Joshua Dressler, Cases and Materials on Criminal Law 2nd. ed. (St. Paul, Minn: West Group,
1999)
notes by chapter
CHAPTER 1
A. Nature, sources, and limits of the criminal law
1. criminal law is a series of directions or commands, formulated in general terms, telling
people what they can and cannot do.
2. they speak on the community's behalf, apply to that community, and are enforced by
that community.
3. disobedience of these commands leads to sanctions
these three things are the same as all other areas of law.
What distinguishes criminal law, then?
A criminal sanction is distinguished from a civil one by "the judgment of
community condemnation which accompanies and justifies its imposition." [i.e.,
moral opprobrium; a crime "will incur a formal and solemn pronouncement of the
moral condemnation of the community, typically followed by a punishment]
Notes and questions:
1. Hart would disagree. He argues that a crime must be condemned as immoral by the
community at large. (p. 3) A crime is an action that a majority of the community agrees is the
manifestation of an individual's damaged moral sensibility.
2. A community-wide judgment of the immorality of the act is what separates the
criminal from the civil process. [This would seem to indicate that should a society ever decide
that murder was not immoral, then it would cease to be a crime in that society. Hart appears to
be a cultural relativist.]
3. note on common law vs. statutory criminal law
4. It is fair to convict a person if they don't know the conditions listed in this note because
an act deemed to be immoral by the community would be known as immoral by the person
committing the crime, or should be if said person was moral.
5. constitutional provisions (ex post facto, cruel and unusual, must have due process)
limit legislative lawmaking and must be considered when studying criminal law.
6. note on present-day role of judiciary
7. model penal code helped standardize and order state penal codes, which had previously
been a hodgepodge of overlapping and even conflicting statutes.
B. Criminal law in a procedural context: pre-trial
Some statistics: (p. 7) – young people more likely victims of crime than older, most crimes are
property crimes, majority of female victims knew their attacker, majority of male victims did
not, women five times as likely to be victim of violence than man
Even when a crime is reported, arrest not always made. Probable cause is necessary to make the
arrest. The notion of probable cause is a fluid one. If probable cause met, suspect normally must
be indicted by a grand jury (members of the community who determine if enough evidence exists
to prosecute the accused). Next, accused is entitled to make pre-trial motions, which may get
case dismissed. Accused may also enter a plea bargain.
C. Criminal law in a procedural context: trial by jury
Sixth Amendment: "in all criminal prosecutions, the accused shall enjoy the right to a speedy
and public trial, by an impartial jury." In all cased where the potential punishment exceed
incarceration of six months, the jury, not the judge, must reach the requisite finding of "guilty."
Sullivan v. Louisiana 508 US 275 (1993). In Duncan v. Louisiana, 391 US 145 (1968), Supreme
Court argued that a right to jury protected against corrupt judicial officials and persecution by the
Government.
Jury is normally 12, but juries as small as 6 are permitted. Some state laws permit nonunanimous verdicts if a "substantial majority" has voted to convict. A juror is not impartial if
"her state of mind in reference to the issues or parties involved in the case would substantially
impair her performance as a juror in accordance with the court's instructions on the law. Adams
v. Texas, 448 US 38 (1980). Such information is discovered in voir dire of prospective jurors
(aka venirepersons). Peremtory challenges permitted on no basis, though the 14th Amendment
Equal Protection Clause is violated if a venireperson is challenged solely on his race or gender.
Batson v. Kentucky, 476 US 79 (1986) and other cases.
Purpose of jury system: to defend against exercises of arbitrary power by the
Government and to make available to defendants the common-sense judgment of the community,
the accused is entitled to a jury drawn from a pool of persons constituting a fair cross-section of
the community. Taylor v. Louisiana, 419 US 522 (1975). This right is violated if large
distinctive groups of persons (women, racial or religious minorities) are systematically excluded
from jury pools for illegitimate reasons.
D. Proof of guilt at trial
1. Proof beyond a reasonable doubt
Winship, 397 US 358 (1970): reasonable doubt standard reduces the risk of convictions
resting on factual error; a society that values the good name and freedom of indiv should not
condemn a man when reasonable doubt exists; moral force of criminal law must not be diluted
when people are in doubt about a convict's guilt
Notes and questions
1. better to let guilty go free than put innocent in jail?
2. what is "beyond a reasonable doubt"? US Supreme Court def as "subjective state of
near certitude." Jackson v. Virginia, 443 US 307, (1979).
3. if reasonable doubt not quantifiable, how to instruct jurors? US Supreme Court held
the Constitution neither prohibits nor requires trial courts to define the term.
4. which instruction do I find most helpful? I prefer the "firmly convinced" definition, as
it is written in simple language and would allow me, as a juror, the easiest yardstick for
measuring my judgment. AS a defense attorney, I think that strictest definition is the "Moral
certainty" and would thus make it the most difficult to convict my client.
5. correct: no intution allowed in the "no hesitation" instruction
2. Enforcing the presumption of Innocence
Owens v. State, court of appeals of Maryland, 1992. 93 Md.App. 162, 611 A.2nd 1043.
Facts: Owens found behind wheel of car parked in a driveway with motor running and lights on.
A state trooper found the man asleep with several open and empty containers of alcohol in his
automobile. Owens was clearly intoxicated. Trial court, without jury, convicted him of drunken
driving on this circumstantial evidence.
Issue: Was there a reasonable hypothesis of innocence that prevents Owens from being
convicted of drunken driving in a case based exclusively on circumstantial evidence?
Holding: No, there was not. Conviction affirmed.
Reasoning: A rule states: "A conviction upon circumstantial evidence alone is not to be
sustained unless the circumstances are inconsistent with any reasonable hypothesis of
innocence."
Owens could not be convicted of drunken driving on a private highway. However, there
are only two choices: either he drove to the driveway and parked, or was about to drive away. If
he drove and parked, then he is guilty of drunken driving on a public road. Court must find a
tiebreaker to decide which possibility is more likely. Appellant's residence address is unknown,
therefore it cannot be used.
It is, however, not likely that one would drink to excess in one's house, and then walk to
one's car, with empty cans, turn on the lights and motor, and then pass out. Moreover, the state
trooper approached the vehicle after being called there to investigate a suspicious vehicle. Not
likely to receive such a call if appellant was at his home.
The totality of these circumstances are inconsistent with a reasonable hypothesis of
innocence.
Notes and questions:
1. Yes, he is guilty beyond a reasonable doubt, unless he mounts a better defense, I
cannot think of any reasonable situation where he was innocent.
2. court had to apply the "reasonable" test in order to comply with legal sufficiency
requirement that circumstantial convicts also preclude any reasonable hypothesis of innocence.
3. Judge must insure the burden of proof stays with prosecution. Defendant can ask for a
directed verdict of acquittal after prosecution's case and again after defense has rested and
prosecution has had a chance to rebut.
When does a judge decide to grant a motion for directed verdict? If judge decides jury
must have doubt based on evidence, than he can dismiss case – jurors are not permitted to
speculate or conjecture.
4. When an appeal court is faced with insufficiency of evidence appeal, it must assume
all facts were found in favor of the prosecution. Therefore, the appeal is whether "a rational
trier of fact could reasonably have reached the result that it did." Jackson v. Virginia, 443 US
307 (1979).
E. Jury Nullification
Jury nullification is when the jury decides not to convict even when the reasonable doubt
standard has been met, either because they don't want to convict the defendant or don't think
what he has done should be considered a crime. Juries do have the raw power to acquit for any
reason and because of Fifth Amendment double jeopardy, the accused goes free.
State v. Ragland, Supreme Court of New Jersey, 1986, 105 NJ 189, 512 A.2nd 1361
Facts: Ragland, a convicted felon, was on trial for various offenses. At the conclusion of his
trial, the judge instructed the jury that if it found he had a weapon during the commission of a
robbery, it "must also find him guilty of the possession charge."
Ragland appealed the use of "must" which he said conflicted with the jury's nullification
powers. He wanted the jurors to be instructed of their nullification rights.
Issue: Should a jury have been instructed that it should seek a fair result and acquit, even if the
state had proved its case, in the interests of better justice (i.e., should juries be informed of their
nullification powers)? Is jury nullification power an essential component of the right to trial by
jury?
Holding: Jury nullification is only a power, not a component of the precious "right to trial by
jury." Therefore it need not be mentioned in instructions. Decision of the appellate court is
overturned.
Reasoning: Only one federal case supports Ragland's claim, and it is seventeen years old and has
not been followed by other federal courts. It is agreed that nullification is a power of a jury, but
not part of a citizen's right to trial by jury and so can be excluded from the instructions.
Policy: If this is upheld, it will make it more likely that juries will nullify the law no matter how
overwhelming the proof of guilt is. Furthermore, jury nullification gives legislative power to 12
randomly-selected people rather than duly elected officials. In the court's view, this should not
be encouraged. The system would become impermissibly arbitrary.
Notes and questions
1. Other jurists [Justice Wiseman, in United States v. Datcher, 830 F. Supp. 411] see
nullification as a prime tool of the people against Government and judicial tyranny. [several
cases cited here] If this is the case, then the defendant has a constitutional right to inform the
jury of information that would demonstrate to them his oppression by the Government.
However, these instructions have been rejected by virtually every court to ever consider the
nullification issue.
2. historical precedent for nullification: noble and evil
3. Judge should inform them that they may nullify, if jury asks directly.
4. Voters in Oregon rejected a 1990 initiative that would have made the jury nullification
instruction part of the state courts' instructions to juries. Justice and the law are two different
things, or perhaps overlapping things but not the same thing!
5. Juries have never simply considered the law and the facts. Studies show that
personality, behavior of policy, victim's role, etc, effect the decisions.
6. Race-based jury nullification. Butler, in 105 Yale LJ 677, 715 (1995) argued that
juries should nullify in some non-violent cases and victimless crimes. Critics of this say that in
order to nullify effectively, a jury must be given info (is person contrite? are blacks accused of
this crime more often? has person committed violent crimes in past? etc) that is inadmissible at
trial.
CHAPTER 2 – Principles of Punishment
A. Theories of Punishment
1. In general: why is punishment warranted; what are necessary conditions for
punishment in particular cases; what degree of severity is appropriate for various offenders and
offenses. Punishment justifications are two: retributionist (i.e., the person deserved it) and
utilitarian (i.e., punishment serves a useful purpose).
2. utilitarian justifications: Bentham argues that humans are governed by pleasure or
pain; thus a legislature can threaten to inflict pain only when it promotes human/societal
happiness better than possible alternatives.
3. retributive justifications: according to Kant (38), guilt of a crime and punishability
comes before any utility, and therefore, utility cannot be used to justify punishment.
negative retributivism: wrong to punish an innocent for greater good of society
positive retributivism: guilty must always be punished
Morris (a protective retributionist) suggests that we have a right to be punished, since we
have the responsibility to ensure that burdens and benefits in society are equally distributed (one
such burden is to exercise self-restraint and not harm others; this way all can benefit from bodily
security) (42ff).
Hampton argues that retribution should reestablish social equality between wrongdoer
and victim, with criminal's claim of superiority to victim denied by judicial mechanisms (44ff).
B. The Penal Theories in Action
1. Who should be punished? Are there situations when what would normally be a crime
is not a crime? Shipwrech and cannibalism case (47-48).
2. How much punishment should be imposed? People v. Du (49-55) and United States v.
Jackson (55-60). If a sentence viewed by some to be too light or one viewed to be too harsh,
there is no legal remedy to change the judge's freedom of sentencing (não é?)
judges used to have immense discretion in sentencing; after 1987, federal and
many state judges have less discretion and must follow a flow chart leading them to a narrow
range of sentencing options and often removing possibility of parole (58n3).
some judges employ creative punishments, such as shaming. (many of these
sentences are overturned and prohibited upon appeal).
C. Proportionality of Punishment
-Retributive theory argues for eye-for-an-eye (cf. Kant)
-Bentham argues that laws should be instituted in order to limit mischief, both in the number of
acts committed and in the extent to which those acts are taken. He argues:
1. Punishment must outweigh the profit from the offence
2. the greater the mischief of the offence, the greater the punishment
3. Punishment for a greater offence should be such that it will induce a man to commit
the lesser offence
Constitutional principles: 8th Amend: "excessive bail shall not be required, nor excessive fines
imposed, nor cruel and unusual punishment inflicted." In Weems v. US, the US Supreme Court
ruled that this included punishments of excessive length and severity out of proportion to the
offence charged.
Coker v. Georgia (1977) held that the death penalty for rape is unconstitutional by the 8th
Amend. Burger and Renquist, JJ, dissented on the grounds that death is disproportionate for
minor crimes, but rape is not a minor crime.
Harmelin v. Michigan (1991) held that 8th Amend contains no proportionality guarantee
(i.e., except in cases involving the death penalty, a legislature can impose just about any penalty
for any serious crime that it wants).
CHAPTER 3 – Modern Role of Criminal Statutes
A. Principle of Legality
The relation between courts and legislatures is prescribed by three doctrines:
1. Nothing can be considered a crime without a pre-existing law
2. Statutes cannot be vague or else they are void
3. "Strict construction" which requires that judicial resolution of uncertainty in penal statutes
should be biased in favor of the accused.
Commonwealth v. Mochan (1955). The prosecution attempted to convict D on grounds that he
had committed a common law crime (offensive phone calls) because no statute addressed what D
had done. This lack of statutory prohibition was grounds for D's appeal. Court held that
precedent in other cases was enough to establish that the common could indeed form basis for
prosecuting offensive conduct as a misdemeanor. Dissent: This decision arrogates law-making
power to courts, which is unconstitutional in Pennsylvania.
Keeler v. Superior Court of CA (1970). This case shows that even in states that have abolished
common law crimes, common law doctrine still has influence. The question before the court
was: is killing a viable fetus in utero a murder as defined by §187: was it a "human being"?.
The only task of the court was interpreting the statutory language. Court must use historical
context to decide meaning of statute. Moreover, court cannot unforeseeably enlarge statute, for
this would be the same as ex post facto law. Dissent: Argues that statutory language is not
frozen in time but must be fairly and reasonably interpreted by the court to carry out the justice
intended in the statute.
In re Banks (1978). This case addresses the issue of statutory vagueness (in regards to a peeping
tom statute). Definiteness of statutory language has been declared an essential element of due
process of law.
United States v. Foster (1998). Courts spend much time interpreting statutes. This case shows
how much time can be spent on one word: "carry". Court reaches a conclusion, but adds that
even if it were difficult to decide, the rule of lenity requires that ambiguity be resolved in the
way most favorable to the D.
CHAPTER 4 – Actus Reus
Actus reus is the physical or external part of a crime; mens rea is the mental or internal.
No universally accepted definition of actus reus: is it conduct (pulling trigger of gun) or the
result of the conduct (death of victim)? Some offenses punish the result (murder); some punish
the act (drunk driving when no one is hurt). Conduct crimes / result crimes.
A. Voluntary Act
Martin v. State, Alabama Court of Appeals, 17 So.2d 427 (1944)
Crimes must be committed voluntarily. [I.e., fairness requires that responsibility can be assigned
to an individual so that that indiv can be justly pubished.]
State v. Utter, Ct. of App of Wash, 479 P.2d 946 (1971)
Case seems unimportant. However, highlights issue of volition. Volition, part of actus reus,
cannot occur when the accused is unconscious. That is, even if his body exhibits a behavior that
results in a crime, he cannot be held culpable for it. Court cautions that voluntarily placing
oneself in an unconscious state "does not attain the stature of a complete defense."
B. Omissions
People v. Beardsley, Sup Ct Michigan, 113 N.W. 1128 (1907)
Is D guilty of death of a woman who became intoxicated under her own volition because he had
a "legal duty" toward her and subsequently omitted to care for her properly? Because the
deceased was a mature woman, experienced with drinking and intoxicants, and because D was
not her husband and did not force her into the situation by duress or fraud, he had no legal duty
toward her.
Regardless of moral outrage elicited by an omission, it is ambiguous precisely because it is a
non-act. Thus, it is rarely able to be prosecuted. Moreover, while an act can cause harm, an
omission is the mere withholding of a benefit.
Legal duty defined p. 121 n 2.
Barber v. Superior Court, CA ct. of App, 2d dist, 195 Cal. Rptr. 484 (1983)
Can two medical doctors be charged with unlawful killing (i.e., murder) by removing life support
systems from a patient who, though in a vegetative state, maintains minor brain function? The
removal of life support is not an act, but rather an omission of care (or heroic measures) and
therefore there is no actus reus for homicide. This raises another issue: did doctors have a duty
to continue to provide life sustaining treatment? The duty is removed once it is clear that such
treatment is futile in that it doesn't sustain a life while the pathology is diagnosed, for the
pathology is too severe, in this case, to be cured.
C. Social Harm
CHAPTER 5 – Mens Rea
A. Nature of Mens Rea
Regina v. Cunningham: Man steals gas meter. Gas escapes into house causing woman to be
sickened. Statute requires "malicious" act to convict. Trial judge wrongly defined malicious as
"wicked." Malicious should be defined as intentionality or recklessness (i.e., to foresee that
harmful consequences of the act). Appellate court said D did not show intent for guilt on assault.
Trial court uses culpable approach; appellate court uses elemental approach to interpretation.
B. General Issues in Proving Culpability
People v. Conley: Conley intended to strike Marty, but his Shaun at a party with a wine bottle
causing permanent disability in boy's mouth. D appealed that under statute, he had to intend the
disability, and he never did. Appeals court denies, saying that problems of proof "alleviated by
ordinary presumption that one intends the natural and probable consequences of his actions."
[i.e., actions reflect mental state]
The above case reflects the dichotomy: normally very easy to prove actus reus, but much more
difficult to prove mens rea.
MODEL PENAL CODE: understand §2.02, which sets out the general definition of culpability
(see also commentary on 142-145; use in forming outline)
Knowledge of Attendant Circumstances
State v. Nations, MO Ct of Appeals, eastern dist, 676 S.W.2d 282 (1984): By MO statute, a
person can only endanger a child "knowingly". In this case, the D had not yet ascertained a
child's age when she let her dance scantily clad on a stage. State argued that age of child was
only attendant circumstance. Trial court convicted her of violating statute. Appeals court
overruled. According to MO code, knowing requires actual knowledge of a fact, not refusal to
find out. Held: D guilty of recklessness, but not knowingly endangering a child and so, by
statute, she is guilty of nothing at all.
Problems of Statutory Interp
US v. Morris, US Ct of Appeals, 2nd Cir, 928 F.2d 504 (1991): D convicted of intentionally
accessing and damaging US gov't computers via a poorly programmed worm. D argued that the
damage was accidental, and so could not be liable under statute. Court studied legislative intent
(for grammar analysis was inconclusive) and found that "intentionality" was not required for the
portion of statute covering damages (i.e., damage is an attendant circumstance).
By MPC, a MR applies to all material elements unless a specific MR is mentioned for
each. Modified by any plain language that shows that something is attendant circumstance.
C. Strict liability offenses
Staples v. US, US Supreme Court, 511 U.S. 600 (1994): Court held that a statute making it a
felony punishable by 10 years in prison for possession of a firearm not properly registered
requires a culpable mens rea. Court held that the statute was a strict liability statute and so gov't
must prove beyond a reasonable doubt that D knew he had a machine gun and knew it should be
registered. Majority uses "common law background" to hold that only minor offenses and those
not punished by imprisonment have been considered strict liability crimes. This statute too harsh
without explicit legislative requirement for strict liability, the court cannot impose it. Dissent:
Argues that because law has no antecedents in common law, the c. law background can't be
looked to. Moreover, argues this statute is clearly constructed to protect public welfare, which
places it in the class of strict liability offenses.
Garnett v. State, Ct. of Appeals of Maryland, 632 A.2d 797 (1993): State argued that Maryland's
statutory rape law was a strict liability offense. Garnett, a mentally retarded man, argued for
engrafting of a mens rea requirement which might be used to excuse him on grounds he had no
"vicious will" in this case. After stating that some commentators abhor strict liability, court
holds that the statute in question is a strict liability offense and has no mens rea requirement and
D's can only rely on forebearance of trial judges to limit their penalty. Dissent: The heavy
penalty for statutory rape implies the legislature had some mens rea intent. (this fits with Staples
v. US).
D. Mistake and Mens Rea
1. Mistake of Fact
People v. Navarro (1979): D convicted of theft. He appealed that jury improperly instructed. D
argues that if he took object in mistaken belief (mistake of fact) that it was his, he did not have
the proper mens rea (this is a specific intent crime) to commit theft and should be acquitted, even
if his belief was unreasonable). Appeals court reverses saying that if D's belief was genuine,
then he cannot be convicted no matter how unreasonable his belief was. [Nevertheless, if a jury
believes that D's belief was unreasonable, it may vote to convict because it does not believe he
acted in good faith.]
2. Mistake (or Ignorance) of Law
People v. Marrero (1987): After final appeal, D was not allowed to claim that he misunderstood
the statutory definition of peace officer (which led to his conviction of carrying an unlicensed
firearm) and claim excuse under NY's "mistake of law" statute. D's conviction upheld because
the statute he violated was a strict liability statute and therefore "mistake", even a reasonable
one, is not an excuse when there is no mens rea specified by a statute. [Another applicable
situation is when the "misrelied-upon law has later been properly adjudicated as wrong.]
Dissent: As mens rea has increased in importance in the common law, the refusal to permit
mistake of law defense has grown foolish. "It is simply wrong to punish someone who, in goodfaith reliance on the wording of a statute, believed that what he was doing was lawful."
Cheek v. US US Supreme Court (1991): Anti-tax crusader convicted of willfully evading taxes.
Willfulness defined as "the voluntary, intentional violation of a known legal duty." Steps to
convict on willfulness: 1) law imposed a duty on D; 2) D knew of that duty; 3) D voluntarily and
intentionally violated that duty. One cannot know that the law imposes a duty (e.g., you must
pay taxes as defined by law) and then claim to misunderstand the law or believe the duty does
not exist. US Supreme Court held that a good-faith belief need not be objectively reasonable to
claim mistake of law defense (unreasonable belief defense allowed when a mens rea is required
in a specific intent case such as this). Cheek's defense fails for another reason, that he knew he
had a duty to pay taxes, but claimed it was unconstitutional.
CHAPTER 6 – CAUSATION
Intro
Velazquez v. State, Florida (1990): Causation-in-fact test: occurrence of a specified result is
caused by D's conduct. [useless case]
A. Actual Cause (cause-in-fact)
Oxendine v. State, sup ct of Del (1987): Oxendine's conviction of manslaughter for beating son
to death overturned due to lack of evidence showing that his beating was the death beating of a
child that was beaten by numerous people! I.e., his actions could not be shown to be cause-infact of child's death. Conviction affirmed on lesser included charge of 2nd-degree assault. Held
that lethal injury inflicted 24 hours before non-lethal injury inflicted by Oxendine.
B. Proximate casue ("legal" cause)
Kibbe v. Handerson (1976):
Procedural: Kibbe appealed a motion denying his writ to habeas corpus charging that the trial
judge failed to charge the jury with respect to the causation of death on the murder cournt.
Appellate court affirmed conviction on grounds that victim's death caused by Kibbe's acts as well
as those of Blake. Sup Ct court held: jury instructions permitted jury to disregard Kibbe's claim
that he did not cause the death and thus violated constitutional right to have every element of
crime determined beyond a reasonable doubt.
Facts: Kibbe and co-D took drunk man in car and robbed him. They left him on the side of a
road during a cold night and without his glasses. He was within 1/4 mile of a gas station. Thirty
minutes later, Michael Blake, college student going 50 in a 40 zone, struck and killed victim.
Autopsy found victim died from injuries sustained; therefore Blake is actual cause.
Reasoning: Kibbe convicted for recklessly endangering human life and causing death; intent not
required under statute. Judge failed to instruct jury on "causation" as it related to the statutory
language and did not mention the legal effect of intervening or supervening cause.
e.g., a coincidence will break the chain of legal cause unless it was foreseeable
"any intended consequence of an act is proximate": i.e., if wrongdoer gets what he wants, even if
it didn't happen as planned, he will not escape criminal liability.
apparent safety doctrine: when a person reaches a position of safety, the original wrongdoer is
no longer responsible for the ensuing harm (p. 206)
the criminal law does not hold a person responsible for resulting harm if there is an intervening
cause that springs from "free, deliberate and informed" human action (i.e., once a voluntary
human action is discovered, the law will not trace back the causal chain any further).
Do problems on pp. 206-208 and understand MPC discussion of causation.
C. Concurrence of the Elements
State v. Rose (1973)
Procedural: D convicted of leaving scene of accident resulting in death and negligent
manslaughter. Motions for a new trial denied. D claims it was error to deny a directed verdict of
acquittal on both charges. Supreme Ct of RI holds that leaving the scene was fairly tried, but D
should have received a directed verdict of acquittal on manslaughter charge.
Facts: Rose hit victim, stopped car momentarily as body rolled off, and then sped away. Body of
victim actually wedged underneath the car.
Reasoning: Because the medical examiner cannot conclude with certainty that victim did not die
immediately after being struck by the D's car, it is not possible to determine beyond a reasonable
doubt that he caused death by dragging (which would be negligent manslaughter). Ergo, D must
be acquitted on manslaughter charge.
[NB: with Oxendine and this case, medical testimony is of the utmost importance.]
CHAPTER 7 – Criminal Homicide
Crime analysis steps: 1) what does statute require? 2) how are terms (willful, premed, etc)
defined by statute? 3) what do facts say?
Intentional Killings
Deliberation-Premeditation
State v. Schrader (1982)
Procedure: D found guilty of murder in 1st degree, sentenced to life in prison. D appealed based
on jury instruction that said premeditation could occur instantaneously before killing, not at a
previous time. D argues this takes the "pre" out of premeditation. Appeals Court disagreed.
Facts: D argued with man over authenticity of German sword he had purchased. D stabbed
victim 51 times all over body and claimed to have acted in self-defense because victim was
known to carry guns and D thought he was about to draw one.
Reasoning: Such an interp – of premed being instantaneous – was fair to legislative intent when
the W. Virginia statute was codified in 1868 and precedent also upholds it. In this state,
premeditation is essentially "knowing" and "intentional."
Midgett v. State (1987)
Procedure: D appealed, on basis of lack of facts, a conviction of 1st degree murder resulting
from child abuse. Court held that facts did not sustain 1st degree murder but did sustain a
conviction of 2nd degree murder.
Facts: D constantly beat his son. A beating on Saturday, a result of lots of drinking by D, killed
the boy by Wednesday. Boy had died of blunt-force trauma to abdomen caused by human fist
resulting in internal bleeding.
Reasoning: Court agrees with D that while he was a child abuser, he did not premeditate the
killing of his son. [Court states that even if D did develop intent to kill son, it was done in a
drunken rage, which does not support finding of premeditation.]
State v. Forrest (1987)
Procedure: D convicted of 1st degree murder of his father and sentenced to life. D appeals on
the denial of his motion for directed verdict of acquittal on 1st degree charge, alleging that there
was insufficient evidence of premeditation and deliberation. Court disagrees and affirms verdict.
Facts: D's father had been ill for a long time. He was admitted to a hospital, signed a waiver
foregoing heroic measures to save him, and was in some pain. D killed father in what he seemed
to see as a mercy killing.
Reasoning: Premeditation and deliberation are not readily susceptible to proof by direct
evidence, but rather must be proved by circumstantial evidence (six such criteria are listed).
That is, by objective manifestations of said mental state, including actions and words.
Girouard v. State (1991)
Procedure: Girouard convicted at trial of 2nd degree murder, despite finding of some
provocation though not enough to mitigate charge down. D appeals saying that it should have
been manslaughter in that he was provoked with hurtful words from his wife. Argues that
manslaughter should be a catch all for "homicides which are criminal but that lack the malice
essential for a conviction of murder." Held: trial verdict affirmed.
Facts: Wife told him he was bad at sex, she didn't love him, and she was trying to have him
court-martialed. Girouard killed wife after hearing all this and then tried to kill self.
Psychologist testified that Girouard killed in an explosion of rage caused by inability to bottle up
any more anger.
Reasoning: To determine if there was provocation, we must use the "Rule of Provocation": 1)
there must have been adequate provocation; 2) killing must be in heat of passion; 3) must be a
sudden heat – i.e., killing must directly follow provocation, not be done after a period of cooling;
4) need causal connection between provocation, passion, and fatal act. For words to constitute
adequate provocation, they must be accompanied by conduct indicating present intention and
ability to cause the D bodily harm. [i.e., words alone are not enough]. Added that the standard
here is reasonableness, not focusing on frailty of D's mind [i.e., shrink testimony useless].
Director of Public Prosecutions v. Camplin (1978):
Procedure: D's lawyer wants jurors to use reasonable boy standard but trial judge says it must be
a reasonable adult. Jury convicts Camplin of murder. Issue on appeal: should D be judged as
boy or man? Held: Age does affect behavior and a jury should be permitted to take it into
account.
Facts: Khan buggers Camplin and then laughs at him. This enraged Camplin who killed Khan
by hitting his head with a cooking pan.
Reasoning: Defines reasonable man (see outline).
People v. Casassa (1980) – MPC
Procedure: D appeals that he asserted a defense of "extreme emotional disturbance" that should
have been taken into account at trial and reduced his murder conviction to manslaughter. D
claims that his situation should have been viewed on a wholly subjective standard, rather than the
objective reasonable man test. Appeals court held that this is not possible and conviction
affirmed.
Facts: Ms. Lo Consolo informs D she was not falling in love with him in Nov. 1976. D claims
he was devastated. D claims that eavesdropping and break-ins were evidence of his emotional
distress. D finally kills her in Feb 1977 when she refused to accept gifts of wine and liquor.
Reasoning: D's psychiatrist argues that D had become obsessed with victim and that combined
with several of D's peculiar personality traits to lead to the emotional distress and killing.
Finally: Is D's subjective perception one that, if a reasonable man had it, would lead to the same
action? This means that jurors will have to use their own judgment, but this seemed to have been
the intent of the legislation.
D. Unintentional Killings: Unjustified Risk-Taking
Berry v. Superior Court (1989)
Procedure: Berry charged with murder of 2 1/2 year old boy who was killed by Berry's pitbull.
Berry seeks dismissal of charge claiming the evidence falls "legally short of establishing implied
malice sufficient to prosecute him for murder." Held: evidence shows possibility of implied
malice.
Facts: Berry's dog tethered outside, but no barrier prevented access to dog's area. The boy's
family lived on the same lot and shared a common driveway. Unsupervised child wandered off
and was attacked by the dog. Berry stopped attack as soon as he learned of it. There was
evidence the dog had been trained to fight. Berry had previously told boy's mother that the only
dangerous dog was Willy, the said pitbull, but that he was behind a fence.
Reasoning: Test for implied malice: 1) D's extreme indifference to the value of human life to be
demonstrated by showing the probability that the conduct involved will cause death and 2)
awareness of either (1) the risks of the conduct or (2) that the conduct is contrary to the law.
Test 2: Berry kept a dangerous, illegal fighting dog and used the dog also to guard illegal
marijuana plants. Test 1: Berry knew his neighbors had four small children, knew Willy was
dangerous to people, Berry lulled boy's mother into false sense of security about harmlessness of
dogs.
State v. Hernandez (1991)
Procedure: At trial, D found guilty of involuntary manslaughter. On appeal D argued that
drinking slogans and stickers attached to his van were inappropriately admitted into evidence.
Held: conviction reversed.
Facts: Hernandez was drunk and crashed into a car, killing one of its passengers.
Reasoning: Evidence is relevant if it logically tends to support or establish a fact or issue.
Elements required for involuntary manslaughter are: 1) D acted with criminal negligence and 2)
these actions caused the death in question. Drinking slogan's used to assault D's character and
prove he knew the effects alcohol had on him, i.e., had nothing to do with material elements of
the charge.
Dissent: Under MPC, jury is to decide if D failed to perceive that he was engaged in a
"gross deviation" from the reasonable person standard of care. Thus, three of the slogan's did
show that he knew the effects of alcohol on him and therefore should have been admitted in
evidence.
State v. Williams (1971)
Procedure: D's found guilty of manslaughter for negligently failing to supply their 17-month old
child with medical care resulting in his death. D's appeal. Conviction affirmed.
Facts: D's knew the baby was sick, but thought it had a toothache. One reason they did not take
the baby to a doctor was out of fear that the welfare dept might take the baby from them.
Reasoning: Although CL required "gross negligence" for involuntary manslaughter, statutory
law requires merely simple or ordinary negligence. Since D's negligence held to be the
proximate cause of baby's death, we must determine when the duty to furnish medical care
became activated (i.e., it must have been while baby still had a chance to live) while it was
capable of being the proximate cause.
E. Unintentional Killings: Unlawful Conduct
1. Felony-Murder Rule
a. the doctrine in its unlimited form
People v. Stamp (1969)
Procedure:
Facts: Man dies from heart attack brought on by the stress of an armed robbery.
Reasoning: Felony murder rule applies whether deal was willful and premeditated or if it were
accidental. Doctrine is not limited to those deaths that are foreseeable.
People v. Fuller (1978)
Procedure:
Facts: Men flee from cops in a high speed chase. Men crash into another car and kill the driver.
the felony murder rule applies.
Reasoning: Court says that both precedent and statute require the application of the rule.
However, they argue that were they writing the legislation, it would not apply in a case like this.
b. the policy debate
c. Limitations on the Rule
i. The "inherently dangerous felony" limitation
People v. Burroughs (1984)
Procedure: Trial court held that felony-murder rule applied because practicing medicine without
a license was "an inherently dangerous felony." Appeals court reverses as a matter of law.
Facts: Man has cancer and seeks alternative healing. D is the unlicensed medical practitioner.
Evidence presented that massages performed by D caused internal bleeding and death of man
with cancer.
Reasoning: By policy, if a felony is not inherently dangerous, then the felony-murder rule would
not deter a felon because he would not anticipate causing death. We must look at two things to
see if a felony is inherently dangerous: 1) what is the primary element of the offense? [in this
case, treating the sick – no inherent danger] and 2) what raises the offense to a felony? [when the
act causes great bodily injury, severe mental or physical illness, or death. Since death listed
separately, legislature assumed that the felony could be committed without death resulting]. In
other words, the statute against unlicensed medical practice can be violated "without creating a
substantial risk that someone will be killed." [NB: CA court interprets felonies in the abstract;
many states look at individual facts of each case to make the determination on inherent
dangerousness.]
ii. the "independent felony" (or merger) limitation
People v. Smith (1984)
Procedure:
Facts: Mother beats child and is joined by man she lived with. Child is knocked over and kits
head on closet. She dies as a result.
Reasoning:
skipped some entries
Gregg v. Georgia (1976) US Supreme Court
Procedure:
Facts:
Reasoning: essentially a policy debate among the justices of the US Supreme Court over the
validity of the death penalty
1. Does death for murder violate 8th Amend against cruel and unusual punishment? is
there a lack of proportionality, is it excessive?
-deterrence = equivocation
-retributive = a valid theory, but must be tempered by process so that visceral
moral outrage will not condemn people to death out of hatred/anger
-public opinion – if it supports death penalty, then can be used to support its
continuous usage
2. does the procedure with which it is applied render it ligitimate? Yes
-application of an automatic death penalty would be unconstitutional
-application of death must be based on aggravating and mitigating factors
Tison v. Arizona (1987) US Supreme Court (exam question type of case; prof says don't worry
about this issue on the examination)
Procedure: Tisons appeal their death sentence on constitutional grounds since they did not
participate in the actual murders and had been convicted under the felony-murder rule. Held:
affirmed.
Facts: People escape from prison. After they are out, they flag down a car and kill the
occupants. Two of the people who aided the escape, the Tison brothers, were not in the area and
did not participate in the killing.
Reasoning: Main issue: whether the 8th amend against cruel and unusual prohibits death penalty
when a D is a major participant in a felony, but merely has mens rea of reckless indifference to
the value of human life? No, death penalty is okay if you show 1) major participation and 2) an
independent mens rea with respect to the death. (if they were only tangentially involved, then
death penalty would be disproportional).
NB: court here seems to be assuming/inventing a mens rea for the killing, for prosecution never
had to prove a mens rea under felony-murder rule at trial. US Supreme Court says, juries can
infer mens rea for purposes of sentencing even though not proven at trial.
RAPE
historically, under common law, woman almost required to resist or attempt to flee, otherwise it
was assumed that she consented to it. (compare: a murder victim does not need to try to run
away before we impose punishment on a murderer).
CL: show separate showing of identifiable force
resistance
lack of consent
against your will
- does man who does not intend to have sex without consent have the
mens rea for rape if he honestly believes woman has consented
- does a man who persuades a woman through cajoling have a mens rea for rape?
MPC: mens rea to have sex without consent (§ 213.1)
lessens prosecutorial burden (but does this raise due process issues for D?)
Actus Reus
Rusk v. State (1979)
Procedure: convicted at trial. Reversed
Facts:
Reasoning: Force is an essential part of the crime. Evidence must warrant a conclusion either
that the victim resisted and her resistance was overcome by force or that she was prevented from
resisting by threats to her safety. In order for a rape trial to get to jury, the trial judge must find
as a matter of law that there is evidence for the jury to find the victim was reasonably in fear.
Dissent: This interpretation, requiring resistance on the part of the victim, leads a rape judge to
focus on the acts of the victim rather than the criminality of the acts of the accused! Argues that
the real test of rape should be "whether the assault was committed without the consent and
against the will of the prosecuting witness," for after all submission (i.e., lack of physical
resistance) is not the equivalent of consent.
State v. Rusk (1981)
Supreme Court of Maryland reinstates the conviction, mainly following the reasoning of the
dissent in the above case. The issue becomes: was her fear reasonable?
Most states still apply a Rusk doctrine requiring at least some physical resistance, though not the
traditional "utmost resistance." However, if women believed that resistance would lead to great
bodily harm, then she need not resist.
Resistance Rule: 1) communicates a lack of consent and 2) man must therefore use force to
overcome the resistance
State v. Alston
see outline
Since victim know that Alston had potential for violence (based on their prior relationship), does
knowledge of this potential mean that she could have inferred threat? Cf. knowledge of an
attackers rep for gun violence is relevant to reasonableness of use of deadly force for selfdefense
Traditional rape statute: sex can be against a woman's will but in the absence of force, it is not
rape! This appears to be a paradox. In effect, the law has chosen to celebrate male
aggressiveness and punish female passivity (383). Rape seems to have originally been deemed
an offense in order to protect the property rights that men had over their wives and daughters
which placed the burden of protecting their chastity on the women themselves (399).
Rape is underreported to police for lots of reasons, but one that seems to predominate is that both
society and rape victims themselves assign some of the blame for the sexual assaults to the
victim. Both society and (at times) the victim wonder if she did something to bring it on herself.
(see page 381).
d. "No" (or the absence of "Yes") as Force? Acquaintance Rape
Case #1
Commonwealth v. Berkowitz
Procedure: Trial court: D was convicted of rape and indecent assault. D's appeal: while D may
have engaged in poor social conduct, it was not criminal. V even admits that D never hurt her or
threatened her and she never screamed or summoned held. [i.e., does not meet some of the legal
requirements of Actus Reus]. State counters: the only real important part of Actus Reus is lack
of consent. HELD: Reversed.
Facts: Two college students. D straddled victim, never used violence, but exercised his power
over victim. Victim said "no" repeatedly, but he never listened. She did not physically resist or
scream out. Defense lawyer tries to attack V's character and paint her as a sex tease. D claims
that he thought, by V's actions prior to incident, that she wanted to pursue a sexual relationship
with him; i.e., there was consent.
[thus, by attacking her character, it makes the jury believe the story of D more than the
version of V, who people will just figure is a horny young woman]
Reasoning: Court lists a series of factors one can consider to see whether force was used in the
rape. Among others, they list the ages of the parties and the setting and atmosphere where the
incident took place. Court says that: the setting where the incident took place was in no way
coercive, D not in position of authority over V, and victim was under no duress. V said at trial
that D had never threatened her. Finally, under existing statutes, saying "no" is not enough to
uphold a conviction of rape.
Saying "no" expresses a lack of consent, but does not by itself establish "forcible
compulsion."
Case #2
State of New Jersey in the interest of MTS
Procedure: ISSUE: does the act of penetration itself constitute physical force to meet the
definition of 2nd-degree sexual assault? Trial court says yes, appellate court reverses, and
Supreme Court reverses and upholds trial verdict.
Facts: Girl says boy was always trying to get some action, but she didn't want any. Girl says
she woke up with boy's penis inside of her. Boy says they had kissed previously and had
discussed having sex. Boy says they had consensual sex for a few seconds, and then she pushed
him off and he stopped.
Reasoning: Current judicial practice suggests understanding "physical force" to mean "any
degree of physical power or strength used against the victim, even though it entails no injury and
leaves no mark." NJ statute meaning of "physical force" has no plain meaning; therefore, must
go to legislative intent and rule of lenity. NJ statute does not relate force to overcoming will of
victim or getting victim to submit, that is, it does not require the demonstrated non-consent of the
victim. It seems the legislature analogizes rape with assault and battery laws: "the unlawful
application of force to the person of another." Consequently, sexual assault in NJ is defined by
the court as "any act of sexual penetration engaged in by the D w/o the affirmative and freelygiven permission of the V to the specific act of penetration." Lack of consent is all that matters.
However, permission/consent may be inferred from acts or statements reasonably viewed in light
of the surrounding circumstances.
2. Deceptions and Non-Physical Threats
Boro v. Superior Court
Procedure: CA prosecutes D on theory that V was unconscious as to the "nature" of the sex act
(i.e., it was rape, but she thought it was a medical procedure). HELD: statute not applicable as
CA holds that fraud in the inducement to engage in sex does not vitiate the consent that was then
freely given.
Facts: D convinces woman that she must have sex with him in order to save his life. She calims
that as she thought her life was in danger, she submitted.
Reasoning: If consent had been given to something other than sex, and then sex resulted, then the
statute would be applicable.
In the absence of threatening words or actions, fear as an inducement to have sex cannot, as a
matter of law, lead to a conviction on a rape charge. But if we equated sex with money for
purposes of legal analysis, then inducing fear to acquire money is a crime.
B. Mens Rea
Commonwealth v. Sherry
Procedure: Ds charged with kidnapping and aggravated rape, but only convicted on lesser
included offense of rape without aggravation. Ds claim jury instruction prejudiced them. They
claim to have made a good faith mistake of fact, arguing that they thought V had given consent.
HELD: jury instruction were proper; affirmed.
Facts: Doctors take a woman to a house; engage in sex with her after she tells them to stop.
They do not physically force her and she doesn't resist because she felt numb, humiliated and
disgusted.
Reasoning: Mistake of fact can only be claimed as a defense when the "accused act in good faith
and with reasonableness."
General judicial belief: if a D entertains a reasonable and bona fide belief that V voluntarily
consented to sex, then he does not possess wrongful intent that is a prerequisite for rape.
A small number of courts hold that mistake of fact is no defense, analogizing it to the
strict libability of statutory rape cases where mistake of V's age is not defense.
C. Proving Rape
1. Rape Shield Laws
People v. Wilhelm
Procedure: D. convicted of sexual assault. D appeals, arguing that evidence of V's sexually
provocative behavior earlier in public in a bar should have been admitted in evidence. HELD:
No, judgment affirmed.
Facts: V showed breasts and allowed herself to be fondled by various men in a bar. The D
witnesses this. V went voluntarily with D to his boat where they had sex. V claims it was nonconsensual.
Reasoning: Even public acts need not be admitted. Statute does not distinguish between public
or private acts. Next, court does not see how a V's consensual sexual activity with one person
indicates to a third-party that she would be sexually open to him.
CHAPTER 9: GENERAL DEFENSES TO CRIMES
B. Burden of Proof
Patterson v. New York: issue – what does court mean by "fact" in the Winship decision that said
due process requires that factfinder be persuaded "beyond a reasonable doubt of every fact
necessary to constitute the crime charged"? Does this include every element of crime as set out
in the definition? Must it prove the absence of any defenses for D's conduct? NY statute did not
shift burden of disproving intent to D; also, it is not unconstitutional to put the burden of
production on Ds for affirmative defenses and also the subsequent burden of persuasion
(meanwhile, prosecutor has burden of production for the elements of the crime)(450n1).
Procedure: Court of appeals held: NY statute constitutional because affirmative defense goes to
proving an element not part of the statutory definition of crime with which D charged (i.e., not a
material element). US Supreme Court HELD: affirmed.
Facts: Patterson shoots wife's lover in head with rifle. Charged with 2nd degree murder. Two
statutory elements to crime of 2nd-degree murder: 1) intent to cause the death of another person
and 2) causing the death of such person or of a third person. Affirmative defense of "extreme
emotional disturbance" to be proven by preponderance of evidence is permitted under statute to
mitigate down to manslaughter.
Reasoning: ISSUE: Is it constitutional under the 14th Amend's Due Process Clause to burden a D
with proving an affirmative defense of extreme emotional disturbance in defense of a murder
charge? At common law, burden of proving any affirmative defense rested with D. The
affirmative defense in this case does not serve to negative any facts the State needed to prove
under statute, but rather is a separate issue the D can use to benefit himself.
State not required to prove the existence or nonexistence of mitigating or exculpatory
circumstances that it is willing to recognize by statute.
Policy: Reasonable doubt burden of proof founded on policy that it is better to let a guilty man
go free than put an innocent man in jail. However, society must not be made to bear a burden to
great, for holding the State to prove or disprove mitigating or exculpatory circumstances beyond
a reasonable doubt would be nearly impossible.
DISSENT: This holding allows a state legislature to shift the burden of proof to Ds at
will, so long as the element is not mentioned anywhere in statute except in the affirmative
defense section. Should State have burden? Two-pronged test: 1) does factor make a substantial
difference in punishment or stigma? and 2) has that factor held a historically high-level of
importance in our legal tradition? If one of these factors is not met, then legislature has authority
over matters of proof.
Principles of Justification
Self-Defense
US v. Peterson
Procedure: Peterson charged with 2nd-degree murder and convicted on manslaughter. Appeals
that jury instruction were in error on two grounds: 1) instructing jury that Peterson may have
been aggressor in fight that preceded homicide and 2) instruction on the failure to retreat.
HELD: trial conviction affirmed.
Facts: V tries to steal wiper blades from D's car. D gets pistol and tells V not to move. V gets
wrench and approaches D. D tells V not to approach or he'll kill him. V approaches and D
shoots V dead. D claims self-defense.
Reasoning: "The law of self-defense is the law of necessity;" the right of self-defense arises only
when the necessity begins and equally ends with the necessity. Moreover, the necessity must
appear to offer no alternative to taking life. Aggression: aggressor normally can't assert selfdefense; one cannot support a claim of self-defense by a self-generated necessity to kill. Retreat:
under common law, there was a duty to "retreat to the wall" before you use deadly force.
People v. Goetz
Procedure: Should self-defense justification be based on a purely subjective standard, or should
the actions of a D be weighed according to that of "a reasonable man in Goetz's situation"? Trial
court thought it should be subjective and tossed charges. Appellate affirmed. HELD: reversed
and charges reinstated.
Facts: Goetz shoots four boys who asked him for $5 while he was on a subway train. None of
them brandished a weapon. Goetz admitted having carried the illegal handgun for over three
years. Goetz admits that he knew none of the youths had a gun, but that he feared being
"maimed" by their attempted robbery. By his own admission, Goetz wanted to inflict death or
grave injury.
Reasoning: Using physical force for self-defense is justified, by statute, when actor reasonably
believes that such force is necessary to defend himself (or a third person) from what he
reasonably believes to be the use or imminent use of unlawful physical force. Actor may use
deadly force if he reasonably believes the other is using or will use deadly force, or if other is
planning a kidnapping or forced sex crime or robbery. Penal statutes in NY have never
required that a D's belief as to the intentions of another be correct, only that the belief is
objectively reasonable given the circumstances.
State v. Wanrow
Procedure: D convicted of 2d-degree murder. She appeals conviction. HELD: reversed due to
serious error at trial.
Facts: Neighborhood molester/pervert discovered by Ms. Hooper to have molested her daughter.
Creep suspected of having attempted to break into Hooper's house. Wanrow, Hooper's friend,
came over to spend night at house and brought her pistol after hearing all the details about the
creep. Two neighborhood men confront creep and creep says, let's go over to Hooper house and
straighten things out. Creep entered; shouting occurred; creep startles Wanrow, and she shoots
in a "reflex" action, killing creep.
Reasoning: error #1: Jury instruction told jury to only evaluate circumstances "at or immediately
before killing." Wrong, Washington law permits all relevant circumstances, even those that
occurred substantially before killing, to be considered by jury. error #2: instructed jury on an
objective standard for D's appraisal of circumstances, but Washington law permits subjective
beliefs of D (based on gender, size, age) to be considered.
State v. Norman (appeals court)
Procedure: D convicted of murder at trial. HELD: trial court erred in failing to instruct jury on
self-defense. New trial granted.
Facts: Woman beaten all day by husband. She went to mother's house, got a .25 caliber,
returned home, loaded gun, shot husband while he slept. Psychologists testify that wife beating
had become torture; D living an animal's existence and thought she had no means of escape and
no other options to end the torture. Psychologists testified that D suffered from "abused spouse
syndrome."
Reasoning: Did V's passiveness at moment of killing preclude a self-defense justification for the
killing? No. Self-defense has subjective and objective elements. Subjective: did individual D
feel it was necessary to kill in order to save herself from death or serious bodily harm?
Objective: would a person of ordinary firmness in the same circumstances as D come to a
similar conclusion?
Policy: a battered person (who is truly and extensively battered) need not wait until the
moment a deadly attack comes or even be in the process of enduring an attack to be justified in
killing in self-defense.
State v. Norman (supreme court of NC)
Procedure: HELD: appeals court reversed.
Facts:
Reasoning: Evidence in this case would not support a finding that the D killed her husband due
to a "reasonable fear of imminent death or great bodily harm." The supreme court focuses on the
word imminent. (Appeals court had focused on the harm itself.)
policy: to permit killing based on speculations as to future acts would permit homicidal
self-help for any woman who is depressed and claims a history of abuse and subjectively viewed
her life as bad.
Dissent: The proper question is not whether the harm is imminent, but rather the D's
belief in future harm was reasonable to a mind of a person of ordinary firmness.
Commonwealth v. Martin
Procedure: D convicted of various assaults. D appeals on failure of trial judge to instruct jury on
his defense of others justification. HELD: instruction should be given to jury
Facts: Prosecution version: D was freed from cell by an inmate who had stolen keys after a
fight and then D rushed to join a general assault on guards. Defense version: D was let out of
cell, and intended to return to cell when he heard his friend scream for help. He saw friend being
beaten mercilessly and D had no idea how altercation started. D then raced over, hit guards to
protect friend.
Reasoning: D's evidence was sufficient to require judge to charge jury with justification defense
(though it was up to jury to decide whose story to believe).
People v. Ceballos
Procedure: D convicted of assault with deadly weapon. D appeals, contending his conduct was
legal because he was protecting his property from burglars with use of a trap gun. HELD:
judgment of trial court affirmed.
Facts: D set up trap gun. Boys tried to break in to garage, likely to steal some musical
equipment. One boy hit in face with bullet. Neither boy was armed with deadly weapons. D
admits to setting trap to protect property.
Reasoning: Trap guns are always prohibited with one tort exception: if D had been present and
would have been justified in using deadly force, then the firing of the trap gun is also justified.
Court refuses to apply such a standard to criminal conduct
Commonwealth v. Leno
Procedure: Ds convicted of unauthorized possession of instruments to administer controlled
substances and unlawful distribution of said instruments. Ds appeal on judge's refusal to instruct
the jury on the defense of necessity. HELD: affirmed.
Facts: Ds operated a needle exchange program contract to Mass statute that requires needles to
be distributed only with a prescription. Ds claimed that they broke the law as a matter of
conscience in order to help prevent deaths from AIDS.
Reasoning: Defense of necessity does not apply here because it is limited to four circumstance:
1) when D is faced with a clear and imminent danger; 2) D can reasonably expect his actions will
abate the danger; 3) no legal alternative will be effective in abating danger; 4) Legislature has not
acted to preclude the defense. Key for the court is the imminence requirement.
US v. Schoon
Procedure: Convicted of obstructing activities of IRS and failing to comply with an order of a
federal police officer. Appeal that they were entitled to a necessity defense (for civil
disobedience). HELD: affirmed.
Facts: Broke into IRS office, chanted "keep tax dollars out of El Salvador", and splashed fake
blood around. They ignored an order to disperse and were arrested.
Reasoning: Could be affirmed because 1) there was no immediacy of harm, 2) actions taken
would not abate evil, or 3) other legal alternatives exist. however, court chooses to affirm
because indirect civil disobedience involves violating a law or interfering with gov't policy that
is not itself the object of protest. Therefore, there is no DIRECT attempt to prevent the harm and
therefore action can not be said to stem from necessity to prevent harm.
US v. Contento-Pachon
Procedure: Convicted at trial of unlawful possession with intent to distribute a narcotic
controlled substance. Evidence for duress and necessity defenses excluded on ground there was
insufficient evidence to support the defenses. HELD: reversed in part; there was enough
evidence for duress to be a triable issue.
Facts: D claims that he was forced to swallow ballons filled with cocaine and traffic them to US
from Columbia or else his wife and child would be killed.
Reasoning: A duress defense has three elements:
1) immediate threat of death or serious bodily injury
2) well-grounded fear that the threat will be carried out
3) no reasonable opportunity to escape the threatened harm
Necessity vs. Duress
People v. Unger
Procedure: Convicted by jury of escape. D appealed on basis of trial judge prohibiting any
justification or excuse defense for his escape. Reversed on appeal. HELD: affirmed.
Facts: Unger was serving time for auto theft. He served time in Joliet where he was threatened
with SBI if he didn’t participate in homosexual activities. He never reported the threat. He was
later transferred to honor farm. At honor farm, he was sexually assaulted by three inmates. He
was then threatened with further assaults and, on the day he escaped, death because someone
heard he had reported the assaults. While at a minimum security honor farm, he walked off the
grounds. He was apprehended two days later.
Reasoning: Duress not applicable here because no demand for escapee to perform the specific act
for which he was eventually charged and the "coercing party" is not guilty of the crime. This
case is better viewed through the lens of necessity defense.
Wrongfulness in the Insanity Plea
State v. Wilson
Procedure: Jury rejects insanity defense and convicts D of first degree murder.
Facts: D was crazy and thought V was part of a mind-control group that had it out for him.
Reasoning: Two issues: 1) how should wrongfulness be defined for a jury instruction in the
insanity defense? and 2) should such an instruction have been given in this case?
1. D lacked substantial capacity to appreciate the wrongfulness of his actions if, at time of
act as a result of mental disease or defect, "he substantially misperceived reality and harbored a
delusional belief that society, under the circumstances as the defendant honestly but mistakenly
understood them, would not have morally condemned his actions." (subjective/objective hybrid).
Policy: If we were to define wrongfulness on a purely personal standard, it would
undermine "the moral culture on which our societal norms of behavior are based."
2. Based on expert testimony, court concludes that there was enough evidence for a jury
to reasonably conclude based on preponderance of the evidence that D had the mental disease
element which led to apprehensions as set out in point 1.
Dissent: this is a bullshit instruction: if the D recognizes his conduct is both criminal and wrong
in the eyes of society, public safety demands that he be held responsible for his actions.
State v. Green
Procedure: HELD: state's rebuttal evidence not sufficient to refute proof of Green's insanity.
Facts: Green is clearly a freak and had been since childhood. At 18, he was charged with murder
of a police officer. His appointed attorney immediately saw his craziness and asked for a
psychiatric exam, which the court granted.
Dr. Speal diagnosed Green as a paranoid schizophrenic.
Green soon was found incompetent to stand trial, but later improved after hospitalization
and a trial was ordered.
Trial experts: no experts were offered by the State to refute insanity of Green during
period when murder occurred.
Reasoning: Even though some witnesses engaged in interactions with Green said that he seemed
"normal, but a bit quiet" when they encountered him is not inconsistent with holding that Green
was insane at the time of the offense.
Due to this evidence, burden shifted to State to prove Green's sanity beyond a reasonable
doubt.
State v. Wilcox
Procedure: jury rejected insanity defense. Trial judge refused to permit evidence for diminished
capacity to negate MR req for murder and burglary.
Facts: Court shrink found Wilcox to be borderline retarded and schizo.
Reasoning: Court believes that diminished capacity is stupid. First, insanity already recognizes
the line between those who can form the intent to commit a crime and those who can't. The law
does not recognize what the diminished capacity defense would have it do: that among those
who are not insane, individual mental capacity varies greatly.
CHAPTER 10: INCHOATE DEFENSES
MR
People v. Gentry
Bruce v. State
felony murder requires no specific intent to kill THEREFORE attempted felony murder cannot
be a crime because criminal attempt is a specific intent crime
AR
US v. Mandujano
People v. Miller
attempted murder; not guilty because act of loading gun and standing near threatened victim is
deemed Aequivocal.@ (Controversial decision).
in order to draw the line between preparation and perpetration, the D must have committed a
direct (unequivocal) act toward consummation of the crime.
Statements made by actor before and after the act are not necessarily reliable indicators of intent
because actor may have been bluffing or merely entertaining the act
State v. Reeves
good case for application of the MPC test and def of Asubstantial step@
substantial step:
1. Conduct is strongly corroborative of the actor=s criminal purpose
2. Some acts that, if strongly corroborative, which are sufficient for substantial step:
a. possession of materials to be employed in the crime and are specially designed
for the crime or can serve no lawful purpose to actor under the circumstances
b. collection, possession, or facbrication of materials at or near place of
commission of crime if such cannot serve lawful purpose to the actor
substantial step test (put in line of tests in outline) (5.01(2))
a. possession of materials to commit crime and can serve no lawful purpose
b. possession at or near place of commission that can serve no lawful purpose
c. lying in wait; searching for victim
d. enticing or seeking to entice victim to intended spot of commission
e. reconnoitering the place contemplated for commission of crime
f. unlawful entry into place where contemplated to commit crime
g. soliciting an innocent agent to engage in conduct constituting an element of the crime
proximity tests focuses on what remained to be done
vs.
substantial step focuses on what had already been done (broadens scope of liability though does
not impose liability for relatively remote preparatory acts); no finding required as to whether
actor would have probably desisted in the commission of crime
After entering all of this into my outline, go back to pp. 731-733 and apply all the tests as asked
in the examples.
Punishing Pre-Attempt Conduct
US v. Alkhabaz
case talks about establishing AR for a statutory provision
AR can be determined by examining the nature of a threat. Threats are leveled in order to
achieve some effect or goal through intimidation.
Threat B a communication objectively indicating a serious intention to inflict SBI (MR)
B communication is also conveyed for the purpose of furthering some goal through the
use of intimidation (AR)
- must intimidate person to whom threat is directed
Special Defenses to Attempt
a. Impossibility
US v. Thomas
raped a woman, but she was DEAD, but they didn't know it
b. Abandonment
Commonwealth v. McCloskey
CONSPIRACY
although it is an inchoate offense, it is a basis to hold someone accountable for the completed
crimes of others (co-conspirerors).