CRIMINAL LAW OUTLINE. Yung
I.
THEORIES OF PUNISHMENT AND
CRIMINALIZATION.
A.
B.
RETRIBUTION.
1.
One of 2 main goals of criminal punishment (Deterrence the other). A
moral system of judgment. Those who do evil deserve to be punished. It is
right to punish one who offends societal norms because it is wrong to
violate these norms.
2.
Criticisms of: Angy and vengeful emotions do not provoke moral
justification for punishment. Crime often produced by offenders’ vicious
societal circumstances, not by their choices. Proportionality problem;
prison is the only form of punishment these days, but in the old days there
were several ways to punish a criminal.
DETERRENCE.
1.
2.
C.
Other main goal of punishment. We punish to prevent future criminal
conduct. Forward-looking, seeks to prevent future incidents of crime
(unlike Retributivism). 2 kinds of deterrence…
a.
Special Deterrence. Steps taken to dissuade particular offenders
from repeating crimes. Cost of criminal conduct presumably
induces actor to refrain from that conduct in the future.
b.
General Deterrence. Impact of criminal punishment on other
persons besides the offender; the Public is deterred from
committing crimes when observe the consequences. This is the
kind of Deterrence that is most often referred to.
Criticisms of: Assumes that actors are ‘Rational Calculators’ (Certainty of
Capture * Severity of Punishment = Deterrence. Extent of enforcement in
play. Can offenders even do the math? If not, why bother with deterrence
goal? Undeterrable).
Other Theories.
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D.
1.
Deontology: Moral system of judgment. Underlines distinction between
Retributivism and Deterrence. Focuses on judging people only on moral
basis.
2.
Utilitarianism: Punishment is good for the goal of preventing crime.
CRIMINALIZATION.
1.
Decision to criminalize certain instances of conduct is made by
legislatures. What do we criminalize, and why?
2.
Lawrence v. Texas (US 2003). D convicted of sodomy, challenge of
statute as violation of Equal Protection Clause under 14th Amendment.
Holding: Invalidates law as a violation; there is a substantial liberty
interest for private bedroom activity, should not subject gays to the
majority’s ideas of morality. Dissent: the very essence of criminalization
is enforcing the majority’s views on morality. This holding will overturn
all crimes (in reality, this has not happened).
II. THE CRIMINAL ACT (ACTUS REUS).
A.
THE CONDUCT REQUIREMENT.
1.
1 of 2 elements to a crime (Criminal Mind being the other). What a
person has done, or failure to act (in some cases). Conduct is an essential
component of any crime. Criminal liability may not be premised on a mere
intention or bare desire to do wrong; does NOT include ‘thought’ crimes,
or ‘Status’ offenses (ie, illegal to be homeless). Must be an ACT.
2.
DOE V. CITY OF LAFAYETTE. Parks Authority bans D, a known sex
offender, from entering public parks. Ban arises from D going to a park in
his car, sitting in his car for half hour while watching kids, while thinking
about fucking them. Issue: can a City ban D from entering parks solely as
a result of his immoral thoughts?
a.
Holding: NO. A person cannot be prosecuted for his thoughts
alone. This is like a ‘thought’ crime (for thinking about banging
little boys) or a ‘status’ crime (for being a pederast); neither of
which are valid acts under the criminal act requirement. Also,
plainly does not meet stalking act requirements.
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b.
Dissent: Reasonable remedy to protect kids, a vulnerable class of
people (children). Act requirement was met here, because the City
punished D for immoral thoughts + going to the park, arousal,
watching kids (all acts, just not criminal acts). Here, thoughts can
lead to dangerous situation; City right to proscribe conduct.
(Dissent won on appeal).
c.
This case; Freedom of Thought vs. Protecting against dangerous
conduct.
3.
Why no punishment for Thought Crimes? In our system, 3 problems; 1Proof, 2-Evil thoughts do NOT always follow evil deeds, and 3Substantial Liberty interest. The Act Requirement provides a clear line for
citizens to avoid liability, excludes liability for status or mere thoughts.
4.
REQUIREMENT OF VOLUNTARY ACT; COMMON LAW.
a.
Criminal liability for conduct requires that the ACT was
VOLUNTARY (must result from an exercise of will). The actor
must have made a CHOICE. Applies to crimes of Omission and
Possession as well.
i)
Distinguish between ‘exercise’ and ‘free of pressure.’ Eg, if
one is given a choice between threatened harm and
committing, and commit a crime, that qualifies as a
‘voluntary act,’ bc was a result of a choice (actor here still
allowed a ‘duress’ defense)
b.
MARTIN V. STATE. Martin was arrested by cops in his home,
taken by cops to the highway, where cops cited him for public
intoxication. HOLDING: Conviction overturned. The statute
presupposes a voluntary appearance. Here, D was involuntarily
and forcibly carried into public by cop.
c.
INVOLUNTARY CONDUCT; An Absolute Defense. 4
generally accepted examples of when bodily movement is not
directed by conscious mental processes:
i)
Physically Coerced Movement
ii)
Reflex Movements (attacked by bees while driving)
iii)
Muscular Contraction, or Paralysis produced by disease
iv)
Unconsciousness (acts done while sleeping, or in coma)
d.
Contrast with IMPAIRED CONSCIOUSNESS. A defense on a
case-by-case basis, for Jury to decide. Examples include:
i)
Concussion
ii)
Somnambulism (Sleep Walking).
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iii)
iv)
e.
B.
Hypoglycemia.
Epilepsy; Example: Mom who had Epilepsy put baby in
microwave and killed it. Resulted in reduced charge,
Involuntary Manslaughter.
INVOLUNTARY ACT IN A VOLUNTARY COURSE OF
CONDUCT; PEOPLE V. DECINA. D was driving, had epileptic
seizure, killed some kids. HOLDING: Convicted of Negligent
Homicide. Despite fact that his actions were held to be involuntary
during seizure, D was liable for negligent and voluntary act of
driving car, with knowledge he was subject to seizures. Based
on MPC definition; “Conduct which includes a voluntary act.”
PRINCIPLE OF LEGALITY.
C.
1.
In the US, criminal laws must be defined beforehand by the legislature (as
opposed to judge-made law in the UK). The Principle of Legality forbids
the retroactive crime definition; condemns judicial crime-creation.
2.
Emphasis on fairness to defendant; effectively put on Notice that certain
conduct carries criminal liability, while other conduct does not.
3.
Weakness of Principle: Drug Enforcement, with new drugs (like Ecstasy,
or LSD). Or, with bizarre, unanticipated crimes for which legislature did
not anticipate by writing a law. As opposed to judge-made criminal laws,
where have flexibility.
VAGUENESS DOCTRINE.
1.
Constitution in play here. A Criminal Statute can be so vague, and the
language unclear, that it fails to afford people proper warning of what
sufficiently constitutes illegal conduct, thus preventing compliance. Must be
Grammatical Vagueness.
2.
Stop and Identify Laws: KOLENDER V. LAWSON. D was arrested 15
times for violating Disorderly Conduct statute that read: “If D seems aimless,
guilty for disorderly conduct if D does not produce ‘credible and reliable
identification.’. HOLDING: Invalidates conviction; ‘credible and reliable’
description is not subject to any objective standard. Allows for a Vague
Enforcement Standard, susceptible to Arbitrary Enforcement.
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3.
VOID-FOR VAGUENESS DOCTRINE: Requires that penal statute define
the criminal offense with sufficient definiteness that ordinary people can
understand what conduct is prohibited and in a manner that does not
encourage arbitrary and discriminatory enforcement. Requires that Legislature
establish minimum guidelines to govern law enforcement. Failure to do so
allows for arbitrary/discretionary enforcement.
a.
D.
Rationale of Doctrine focuses on 2 things: 1-Actual Notice/Warning:
Not actual. Constructive notice satisfied as long as law is on the books;
and 2- Arbitrary and Discriminatory Enforcement.
4.
PAPACHRISTOU V. CITY OF JACKSONVILLE.
5.
TOLERABLE VAGUENESS; US V. PETRILLO. Federal Communications
Act: Criminal to use any means to coerce or compel a broadcast licensee to
employ ‘any person(s) in excess of the number of employees needed by
licensee’. Some arbitrariness/fair warning problem here, however, HOLDING
(SC): Good law, because even if appears vague, it is impossible to come up
with even more precise language in ever-changing, fluid industry.
6.
QUESTIONS OF DEGREE; NASH V. US. Sherman Anti-Trust Act; ‘undue
restraint of trade.’ Kind of vague language. HOLDING: Upholds law because
the language refers to a question of degree (‘undue’). It is ok to use vague
words when describing the degree of something; ‘catch-all’ words.
ACTS BY OMISSIONS.
1.
2.
NECESSITY OF A DUTY TO ACT. A crime when failing to ACT, only
when there is a duty to act. TO PROSECUTE AN ACTOR FOR A
CRIME OF OMISSION, THERE MUST BE AN UNDERLYING
DUTY FOR D TO ACT.
SOURCES OF DUTY. As follows:
Statute
Relationship (eg, parent-child)
Contract or Employment Responsibility. ‘Contract’=some semi-formal
relationship. Eg, Lifeguard.
d.
Voluntary Assumption of Responsibility (that precludes aid from
others)
e.
If D created the peril.
a.
b.
c.
3.
BILLINGSLEA V. STATE. D had his 94-yr old bed-ridden mom Hazel
live with him. D refused to let niece visit Hazel. Then, 2 cops and social
worker visited D, allowed them in. They found Hazel in a ton of pain,
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bedsores, etc. Soon died, doctor said died of injuries as a result of
neglectful treatment. Charged with ‘Injury to… Elderly Person: an offense
if D… negligently, by act or omission, engages in conduct that causes
someone 65 or up…Serious injury.’ HOLDING: Invalidate conviction.
One who ‘omits’ to perform an act does not commit an offense unless
statute provides that 1-the omission is a crime, or otherwise 2-it provides
that he has a duty to perform the act. In TX, a duty to act in order to avoid
a conviction for Omission can only arise from statute (Minority Rule, see
#2).
a.
4.
FAILURE TO PROVIDE SUSTENANCE; REGINA V. INSTAN.
Niece lived with aunt, aunt develops gangrene. People drop food off for
aunt with niece, but niece gives none of it to aunt. Aunt dies. Niece
charged with manslaughter. HOLDING: Uphold conviction; Voluntary
Assumption of Responsibility, and possibly Contract/Employment
Responsibility (caretaker).
a.
5.
If this were decided in a Majority J’n, would probably uphold
conviction bc here, D Voluntarily Assumed Responsibility for
caring for Hazel (thus preventing aid from others).
JONES V. US. D was entrusted with care of 2 kids, mom agreed to
pay the D for care of older kid. Kid dies of malnourishment.
HOLDING: no conviction. No statute in play; No Relationship as
such that imposes a duty on D here. Contract/Employment
Responsibility; here, court said lack of evidence that duty extended
to that particular child. Voluntary Assumption; here, we have to
‘who’ of the duty, but do not have circumstances defined (how
long was duty to last?); again, no evidence of the scope of that
duty… This case is at the boundary of the harshness of Crimes by
Omission.
FAILURE TO PROVIDE MEDICAL ASSISTANCE; PEOPLE V.
BEARDSLEY. Man and woman in an illicit relationship, in a secluded
place. She overdoses on morphine after he told her not to take any. Then
he learns that his wife is on the way, so he gets his buddy to take the gf
and hide her, she dies. Charged and convicted for Manslaughter at trial.
HOLDING: Reverse conviction. she did this to herself; he told her not to
use morphine; he gave her to someone else to ‘take care’ of her; Causation
problem, no proof that omission caused the death.
a.
Only modern Omission standard even possible would be Voluntary
Assumption, but at what point does that kick in?
b.
PEOPLE V. OLIVER. Ms Oliver takes Carlos to her home from
the bar. Carlos does heroin in her bathroom. He asks for a spoon,
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she gives it to him. He passes out, she goes back to the bar. Later
her kids find him, she tells them to take his body outta the house
and behind the shed, he is later found dead. HOLDING: Duty to
act here, bc putting him behind the shed amounted to a Voluntary
Assumption of Responsibility (that precluded aid from others).
c.
Generally difficult to define the scope of D’s duty.
6.
DUTY TO RESCUE? Not in the US. Kinda like torts.
7.
INTERPRETATION OF CONDUCT ELEMENTS
a.
KEELER V. SUPERIOR COURT. D kicked his wife’s ass, who
was pregnant with some other guy’s baby. He purposefully hit her
abdomen to kill the baby. Convicted for murder of the fetus.
ISSUE: whether a viable fetus is a ‘human being’ within the
meaning of the murder statute. HOLDING: No, focus on
legislative intent, based on 1850 draft, did not contemplate a fetus
being a human being. DISSENT: goes with different understanding
of the Murder statute, should include this fetus.
i)
the undercurrent of this opinion was the abortion debate.
b.
PEOPLE V. SOBIEK. D was president of an Investment club, a
partnership. He took money from it. Charged with grand theft, D
answered that you cannot steal from a partnership, old prop. rule.
HOLDING: Uphold conviction. Law has changed. D says that
reasoning of Keeler, about legislative intent, should guide this
court. But court says that all that stuff about legislative intentwas
dictum and not binding on this court.
c.
METHODOLOGY OF STATUTORY INTERPRETATION IS
NOT BINDING. Just the holdings; courts can arrive to conclusion
by whatever methodology they choose, not binding.
d.
STRICT CONSTRUCTION; MCBOYLE V. US. Concern for
fair notice. Here, D stole airplane, charged with interstate
transportation of stolen motor vehicle (lists several car-type
machines, and ‘any’ self-propelled vehicle). HOLDING: Overturns
conviction; theft of airplane not contemplated by drafters, look at
the examples, all are car-type vehicles, no plane. No notice to D
here.
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E.
MPC; ACTUS REUS.
1.
Act Elements characterized by 3 categories:
i)
Conduct. Describe acts or omissions required to commit an
offense. Eg, ‘breaking and entering’ for burglary.
ii)
Circumstance. External facts that must exist in order for crime to
be committed. Eg, the taking ‘of personal property of another’ for
Larceny.
iii)
Result. Any consequences of D’s conduct incorporated into
definition of offense. Eg, ‘death of another’ for Murder.
III. THE CRIMINAL MIND (MENS REA).
A.
INTRODUCTION
1. 1 of 2 necessary elements of every crime. ‘Guilty Mind,’ General Moral
Blameworthiness. ‘Crime=Evil Mind + Evil Doing Hand’. NOT motive,
which is never an element of a crime. Without Mens Rea requirement,
accidents would be prosecuted; which is not fair, goes against goals of
Criminal law, to punish evil, and can’t really deter accidents.
2. Types of Evidence that helps to prove one’s Mens Rea at the time of the
crime:
i)
ii)
iii)
iv)
v)
vi)
vii)
B.
Preparatory Acts; inferring intent from one’s preparatory acts
(purchase of shovel, or new life insurance policy)
Actions after the fact
The act itself; how did it happen? Eg, 1 knife wound, compared
with 50 knife wounds. Allows an observer to peek into Mind of
actor.
Motive: while not an element, can be a proxy for certain kinds of
Mens Rea
Actions vis a vis a pre-existing relationship.
Prior bad acts. A repeat robber infers intent (but also don’t want
to prejudice against someone bc of past acts either)
Statements of criminality from actor.
REGINA V. FAULKNER. D a seaman on a ship carrying rum in cargo. He goes
down there, its dark. He pokes a hole and drinks from barrel. Lights match so he
can see, ignites the rum, burns down ship. He is charged with arson. Mens Rea
words in statute: ‘feloniously, unlawfully, maliciously.’ HOLDING: Overturned
conviction. To convict for arson, D must have intent to commit an arson. That he
had intent to commit larceny (of rum) has no bearing; cannot transfer intent from
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larceny to arson; to convict for arson, D must have some intent that corresponds
with the act requirements of arson.
1. Facts that could indicate to us D’s Mens Rea: can infer his obliviousness that
booze is flammable, bc he put himself at risk; employed by ship, prob don’t
want to burn his job down; Does being drunk matter? Don’t want to give a
defense for being drunk.
2. Subjective Mens Rea Standard: what was D thinking?; Objective Mens Rea
Standard: What would reasonable person have done? Hold D to that standard
C.
REGINA V. CUNNINGHAM. Statute: ‘whoever unlawfully and maliciously
administer… any poison or noxious thing that endangers their life…is guilty of a
felony.’ Case of the future son-in-law breaking the gas meter, for the $, that
caused gas to escape into mom-in-law’s house and kill her. HOLDING: Quash
conviction. Intent for larceny, by evidence that he broke meter and stole $. But he
didn’t cover up his acts, familial relation with no past history, no motive; all
suggest that D had no intent to kill mom-in-law.
D.
COMMON LAW MENS REA; SPECIFIC INTENT AND GENERAL
INTENT. The 2 Mens Rea categories within the common law. They are really
only important when you consider them in light of…
E.
MISTAKE OF FACT DEFENSE. When D is mistaken about a fact that
underlies the crime, that directly implicates an element of the crime, he is entitled
to a jury instruction. If there is a Mistake in Fact, he lacks the Mens Rea, no
conviction. 2 kinds of Mistake of Fact jury instructions:
1. Specific Intent Crime: To get the Mistake of Fact jury instruction for a
Specific Intent crime, D only has to show an honest mistake about a fact
underlying the crime in order to get the jury instruction. Subjective Standard,
D-friendly, harder for prosecution.
i)
Common law Mens Rea words that are typically associated with
Specific Intent crimes: wilfully, maliciously, purposely,
intentionally. (indicate high level of proof)
2. General Intent Crime: To get a Mistake of Fact jury instruction for a
General Intent crime, D must show 1-he made an honest mistake, and 2-that a
reasonable person would have made the same mistake. Objective Standard,
Prosecution friendly, Harder on D.
i)
Common law Mens Rea words typically associated with General
Intent crimes: unlawfully, feloniously, negligently, recklessly.
(lesser level of proof).
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1.
GREEN V. STATE. D killed some hogs and took them home. Police
came by later and charged him with larceny (to take with intent to
permanently deprive); turned out that the hogs belonged to someone else.
i)
Mens Rea word: ‘Intent.’
ii)
Gave a Specific Intent jury instruction:possibly because it’s
plausible for someone to mistake unmarked, unbranded pigs.
iii)
HOLDING: D committed the actus reus of larceny (take and carry
another’s prop away). But D got the Specific Intent jury instruction
bc sufficiently showed honest mistake that he had ‘intent to
deprive’.
iv)
Larceny is usually a Specific Intent crime, requires a more
specialized criminal mind.
2.
STATE V. WALKER. D charged with child abduction. D and his adult
son abducted boy and girl in front of school. He thought girl was his
granddaughter, found out she wasn’t after a 1 block drive, drove her right
back to the school.
i)
HOLDING: D allowed a General Intent mistake of fact jury
instruction. Mistake must’ve been honest and reasonable.
ii)
No Mens Rea words were in the statute, so court had to figure out
whether this was Specific or General Intent. They decide on
General Intent; as a society, we want people to pay attention where
the victims are kids, want to impose a standard of reasonableness
on D. So D should carry the burden of reasonableness. Also,
mixing up your grandkids NOT a common mistake, so it’s ok to
adopt a harsher rule.
3.
OTHER CASES; PEREIRA V. STATE AND STAPLES V. US.
“Know” doesn’t always mean “know.” Be aware of differing
interpretations. It might, or might not be a Mens Rea modifier of the Act
Requirement.
i)
when “know” is applied according to its normal English language
meaning, the Mistake of Fact defense will be handled by applying
the Specific Intent defense.
4.
US V. OGILVIE. D charged with 2 crimes; Bigamy, and making false
official statements. Both crimes stem from the same Mistake of Fact. D
honestly thought he was divorced, relied on wife’s word, and a Red Cross
order.
i)
HOLDING: Making false statementsSpecific Intent Crime; its
plausible to make a mistake about the truth of your official
statement. BigamyGeneral Intent Crime; impose a
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reasonableness standard to mistake, a reasonable person would
take steps to ensure that he was divorced. Don’t want to give D a
break for this type of crime.
5.
F.
US V. YERMIAN. If common law crime required Specific Intent, but the
mistake of fact was relevant to an element of the offense other than the
Specific Intent, courts followed General Intent rule.
i)
D charged with offending this statute: “whoever, in any matter
within the J’n of any dept or agency of the US knowingly and
wilfully… makes any false statements… shall be fined.
ii)
Here, D knew he was telling a lie. He made a mistake regarding
the fact that he was making it within a J’n of the US.
iii)
HOLDING: General Intent Rule applies to the J’nal issue, and
Specific Intent to the false statements element.
iv)
Odd to hold D to higher standard on J’nal issue, but not on the
more substantive issue. Probably bc want to impose standard of
reasonableness where national security is an issue, make it harder
on D where stakes are so high.
v)
What if you lie to a Park Ranger? Something to ponder…
GRADING ELEMENTS IN COMMON LAW MENS REA; STRICT
LIABILITY.
1. Tend to do with value, weight, size. Eg, difference between petty and grand
larceny (value).
2. Mistakes as to Grading Elements: Strict Liability to the Grading Element of
the Crime. No Mens Rea defense with respect to Grading Elements (distinct
from MPC)
i)
So if D steals a necklace that he believes to be worth $10, but it
actually is valued at $1mil., he will be charged with Grand
Larceny. D’s subjective belief on value of necklace doesn’t
matter with respect to Common Law Grading elements, only
what was actually done. STRICT LIABILITY.
3. REGINA V. PRINCE. D banged a 14-yr old girl, he said he made an honest
mistake as to her age. HOLDING: No mistake of fact defense, strict liability
here.
i)
No Mens Rea, Strict Liability. Tends to accompany really wrong
stuff, like statutory rape, kiddie porn, etc.
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G.
MPC MENS REA. (Recall MPC Actus Reus categories above).
1. INTRODUCTION. New approach to Mens Rea. 4 Culpability Concepts. The
Mens Rea elements of a crime are determined by ascertaining which of the 4
terms applies to each of actus reus components of offense.
i)
4 Mens Rea/Culpability Concepts: Purposely, Knowingly,
Recklessly, Negligently.
ii)
MPC puts heavy weight on the particular state of mind of D;
more subjective view, less objective view. D held more
accountable for his beliefs.
2. MPC CULPABILITY PROVISIONS.
i)
Purposely: One acts PURPOSELY with respect to a material
element of an offense when: (1) if element involves Conduct or
Result, it is his CONSCIOUS OBJECT to engage in conduct of
that nature, or to cause such result; and (2) if element involves
Circumstance, he is aware of existence of such circumstance,
or he believes or hopes they exist.
a.
‘conscious object’ ie what actor plans to do.
ii)
Knowingly: One acts knowingly w respect to an element when
(1) if conduct or circumstance, he is aware that conduct is of
nature, or that such circumstances exist; and (2) if element
involves a Result of conduct, he is aware that it is practically
certain his conduct will cause such a result.
a.
ie, if you beat someone up and they bleed out’practically
certain’ will die
iii)
Recklessly: D must be aware of facts that make the risk
substantial, and of the facts that make it unjustifiable. So,
‘substantial and unjustified risk’.
a.
Like Drunk driving; not practically certain youre gonna kill
someone, but the aware of substantial and unjustified risk.
Strong presumption that D knows its not ok to drive drunk.
b.
‘gross deviation from standard of conduct that a lawabiding person would observe in D’s situation’.
iv)
Negligently: D is unaware of the risk, but should be aware of
risk. (the diff btn Negligence and Recklessnes is the awareness)
3. If no Mens Rea word modifies an Act element, then defaults to Recklessness,
ie awareness of substantial and unjustifiable risk.
4. MPC only uses Strict Liability Mens Rea standard for Statutory Rape and
traffic violations.
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5. 4 Mens Rea categories operate hierarchically. So, if D charged with Negligent
Homicide, and had Mens Rea of Recklessness, can still get him.
6. Mistake of Fact under MPC; this terminology is abandoned. Under MPC,
there is no “Mistake of Fact” defense. D submits a “mistake of fact”-like
defense merely by asserting that he did not have sufficient Mens Rea for the
statute. (Mistake of Fact only in Common Law).
7. Grading Elements under MPC. Under MPC, all that matters is D’s belief of
what the value/weight/etc was (Diff. from Common Law, which uses Strict
Liability for Grading Elements, doesn’t care about D’s state of mind)
H.
MISTAKE OF LAW; NOT A VALID DEFENSE UNDER COMMON LAW
1. STATE V. FOX. D stole 100,000 tabs of ephedrine, violated new law. D
thought it was legal. HOLDING: D not entitled to jury instruction.
2. PEOPLE V. MARRERO. Fed. Corrections officer found in NYC with loaded
gun.
3. HOPKINS V. STATE. Reverend advertised marriages. Not entitled to
Mistake of Fact defense, he made a mistake of law; goes to how his sign is
interpreted.
4. STATE V. STRIGGLES. Gambling device case. Ignorance of law here,
regardless if D sought advice from lawyer. If D sought advice, knew he was
doing something wrong.
5. LAMBERT V. CALIFORNIA (SC). D was a convicted felon for forgery. If a
convicted felon stays in L.A. for 5+ days, per ordinance, he must register.
Here, D didn’t register, said he was not aware of the law (Mistake/Ignorance
of Law) Convicted by lower courts for not registering. HOLDING:
Overturned conviction. ‘in some instances the govt has to provide Actual
Notice…where conduct is wholly passive and D is wholly unaware.’ BUT,
this opinion is the EXTREME MINORITY rule, and probably has more to do
that this was very much like a status thing. As it relates to sex-offenders
registering, this opinion has not been persuasive.
6. MISTAKE OF LAW UNDER MPC; 2 NARROW INSTANCES WHERE
IT IS ALLOWED. (1) ‘Official Misstatement of the Law’: D acts in
reasonable reliance upon the official statement of the law, afterward it is
determined invalid or erroneous (diff outcome in Striggles). (2) Statute
defining the offense is not known to D, and not published or reasonably
known to D.
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I.
MISTAKE OF NON-CRIMINAL LAW. Arises when D makes a mistake of
non-criminal law relevant to the criminality of conduct. So for example, the crime
of Larceny involves the invasion of property rights, has its basis in Property Law
not Criminal law. If D wrongly concludes he ‘owns’ something…
1. Common Law Treatment. If the offense required a Specific Intent, a
Mistake of Non-Criminal Law jury instruction is allowed. But if General
Intent, no defense.
2. MPC Treatment. Treats a Mistake of Non-Criminal Law same way common
law treats Mistake of Fact; lacked required Mens Rea.
J.
STRICT LIABILITY IN CRIMINAL LAW; NO MENS REA REQUIRED?
1. If a statute has no Mens Rea words, the strong presumption is that some form
of Mens Rea is implied. The exception is for Public Welfare Offenses, which
are often Strict Liability.
2. MORISSETTE V. US. D takes bomb casings from government property.
Casings appear abandoned. Converts them to scrap, sells for $80. Convicted
for theft of govt property; “unlawfully, wilfully, and knowingly steal.” D did
not get a “felonious intent” instruction. HOLDING: mere intent here amounts
to strict liability, and that will not fly in this case. If no Mens Rea stated in
statute, it is to be implied. Here, must have intent to deprive, not just to take.
i)
Exception: Public Welfare offenses. Strict Liability. That body of
criminal law came about with Industrial Revolution, designed to
impose a duty on Businesses to take proper care when putting
stuff into commerce. Theft is not a public welfare crime. Law
demands top-down accountability, and typically low penalties.
ii)
Only possible defense for a CEO to such a violation: That he was
truly powerless to change. But that is an act defense. And what
CEO is gonna say that?
3. US V. DOTTERWEICH. Dprez of drug-maker, convicted for mislabeled
drugs, even though he didn’t mislabel, and had no knowledge of mislabeling.
HOLDING: Upheld Conviction. Strict Liability, public welfare offense.
Encourages bosses within corp. structure to take responsibility.
4. US V. PARK. D/CEO of Acme Mkts charged with 5 FDA violations for food
exposure to rodents, at multiple locs. HOLDING: Upheld Conviction. Strict
Liability, Public Welfare offense. Here D knew of offense, tried to remedy it,
thought it was. But Strict Liability, no Mens Rea defense. Even if CEO is
proactive about it.
14
K.
CLASS NOTES ABOUT REVIEW FOR TEST
Review of Mens Rea. IMPORTANT FOR THE EXAM! KNOW THIS FRAMEWORK!
Est Appropriate Mens Rea: MPC
-read statute for mens rea term. If there is a term for each element, us general definitions
-if no mens rea for each element, default is recklessness.
-if crime is conspiracy or attempt or if alleged crime is based on accomplice liability, relevant
mens rea will override the recklessness default.
Est Appropriate Mens Rea: Common Law
-is there a mistake of fact? If not, for purposes of this class, just assume the govt must show
some Mens Rea. If yes…
-Look at the words of the statute:
-Higher level associated with Specific Intent (wilfully, maliciously, purposely, etc. words
that imply conscious awareness)
-Lower level associated with General Intent or (in rare cases) Strict Liability. Words like
unlawfully, feloniously, negligence
-Consider what the words modify (Yermian problem)
-Is the crime a Public welfare offense? If yes, might be a strict liability crime
-Legislative history to indicate specific or general intent?
-Is crime similar t or associated w a historical common law crime (like theft murder rape adultery
bigamy assault)? If so, you might want to use the mens rea associated with those historical
crimes.
-Consider public policy issues (many cases determine which Mens Rea standard applies)
-Punishment theories
-Need for special protections (like if children involved)
-Evaluate the incentives created by the 2 different Mistake Instructions (does it make
sense for D to be reasonable and not allow stupidity as a defense, thus allowing for
general intent jury instruction?)
…
In MPC, phrase Mistake of Fact defense in terms of lacking necessary Mens Rea reqt. So,
if reqs ‘purpose’, can argue D did not have ‘conscious object.’
General Intent: usually lower-level words.
Specific Intent: reqs higher level of mens rea.
Usually, historical
Public welfare offense: typically corp entity, typical low penalty, typically subject to
regulatory aparatus enforcement as opposed to cop enforcement.
15
IV. ATTEMPT.
A.
INTRODUCTION TO INCHOATE CRIMES.
1.
Inchoate Crime: Crimes that were not completed (unsuccessful, or
interrupted). An attempt to commit any offense is punishable as a separate
offense.
2.
PREPARATION VS. ATTEMPT.
3.
a.
Preparation: getting ready to do crime. By itself, not punishable as
Attempt.
b.
2 Major Qs: 1-How many steps? Whats been done so far? And 2-How
close (physically, temporally) is the crime to being completed?
c.
Attempt is defined by reference to the object offense. No attempt can
stand alone; must exist with some substantive offense.
FAILED ATTEMPTS VS. INCOMPLETE ATTEMPTS
a.
different conceptual categories. We focus on incomplete attempts, bc
harder analytically. We don’t know what happens next, we have to
ask, is it right to punish?
INCOMPLETE OFFENSES – PREDICTING THE FUTURE
4.
a.
PEOPLE V. BOWEN AND ROUSE. 2 dudes a their 2 girlfriends go to
old lady’s house. 2 girls talk to old lady, while 2 dudes ransack the house
looking for shit to steal. 1 dude is acquainted with the lady. Cops come.
House in disarray. TC convicted for attempted Larceny. HOLDING:
Overturned, bc the jury instruction for Attempt was incorrect. 2 Elements
for Atempted Larceny: 1-Felonious Intent to commit Larceny; and 2-Overt
Act going beyond mere preparation towards commission of the crime.
Here, bc D had been there before, the mere act of going to her house is
ambiguous whether satisfies Overt Act reqt.
b.
PEOPLE V. PIPPIN. D charged with Attempt of gross indecency with a
minor. D was a prior offender, invited child into car. Cops intervened
before ‘exposure.’ HOLDING: No Overt Act here, Mere Preparation here,
maybe bc just having a kid in a car is all that happened, and that isnt a
crime. Don’t want to over-criminalize.
16
B.
C.
OVERT ACT REQUIREMENT (COMMON LAW APPROACH TO
ATTEMPT)
1.
Incomplete Attempt – predicting the future. For Common law, focus on What
remains to be done; NOT on what has been done already (diff from MPC).
Critical factor; amount of separation between Actor and Criminal Objective –
in terms of time, distance, necessary steps not yet taken.
2.
PROXIMITY TEST; PEOPLE V. RIZZO. D and 3 others planned to rob a
payroll worker. Armed selves, get in car, drive to places where they expected
to find him, cops find D. TC convict D of Attempted Robbery. HOLDING:
Overturn; For Attempt conviction “D must come very near to accomplishment
to crime.” Here, act of arming selves and driving around looking for victim
not Attempted Robbery. Robbery=take $ by force or violence. Attempted
Robbery=D must do an act tending to commission of Robbery. No such act
here.
3.
PROXIMITY TEST FOR ATTEMPT, COMMON LAW. must come very
near to commission of crime to qualify for Attempt.
MPC APPROACH TO ATTEMPT; SUBSTANTIAL STEP ACT
REQUIREMENT.
1.
MPC Broadens liability for Attempt. Focuses on what has already been
done (diff from Common Law, which reqs D to be very near to complete
crime).
2.
MPC 5.01(1)(c). Conviction for Attempt where actor engages in an act or
omission constituting a substantial step in a course of conduct planned to
culminate in his commission of a crime.
3.
MPC 5.10(2). SUBSTANTIAL STEP. It must Strongly Corroborate
actor’s Criminal PURPOSE.
a.
Following are sufficient examples of corroborating an Actor’s criminal
purpose: (look in book for exact wording of these) (a) lying in wait,
searching for or following contemplated victim; (b) enticing or
seeking to entice contemplated victim to go to place…(c)
reconnoitering contemplated place for commission of crime, (d)
unlawful entry of structure, vehicle, etc, where it is contemplated
crime will be done, (e) Possession of materials… (f) poss’n, collection,
fabrication of materials to be employed in comsn of crime… (g)
soliciting innocent agent to engage in… crime. Must be a 3d party,
cannot be the victim.
17
b.
5.
D.
Backward looking, engages criminality much earlier than Common
Law. Rizzo wouldve been fucked under a couple of factors…
US V. GLADISH. D on internet with what he thinks is a 14-yr old girl making
the dirty talk, really an FBI agent. charged with ‘knowingly attempting to
persuade, induce, entice, or coerce a person under 18 to engage in criminal
sex.’ He discussed traveling to meet ‘girl’ but no arrangements were made.
Lower court convicted. HOLDING: Overturned conviction.
a.
To be guilty of an Attempt, D must 1-Intend the completed crime, and
2-Take a “Substantial Step” toward its completion.
b.
Here, no overt act. No Attempt.
CASE EXAMPLES; DIFFERENT ANALYSIS OF ACT REQUIREMENT
BETWEEN COMMON LAW AND MPC
1.
STATE V. METTETAL. D in Vandy hospital parking garage with afro wig,
looking really weird, gives cops fake id. Has syringe filled with saline. Figure
out he’s after the doctor, later search his house, find ‘How to Kill’ books.
(Evidence got thrown out, so attempted murder charge got dropped)
i)
Attempted Murder; Common Law? needs to be evidence of a
particular crime. Here, we have books, and toxic shit in a storage unit
far away from scene. So Common law Attempted Murder fails
ii)
Attempted Murder; MPC? Better case, bc he has taken some
‘Substantial steps’ (books, poison, lying in wait). However, these
things need must strongly corroborative of Specific Purpose of
Specific Crime. Needs Substantial Step, + Step must be connected with
Criminal Purpose. Here, police intervened too early; all D was doing
was hanging out.
a.
MUST CONNECT THE SUBSTANTIAL STEP TO
CRIMINAL PURPOSE!
2.
PEOPLE V. ADAMI. Undercover cop buys coke from D. D wants to kill his
wife several times. Cop says he knows a guy who can do it (another cop).
They all have a meeting. $ is exchanged. D bought insurance policy.
i)
Attempted Murder; Common Law? NO. D did not come
‘dangerously close’ to commission of the crime. Bc cop never really
tried to kill the wife. Under common law Attempt, the focus is on how
close D came to murder; here not close at all bc the cop was never had
Purpose to kill the wife.
ii)
Attempted Murder; MPC? YES. We have a Substantial Step by D g)
Soliciting an innocent agent; and it is strongly corroborative of the
Specific Crime of Murder. So MPC Attempted Murder is good here.
18
E.
F.
MENS REA FOR ATTEMPT
1.
COMMON LAW; THACKER V. COMMONWEALTH. D and his buddies
were drunk, saw a light in a tent in the distance, D tries to shoot light out with
gun. Turns out there was a family in there, shot just missed their heads.
Charged with Attempted Murder. D said didn’t know people were there,
wasn’t trying to kill them. HOLDING: Attempted Murder is a Specific Intent
Crime. So, D is allowed a Specific Intent Mistake of Fact jury instruction
(honest mistake about people being in there).
2.
MPC APPROACH. MPC Requires PURPOSE for Attempt Crime. Here, D
lacks the Mens Rea of Purpose because he did not have the conscious object
of shooting the people in the tent.
DEFENSES TO INCHOATE CRIMES; Impossibility and Abandonment.
1.
IMPOSSIBILITY. Where D is unaware of some fact that makes crime
impossible. Mens Rea: D not aware of impossibility.
a.
PEOPLE V. DLUGASH. D shoots an already dead body in the
face, but D thought he was still alive. Charged with Attempted
Murder, but D claims Impossibility defense, bc victim was already
dead. HOLDING: what is in D’s mental state is the only standard.
Here, D thought he was murdering victim. No Impossibility
defense available.
b.
LEGAL VS. FACTUAL IMPOSSIBILITY. In reality, there is
no real distinction between the 2, but courts still use them to justify
the defense. Never corrected bc it comes up so rarely.
i)
Legal Impossibility VALID DEFENSE.
ii)
Factual ImpossibilityNOT VALID DEFENSE.
c.
MPC APPROACH TO IMPOSSIBILITY DEFENSE. Under
MPC, judge Impossibility by D’s state of mind. Also, ‘Voodoo’
exception; where if what D is doing believes he is killing someone
but really so out of realm of possibility, that will never work, no
matter that D thinks it works. However, contrast with D using a
water gun to rob a bank; if D believes the gun is real, Impossibility
defense not available for Attempted (armed) robbery.
d.
TRUE IMPOSSIBILITY. Even calling it ‘impossibility’ is a
misnomer. It’s when D performs some conduct that he believes is
illegal, when that conduct is really not a crime. Ie, smoking dope in
a J’n where its legalized, but D believes its illegal.
19
2.
V.
ABANDONMENT. Defense to Attempt; when D satisfies Act and Mens
Rea reqts, but does not go through with commission of crime bc changes
his mind.
a.
COMMON LAW APPROACH TO ABANDONMENT. In
MAJORITY of common law J’ns, Abandonment is not a valid
defense to an Attempt crime. Reason is probably bc Attempt is
very hard to convict on bc D must come very near the commission
of the crime, realistically it is impossible to come so close to crime
and then abandon it.
i)
ROSS V. MISSISSIPPI; MINORITY VIEW: D goes to
victim’s house, pulls gun and tells her to undress, she does.
He gets ready to do it, victim asks him not to bc she has a
daughter, he changes mind, leaves. Charged with
Attempted Rape, D asks for Abandonment defense.
HOLDING: Abandonment defense is allowed. Here, D met
the Act Reqt and Mens Rea reqt (very near commission of
crime + specific intent to commit crime Mens Rea), and
then Voluntarily abandoned the commission of the crime.
Meets the standard for Abandonment.
ii)
Would NOT be Abandonment if D stopped crime bc he
thought he’d get caught or interrupted, only for Voluntarily,
‘change of heart’ decisions.
b.
MPC APPROACH TO ABANDONMENT. MPC allows for the
Abandonment defense, probably bc MPC can pin the Attempt
charge much earlier in the crime process than common law, so
much broader time frame, chance that D changes mind more
realistic. But, ACT and MENS REA reqts still must be met.
i)
Abandonment is the only available defense for Inchoate
crimes under MPC.
ii)
Exception, Abandonment is available for crime of Perjury,
bc can go back and correct testimony.
COMPLICITY; ACCOMPLICE LIABILITY.
A.
INTRODUCTION. Complicity; Accomplice Liability. When there are multiple
crimes within the same criminal enterprise. How to decide liability for each
person?
1.
2 ways; Accomplice Liability; and Conspiracy (next section).
2.
Under Common Law, have the Principals (the actor), and then the
Accessories. Important to ID who is who. But, the accessory is charged
with the substantive crime that the primary actor actually committed.
20
B.
a.
“Accessory After the Fact”. Someone who provides shelter,
false alibi, protects a principal after the crime. Smaller
Penalty. Not studied a ton, we focus more on…
b.
Accomplice Liability: Accessories Before the Fact. Here, we
need to identify the Principal, and Accessory. Act of
Assistance before crime must occur. ‘Aiding and Abetting’ +
Crime.
c.
Basic Architecture; Identify the Accessory; Identify the
Principal. ON AN EXAM, FOR COMMON LAW
ACCOMPLICE PROBLEM, NEED TO DISTINGUISH
THE ACTORS!!
d.
Holds the ‘abettor’ criminally liable for the acts of another
(diff. from Conspiracy, where liability is direct).
ACT REQUIREMENT; ACCOMPLICE LIABILITY
1.
One who: 1-Aids, Abets, encourages, advises, etc, 2-the commission of a
crime. Derivative by nature, not guilty by ‘helping’ in and of itself, rather
takes on element of criminality when, as 2dary party, primary actor does
crime acts that 2dary party helps with.
2.
The one who aids and abets is charged, via accomplice liability, with the
substantive crime (as opposed to Conspiracy. When D aids and abets T in
commission of a murder, D is charged with murder).
3.
REX V. RUSSELL. This case is the outer-most limit of Accomplice
Liability. D was charged with drowning wife and 2 kids; Jury decides that
D was standing by the scene and allowed the wife to kill the kids, and then
allowed her to kill herself, while he did nothing. Convicted as Accomplice
to wife’s Manslaughter. HOLDING: Uphold conviction; non-verbal
communication btn D and his wife sufficient evidence for aid and abet.
4.
STATE V. WALDEN. D/momma standing by while her boyfriend was
beating the shit outta her young son. Charged w ‘aiding and abetting’, an
accomplice-type charge. HOLDING: upheld conviction. should have
dissented.
a.
Minority ruling; typically, there needs to be more than just
standing and watching to get charged with accomplice liability.
b.
Both Russell and Walden emphasize the legal duty between the
acomplice and the victim in convicting.
21
C.
5.
MCGHEE V. VIRGINIA. D was convicted as accessory before fact for
murder of her husband. D’s bf and his bro. killed him and his 2 coworkers. D urged the bf to kill the husband, told him his whereabouts; but
no evidence of planning the crime, or that she knew which date, or any of
the details. HOLDING: Upheld conviction. Statute pretty broad; “one who
in some way is an instigator, advisor…” Also, we have a completed act
here, so lower threshold of what qualifies an an Accomplice.
6.
STATE V. TALLY. Impeachment Proceeding. Ross was bangin D’s sis-inlaw; her family went after him. D called train station where Ross was
gonna be to help commission of crime’ but in reality, his help had no
bearing on the completion of Ross’ murder. HOLDING: Does not matter
that D’s help had no effect on the commission of the crime. THE ACT OF
HELPING satisfies the act reqt, no matter that it helped.
MPC APPROACH TO COMPLICITY ACT REQUIREMENT.
1.
D.
MPC deals all Accomplices of a crime equally; all participants of a crime.
No difference between Accessories and Principals.
COMMON LAW APPROACH TO MENS REA FOR COMPLICITY
1.
Under Common Law, crime of Accessory [Before the Fact] is a Specific
Intent crime; so D gets the Specific Intent jury instruction. (Mistake of
Fact; Honest Mistake). More D-friendly, harder to convict.
a.
2.
However, still a question; what’s enough to charge as an
Accomplice; Knowledge, or Stake in Venture?
US V. PEONI. D, Dorsey, and Regno. D a counterfeiter. Gives bad bill to
Regno. Regno then passes off to Dorsey, who gets caught. Charges D as
an accomplice to Possession of Counterfeit $. HOLDING: Overturn
conviction, cannot charge D an an accessory. His connection as an
accomplice ended with his transaction with Regno. Crime Requires
purposeful conduct btn D and the Principal; not present here.
Contrast with…
3.
BACKUN V. US. D, residnt of NY, sold stolen silverware to Zucker so
that he could sell it down South (illegal to buy/sell silverware in NY).
Zucker sells to pawnshop. Pawnshop busted for Possession of stolen
silverware, D charged as an Accessory. HOLDING: Uphold Conviction.
D’s Actual knowledge of pawn shop not important. He knew someone was
gonna get sold the silverware.
22
a.
E.
MPC APPROACH TO MENS REA FOR COMPLICITY
1.
2.
F.
The Issue: what is Accomplice’s required Culpability with respect
to conduct of primary actor? Must he intend to promote Crime,
such that he is interested in its success? Or is it sufficient that D
knowingly assisted the Criminal activity of another?
“Purpose” is the Mens Rea for the facilitating act, “Knowledge” is the
required Mens Rea for the actual crime.
“Assistance substantially facilitated”… doesn’t really address the
Peoni/Backun problem.
CULPABILITY; NATURAL AND PROBABLE CONSEQUENCES
1.
2.
The MAJORITY RULE in Common Law J’ns. The Rule of NATURAL
AND PROBABLE CONSEQUENCES extends liability of an Accomplice
beyond planned offenses; to other crimes committed that were a Natural
and Probable consequence of the crime that was aided and abetted. The
Liability of an accomplice includes ‘the natural and probable
consequences’ of the Criminal endeavour.
a.
The test of Reasonably Foreseeable Consequences: Was the crime
REASONABLY FORESEEABLE? Objective test. Fixed in time;
at what point was it reasonably foreseeable?
b.
Generally applies where Principal engages in some act of violence
that was not expressly endorsed by the Accomplice.
i)
Typically, decisive factor: Accomplice’s knowledge that
Principal was armed.
ii)
Usually applies where criminals are ‘between jobs.’
PEOPLE V. DURHAM. D and his boy Robinson get pulled over by cops.
Car is stolen. Robinson takes out his gun, shoots and kills a cop. D was
just sitting there doing nothing. They were both ex-felons, and were on a
crime spree. D, who didn’t do anything, was convicted of 1st Degree
Murder. HOLDING: Upheld Conviction under Accomplice Liability, by
using the Natural and Probable Consequences. Here, D aided and abetted
Robinson in the commission of a crime, and the Murder was the natural
and probable consequence of that crime. D knew Robinson had a gun, and
he knew that he had shot at people before. So, D is held liable as an
accomplice not only for the crimes he actually aided and abetted, but also
for all crimes that Robinson committed that were a natural and probable
consequence of the crime that helped with. Here, Murder was a crime that
was a natural and probable consequence of the crime, it was foreseeable.
23
G.
3.
MPC EQUIVALENT OF NATURAL AND PROBABLE
CONSEQUENCES?
1.
No MPC Equivalent to Natural and Probable Consequences Rule.
GUILT OF THE PRINCIPAL; WHAT IF THE PRINCIPAL IS
INNOCENT? COMMON LAW.
1.
Under the Common Law, you have Principals and you have Accessories.
The notion of Derivative Liability is still strong within the common law
between Principal and Accessory. What happens when the Principals arent
convicted?
2.
REGINA V. COGAN AND LEAK (MAJORITY RULE). Leak= victim’s
husband, Cogan= Leak’s drinking buddy. They go to Leak’s home, where
Leak tells Cogan to bang his wife. At first Leak had sex with her, then
Cogan did, and then Leak. Charged both with rape.
a.
At trial, Cogan convicted for rape using a General Intent
instruction, but that got thrown out.
3.
b.
Leak gets charged and convicted for rape by accomplice liability,
despite the fact that the Principal, Cogan, had his conviction tossed
out. Appeals on that basis.
c.
HOLDING: Here, Cogan is the principal, he is the one committing
the act of having non-consensual sex with victim. Leak is an
accessory, since his sex with the wife is considered consensual.
The ACT of rape was committed (by Cogan). Leak had the
necessary Mens Rea of an Accomplice to Rape. Enough here to
convict.
d.
Court moves away from Derivative Liability. Allow for conviction
of the Accessory despite the acquittal of the Principal.
e.
MAJORITY RULE: Act Requirements of Accomplice are
Derivative from Principal (in all common law J’ns), but for Mens
Rea, not Derivative Liability (Majority of CL J’ns).
DUSENBERRY V. COMMONWEALTH (MINORITY RULE). Rent-aCop/D sees 2 teenagers in backseat of car about to do it. D tells the kids
that they have to let him watch, or else he’ll tell their parents. He even
grabs the dude’s pecker and puts it in the girl’s ginie. Lower court convict
him for rape based on accomplice liability.
24
4.
a.
HOLDING: Overturn the rape conviction. Before an Accessory to
a crime can be convicted, it must be shown that the crime has been
committed by the principal.
b.
Here, D is the accessory, and the kid is the Principal. The Principal
did non commit the crime of rape, because he lacked the Mens Rea
to do so. Therefore, Accomplice Liability must fail against D.
c.
MINORITY RULE:Derivative Liability for both Act Reqts and
the Mens Rea.
MPC APPROACH to GUILT OF THE PRINCIPAL.
a.
H.
Under the MPC, this situation never comes up, because the MPC
does not differentiate between Principals and Accessories; all
parties to the crime are treated the same, regardless of whether they
are ‘Principals’ or ‘Accessories’ under Common Law.
LIMITS OF ACCOMPLICE LIABILITY
1.
REGINA V. TYRRELL. D is underage girl. She is charged with aiding
and abetting carnal knowledge. She is charged as accomplice to her own
statutory rape.
a.
HOLDING: No conviction. No accomplice liability where the
accomplice is also the victim.
b.
Under both Common Law and MPC, cannot charge victims with
Accomplice Liability.
Accomplice Liability, Quick Review.
Both mpc and comm law, act reqts: aiding, abetting, assisting; and Comm law can vary a bit.
Cases we looked at, those are the tough, boundary cases. Most act reqts are straight forward: 2+
ppl, act reqts satisfied. Tough part is Iding the roles.
Mens Rea: derivative liability can be difficult, where principal is innocent. 2 major approaches:
Cogan & Leak (where ok to prosecute, as long as accomplice has guilt. No derivative problem.
And Dusenberry: accomplice liability dependent on principal.
Mens Rea: Common law: specific intent, or reasonable and probable consequences. For MPC,
need Purpose.
25
VI. CONSPIRACY LIABILITY
A.
INTRODUCTION TO CONSPIRACY
1.
Inchoate crime. Punishes the agreement before the action occurs. Can
charge some for Conspiracy to commit any crime; but must be charged as
a separate crime; as opposed to Accomplice Liability (where D charged
with the actual crime. Conspiracy, the crime is ‘conspiracy to…).
Conspiracy is a crime that can be charged along with the substantive
crime.
a.
2.
B.
Special rules; Co-conspirator’s Hearsay exception for
declarations made by co-conspirators; statement by 1 conconspirator is admissible against all conspirators.
PEOPLE V. BURLESON. D and Brown agreed to rob a bank. Per agmt,
they cased the bank. Also, they decided to use 2 cars, so they parked a car
in a rural area to get later. 2 days later they initiated plan, went to bank,
but it was too busy so they decided to do it a couple days later. A couple
days later, they approach the bank to rob it, bankers recognize them and
lock the doors, they get caught, charged with 2 counts of Conspiracy, and
1 count of Attempt
a.
HOLDING: Uphold all convictions. To convict for Conspiracy,
must show Intent (Mens Rea), an agreement between 2 people to
commit an offense (Act), and an act in furtherance of agreement
(act). 2 independent convictions are supported by the several acts
of D and co-conspirator; made 2 agmts to rob bank, and 2
instances of acts in fturtherance of the crime, each with intent.
b.
Here Prosecutor charged 2 conspiracies for what could easily
have been 1 conspiracy. What about in big operations with
gangs, etc? Complicated problem; is it 1 ongoing agreement to
commit illegal acts, or multiple agreements to commit multiple
acts??
c.
Merger between Attempt and Conspiracy (MINORITY RULE).
In this case, D never committed the substantive crime; charged
with both Attempt and Conspiracy. No merger rule in this J’n,
but in a minority of Common Law J’ns, Conspiracy and Attempt
charges merge, cannot be charged for same conduct.
ACT REQUIREMENTS
26
C.
1.
AGREEMENT REQUIRED. There needs to be an agreement as to some
specific criminal enterprise (excepting the Pinkerton exception). But, what
constitutes an agreement? Contract law doesn’t really apply in the context
of Conspiracy.
2.
OVERT ACT IN FURTHERANCE OF AGREEMENT REQUIRED.
Not close to the ‘substantial step’ for MPC-Attempt; Overt Act is much
broader than that; pretty much any act in furtherance of the criminal
agreement counts. Not really a bar to prosecution.
3.
BILATERAL? UNILATERAL? In MAJORITY of CL J’ns, a
UNILATERAL agreement will suffice to convict for conspiracy (ie a
‘conspiracy of 1’). Issue arises when D makes an agreement with an
undercover cop.
a.
REGLE V. MARYLAND. MINORITY RULE. D makes agmt with
a cop. HOLDING: overturn conspiracy conviction; in order for
there to be a Conspiracy, there must be an agreement; to be an
agreement, 2 people must agree. Here, there is an agreement of 1,
so no agreement, no Conspiracy. Cannot count undercover cops as
co-conspirators in a conspiracy charge.
b.
STATE V. ST. CHRISTOPHER. Implement the MAJORITY
RULE. D conspired with an informant. So long as D has the
necessary intent, and makes agreement to a criminal offense; it
does not matter that the other person had no intention (or lacked
the Mens Rea) of actually committing the crime, or was not really
‘agreeing’ to commit crime. Focus should be D’s acts and intent,
not on the co-conspirator’s. So, UNILATERAL agreements
between co-conspirators are sufficient for Conspiracy charge.
c.
MPC APPROACH TO FORM OF AGREEMENTS. MPC
follows the UNILATERAL approach; focuses on the individual’s
Acts and Culpability. Does not matter that purported coconspirators have not been convicted
MENS REA FOR CONSPIRACY; COMMON LAW AND MPC.
1.
COMMON LAW MENS REA FOR CONSPIRACY. Specific Intent
Crime, like Attempt.
2.
MPC MENS REA FOR CONSPIRACY. Purpose is the required Mens
Rea for Conspiracy.
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D.
DEFENSES; IMPOSSIBILITY, ABANDONMENT, MERGER
1.
IMPOSSIBILITY. Conceptually, kind of like Impossibility within the
context of Attempt (Legal vs. Factual). However, Impossibility is not
accepted as a Defense to a Conspiracy!
a.
2.
3.
US V. THOMAS. D and 2 others agree to rape a chick who is
passed out at the bar. They bang her. However, turns out she was
dead when they did the act. D claims that her death made a rape
impossible, and that Impossibility should be a defense to both
charges. HOLDING: Uphold Conviction for Attempted Rape,
and Conspiracy to commit Attempted Rape; Impossibility is not
a recognized defense for a charge of Conspiracy; Conspiracy is
based on a subjective agreement to D’s objective.
ABANDONMENT.
a.
COMMON LAW ABANDONMENT. No defense of
Abandonment is available. Once agreement + Overt Act has
occurred, enough to convict.
b.
MPC ABANDONMENT. There is a defense for Abandonment.
“the actor, after conspiring to commit a crime, thwarted the
success of the Conspiracy, under circumstances manifesting a
complete and voluntary renunciation of his criminal purpose.”
i)
“Thwart the success”: usually means have to tell the cops.
ii)
“Complete and Voluntary Renunciation”: Usually means
that have to unequivocally tell the co-conspirators that
you are out of the deal.
iii)
Mere Withdrawal from the criminal enterprise is not
enough to have abandonment as a defense.
MERGER. MINORITY RULE. Where D can be charged with both
Attempt and Conspiracy, the charges merge into one Attempt charge.
Most J’ns do not have Merger rule, and can charge D with both.
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E.
RELATION OF CONSPIRACY TO COMPLICITY; THE PINKERTON
RULE (ONLY IN COMMON LAW)
1.
2.
PINKERTON RULE. A party to a Conspiracy is responsible for any
criminal act committed by a co-Conspirator if 1-the extra crime falls
within the scope of the Conspiracy agreement, and 2-it is a foreseeable
consequence of that original unlawful agreement. CO-CONSPIRATOR
IS CHARGED WITH THE UNPLANNED SUBSTANTIVE CRIMES
THAT ARE FORESEEABLE CONSEQUENCE OF THE
CRIMINAL CONSPIRACY. Vicarious Liability.
a.
Foreseeable. Must be foreseeable at time of the agreement of the
Conspiracy.
b.
So, let’s say Bob and Joe conspired to commit armed robbery of
the Walgreens. Joe goes to the Walgreen with a knife, and in
commission of the robbery, he assaults the store clerk. BOB, is
charged with 1-Conspiracy to commit armed robbery; and 2Assault (not conspiracy to commit assault).
PINKERTON V. US. Pinkerton and his brother W conspire to violate
provisions of the IRS. Then, Pinkerton went to jail, on unrelated charges.
W goes on to violate IRS provisions while Pinkerton is in jail. W gets
caught. D is charged with Conspiracy; + multiple substantive crimes.
a.
3.
HOLDING: Uphold conviction, using Pinkerton Rule.
Requirements for Conspiracy are met, regardless of the fact that
he went to jail after the agreement. W, in commission of the
agreed-upon crime, committed other crimes. Under the Pinkerton
Rule, D is charged with those substantive crimes, in addition to
the Conspiracy.
APPLYING THE PINKERTON RULE; STATE V. STEIN. Stein, a
lawyer, talked with Pontini, a known 2d floor man, about robbing an
acquaintance of Stein’s and sharing the proceeds. Nothing came of that
plan. But about a year later, 2 of Pontini’s boys entered the Dr’s house
while posing as cops. They then demanded $, assaulted, kidnapped the
Dr’s wife and daughter, they then escaped and crashed car, injuring 2
cops.
a.
Stein was charged with Conspiracy to steal $, Armed Robbery,
assault with deadly weapon, kidnapping, and assault on the cops,
convicted in lower court.
b.
HOLDING: Upheld the Conspiracy, Armed Robbery, and
Assault convictions. The Act and Mens Rea reqts for conspiracy
29
were met. The court went on to hold that under the Pinkerton
Rule, the Armed Robbery was within the scope of the
Conspiracy to rob the home; it was a natural and probable
consequence of that Conspiracy. For Assault, it was foreseeable
from the Conspiracy that robbers would be brandishing weapons.
BUT, the kidnappings, escape, and assault on coppers was not
reasonably foreseeable from Conspiracy.
c.
4.
F.
Note difference btn Pinkerton Rule and Natural and Probable
Consequences. Pinkerton Rule foreseeability rule is much
broader, look crimes charged in Stein. In Durham, foreseeability
rested on D’s knowledge of Actor’s gun and his use thereof.
MPC: No Pinkerton Rule in the MPC. BUT, under MPC, where there is a
completed crime as a result of a Conspiracy, D is charged with the
substantive crime due to concept of VICARIOUS LIABILITY. D needs
the Mens Rea of KNOWLEDGE of the completed criminal act.
SCOPE AND DURATION OF CONSPIRACY.
1.
COMMON LAW; BRAVERMAN V. US. The issue here is where there
is a single agreement to commit multiple crimes; or many agreements to
commit one crime, how do we know whether to charge 1 or multiple
Conspiracies? In reality, under the CL, there are no real rules on this. The
Prosecutor is given plenty of deference to charge Conspiracies at his own
discretion
2.
MPC. Has different dimensions to determine how many conspiracies may
be charged. The 3 Dimensions are: Object, Party, and Duration. But still
very fuzzy, despite intention to tackle this issue.
a.
Under MPC, KNOWLEDGE OF THE ACTS committed is
necessary to convict for Conspiracy, in all instances. Which is
why there is no Pinkerton Rule is not in the MPC.
G.
WHARTON’S RULE. For crimes that, by definition require 2+ actors, a
Conspiracy charge must fail. However, this presumption is rebuttable, like by
statute (see RICO, etc).
H.
RECENT DEVELOPMENTS. Terrorism and Conspiracy.
Review of complicity and Conspiracy.
Pinkerton and Natural Consequences Rule: unplanned crimes. They only kick in when unplanned
offense. Under MPC, don’t have Pinkerton Rule, need Purpose
30
Mens Rea: Purpose, or Knowledge. Purpose for planned offenses. Knowledge, w respect with
unplanned offenses.
Recall State v. Stein. The bad lawyer. Under Pinkerton rule, an unplanned offense. If under
MPC, would have to be Knowledge. Here, Stein had no knowledge that Pontani entered into
another conspiracy.
VII. SEX OFFENSES; RAPE
A.
INTRODUCTORY ISSUES.
1.
2.
3.
B.
MPC and Common law have similar but slightly different approaches.
Many diff. Mens Rea levels, also contemplates Strict Liability
Not much variance across J’ns, same language, key elements.
ACT REQUIREMENTS OF RAPE; TRADITIONAL AND MODERN
1.
STATE V. RUSK. D went to bar and met Hazel, Hazel drove him home,
he took her keys away and asked her to come upstairs, she did, claiming
that she feared for her life. So they go to his apt, she agrees to have sex
with him out of fear for her safety. During the sex, he lightly and
momentarily puts his hand on her throat. D charged and convicted of 2d
degree rape, he said it was consensual. Appeal Ct overturned conviction,
insufficient evidence. HOLDING: Conviction upheld.
a.
Elements of Rape: 1-Vag Intercourse, 2-Force – actual or
constructive, and 3- lack of consent. Held that a jury could
rationally find that these 3 elements were met.
b.
Re: Force, there must be Evidence that victim resisted, and
resistance was overcome by Force; or was prevented from
resisting. Force may exist without violence; constructive, via
threats, etc. Resistance may also prove lack of Consent.
c.
Was victim’s fear reasonable? Majority says that it doesn’t matter,
victim’s fear is based on a subjective standard, not on an
objective/reasonable standard.
2.
sexual contact/penetration. Duh.
3.
FORCE. Usually the use of force in the commission of the crime that is
independent of the act of intercourse. (So, guy on top is not force, bc its
part of the bangin)
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4.
a.
RESISTANCE. Resistance by victim is NOT an element to rape.
However, courts have found evidence of Resistance persuasive to
prove both Force and Non-Consent.
b.
COMMONWEALTH V. BERKOWITZ. Court here overturned a
rape conviction. Victim was screaming “NO!” throughout the sex,
but there was no resistance, and the only force used was the weight
of D’s body on top of her. To show Forcible Compulsion, need
something independent of the sex act, and need more than just
saying “NO!”
CONSENT. Consent is not statutorily defined; it is often left to the jurors
and their own subjective views of what constitutes consent. Helps explain
wide range of verdicts.
a.
5.
MPC APPROACH TO RAPE ACT REQUIREMENT.
a.
C.
M.T.S.. case where 17-yr old and 15-yr old are heavy-petting, he
puts it in her, she slaps him, he leaves right away. Charged w 2d
degree sexual assault. HOLDING: Uphold Conviction. Consent=
Affirmative and Freely Given Consent is needed, and D did not get
it here from victim. Permission may be given by words or by acts.
The crime is for “Sexual Assault,” which is more in line with
assault/battery.
MPC uses the grading system. So, the act requirements 1st Degree
Rape include 1-Force, 2-NonConsent, and 3-sexual conduct. 2nd
Degree Rape elementsNo Force requirement.
MENS REA; COMMON LAW. A Yermian-like problem; 2 different Mens Rea
requirements for each of the elements.
1.
NON-CONSENT. MAJORITY of J’ns, the element of Consent is
GENERAL INTENT. So, D’s mistake of fact as to victim’s giving consent
to sex must be honest and reasonable
a.
STATE V. SMITH. D and girl went out for dinner, then back to
his apt. He got in her grille, she told him to back off, spit on him,
tried kicking him off, none of it worked. She stopped resisting
when realized it was futile. D convicted for 1st Degree Sexual
Assault, jury given a General Intent instruction with respect to
32
Consent, D asked for Specific Intent. HOLDING: Uphold
Conviction.
i)
With respect to the Non-Consent element, very few J’ns
have a Specific Intent instruction. Majority of J’ns have a
GENERAL INTENT INSTRUCTION with respect to
the Consent element. Some have a Strict Liability
standard to Consent.
2.
FORCE. Element of Force is usually SPECIFIC INTENT. So, just
needs to be an Honest Mistake.
3.
SEX. Generally Specific Intent.
D.
RAPE SHIELD LAWS. Rules regarding the admissibility of Evidence as it
pertains to the victim; evidence about victim is barred where not relevant to the
crime. Kinds of evidence about victim of rape that are excluded:
1.
Prior sexual activity of Victim.
a.
Exceptions to Rule: prior sex with D, and where more than 1
person’s semen in her vag.
E.
INTOXICATION AND CONSENT. Date-rapes usually happen when 1 or both
parties are under influence of alcohol.
1.
COMMON LAW. Having sex with someone who is incompetent to
consent is Rape; Penetration sufficient to meet the Force requirement.
a. Test to determine whether victim was competent: THE NATURE
AND CONSEQUENCES RULE. The victim must understand the
“nature and consequences” of having sex.
b. Where sex with someone who is Intoxicated; victim must be sober
enough to understand the Nature and Consequences of their actions.
i)
So, if you are totally wasted, you cannot consent.
Problem of proof; no blood test/breathalyzer. Courts
usually rely on circumstantial evidence; “fall-down
drunk.”
ii)
What if D didn’t know victim was incompetent, and
therefor was incapable of granting consent? Go thru the
Mens Rea analysis; General Intent Crime: Was the
Mistake honest, and would a reasonable person make
such a mistake.
33
c. INTOXICATION OF THE ACTOR AS A DEFENSE? NEVER.
i)
So where 2 people are completely shit-faced and then have
sex, can technically prosecute the both of them for rape.
2.
MPC. 213.1(1)(b), (c). Where victim is drunk, liability imposed onto actor
only when man bangs woman who is so drunk that she is unconscious, or
where he substantially impaired her power to appraise or control her
conduct by drugging her, without her knowledge, for purpose of
preventing resistance (Involuntary Intoxication).
a. If woman is intoxicated and conscious, and she became drunk
voluntarily, too harsh to impose liability on man where sex occurs.
b. When both are drunk, hard to say who is the actor and who is the
victim.
F.
WITHDRAWAL OF CONSENT (DURING THE SEX ACT).
1.
In all J’ns, victim can withdraw Consent during the act; if actor does not
withdraw him/herself from the sex act in a reasonable time, sex is nonconsensual.
VIII. SEX OFFENSES; STATUTORY RAPE
A.
INTRODUCTION. When 2 people bang; one is a ‘minor’, one is an ‘adult’, and
there are enough years between their ages, ‘improper sexual conduct,’ because the
minor is too young to consent to the sex.
B.
ELEMENTS OF STATUTORY RAPE.
1.
AGE OF CONSENT; COMMON LAW. Varies by J’n, but an Age of
Consent requirement is in all J’ns. Statutorily mandated. Range is between 1218 yrs old, many at the 13-14 yr range.
2.
DIFFERENCE IN AGE; COMMON LAW. MAJORITY, Diff in age
requirement btn the 2 parties to the sex.
a. GARNETT V. STATE. 20-yr old guy sexes a 13-yr old girl. The guy is
mentally handicapped; he has the IQ of a 13-yr old. Also, the girl and the
girl’s friends told D that she was 16 yrs old; they lied to him. He is
charged and convicted for Statutory Rape in 2d degree: “A person is guilty
of rape in 2d degree if engages in sex with another who is under 14 yrs
old, and is at least 4 yrs older than the victim.” D wants a Mens Rea
Mistake of Fact defense. HOLDING: Uphold Conviction. STATUTORY
34
RAPE IS A STRICT LIABILITY OFFENSE; NO MENS
REA/MISTAKE OF FACT DEFENSE IS AVAILABLE TO D IN
ANY CIRCUMSTANCE. No Mens Rea needed to be liable for Statutory
Rape; if Act requirements are met, then guilty, end of story.
C.
MISTAKE OF AGE DEFENSE; COMMON LAW? Generally NOT
AVAILABLE in most J’ns.
D.
MPC APPROACH TO STATUTORY RAPE MENS REA DEFENSE.
1.
If victim is under the age of 10, and over 4 yrs difference there is no
Mistake of Age defense. Strict Liability.
2.
If victim is between 10-16 yrs old, and actor is at least 4 yrs older than
victim, D is allowed a Mistake of Age defense. BUT, burden is on D to
prove by preponderance of evidence that D reasonably believed that
victim was of age. So D has to show evidence that he was mistaken.
E.
UNCHASTE VICTIM EXCEPTION. Most J’ns have done away with it, only a
few J’ns still have it. Excuses what would otherwise be a Statutory Rape where
the victim is not chaste.
F.
GENDER NEUTRALITY; MICHAEL M. V. SUPERIOR COURT OF
SONOMA. Supreme Court ruled that Statutory Rape laws that are not gender
neutral are not unconstitutional under the Equal Protection Clause of the 14th
Amendment. This is because underage girls who are the victims of Statutory Rape
bear a higher burden than underage boys. Pregnancy being the major burden, but
Court also says that women’s emotional growth and stability more adversely
affected by being a victim of Statutory Rape than that of boys.
1.
G.
Many J’ns have moved toward Gender Neutrality for their Statutory Rape
laws.
STRICT LIABILITY RAPE IN OTHER CONTEXTS BESIDES SEX WITH
A MINOR.
1.
2.
Prison Guard/Inmate sex is considered Statutory Rape; an inmate cannot
freely give consent to sex in such a context.
Also, kiddie porn.
35
IX. HOMICIDE.
A.
INTRODUCTION; ACT ELEMENTS. Killing a person (also causation, but not
taught).
B.
MURDER VS. MANSLAUGHTER. Historical distinction: Murder required
“malice aforethought”. What emerged from that language was the different
grades.
1.
2.
3.
MURDER. 4 KINDS OF KILLINGS THAT CONSTITUTE
MURDER, ie Killing with “Malice aforethought”:
a.
Those where Actor intended to kill or knew death would result;
b.
Those where Actor intended to inflict grievous bodily harm or
knew that such harm would result;
c.
Those where Actor manifested reckless indifference to death – a
state of mind variously described as a “depraved mind”, an
“abandoned and malignant heart”, or “wickedness of disposition,
hardness of heart, cruelty, recklessness of consequences, and a
mind regardless of social duty”; and
d.
Those where death occurred while Actor was engaged in the
commission of a felony.
MANSLAUGHTER. 3 KINDS OF KILLINGS THAT CONSTITUTE
MANSLAUGHTER, ie Murder without “Malice Aforethought”:
a.
(VOLUNTARY) Those where the Actor intended to kill but
committed the offense in a sudden heat of passion engendered by
adequate provocation.
b.
(INVOLUNTARY) Those where the Actor engaged in reckless or
negligent behavior that was insufficiently culpable to constitute
murder but more culpable than ordinary civil negligence; and
c.
(INVOLUNTARY) Those where the death occurred while the
Actor was engaged in the commission of an unlawful act not
amounting to a felony.
Modern development in US: 1-Emergence of distinct grades of Homicid
offenses. Still separate Murder and Manslaughter.
36
C.
FIRST DEGREE MURDER. “Malice aforethought;” Requires that Actor KILL
victim, after DELIBERATION and PREMEDITATION. + intent-type words
(maliciously, wilfully, etc).
1.
EVIDENCE MUST PROVE PREMEDITATION AND
DELIBERATION. It cannot merely be inferred.
2.
Evidence of Premeditation and Deliberation generally fall into 3 patterns:
a.
Evidence of “planning,”
b.
Evidence of “motive,” and
c.
Evidence of “manner” of killing that showed a preconceived
notion to kill.
3.
STATE V. BROWN. D was convicted of 1st degree Murder of his 4-yr old
son who was developmentally-challenged. Prior evidence of physical
abuse. Per D’s neighbor, at 340am heard yelling from their apt, then a loud
“thump” like something hitting a wall. Kid died later in hospital of
injuries. Had bad brain/skull injuries, damaged organs, lots of body
bruises. D claims he went to spank his kid, he “snapped” and “went blank”
while spanking him, his next memory was of hearing kid falling down the
stairs and hitting the door. Kid’s blood was found all over the apt. TC
convicted for 1st Degree Murder.
d.
HOLDING: overturn 1st Degree Murder, reduced to 2d Degree
Murder. No evidence of Deliberation or Premeditation, only of
Malice toward child.
e.
1st Degree Murder requires that killing be “wilful, deliberate,
malicious, and premeditated”. Here, no evidence of Deliberation
or Premeditation. 2d Degree Murderno Deliberate or
Premeditation requirement.
f.
Premeditation: ‘when will accompanies the act.’ No definite time
requirement for intent to form, but it may be formed in an instant
prior to killing.
i)
g.
Repeated blows, in and of themselves, are not sufficient to
establish Premeditation; they can be administered in the
‘heat of passion.’ No evidence here of ‘will’ to kill.
Deliberation: Requires some reflection, where the mind is free
from excitement or passion.
i)
Here, no evidence of Deliberation by D.
37
4.
PEOPLE V. ANDERSON. D killed his gf’s 10-yr old daughter. Blood all
over the fucking place. Killing probably occurred over the day, not really a
‘quickie’ killing. HOLDING: Insufficient evidence of 1st Degree Murder,
no evidence of Premeditation or Deliberation. Reduce conviction to 2d
Degree Murder.
a. Here, No evidence of 1-planning, 2-motive, or 3-manner of killing
suggesting preconceived design.
b. Mere passage of time does NOT allow for an inference to
Premeditation or Deliberation.
5.
MPC APPROACH TO 1ST AND 2ND DEGREE MURDER. NO
DISTINCTION BETWEEN 1ST AND 2ND DEGREE MURDER.
a. Mens Rea: “Purposely or Knowingly,” or “Recklessly with Extreme
Indifference to Human Life.” Specialized Mens Rea rule for MPC
Murder.
D.
SECOND DEGREE MURDER. Actor has a Reckless Indifference to Human
Life. Historically, killing by a “depraved malignant heart,” etc.
1.
COMMONWEALTH V. MALONE. D, a 17-yr old, and his 13-yr old
friend were playing Russian Roullette. Pulls trigger 3 times, gun fires on
the 3d pull, kills the 13-yr old. HOLDING: Upholds 2d Degree Murder
conviction.
a.
Why no 1st Degree Murder Charge? No evidence of necessary
‘intent to kill’ here; nor of Premeditation or Deliberation.
b.
Why no Manslaughter? This was NOT a “heat of passion” crime.
c.
2nd Degree Murder in this case was proper because the murder was
result of an intentional act, and was committed while D had a
Reckless Indifference to Human Life.
38
2.
MPC EQUIVALENT TO CL 2d DEGREE MURDER. See above,
MPC does not distinguish how Common Law does. In highest category of
Murder.
a.
3.
E.
It is Murder if a homicide “is committed recklessly under the
circumstances manifesting extreme indifference to value of
human life.”
NORTHINGTON V. STATE (MINORITY RULE). D-Mom deprives
her infant child food, kid died as result. Tried and convicted for 2d degree
Murder. HOLDING: Overturn 2d Degree Murder Conviction.
a.
No 1st Degree Murder here; no evidence of “intent to kill”.
b.
No 2d Degree Murder here. The standard is “extreme indifference
to human life.” However, caselaw suggests that only supports a 2d
Degree Murder conviction where D has an Indifference to life in
general, evident in, say, shooting into a crowd. Here, no evidence
that D had such an indifference to human life in general, just an
indifference to the life of her baby.
c.
This Court interprets the ‘Indifference’ as strictly Universalized,
and not Particularized, which is the Minority.
d.
MAJORITY of J’ns hold that Indifference to Human Life can be
both Universal and Particularized.
e.
MPC: no such strict ‘Universalization’ interpretation.
MANSLAUGHTER (VOLUNTARY). Where Actor intended to kill, but
committed the offense in the HEAT OF PASSION, engendered by adequate
PROVOCATION.
1.
FREDDO V. STATE. D killed victim after the victim called him a ‘son of
a bitch’ on several occasions. D was an orphan, and was especially
sensitive about Mommy-issues. At time of killing, victim was in a crouch,
called D an SOB. As victim was about to stand up, D hit him in the head
with a metal pipe. D says he was provoked and conviction should be
reduced to Manslaughter. HOLDING: Upheld 2d Degree Murder Charge.
Yes, D killed in the heat of passion. But, cannot reduce the charge to
Manslaughter unless that Passion was engendered by Provocation that the
law deems as reasonable and adequate. Words alone are not adequate to
establish Provocation.
39
2.
PROVOCATION FORMULA (FOR VOLUNTARY
MANSLAUGHTER).
a.
The Ashworth categories of acceptable Provocation:
i)
ii)
iii)
iv)
Angry words along with an assault.
The sight of a relative or friend being beaten
Sight of a citizen being unlawfully deprived of liberty.
(2 others in book: striking of D, and sight of wife
committing adultery. Didn’t discuss in class).
b.
Ashworth categories of insufficient Provocation:
i)
words alone
ii)
affronting gestures
iii)
trespass to property (land, outside of the home)
iv)
breach of contract.
c.
MODERN APPROACH TO PROVOCATION (MAJORITY
COMMON LAW). following 3 elements must be in place to
adequately establish provocation:
d.
i)
D must in fact be in Heat of Passion. (Subjective
Standard).
ii)
Provoking Event must be legally adequate (ie Ashworth
Categories).
iii)
Provoking event was of a sufficient degree to excite the
passions of a reasonable person (Objective Standard).
MINORITY APPROACH TO COMMON LAW
PROVOCATION. Do away with the Ashworth, or any other
Categories of Provocation.
i)
Provocation Standard=Any event that could provoke heat
of passion conduct from a reasonable person.
ii)
This approach derived from Maher v. People.
40
e.
MPC APPROACH TO VOLUNTARY MANSLAUGHTER
AND PROVOCATION. Also rejects the Ashworth-like
Categories; MPC Provocation formula is:
D Must be in the heat of passion (Subjective Approach), and
Provoking event was of a sufficient degree to excite the passions of
a reasonable person. (Objective Standard).
3.
COOLING TIME, RE HEAT OF PASSION. Traditionally,
Provocation doctrine requires that the killing occur before a sufficient
interval has passed, to “permit passions to cool and to allow thought and
reflection and reason to reassert itself.”
a.
3-Step Approach to Cooling Time:
i)
D’s Passions must not have in fact been abated.
ii)
Passage of Time precludes that is sufficient for reason to be
restored will preclude defense as a matter of law.
iii)
Whether a Reasonable person would have cooled off in the
interval between Provocation and the act of Killing.
…
However, different J’ns view the passage of time and
provoking act differently. Look at following 2 cases.
iv)
b.
STATE V. GOUNAGIAS. D got drunk and passed out. When he
was unconscious, Victim raped him. Next day D asked victim not
to tell anyone about the raping, Victim told everyone in town,
Victim and townspeople taunted D. On Apr 18, D ordered a gun.
The gun arrived Apr 30. On May 6, D went to coffee shop, where
10 townspeople (not Victim) kept taunting D. D became enraged,
then left the café, went home, got his gun, loaded it, went to
Victim’s house, and emptied the chamber into Victim while he was
sleeping. D wanted to admit evidence of Provocation from Rape +
Taunting, wasn’t allowed.
i)
HOLDING: Upheld the non-admissibility of Provocation
evidence. There was a passage of time. There can be No
Culmination of Passions.
ii)
IMPORTANT Note: Where you place the Provoking Event
determines the analysis.
41
iii)
c.
6.
Also, note that the Provocation did not fit within the
Ashworth categories (rape + later taunts). Not sure that was
a factor in this case.
PEOPLE V. BERRY. D killed his wife after she was mean to him.
She taunted him for 10 days, telling D that she was attracted to and
was fucking some other dude. At one point, he choked her
unconscious, took her to hospital where she recovered. Then, he
went to her place and waited 20 hrs for her. When she arrived, they
talked for a little, then she started to freak out and start screaming,
he chokes her to death with a phone cord.
i)
HOLDING: Provocation Evidence is admissible. This J’n
did not use the Ashworth Categories; but instead uses the
Subjective (Was D in Heat of Passion?) and Objective
Standard (would reasonable man be in passion?). OK to
send it to jury.
ii)
Court constructs the facts such that there is 1 continuous
Provoking event. If Court only used the Victim’s screaming
before her death, then would like find evidence not
admissible. So for Cooling period, it is important to see
how the facts are constructed.
d.
The (Sort of) Objective Standard. How objective is the standard?
Whose objectivity? See Gay-Panic cases; many times D will be let
off of a Murder charge bc he’ll say Victim was gay and coming on
to him. Is that Objective? Reasonable? Shows that even the
“Objective” test is kind of subjective. Which is why many J’ns just
stick with the Ashworth categories.
e.
MPC; Cooling Time. Similar to Modern Hybrid (?)
MISTAKE OF PROVOKING FACT. NO PROVOCATION DEFENSE
where the D was mistaken about the provoking event. MAJORITY RULE.
a.
STATE V. YANZ. D thought his wife was cheating on him, he
killed her. Turns out she was not. HOLDING: If there is a Mistake
of Fact about the Provoking event, D is not allowed to admit
evidence about his belief. NO DEFENSE where MISTAKE about
Provoking Act.
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F.
INVOLUNTARY MANSLAUGHTER; COMMON LAW. Killing that is
caused by Reckless or Negligent conduct, insufficiently blameworthy to constitute
Murder, but more Culpable than Civil negligence. So, conduct that is 1) Less
Reckless than those manifesting the “depraved indifference to human life” of 2d
Degree Murder, and 2) More Negligent than conduct required for Tort cases.
1.
MENS REA FOR INVOLUNTARY MANSLAUGHTER. WANTON
RECKLESSNESS + INDIFFERENCE TO HUMAN LIFE.
a.
COMMONWEALTH V. SOSTITIO. D and Victim were driving
Midget cars in a race. D struck Victim’s car as he was trying to
pass him, caused accident, Victim died. HOLDING: Upheld
Conviction of D for Involuntary Manslaughter.
i)
Court applies the ‘wanton recklessness’ standard; but it
must be from an Intentional Act. Court apparently found an
Intentional act here.
Contrast with…
b.
2.
COMMONWEALTH V. AGNEW. D was towing a large disc at
night. Disc protruded into oncoming lane of 2 lane highway.
Victim driving, didn’t see the disc because it was dark, impossible
to see it, killed. D charged with Involuntary Manslaughter.
i)
HOLDING: Reverse Involuntary Manslaughter Conviction.
D took precautions by putting flashing lights at back end of
the disc; the precautions were insufficient. Nevertheless,
the fact that D took such precautions negates any possible
claim that he possessed the necessary “Wanton
Recklessness and Indifference to Human Life” for an
Involuntary Manslaughter conviction.
ii)
So, the lesson to take away is that if your possibly negligent
or reckless actions result in killing someone, an Involuntary
Manslaughter conviction will not stand where there is
evidence that D took steps to prevent accident, no matter if
they were insufficient.
MPC APPROACH TO INVOLUNTARY MANSLAUGHTER.
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a.
G.
The MPC equivalent of CL “Involuntary Manslaughter” is either
RECKLESS HOMICIDE, or NEGLIGENT HOMICIDE. The
appropriate MPC Mens Rea follows each of those crimes. Still
difficult analytically, slippery slope.
FELONY MURDER RULE. Very old rule. D-unfriendly.
1.
2.
INTRODUCTORY ISSUES. Focus is 2-fold: 1) makes D guilty of 1st or
2d Degree Murder IF a) Victim died b) while D was engaged in another
felony, AND 2) Rule makes all ACCOMPLICES of that felony guilty of
same Murder charge.
a.
Liability is STRICT.
b.
FELONY DEFINED: Any crime for which the maximum
penalty is at least 1 year. Definition of Felony is entirely based on
length of prison time.
TRADITIONAL RULE, MODERN RULES, AND LIMITATIONS.
a.
Traditional Rule: If death occurs during commission of a Felony,
all accomplices of that felony are guilty of Murder.
i)
b.
Strict Liability component: Transferring the Mens Rea for
underlying Felony to Murder (opposite of what we’ve
learned thus far). Exception to typical Mens Rea rules.
Some Modern Limitations of Felony Murder Rule. J’ns apply 1,
some or all of following 3 limitations on the Felony Murder Rule:
i)
Underlying Felony must be “Inherently Dangerous.” So,
felonies like perjury, fraud, election crimes are excluded
from Felony Murder Rule. No bright-line rule about what
qualifies as an “Inherently Dangerous” felony.
ii)
Causation; importation of the Natural and Probable
Foreseeability Test. Inquiry is, was death of victim
reasonably foreseeable as result of underlying felony? So,
if in commission of an armed robbery, the store-owner has
a heart attack and dies, this limitation may preclude a
Murder charge in that situation.
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iii)
3.
RATIONALE FOR/AGAINST RULE.
a.
For: supposed to Deter felonies.
b.
Against: D would have to be aware of rule in order for it to
operate properly as a deterrent to crime. Also, Strict Liability for
the Harshest crime; Harsh rule.
c.
PEOPLE V. AARON. Rejects Felony Murder Rule altogether.
i)
4.
Merger. Underlying Felony cannot be so inextricably
related to Murder (eg, can’t charge someone with Murder
where Mens Rea only sufficient for Assault). Explored
more below.
Felony-Murder is entirely judge-made, typically not in the
Murder statutes. So, because its judge-made, courts are free
to do away with it, not constrained by Legislative intent.
MPC AND OTHER MODERN STATUTES.
a.
MPC’s TREATMENT OF FELONY-MURDER RULE: A
compromise of traditional Felony-Murder Rule. Recklessness and
Indifference to Human Life are presumed, where D is engaged in
or an accomplice of the commission of, or an Attempt to commit
(the following crimes): Robbery, Rape or Deviate sexual
intercourse by force or threat of force, arson, burglary, kidnapping,
or felonious escape.
b.
PEOPLE V. HANSEN. D was convicted of 2d Degree Felony
Murder. D shot gun at drug-getter’s home, killing the guy’s
daughter. The underlying felony that he was convicted for was
“Discharge of a Firearm at an inhabited dwelling.”
i)
D appealed, claiming that 1-Underlying Felony was not
inherently dangerous, and 2-the underlying Felony merged
with Murder.
ii)
HOLDING: Upheld 2d Degree Murder Conviction,
application of Felony-Murder Rule was proper. Felony
Murder Rule ‘imputes’ Mens Rea from underlying felony;
but really its Strict Liability.
iii)
Appeal due to lack of “Inherent Dangerousness”. Court
looks at Entire Category of underlying felony, NOT at
facts specific to this case. Says that Underlying Felony is
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Inherently Dangerous because “High Probability of Death.”
But what equals ‘high?’ no objective measure.
iv)
MERGER. If an underlying Felony is an “integral part”
of Murder, then the crimes merge, and application of
Felony-Murder Rule is precluded. Eg, Assault with Deadly
Weapon is always is an “integral part” of Murder. When an
underlying Felony merges with Murder, have to prove
Murder with regular Murder Mens Rea. Here,
Here, the Underlying Felony does not always result
in death, therefore it is not an “integral part” of Murder,
and application of Felony-Murder Rule is proper.
MERGER TEST: “Integral Part;” If underlying Felony
is too close to Murder, then Merges.
5.
6.
PROBLEM OF DISTRIBUTION OF CONTROLLED
SUBSTANCES. People die from drug use. How do we handle situations
where dealer sells the buyer drugs, and buyer Ods? Is application of
Felony-Murder Rule proper in this context? 3 Approaches:
a.
MAJORITY RULE: Sheriff, Clark Cty v. Morris. There needs to
be 1-drugs in given quantity were inherently dangerous (in
abstract), 2-“Immediate and Causal relationship” between
felonious conduct and the Victim’s death; and 3-causal relationship
must extend beyond sale of drugs, to involvement by commission
of omission in ingestion of lethal amount. Case-by-case analysis,
based on causal analysis. Limitation on Felony-Murder rule.
b.
Traditional Felony-Murder Rule: Heacock v. Commonwealth.
Rejects “inherently dangerous” limitation.
c.
Rejection of Felony-Murder Rule: State v. Randolph. Precludes
Felony-Murder Rule for drug-related crimes that result in death.
ATTEMPTED FELONY MURDER (EXTREME MINORITY
RULE). Amlotte v. Florida. Makes “Attempted Felony Murder a crime.
Requires 1-the Attempt of a Felony; 2-an intentional overt act, or
aiding/abetting; 3-which could, but does not cause the death of another.
a.
Specific Intent.
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