican protest where to accomplices beat up police officer and other accomplice simply partook in protest, that accomplice did not attempt to aid perpetrator and did not act in furtherance of that goal) b.
Mens Rea i.
Must have culpability necessary for the offense. ii.
Knowledge, plus a stake in the offense is requisite mens rea.
1.
(State v. Beeman, ∆ had knowledge sister-in-law was going to be robbed, but unclear whether he had purpose to commit the crime, re-trial)
3.
Details for Both a.
Accomplice if acting with the kind of culpability that is necessary for the offense, causes an innocent or irresponsible person to engage in such conduct b.
Accomplice if i.
“By acts, conduct, words, signs or by any means sufficient to incite, encourage, or instigate the commission of the offense” ii.
Solicits such other person to commit the crime. iii.
Aids or agrees or attempts to aid such other person in planning or committing it; or iv.
Having legal duty to prevent commission of offense, fails to make proper effect to do so c.
No Accomplice Liability If: i.
Terminates complicity prior to offense and…
1.
Either a.
Wholly deprive it of its effectiveness in the commission of offense or b.
Gives timely warning to law enforcement authorities or make proper effort to prevent the commission of the offense ii.
Small encouragement probably won’t be prosecuted. d.
Causation i.
Once you are abettor with purpose to commit underlying crime causation stems from you, even if the aid did not help the crime. (People v. Talley, posse, and the telegram) e.
Mens Rea i.
Must have mens rea to commit the crime,
1.
If purpose is to get perpetrator caught, then no liability. Only for entrapment. a.
(Wilson v. People, ∆ helped perpetrator commit burglary so he could get police officer and retrieve his watch, not guilty because he didn’t want crime committed, he never had purpose to commit crime altogether) ii.
Willful Ignorance

1.
Inappropriate to establish liability if the aider was negligent in not ascertaining true purpose but appropriate if aider actively avoided finding out. (Gambling and whether ∆ knew what was going on in her house) iii.
To aid in negligent homicide, must have purpose to commit negligent homicide
1.
(State v. Ertzwieler, ∆ loans car to drunk perpetrator who kills someone negligently, since ∆ did not have purpose to commit negligent homicide, no guilt) f.
Accomplice Liability if… i.
If crime never committed
1.
Perhaps attempt under MPC, NOT MSS ii.
Excuse or Acquittal
1.
Yes, act was wrong, but perpetrator not liable because excused.
2.
Accomplice still liable.
3.
If perpetrator provoked justifiably, ∆ still can be guilty of murder.
4.
Why? a.
Accomplice, who is not a hothead, probably more evil and more dangerous to society. iii.
Crime outside common plan/unintended result
1.
JX VARY a.
Common Rule: An accomplice can be held for all crimes of other accomplices that are i.
Planned, or ii.
Reasonably foreseeable results of committing crime g.
LOOK TO STRAW MAN GUN PROBLEM/KILLING OF YUSUF HAWKINS
Defenses
1.
Justification and Excuse a.
Justification i.
Society is better of due to ∆s act ii.
The ∆ did more good than harm iii.
Examples
1.
Self Defense
2.
Defense of others
3.
Necessity b.
Excuse i.
Focus is on ∆’s mental state ii.
∆ caused more harm than good, but ∆ is not blameworthy for causing the harm iii.
Examples:
1.
Duress
2.
Provocation
2.
Doctrine a.
Deadly Force: Use of deadly force is permitted if the actor honestly believes i.
He faces imminent threat of death, serious bodily harm, or forcible sexual intercourse
(Subjective)
1.
(People v. La Voie, ∆ honestly believed he was in danger when he shot man after boys pushed his car into intersection, because subjective standard, defense ok) b.
Non-Deadly Force

i.
Honestly believes that
1.
He faces imminent threat of unlawful bodily harm and ii.
The use of force is necessary to repel the attack and iii.
The force used is not excessive in relation to the threatened force c.
Defense of Others i.
Can use force to defend another person to the same extent that the other person would be entitled to use to defend themselves. d.
Defense of Property i.
Non-Deadly Force
1.
Use of non deadly force is permitted if the actor honestly believes a.
the force is immediately necessary to prevent an unlawful trespass or the unlawful carrying away of movable property or to reenter land or retake property from which the actor has been unlawfully disposed and b.
the force used is not excessive under the circumstances ii.
Deadly Force
1.
Use of deadly force in the defense of property is permitted only if the actor honestly believes it is necessary to prevent a felony where a.
the felony has employed or threatened deadly force or b.
where the use of non-deadly force would expose the actor or another person to a substantial danger of serious bodily harm
2.
Cannot simply use deadly force to prevent the robbery or burglary though. e.
All Belief must be reasonable – objective i.
What is reasonable
1.
Take into account age, gender, size, health, race, sexual preference, other physical characteristics
2.
Do not take into account mental characteristics, like being a hothead.
3.
Difficult to determine whether we take into account a person’s unique personal history/circumstances. a.
State v. Liedhorn, battered woman syndrome. But is it objective or subjective standard. ii.
“Perfect Self Defense” – Total acquittal because ∆’s self defense was reasonable iii.
“Imperfect Self Defense”- If defense was unreasonable and was negligent or reckless, ∆ can be guilty of crimes with that requisite mens rea. f.
Unlawful Arrest Exception i.
Cannot use self defense against a police officer for an unlawful arrest, must deal with it. g.
Initial Aggressor Exception i.
If the actor wrongfully initiates the confrontation, then the most they can be excused for is imperfect self defense. ii.
(People v. Gleghorn, because ∆ started fire and then responded with self defense after he was shot with an arrow and he continued to beat victim after he was unconscious, no self defense) h.
Spring Guns and other devices i.
An actor is entitled to use a device to protect property only if
1.
The device is not designed to cause death or serious injury and
2.
The use of the device is reasonable under the circumstances (paint) ii.
Dog sort of different because the dog gives warning.

i.
Duty to retreat i.
The use of deadly force is not permitted if the actor can retreat with complete safety ii.
Exceptions
1.
No duty to retreat when attacked in the actor’s own home
2.
An actor does not have to retreat when attacked in the actor’s place of employment except where the attack comes from another employee j.
Homicide: Unreasonable Self Defense Under the MSS i.
If an individual kills under the honest belief that is unreasonable - guilty of involuntary manslaughter.