ACTUS REAS
IV.
Exceptions/Other
Acts of Omission
I.
General
GOAL: to limit punishment to those who are culpable (blameworthy)
RULE: Two parts to every crime
Actus Reas—the doing of something socially undesireable—the act
requirement
Mens Rea—bad or evil state of mind
Logical losseness to the Act Requirement (People v. Decina) —if you
go back far enough there is a voluntary act. (Which act do you look at-the act of turning the steering wheel or the act of driving?)
Sleepwalker case—they look at the immediate act. (Toronto)
Components: Conduct, Result, & Attendant Circumstances
II.
Majority Rule
MAJORITY RULE is that every crime must have an act. The law does
not punish bad or evil thoughts alone. If you do not act on your
thoughts you cannot be punished. Corollary-- the act must be
voluntary. If the only relevant act was involuntary you cannot be
convicted.
Most common definition of voluntary—“a willed muscle contraction”
(Oliver Wendell Holmes)
Model Penal Code -- § 2.02 Rather than trying to define what is
voluntary it gives examples of what is not.
Section 2.01. Requirement of a Voluntary Act; Omission as a basis of
liability; possession as an Act
1) A person is not guilty of an offense unless his liability is based on
conduct which includes a voluntary act or the omission to perform
an act of which he is physically capable.
2) The following are not voluntary acts within the meaning of this
Section:
a)
b)
c)
d)
3)
4)
III.
a reflex or convulsion;
a bodily movement during unconsciousness or sleep;
conduct during hypnosis or resulting from hypnotic
suggestion;
a bodily movement that otherwise is not a product of the
effort or determination of the actor, either conscious or
habitual.
Liability for the commission of an offense may not be based on an
omission unaccompanied by action unless:
a) the omission is expressly made sufficient by the law defining
the offense; or
b) a duty to perform the omitted act is otherwise imposed by
law.
Possession is an act, within the meaning of this Section, if the
possessor knowingly procured or received the thing possessed or
was aware of his control thereof for a sufficient period to have
been able to terminate his possession.
Policy
Reasons for act requirement

is there a retributive reason to punish someone who has
committed an involuntary act?

deterrence – might deter them from engaging in the underlying
conduct that caused the involuntary act—people prone to
involuntary dangerous behavior encouraged to be careful
Someone can commit a crime without a voluntary act if they fail to do
something they have a legal duty to do. (Jones case)
Seven sources of legal duty:
1) statutory obligation (Good Samaritan Laws)
2) special relationship
3) contractual obligation
4) voluntary assumption of care
5) status
6) duty to control 3d party
7) wrongfully created peril
Act of Possession
Someone can be guilty of the crime of possession.
Possession= dominion and control, appreciable ability to control the
items destiny
Act Must be
a) deliberately obtained or
b) knowingly received
c) must have had opportunity to quit possessing
(Ireland & Wheeler)
Constructive Possession
Awareness of possession
Status Crimes
Voluntary act or omission rules out status crimes.

if we punish in this way discrimination is possible—people with
illness

Public Intox. v. Alcoholism (act punished is intoxication I public,
not the status of alcoholic.

This would lead to way too much police power.
Public Intoxication (Model Penal Code § 250.5)
Loitering (Model Penal Code § 250.6)
V.
Cases
People v. Decina (1956)
Def. knew he was prone to severe epileptic attacks. he was held
criminally liable for recklessness when he suffered an attack while
driving and his car jumped onto sidewalk and killed 4 people. Logical
looseness—which act do you look at? B/c if you back far enough you
will find a voluntary act. (in this case they looked at the act of driving,
not the act of turning the wheel onto curb)
Sleepwalker case (1988)
Def. not guilty of killing while sleepwalking—they looked at the
immediate act which was deemed involuntary b/c he was asleep.
Jones v. United States (1962)
Omission. kids were living with defendant who was not their mother.
She did not care for them and one died. Jones was not guilty b/c she
did not have a legal duty to provide care for them.
People v. Henson (1973)
Ommission. childs parents did not get him care for pneumonia b/c they
were Christian Scientists. Guilty b/c they had a legal duty to get
medical care or protected by freedom of religion in const.? Parents
convicted of homocide.
Wheeler v. United States (1985)
Possession. Raid of hotel on tipoff that the occupants were selling
heroin. Police found heroin on one of the beds. Submitted on a theory
of constructive possession.
Constructive possession = 1) knowingly in possession 2) right to
exercise dominion or control, and 3) has some appreciable ability to
guide its destiny. Mere proximity to the drug when others are around is
not enough. But proximity + evidence of an ongoing criminal operation
of which possession is a part IS enough.
<failed to open door when they knocked, toilet flushing etc.>
People v. Ireland (1976)
Husband lived with wife in trailer. She was selling amphetamines and
cannabis. He said he did not exercise control over drugs. Knowledge
alone is not equal to possession. Jury gave incorrect instruction on
possession—reversed and remanded for new jury instruction.
possession= 1) knowledge and 2) aware of control for a sufficient time
to have been able to dispose of.
Robinson v. California (1962)
Statute making it illegal to be a drug addict is unconstitutional
cruel & unusual—violates 14th amendment
MENS REA
I.



HISTORY
Long ago: “bad” and “not bad”
proliferation of mens rea terms—a mess by 1930
MPC—systematic approach

II.
Before MPC we did not break crime into elements—logically
invigorous
Majority Rule
MODEL PENAL CODE §2.02
(the model penal code’s crowning achievement)
Section 2.02. General Requirements of Culpability
1) Minimum Requirements of culpability. Except as provided in
Section 2.05, a person is not guilty of an offense unless he acted
purposely, knowingly, recklessly, or negligently, as the law may
require, with respect to each material element of the offense.
2) Kinds of culpability defined.
a) Purposely.
A person acts purposely with respect to a particular element
of an offense when:
i.
if the element involves the nature of his conduct or
a result thereof, it is his conscious object to
engage in conduct of that nature or to cause such
a result; and
ii.
if the element involves the attendant
circumstances, he is aware of the existence of
such circumstances and he believes or hopes that
they exist.
b) Knowingly.
A person acts knowingly with respect to a material element
of an offense when:
i.
if the element involves the nature of his conduct or
the attendant circumstances, he is aware that his
conduct is of that nature or that such
circumstances exist; and
ii.
if the element involves the result of his conduct, he
is aware that it is practically certain that his
conduct will cause such a result.
c) Recklessly.
A person acts recklessly with respect to a material element
of an offense when he consciously disregards a
substantial and unjustifiable risk that the material element
exists or will result from his conduct. the risk must be of such
a nature and degree that, considering the nature and the
purpose of the actors conduct and the circumstances known
to him, its disregard involves a gross deviation from the
standard of conduct that a law-abiding person would observe
in the actor’s situation.
d) Negligently.
A person acts negligently with respect to a material element
of an offense when he should be aware of a substantial
and unjustifiable risk that the material element exists or will
result from his conduct. The risk must be of such a nature
and degree that the actor’s failure to perceive it, considering
the nature and purpose of his conduct and the
circumstances known to him, involves a gross deviation from
the standard of care that a reasonable person would
observe in the actor’s situation.
3)
Culpability Required Unless Otherwise Provided. When the
culpability sufficient to establish the material element of an
offense is not prescribed by law, such element is established if a
person acts purposely, knowingly, or recklessly with respect
thereto.
6)
7)
8)
9)
element of an offense, such element is also established if a
person acts purposely, knowingly, or recklessly. When
recklessness suffices to establish an element, such element is
also established if a person acts purposely or knowingly. When
acting knowingly suffices to establish an element, such element
also is established if a person acts purposely.
...
The Requirement of knowledge satisfied by knowledge of High
Probability. When knowledge of the existence of a particular fact
is an element of an offense, such knowledge is established if a
person is aware of a high probability of its existence, unless he
actually believes that it does not exist.
...
Culpability as to Illegality of Conduct. Neither knowledge nor
recklessness or negligence as to whether conduct constitutes an
offense or as to the existence, meaning, or application of the law
determining the elements of an offense is an element of such
offense, unless the definition of the offense or the Code so
provides.
PURPOSE: It must be the conscious desire of the defendant
KNOWLEDGE: Must be practically certain outcome will be what it is
RECKLESSNESS: Consciously disregard a substantial and
unjustifiable risk
NEGLIGENCE: should have been aware of a substantial risk—
reasonable person would have perceived the risk.
* Difference between Purpose & Knowledge: purpose is wanting it to
happen or trying to make it happen, and knowledge means you know it
exists but you don’t care one way or the other. Airplane with chip
example—people dying.
* Difference between knowledge and recklessness is one of degree—
conscious of a practical certainty vs. conscious of a substantial &
unjustifiable risk.
* Difference between recklessness and negligence is a difference of
kind.
III.
Common Law
NON and PRE MPC jurisdictions (16 jx. including CA & Fed Govt)
General Intent & Specific Intent-.
specific intent crimes are those that require an extra-special mental
element in addition to any intent required with respect to the acts
constituting the crime
1. intent to committ some act in the future
2. a special motive or purpose
3. awareness of special attnedant circumstances
general intent crimes merely require the intent to committ the act
constituting the crime
Transferred Intent
You cannot transfer intent from one crime to another. (exceptions are
felony-murder and unlawful act-manslaughter)
IV.
Defenses
Mistake of Fact (CL)
Under MPC—
A mistake of fact is a defense if it negates the mens rea required for
the offense
4)
5)
Prescribed Culpability Requirement Applies To All Material
Elements. When the law defining an offense prescribes the kind
of culpability that is sufficient for the commission of an offense,
without distinguishing among the material elements
thereof, such provision shall apply to all the material elements of
the offense, unless a contrary purpose plainly appears.
Substitutes for Negligence, Recklessness, and Knowledge. When
the law provides that that negligence suffices to establish an
Under Common Law—
A valid defense for a specific intent portion of a specific intent crime if it
negates the specific intent and is honest.
Valid defense for a general intent crime or the general intent portion of
a specific intent crime if it is reasonable
Gordon v State (Alabama 1875)
Charged with underage voting. He was mistaken as to the fact of his
age and thought he was old enough. If a reasnable person would have
been able to figure it out (ct is enforcing a negligence standard with
regard to mistake of fact)
Mistake of Law (CL)
Despite the fact that “Ignorance of the law is no excuse” a mistake of
law is a defense if it negates the mens rea required by the statute.
Same Law Mistakes
Defendant claims to be mistaken about the crime under which they are
prosecuted. “I didn’t know murder was illegal” Ignoraance or
misunderstanding of the law. There are 4 (and only four) ways to get a
defense
1. law not published
2. reasonable reliance on statute later invalidated
3. reasonable reliance on interpretation by supreme court
4. reasonable reliance on advice of authorized official
5. [Cultural defense would have to go here if there was a
cultural defense.]
Different Law Mistakes
A mistake about some relevant law different from the one under which
they are being prosecuted. Lawnmower example—was unaware that
title to the lawnmower had transferred to neighbor.

there is only a defense if the mistake was to the specific
intent portion of a specific intent crime and it was
honest.
(SEE CHARTS)
People v. Wendt (1989, illinios App)
earned 33K + did not file income tax return
learned in seminar that he didn’t have to
willful failure to file return—he honestly belived he did not have to pay
taxes. Wilful meant knowledge
Was he aware that he had a duty to file? Was he reasonably certain
that his omission would result in his return not being filed?
United States v. Barker (Dc Circuit 1975)
They believed that national security required them to do it and to plead
guilty. In the 8 months they figured it out and wanted a new trial.
MacKinnon—would have allowed a mistake of fact defense if the
mistake was honest. (mistaken as to the fact of Hunt’s authority)
Bazelon (notorious liberal)—would have analogized the mistake of law.
No difference from an honest mistake of fact to an honest mistake of
law.
Wilkey (dissent)—It is a mistke of law. But we cant let people off for an
honest mistake of law—it also has to be reasonable. (Mistake of law as
to the Art. 2 authorized to break domestic law for national security.
Mistake as to burglary (same law?) NO. mistake as to Art. 2 (DIFF
LAW)
***Louis B. Schwartz—reformer of crim law. Said low level servants
should be shielded as long as they act in good faith based on orders.
Lambert v. California (US 1957)
Los Angeles Law that says it is illegal for a convicted person to be in
LA for more than 5 days w/out registering.
Unconstitutional—due process. ACTUAL knowledge of the law or
probaility of such knowledge and subsequent failure to comply is
necessary.
Ostrich Defense (MPC)
Deliberate ignorance treated as knowledge under MPC
if the defendant is aware of a high probability that a fact exists but
deliberately avoids figuring it out unless he actually believes that it
does not exist
US v. Villegas (S.D.N.Y. 1991)
Plaza Health Labs
Legislative intent in the clean water act--- specifically rejected
“knowledge” (MPC def. is “substantially/practically certain”) for
“awareness of high probability” – get more convictions
Cultural Defense



1.
2.
3.
A true Cultural Defense: “I had no idea that it was illegal because
in my country not only is it legal, but it is obligatory”
There is NO CASE of anyone being acquitted on a cultural
defense—only downward departures in sentencing
Under present law there is no true cultural defense (same law
mistake of law – see chart) Should there be?
United States v. Yu-- income tax –honorarium
Iraqi family
east Cowbunga
Intoxication
MAJORITY RULE (Common Law)
Voluntary intoxication is a defense if it negates the specific intent, but
not if it only negtes the general intent
(barely the MR—includes Calif. In some sates it is never a defense, in
hawaii it is a defense for specific and general intent crimes.
3 ways:
1) negates the mens rea required
2) negates the voluntariness of the act
3) alcohol over long renage may establish fixed insanity—if they are
clinically mentally damaged
MODEL PENAL CODE
§ 2.08—allows intoxication to negate purpose or knowledge, it does
not allow intoxication to negate recklessness
United States v. Willimas (Md. 1971)
“this is a stick” Robbery requires specific intent. Claimes he was to
drunk to form the specific intent to permanetly deprive. The judhe didn’t
buy it. Moral--- theory is one thing but practice is another, judges and
juries seem to think “you did it, you must have intended to do it!”
CASES
State v. Peery ( )
Student acquitted for changing in front of window—it had to be
intentional and it wasn’t
HOMICIDE
I.
Homocide (General)
Homicide = the killing of a human being by another human being.
Murder is a subset of homicide.
Non criminal homicide:
Justifiable: by command or authorized by law (soldier, capital
punishment etc.)
Excusable: Accidental or otherwise excused
II.
Offense Analysis: Majority Rule
Murder is “the killing of another human being with malice
aforethought.”
Issue: whether it is a criminal homicide
Is there a death?
Offense Analysis—what offense is this/is it murder?
Is there malice aforethought?
a term of art that includes (only):
1. Intent to kill- express malice
2. intent to do GBI- implied malice
3. Commission of intentional felony-implied malice
4.
Extremely reckless disregard for human life-implied
malice
If yes: 1st degree murder, 2nd degree murder, voluntary
manslaughter
If no: involuntary manslaughter/criminal negligence
Minority Rule—some jx. (including California)
Express Malice-- intentional
Implied Malice –unintentional
III.
Model Penal Code
MODEL PENAL CODE
* Part of this analysis is looking at the mental culpability of the
defendant:
Conscious disregard
of strong risk
MPC: recklessness. A high risk
makes it extreme recklessness
Unconscious
disregard of lower
risk
Virtually no risk
no negligence
MPC: recklessness, negligence
MPC: no mental culpability
Extreme
Recklessness
Murder
Involuntary
Manslaughter
No Crime
MPC 210.1: Criminal Homicide
1) A person is guilty of criminal homicide if he purposely, knowingly,
recklessly, or negligently causes the death of another human
being.
2) Criminal homicide is murder, manslaughter, or negligent
homicide.
MPC 210.2: Murder
1) Except as provided in Section 210.3(1)(b) criminal homicide
constitutes murder when:
a) it is committed purposely or knowingly
b) it is committed recklessly under circumstances manifesting
extreme indifference to the value of human life. Such
recklessness and indifference are presumed is engaged in
or an accomplice in the commission of, or an attempt to
commit, or flight after committing or attempting to commit
robbery, rape or deviate sexual intercourse by force or threat
of force, arson, burglary, kidnapping, or felonious escape.
2) Murder is a felony of the first degree
* the first was in PA in 1794. 3rd degree was the residual category—
1st was willful, premeditated etc. 2nd was felony murder, 3rd was all
the rest.
California
California Penal Code §189 (modeled after PA statute)
Second degree murder is the residual category to begin analysis.
a) 1st degree
b) 2nd degree
c) Voluntary Manslaughter
2nd degree murder bumps up to 1st degree if it is:
1) willful & premeditated
2) felony murder
3) bombing, bullets, poison, torture, lying in wait, poison etc
4) in commission of certain enumerated offenses like
arson, rape, kidnapping, armed robbery (special
circumstances)
5)
In California you use Anderson factors—(MAJ RULE)
a) planning activity
b) motive as evidenced in prior relationship
c) manner of killing (particular and exacting)
** Strong planning activity may be enough to satisfy all,
or strong motive with lesser planning and manner may
suffice.
2nd degree murder drops down to voluntary manslaughter:
If there is adequate provocation without an adequate
cooling period.
At common law: voluntary manslaughter only allowed if the
provocation was 1) serious non-deadly battery 2) serious crime
against a family member or 3) a husband witnessing his wife’s
adultery
New York (already out of date)
MPC 210.3: Manslaughter
1) Criminal homicide constitutes manslaughter when:
a) it is committed recklessly; or
b) a homicide which would otherwise be a murder is committed
under the influence of extreme mental or emotional
disturbance for which there is reasonable explanation or
excuse. the reasonableness of such explanation or excuse
shall be determined from the viewpoint of a person in the
actor’s situation under the circumstances as he believes
them to be.
2) Manslaughter is a felony of the second degree
MPC 210.4: Negligent Homicide
1) Criminal homicide constitutes negligent homicide when it is
committed negligently.
2) Negligent Homicide is a felony of the third degree.
§125.10: Criminally negligent homicide
§125.12: vehicular manslaughter in 2d degree (Neg.)
§125.13: vehicular manslaughter in 1st degree (w/revoked license)
§125.15: manslaughter 2d degree (recklessly OR intentionally aids
suicide)
§125.20: Manslaughter in 1st degree (voluntary manslaughter—
extreme emotional disturbance)
§125.25: Murder in 2d degree (felony murder, depraved heart murderreckless
§125.27: Murder in 1st degree (Narrow category—has to kill police
officer, employee of correctional institution, if defendant was in jail.)
Model Penal Code (the Simplest!)
Purposely/Knowingly/Extremely Reckless: Murder
Reckless: Manslaughter
Negligent: negligent homicide or no crime
V.
Grading Theories
Premeditation
IV.
Grading Analysis
Depends on what JX you are in. (At common law there was no
grading) Grading Analysis—what level is the offense (no majority
rule)
Pennsylvania
The premeditated language is found in many statutes but interpreted
differently. Moist states use it as the primary method for determining
1st degree murder. (Not the only way—also poison, lying in wait etc.)
Pennsylvania (Also Idaho & West Virginia) (minority rule).
No time is too short to plan and intend. All intentional killings are
premeditated. (which begs the question—why did they put
“premeditated” in there?) Deliberate as in intentional.
Michigan & New York: Some period of “cool thought” required.
Deliberate as in deliberation.
California: Anderson test. (hybrid of Michigan rule)
1. planning activity
2. motive
3. manner (“particular & exacting”)
Anderson ct. applied the test in a way that moved closer to Michigan
rule. However the subsequent effect of the three-prong test of
Anderson has been to move toward a Pennsylvania standard—
(intent=premeditation) Is this good? have we pancaked the degrees of
murder?
MPC: rejected premeditation as dividing line b/c of old woman
scenario. Why would they reject premeditation, but make a distinction
between recklessness/negligence??
** Why do we draw a line between premeditated and not
premeditated? More deterrable? Why is it WORSE that you consulted
your moral reasoning? Supposedly evidence of bad morals—but what
if the premeditation was a result of a tortured reasoning. (the elderly
woman who premeditates for 6 months about killing terminally ill
husband who has asked to die.)
Which is more heinous?
“Moral reasoning”—good phrase
VI.
Manslaughter
MAJORITY RULE: follow classical or modified classical view (Like PA
or CA)
Pennsylvania (classic approcah):
Voluntary Manslaughter (4-7.5)—mitigated murder—provocation
Involuntary manslaughter (1-3)—Reckless or Criminally Negligent
California (modified classical):
Voluntary Manslaughter (3-6-11)
Involuntary Manslaughter (2-3-4)
Vehicular Manslaughter (four categories—simple negligence, gross
negligence, simple while intoxicated, gross while intoxicated)
unfaithfulness of an unmarried sexual partner, words—no
matter how insulting/offensive.
Reasonable Person standard poses problems—objective or subjective
standard? There is a move towards the “reasonable person in the
actors situation.”
If you use a subjective standard almost everyone is
reasonable—given the same exact facts (reasonable
impotent man/gay man/15 year old boy?) What is the
“situation”—history, personality, gender, race etc?
The purpose of the defense is to recognize ordinary human
nature/frailty. Does the more subjective standard excuse/justify NOT
ORDINARY frailty?
** Is heat of passion a partial justification or a partial
excuse? Cts are not clear on this. It is an important
question to ask.
(Is it partially excused b/c we identify w/ how the person
reacted, OR is it partially justifies b/c / / / since the
person provoked him, they sorta deserved what was
coming to them.?)
Involuntary Manslaughter
Some jx. require a subjective awareness/consciousness of risk and
some do not.
Those that DO require it is like the MPC’s reckless homicide
Those that DON’T require it—it is like the MPC’s negligent homicide.
Ordinary negligence (tort) v. gross negligence. (crime)
Can look at social utility of underlying conduct.
Model Penal Code
does not break manslaughter into voluntary and involuntary
negligent homicide (kinda like invol. mans.)
murder mitigated by emotional disturbance (kinda like vol.
manslaughter)
New York:
Negligent homicide (up to 11 yrs)
Reckless homicide (up to 15 yrs) – 2nd degree homicide
First degree manslaughter (up to 25 yrs) – if victim is a child, extreme
emotional disturbance etc.
In NY—intent to do GBI is NOT murder—it is 1st degree manslaughter.
Voluntary Manslaughter
The key is malice aforethought. Voluntary manslaughter is MITIGATED
MURDER. Find a murder first and then mitigate it down based on
provocation. (Provocation negates the malice)
MAJORITY RULE: A murder committed in the heat of passion upon
adequate provocation without an adequate cooling period
Common Law: Had four elements:
1. must have acted in the heat of passion
2. passion have been result of adequate provocation
3. must not have had a reasonable oppty. to cool off
4. there must be a causal link between the provocation, the passion,
and the homicide.
passion- anger, or any other violent, intense, high-wrought,
enthusiastic emotion
adequate provocation—that which would naturally tend to arouse the
passion of an ordinarily reasonable person (Old approach (& still in TN)
is that it has to be 1) serious non-deadly force or battery, 2)
commission of a serious crime against a close relative—personanlly
witnessed, 3) mutual combat, 4) illegal arrest, 5) a husband witnessing
his wife’s adultery)

Maher v. People (modern approach) the JURY decides.

State v. Thornton (traditional approach)

Who is the better to decide—judges or juries? for consistency in
judgement? for accurate reflection of societal values? for
protection of public safety? To avoid prejudice/discrimination?
**Not considered sufficient provocation under common law:
trivial battery, learning of but not witnessing adultery,
MURDER MITIGATED BY EMOTIONAL DISTURBACE:
Words alone rule does not apply.
EMED—a subjective standard qualified by objective standard. Extreme
emotional disturbance—but there has to be a good reason for it. Tries
to mediate the line between subjective and objective.
Subjective aspect: intense feelings etc. (moral values are excluded
from this category)
Objective aspect: this emotional disturbance must be reasonable.
MUCH BROADER THAN HEAT OF PASSION: Under H of P the def,
has to eb provoked and under EMED there does not have to be a
provocation, just a reasonable mental disturbance.
** It is much more of an excuse because the victim doesn’t have
to do anything.
Words alone enough, no rigid cooling off period,
NEGLIGENT HOMICIDE:
Like C/L. involuntary manslaughter
2-5 years
VII.
Murder
Extreme Recklessness/Depraved Heart/Abandoned &
Malignant Heart/
Once you decide that there is implied malice aforethought based on
extreme recklessness, then you do the grading. No mitigting or
aggravating circumstances= 2d degree murder. BUT DEPRAVED
HEART IS NOT ALWAYS 2d DEGREE—can be 1st degree etc.
Extreme Recklesness: A conscious aversion to a very strong degree
of risk. YOU HAVE TO HAVE SUBJECTIVE AWARENESS OF RISK &
IT HAS TO BE A HIGH RISK.
3 Prong Test (Berry case)
1) actual appreciation of the risk
2) high probability that it would result in death
3) base antisocial motive w/ wanton disregard for life
looks at the social utility of the underlying behavior
aims. *** Is heat of passion a partial justification or partial excuse? Cts
not clear on this.. .
Intent to do Great Bodily Injury
Director of Public Prosecutions v. Camplin (1978)
Example of subjective “in the actors situation” standard. Instructed jury
to find if a :reasonable 15 year old boy” would have been provoked.
California Penal Code §243 (f)(5)
“serious impairment of physical condition, including, but not limited to:
loss of consciousness; concussion; bone fracture; protracted loss of
impairment of function of any bodily member or organ; a wound
requiring extensive suturing; and serious disfigurement”
Intent to do these= implied malice if the victim dies.
Distinguishing Murder from Manslaughter
No bright line between recklessness and extreme recklessness, or
between negligence and recklessness.
reckless= conscious disregard for substantial and unjustifiable risk
It becomes EXTREME if the risk of death is HIGH or the justification for
taking the risk is WEAK (social utility of underlying conduct).
If person should be aware of risk and is not = MPC negligent homicide
or involuntary manslaughter.
Bedder v. Director of Public Prosecutions (1954)
Example of subjective “in the actors situation” standard. Instructed jury
to find if a “reasonable impotent man” would have been provoked.
Regina v. Newell (1980)
Male friend hit on him and he killed him by hitting him on the head 22
times with an ashtray.
Commonwealth v. Malone (PA 1946)
Russian poker—boy and cousin. Didn’t quite undersatnd how the gun
worked & thought he could fire it three times & it would not go off—but
in reality the bullet moved two places not one. ** Why couldn’t he claim
a mistake of fact defense? Because murder is a general intent crime.
therefore the mistake had to be reasonable—it wasn’t. This is extreme
recklessness murder.
Regina v. Lamb (1967)
contrast to Malone. Ct reversed conviction b/c he thought it was safe to
fire the gun. Also a russian roulette case.
VIII.
Other/Cases
Commonwealth v. Carroll (PA 1963)
Pennsylvania (minority rule): NO TIME IS TOO SHORT to premeditate.
Husband killed wife.Wife-schizoid personality—violent towards children
& critical of him (got job in school a town away—gone from home 4
nights a week. Man said there was insufficient time to premeditate in
light of his good reputation.
People v. Morrin (Michigan 1971)
Cool thought—Michigan rule.
People v. Anderson (Cal. 1968)
Cab driver living w/ woman & kids. (17, 13, & 10) Charged w/ murder
of ten year old. 60 stab wounds—severe & superficial. Partial cutting
off of tongue. Several wounds including vaginal lacerations post
mortem. Anderson rules. 1) planning 2) motive, 3) manner.
People v. Perez (Cal 1992)
Emasculates Anderson rules. Says it is not an exhaustive list & not
exclusive—other ways to find premeditation. Cal. Sup. Ct upheld a 1st
degree murder verdict for a defendant who used two knives.
Now, when court applies the three-prong test, all they need is strong
eveidence in category three--- manner. Chasing around the room= the
opportunity for thoughfulness.
Maher v. People (Mich. 1862)
Man saw another man & his wife running out of woods. He followed
guy into a bar & shot but didn’t kill him. Intentional killing in the heat of
passion, with adequate provocation, & before a reasonable cooling
period has elapsed, then it is mansluaghter—out of indulgence to
human frailty. Use an objective test to determine provocation. Although
1862--- this is the modern approach. Let the jury decide if a reasonable
person would think it was adequate provocation. (fact)
State v. Thornton (TN 1987)
law student shot his wife’s med student lover. 3 year old kid/they had
been separated. Took a cameran & gun, but tried to take photos (for
marriage counselor) & he couldt focus. Shot him in the hip “I oughtta
shoot you in the ass” & the guy dies from a massive infection.
Traditional approach—judge decides based on old rule that a man who
find his wife in flagrante delicto just IS provoked. (as a matter of law)
Nessler
Convicted of vol. manslaughetr—what was the alleged provocation?
Smirk, kid vomited when he had to go to court. a commment from 3rd
person that driver “would walk”. She did the world a favor vs. we have
to stop vigilante justice. Look at it in terms of the general justifying
Berry v. Superior Court (CA 1989)
Pit-bull guarding marijuana plants—chained, but yard was not
enclosed. Two year old neighbor mauled to death. Three prong test:
1) actual appreciation of risk
2) high probability of result in death (subjective appreciation of risk)
3) base antisocial motive w/ a wanton disregard for life
Commonwealth v. Welansky (Mass. 1944)
Does not require subjectove awareness of the risk—just if a
reasonable person should have known.
Commonwealth v. Feinberg (PA 1969)
Sterno Man. Convicted of involuntary manslaughter. is use of crimnal
sanction appropriate? should consent be a defense to murder? ct looks
at social utilty of underlying bahvior also—he was selling it for an illicit
purpose.
People v. Rodriguez (1960 CA)
Mother left kids at home & there was a fire. ct found that she was at
most negligent& reversed involuntary manslaughter conviction.
Hall v. State (Ind. 1986)
Reckless homocide for parents who woul not have sick child treated for
religious reasons.
State v. Ford Motor Co. (Ind. 1980)
recall of Pintos. first corp. to be criminally prosecuted for homicide
based on a defective product. Cost benefit analysis—costs too much to
save just a few lives. Remember Lee’s hypo—it would save a few lives
to ban automobiles—should we? where do you draw the line?
FELONY MURDER
I.
Majority Rule
A person is guilty of felony murder is he/she causes the death of
another person during the commission of an intentional felony, or while
fleeing.
Substitute intent to commit a felony for the malice aforethought
requirement.
* has to be more than just a temporal relationship—also has to be
a causal connection. (but-for)
* Strict liability offense w/ respect to mens rea.

abandoned in England but still the MR in US. Some legislatures
have codified it but mostly is common law.

Abolished in HI, KY, and ??

once you have reached a place of safety you are no longer in
flight from the felony
Good
Bad
1. reinforces reverence for
1. if you are trying to deter the
human life. (Crumps)
underlying felony you have a
2. expression of solidarity with
problem b/c not that many
victim—that we undersatnd
result in death—better to just
his suffering (Crumps)
increase the penalty for the
3. deterabble? encourage
felony
felons to be “careful” in the
2. deters intentional killings
commission of felonies
during crime—they cannot
4. shaming power better—you
later claim it was accidental
can “Murderer!” in stead of
b/c its always murder!
“Gross Vehicular
3. the culpability for each crime
Manslaughterer!”
should be analyzed
5. condemnation—
separately
reinforcement of societal
4. misuse of transferred intent
norms & values. (David &
doctrine—is only supposed
Susan Crump)
to transfer intent from victim
6. denunciation.
a to victim b, not from crime
7.
a to crime b involving the
same victim. (Dressler)
5. supposed to be a substitute
for malice—but prosecutors
use felony murder even
when oher malice is
present—effect is therefore
to ease prosecutore burden
of proof.
6. questionable
origin/anachronistic remnant
(people v. aaron) went
unchallenged at CL b/c all
felonies punishable by death
7. no one else uses it (India,
England, continental
eurpoe—(people v. aaron)
II.
Model Penal Code
Not a true felony murder rule. extreme recklessness is presumed in a
case where murder occurs during felony—defendant has the burden of
proof to show there was no extreme recklessness.
People v Smith (cal 1984)
Both defendant & David Foster were beating Amy (2 years old). she
went into respiratory arrest. Wilful assualt merges b/c it cannot be
deterred further by felony murder rule. (Intent was to hurt her)
People v. Washington (Cal 1965)
accomplice was killed by victim of robbery. It has to be “in perpetration
of” (see above)
DEATH PENALTY
III.
Limitations
Inherently Dangerous Felony
Majority Rule: in order for there to be felony murder liability the
underlying felony must be inherently dangerous.

Particular Facts Test- Court looks at the particular facts of the
case and decided if this activity is inherently dangerous or not. In
some cases selling crack is inherently dangerous, in some it is
not. test is if danger was reasonably forseeable—mental
culpability required is NEGLIGENCE

Abstract Test- Is it theoretically possible for this felony to be
committed in such a way that human life was not in danger? If so,
not inherently dangerous. All others are.

Combined Test- If the felony is inherently dangerous by EITHER
test.
Merger Doctrine
Majority Rule: some felonies merge into homicide. The list of felonies is
different in each state—usually felony child abuse, assault,
manslaughter.

In California—robbery does not merge (independent feloniuos
purpose—get money) Poeople v. Builton. But burglary merges
when the underlying felony was intent to committ assault w/
deadly weapon. (People v. wilson)

It has to be dangerous (inherently dangeroud rule) but not too
dangerous (merger).
Agency Doctrine
Majority Rule:A defendant may not be convicted of felony murder if
someone other than the defendant or an accomplice/agent does the
killing.
rationale: the person who did the killing was not acting as the
defendants agent.
People v Washington—has to be in “perpetration of felony.” two
possible interpretations: it has to be “during felony or it has to be in
“furtherance” of felony.
I.

1976-- Woodson v. North Carolina. Ct says that madatory sentences
are unconstitutional. Inconsistent w/ contmeporary standards of
decency. 8th amendament requires that you consider the character &
record of the individual and the circumstances of the particular offense
1976--- Gregg v. Georgia. georgia got it right this time. they had seven
aggravating citcumsatnces and any & all mitigating ciurcumstances.
Had to fins AT least ONE aggravating and they had an automatic
appeal to the state supreme ct. Most states have something like this
(as soon as ct said ok everyone who wanted capital punishment went
to this model)
Crimes other than murder:
1977 --- Coker v. Georgia. no death penalty for rape. it just doesn’t
equal (some justices disagree) but the racially discriminatory part seem
to support this.
++ Fed govt still has DP for treason & espionage.
II.
1.
2.

3.

IV.
Cases
People v. Aaron (michigan 1980)
Michigan statute says any “murder” occuring during felong not any
“death”. Makes a crime that is already murder 1st degree—does not
make murder. (malice) Not to define but to grade. Holding felony does
not equal malice!
People v. Stamp (1969 Cal App)
robbed a business & the owner dies of heart attack 15 minutes after
robbery. three robbers convicted of felony murder—ct said it was
irrelevant whether the victim would have dies soon anyway.
State v. Wesson (Kansas 1990)
wesson says sale (or attempted sale) of crack cocaine cannot be the
underlying felony—not inherently dangerous. (drove away the car & he
was dragged along while stabbing the driver) Viewed in the abstract it
is not inherently dangerous –ct reversed conviction.
36 states & the fed. govt have a Death penalty. fed givt hasn’t
executed anyone since the Rosenbergs. 14 states and DC don’t
have one.
1972--- no majority but justices all wrote opinions in Furman v.
Georgia-- said it was unpredictable, freakish, arbitrary in its application.
Said it was possible to do it in a constitutional manner, but GA did it
wrong.
as a result 35 states passed new legislation
1) manadatory penalties in some cases
2) specifying aggravating/mitigating circumstances in other cases
(both to get more uniformity)
Minority rule: Proximate Cause Doctrine. (only followed in 4 states)The
one who proximately caused the situation or the one who is most
morally responsible for it.
Whenever you initiate gun play you manifest extreme indifference
to human life . if death is casued= extreme reckelssness murder
even if its your buddy that is dead. (taylor v. Superior ct.)
Misdemeanor/manslaughter rule has been abolished in most
states.
Constitutionality
4.
III.
California Death Penalty
jury has to find at least one special circumstance. penalty is either
death of life inprisonment
then they consider aggravating circumstances: Any of special
circumstances (yes can be the same one as in step 1!) and prior
record of felony.
weigh against mitigating circumstances: Young ge, mentally ill,
not a limited list—they can find anything like regular church
attendance, is a mitigating circumstance.
If aggravating & mitigating are equal= life w/out parole. If jury
hangs twice in penalty phase—judge can do it again or decide on
his own.
Pro/Con
Constitutionality vs. Desireablity?? Different concepts. . .
Should we have one at all? You cannot answer this question without
looking at the general justifying aims.
1.
2.
Retribution: Walter Burns. Justice requires it. Animals don’t have
moral thinking only people do. it disrespects the status of human
by not punishing in proportion to crime. Human dignity—not just
because we live but b/c we are responsible moral beings. If
people don’t have a sense of retribution they will take law into
own hands. <Counter: in places where they don’t have d.p. there
are no vigilantes running around—Europe>
Incapacitation: In genral murderers are dangerous. (Not all, what
about battered women who kill?) Is life w/out parole sufficient to
incapacitate those murderers? fails to incap. in two situations:
When inmates kill other inmates or guards, or when inmates kill
during or after escape.
V.
Cases
McClskey v. Kemp (1987)
3.
4.
5.
6.
Deterrence: Looked at homicide rates in dp states vs. abolition
states. Abol. states have lower murder rate—some have taken
this to mean that dp does not deter and might even have a
brutalizing effect on society. <Counter: maybe those states went
to abolition caus ethey didn’t need dp—had low rates to begin
with> At the present time: no reliabel info about detrrent effect.
Plasuible that it deters at the margins. . . Paradox: if dp is going to
have deterrent effect it has to be done swiftly & broadly. But the
problem is that this also increases the problems/reducing
procedural safeguards. thesafeguards are there for a reason—
b/c this is the ultimate penalty!
Rehabilitation
Denunciation
??
IV.
Racial Discrimination
McClesky v. Kemp.
he got the dp and appealed to the Sup. Ct on the basis that it violate
EP clause of 14th & cruel & unusual punishment clause of 8th.
provided the BALDUS STUDY-- a statistical study as evidence of
racial discrimination.
Variable
defendant=black
victim=polic officer
victim= bedridden or handicapped
victim= weak or frail
victim=white
multiple stabbings
victim tortured
Death odds multipler (def was x
times more likely to get dp)
.9 (fared slightly better probably
b/c of black victims. . .)
1.7x
2.8x
3.1x
4.3 x
4.7x
27.4x
when the level of aggravation is extremely high (torture) or extremely
low—the race of the victim does not make much differnce. Race
effects go away at the extremes—and race effects are exaggerated in
the middle (where McClesky was!)
Lockett v. Ohio (1978)
Sandra Lockett—minor participant in a robbery. Accomplice to felony
murder. In Ohio there was amnadatory dp for anyone convicted of
aggravated murder unless at least one of three mitigating
circumstances could be shown. 1) victim brought it on 2) under duress,
3) mentally deficient. Unconstitutional—the failed to consider other
mitigating factors. Lockett rule: they have to be allowed to consider any
and all mitigating factors. Woodsen said: you have to eb able to take
some into consideration—ie look at the caracter as a general principle.
Lockett takes this principle further—you must be able to take all
mitigating factors into consideration.
Principles:
behind Furman v. Georgia--- it must be administered in a way that is
orderly—not arbitrary
behind Locket & Woodsen—but it cannot be mechanical. has to be
human/humane.
Scalia says the two lines of cases are fundamentally at odds.
Supreme Ct says (to reconcile the apparent inconsistency of its
decisions) that the requirement of legitimate special circumsnaces
narrows the pool. you have to be orderly in determining the pool of
eligible dp candidates, but you can be more flexible in throwing people
out of the pool—sparing them.
Lee’s thought experiment:
What is the worst case scenario under each option?
Option
Broader
application
of the penalty
& cut out the
procedural
safeguards that
are least
essential
Pro
less costly
more effective as
a deterrent
no safeguards
more victims
saved
political/internatl
fallout
less arbitrariness
(?)
juries may not
convict
reasons:
1) discretion. we have to have prosecutorial discretion, but they are
human and it will natuarlly lead to some discrimination b/c white
prosecutors naturally identify more strongly w/ white victims. they
also know that juries are biased and wont want to send someone
to death for killinga white person in the same way that they would
for killing a black person.
2) Proof. The study doesn’t prove discrimination. It is just an
unexplained statistical coincidence. the constitution doesn’t
promise a perfect process.
3) If there is discrimination it is not limited to capital punishment & it
isnt limited to race—how far do we go with this? Slippery slope—
lets end it now.
Worst case
innocent people die
brutalization of society
life not valued
Maintain status
quo
not an effective
deterrent
Supreme Ct. rejected his claim.
Inspite of evidence that in circumstances similar to his 18% received
the DP when the victim was black, and 40% received the DP when
victim was white.
Superme Cts reasoning:
Equal Prot. Clause—you have to prove that the prosecutor in your
case was racially biased. Cant rely on statistics.
Cruel & Unusual—McClesky claimed that the georgia capital
sentencing system was arbitrary and race driven and therefore
excessive. Ct. says risk of race discrimination was
not constitutionally unacceptable.
Con
discrimination
goes up
innocent people
die
arbitrary &
discriminatory
Narrow
application to
the very most
aggravated
cases & ban
d.p. based on
felony murder
limit bias (Baldus- extremes less
discrimination)
some innocent
people might
still die
more effective
less
incapacitation
of those that
don’t get dp
less arbitrary
not enough
vengeance=
vigilante justice
abolish
lose deterrent
effect
reoffend
no retribution
we’d find out if
there was
detrrent effect
or not!
additioanl costs
of maximaizing
security
they will reoffend in jail
or in general
population
I.
Majority Rule
“sexual intercourse with a person under 16(?) other than ones spouse”

strict liability.

gender neutral

victim legally incapable of giving consent

perpetrators age is irrelevant
II.
Minority Rule (California)
Negligence standard for statutory rape mens rea (ie if you reasonably
should have known then you are guilty—but if a reasonable person
would not have known then you are ok.) People v. Hernandez (belief
must be honest & reasonable)
California statute:

gender neutral

three categories:
1) victim is under 18 & defendant is within 3 years=
misdemeanor
2) victim is under 18 and defendant is more thn 3 yrs older=
misdemeanor or felony
3) victim is under 16 and defendant is at least 21=felony 2-3-4
years sentencing triad

there is a separate penal code violation for lewd & lacivious acts
with a child under 14. Does not have to be intercourse—touching
etc. Strict liability—reasonable mistake as to age NO DEFENSE.
3-6-8 sentencing triad. (technically both parties eligib. for
punishment—if both a 13?)
III.
Other Minority rules
Chastity as an element:
In a few states (FL/TN/NB) the victim has to be a virgin for it to be stat.
rape. “the gravaman of statutory rape is depriving a female within the
age limits of her virginal chastity” & the statutes purpose is to “protect
the virtuous maidens & the undefiled virgins and not the unchaste
female.” (Nebraska 1971)
prosecute men only
some states are not gender neutral. Supreme Ct. rejected claim in
Michael M v. Superior Court (1981) that EP clause required gender
neutral stat. rape laws.
plurality said: women can get pregnant & therefore suffer more
physical, psychological, emotional trauma from underage sex
model penal code
1. no chastity requirement
2. strict liability under age 10/negligence over age 10
3. male punished if he has sex with female under 10
4. male or female punished if deviate sexual intercourse with
someone under 10
5. corruption of a minor— anyone who has deviate sexual
intercourse w/ someone under 16 and at least 4 years younger
than defendant
6. sexual assault—any sexual contact with someone under 10 or
someone under 16 but at least 4 years younger than defendant
age of consent:
Maj Rule is 16, but states range from 13 to 18.
STATUTORY RAPE
IV.
Policy/ History
Originally—13th dcentury england. To conserve her eligibilty for
marriage (protect her status as an object)
Now the reasons given are:
1. to protect young women from predatory males
2. to protect young women from themselves & their own bad
decisions? (paternalistic)
3. as a backup to forcible rapes that are not getting prosecuted
Prosecutor has discretion. . . can prosecute if there is a motive to.
Split among feminists:
1. perpetuate outmoded gender stereotypes
2. needed as a backup for forcible rape where they are not
prosecuted or there is not enough evidence (date rape etc.) the
abolition of thes elaws might protect woman’s rights vis a vis the
state—but not vis a vis individual men


V.
Don’t legislate morality









Cases
People v. Hernandez (Cal 1964)
she was 17 years 9 months & consented
If it is;
1) mutual
2) he honestly belives she is of consenting age
3) has reasonable grounds for that belief
State v. Stiffler (Idaho 1990)
Honest & reasonbale mistake of fact is not a valid defense to statutory
rape. Strict liability standard. the onlky elements are:
1. conscious performance of sex
2. with a female under the age of 18
mens rea required—NEGLIGENCE
does not require victim to resist
marital exception does not exist (35 states have altered traditional
approach) 12 states have abolished and 23 states punish lower
than non-marital rape—no Maj. Rule. except a majority say that
with a restraining order to stay away they are not married for rape
law purposes.
has to be sexual intercourse
GENDER NEUTRAL
force must be above and beyond the force incidental to
penetration (or threat of)
without consent means that the victim must show 1) reasonable
resistance or 2) failure to resist due to a reasonable fear that she
will be killed or injured.
if by threat of force—the fear must be honest (subjective) and also
reasonable (objective) however if it is unreasonable but the male
takes advantage of it then it is still rape.
Fraud in inducement—woman knows she is having sex—no
crime.
Fraud in factum—woman does not know she is consenting to sex
(thinks it is medical or whatever) then it is rape.
II.
Minority Rule(s)
california

gender neutral. but fotcible oral copultaion & anal intercourse are
still separate offenses.

verbal resistance is enough for lack of consent.

some fraud in the inducement cases are rape also
III.




Model Penal Code
Force or threat of any person (traditionally it had to be directed at
victim)
retains the marital exemption b/c of implied consent of wife.
differs from common law b/c sexual intercourse is genital, oral, &
anal (by male of female)
fraud in the factum does not= rape (but is punished as gross
sexual imposition)
IV.
Policy/History
History of resistance rqmt: History: utmost/reasonable/verbal/none. maj
Rule is no resistance rqd. B/c different victims respond differently to a
threat of injury. Inmost cases resistance= more injuries. Even in states
that do have a resistance rqmt, there does not ave to be any if there is
a reasonable fear of detah or injury. Objective stnadard—would a
reasonable person fear in this situation?
Consent:
Express consent?
Wisconsin says “words or overt actions by a person who is competatnt
to give consent indicating a freely given agreement to have sex. . .”
California says “positive cooperation in act or attitude pursuant to an
exercise of free will” or : “positively displayed willingness to join in the
sexual act rather than mere submissiveness.”
Critics say: unrealistic & this is not how men/women behave. Also
paternalistic—women have to say no when they don’t want to have
sex!
My note on the whole thing:
** wanting sex vs. consenting to sex. You can subjectively not want to
do it and still cnsnet to it.
Force:
Fraud:
FORCIBLE RAPE
I.
Majority Rule
Sexual intercourse by physical force or threat of physical force without
the victims consent.
V.
Cases
Director of Public Prosecutions v. Morgan (1976 English case)
Relationship-husband/wife but slept in different rooms. Morgan & air
force buddies go out drinking—tried to pick up women & could not. So
he suggests that they all go home & have sex with his wife. He told
them don’t worry if she struggles that she is “kinky” Defendants
admitted that she struggled, but they said after initial resistence she
coopertaed & enjoyed it. They honestly but NOT reasonably believed
that she was consenting—were convicted. (Morgan convicted on an
accomplice theory—could noy eb convicted as a principle b/c he was
married to her)
Lord Cross—wanted recklessness as the standard.
Lord Simon—says “recklessness” but then adds “reasoneble” =
negligence
Lord Fraser- intent—purpose or knowledge
On appeal—decided something more than negligence was required
but in this case it didn’t matter—they were still convicted.
Reynolds v State (Alaska 1983)
went out to dinner & a club—they knew each other from the mall. JD
asks him to take her home but he takes her to his apartment instead.
Mens rea required w/ respect to lack of consent: recklessness. the
reason why recklessness should be the standard:
1) state didn’t specify a level of mental culpability Default standard is
recklessness (MPC 2.02)
2) In Alaska resistence requirement has been eliminated & force
reqquirement has been liberalized. they increse the ment/ culp.
rqd to balance this
** the majority of states have eliminated resistance, liberalized
force, and kept negligence as the mental culpability rqd
the def. in this case argued that his sentence was excessive because
of three reasons (compared to Ahvik case):
1) not a stranger to the victim
2) didn’t use a dangerous weapon
3) did not cause severe injury
* Breach of trust argumenat for persons you know—Ahvik raped his
neice.
MPC says that a voluntary social companion or a person you have had
sex with in the past= 2nd degree rape (cannot be 1st degree.)
Why???
Prof. Schwartz (drafter of code)—says it is b/c ogf the fear factor.
Howver bad it may be after the fact for some reason women don’t alter
their lifestyles or generally fear acquiantance rape in the same way
they do starnger rape. THis approach seems to look at the victims
culpability instead—inconsistent with the rest of the code.
The REAL reason—proof problems. He said/she said. It would be
difficult to get 1st degree rape convictions.
** Rep. Karen Ritter or PA
propsed new statute. sexual assault ( no force) and aggravated sexual
assault (with force element) Issues raised:
1) should stranger rape be punished more severly than
acquaintance rape?
2) should defendant who uses force be punished more severly than
one who doesn’t? (a presumption that starnger= force and
acquanitance= no force athat is not necessarily true)
3) should the term “rape” be removed from the criminal law?
?-Why can’t it be that rape is rape, and if you use force then you
add on another offense—assault or batterry or?
State v. Rusk (Md. 1981)
Went w/ friend to a bar for a drink. Met guy there—she thought her
friend knew him. He asked her for a ride home & she said yes but it
was just a ride home. When they got to his apartment he took her keys
from he and demanded that she go up to his apt. he went to
bathroom—she asked if she could leave. Jury convicted. ct of appeals
reversed—b/c 1) no resistance, and 2) no reasonable fear of bodily
harm that would excuse her failure to resist. Supreme Ct. said she did
have a reasombl fear of bodily harm b/c he had his hands on her
throat.
just b/c in some cases no may mean yes, that doesn’t mean that we
assume that no always means yes. You have to have a reasonable
belief that she is consenting & if she says “no” that is enough ti give
you notice that maybe she means no.
**Law has to reflect society but it also has to guide.
People v. Barnes (Cal 1986)
He threated to hit her. “respect me like a man. Im no kid” Flexed
muscles, raered back, threatened her. Jury believed her testimony &
convicted. Appeals ct. reversed on the grounds that she did not resist.
Passive resistance inadequate. Supreme Ct. reversed –statute had
been amended to not require resistance.
History: utmost/reasonable/verbal/none. maj Rule is no resistance rqd.
B/c different victims respond differently to a threat of injury. Inmost
cases resistance= more injuries. Even in states that do have a
resistance rqmt, there does not ave to be any if there is a reasonable
fear of detah or injury. Objective stnadard—would a reasonable person
fear in this situation?
People v. Mlinarich (PA 1988)
Defedndant had custody of 14 year old girl. Threatened to send her
back to detention home if she didn’t have sex with him. Do
extenuating circumstances make “yes” not consent?
People v. Liberta (NY 1984)
10-14% of married women have been raped by their husbands. In this
case they were separated by court order & he forcibly raped &
sodomized her in the presence of their 2 year old kid. Since the ct
order was present the marital exception dod not apply. he argues that
this violated the equal protection clause b/c it treats married men and
unmarried men differently—and also b/c women could not be
prosecuted under the statute.
17th century Lord hale: “a man cnt be guilty of raping his wife b/c the
marriage contract = consent.”
Ct says marital exception is unconst. in NY. No such thing as implied
consent, women are no longer property.
In support of marital rape:
1) hard to prove
2) protect marital privacy (this applies only to consnual acts however
not violent ones!)
3)
discourage reconciliation of the marriage
4) vindictive wives could fabricate rapes
Ct also says that the law should be gender neutral.
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At CL personal property did not include services rendered. A
growing minority of jx. are including services. No defs though—left
up to legislature. In most jx. theft of metered services—gas,
electricity, or theft of a signal—cable or satellite are criminal. But
usually prosecuted under a separate statute.
At CL domestic animals covered by larceny & base animals not
covered. In modern law the statutes list which animal are covered.
(Dogs not added in CA till 1982)
At CL intangible property not covered. Today states have some
intangibles covered—there is no state that covers none & no state
that covers all. Typically each state has a list. (bonds, promissory
notes etc.)
Each state has its own lien between simple & petty larceny (calif.
$400, Virgina-$100)
Must have a fair market value to predicate larceny (computer
tiem case) But oin other jx-- Only minimal value required (empty
cigarette carton)—this was CAL case. Some jx it is reasonable &
fair market value & in some this is not needed as long as there is
value to the owner. (garbage over lawn for aesthetic reasons. . .)
Larceny is a crime against possession not ownership. If you have
poss’n you cannot commit larceny. Breaking bulk rule—if a
delivery person opens the package, contructive poss’n reverts
back to owner & any taking by the delivery person is larceny.
Lund v Commonwealth (VA 1977)
student at Virginia Polytechnic Institute. He would have gotten
compouter time if he had asked for it, but instead he just took it &
charged to various departements the amount of $5065. This was for
internal accounting. Charged & convicted of grand larceny. He was
given probation & he appealed. He claimed 1) it was not the property
of another 2) goods & chattels--- the only thing that was a chattel was
the key and he intended to return that & it was also less than $100
value. #0 computer time is not “goods or chattels” Even if it was—all
he took was printouts. No value over scrap paper. Proper test of value
is not how much went into it but how much it will get on the open
market—in this case 0. is everything that pisses you off criminal?
Stealing something he would have gotten if he had asked—what is the
harm done? How do you valuate the time? Upkeep?? Wjhat if he was
consulting on the side & using univ. computers to do his work? then a
difference—fair market value is higher? he may not have been given
permission in the 1st place?
Oxford v. Moss
Engineering student stole the exam. Prosecuted for theft. Apellate ct
said “confidential information” is not “property” within the meaning of
the statute. What is the problem with calling it larceny? B/c there is a
taking but no deprivation?? But he is taking away the VALUE of the
information. (formula for Coca Cola example) Chaeting—harm to
society in general or harm to the other students (small society) Civil
engineerinng student—bridges will fall. chaeting should be criminal in
this case—it ahrms general society.
No good reasons why it shouldn’t be criminal—maybe we are just
biased & are sheltering white collar theives.
II.
THEFT CRIMES
I.
Larceny (garden variety)
Common Law:
1. The trespassory (wrongful)
2. taking
3. and asportation
4. of the personal property
5. of another
6. with the intent to permanently deprive.
* Asportation= carrying away—any deliberate movement.
Majority Rule: Same as CL but no asportation requirement. Intent to
deprive = intent to steal. It has to be intent at the moment of taking.

trespassory= unlawful. If it disposes another without consent.
Larceny on a Larceny by Trick Theory
Common Law:
Majority (?) Rule: Most jurisdictions do not recognize it as a separate
chargeable offense. Charge larceny & proceed on a larceny by trick
theory. Obtaining the personal property of another by way of an
intentional misrepresentation but without any trasnfer of title.
State v. Robington (Conn. 1950)
takes home a 1948 Chrysler sedan & doesn’t bring it back on Monday
OR pay for it. Charged with larceny on a l-by-t theory. She claimes it
could not e larceny b/c she obtained title to the car. Issue is whether
the dealership passed title? Test is whether they had any subjective
expectation of getting car back. Dealer claimed he expected to get car
back. Robington says he expected money not the car. The trial ct
believed the dealer.
Cannot be larceny garden variety—b/c it was a taking by trick not by
stealth
Cannot be obtaining by fasle pretenses—b/c title did not pass. Or, if it
did, because it was not a material misrepresentation of a past/present
fact
Cannot be embezzlement-- b/c she did not accept the entrustment in
good faith. Turns on when the defendant developed the intent to
abscond w/ property. the principle difference.
therefore it is larceny. . . on a larceny by trick theory
III.
Embezzlement
Common Law:
Majority Rule: Fraudulent appropriation of property of another by one
who has been entrusted with possession.
*Must be good faith at time they accept entrustment.
* a huge # of embezzelemnt cases brought aginst lawyers. Make sure
you have a separate account for the clients money
People v. Talbot (Cal 1934)
Officers of the oil companyTook $186,000 out of company accout &
spent it on his personal yacht. Defendants arguments: 1) no attempt to
conceal the draws. Board of directors knew about it. If he didn’t
conceal it—how could it be fraulent intent? ct says that is not what
fraudulent inetnt means—you don’t need concealment. 2) He intended
to pay it back. Ct held embezzelment does not require that you
permanently deprive—only that you use it in a way inconsistent with
the terms of entrustment. Turns on what the terms of entrustment
really said. . . 3) everyone does it—it WAS part of the terms of
entrustment. No majority rile on this. CAL & a few other jx= will convict
even if a temporary taking. Other jx= have to prove that D intended to
permanently deprive.
IV.
Obtaining Prop by False Pretenses
Common Law: At Cl did not cover a false promise. (future intentioan)
Majority Rule: Obtaining title to personal property by intentionally
misrepresenting a present or past material fact with intent to defraud
and the victim relies on that misrepresentation.
* Must transfer title.
Chaplin v. United States (DC Cir. 1946)
Charged with obtaining money by false pretenses. told someone that if
she advanced them money they would purchase liquor stamps for her.
And that they would return the liquor stamps or the cash. They argued
that they did not make any misrepresentation about a present or past
material fact—that their misrepresentation was about future intention.
Under common law it is not a crime if it is false promise—good law—
people promise to pay things all the tiem for which tey cannot afford—
debt etc. These people intended to pay it back—you don’t want to
punish them as criminals.
Dissent (Edgerton): a false promise necessarily involves a
misrepresentation of a present fact present inetntion= present fcat
V.
History/Policy
Theft was punished by death at CL. Needed to sqeeze this other stuff
in—technical rules are dull, silly, judicial accidents. Needed to develop
non-felony crimes so that propertied people did not get death.
The original CL theft crime was robbery—the taking by force. later,
larceny added—the taking by stealth.
In the old days prosecutor had to choose an offense & prove thos
elements. Now they just charge THEFT and have to prove all the
elements of at least one—cannot mix/match elements.
** when Lee was a clerk they had what they called pig v. pig cases.
when stock market is bad shareholders get pissed start sueing. you
have unsympathetic plaintiffs (doctors, lawyers, accountants, greedy
dentists against their stockbrokers) Most subject to arbitartion. . .
*** Read the theft chapter of Dressler I don’t
get all this!!!!
2.
3.
Epstein-- b/c of tendency to induce deception & other wrongs—
just a shady affair
posner—the governemnt has a monopoly on law enforcement.
Private individuals should not nemefit from iding/exposing dcrime.
Maj Rule: Claim of Right is no defense. “yeah I threatened him, but he
owed me anyway” – no good.
State v. Harrington (Vermont 1970)
Family Law lawyer convicted of threatening to accuse Armand Morin of
adultery maliciously for the intent to extort $175,000.
lawyer claimed he was just doing his job—using the fact to negotiate
the best deal for his client. The rule was that a demand for a civil
settlement that was accompanied by malicious threat to expose
criminal conduct= extortion.
II.
Compounding A Crime
CL & Modern Maj. Rule: Receiving property or other consideration in
an exchange for an agreement to conceal or not to prosecute a crime.
It is a crime regardless of whether it makes up for the loss or is in
excess of the loss.
Model Penal Code: Not a crime if it just makes up for loss. it is merely
a private settlement—restitution if the amount is reasonable.
Modern Trend is to punish any people who beneifit—not just the guy
who went and said give me money & I’ll be quiet.
People v. Pic’l (cal. 1982)
Lawyer had no involvement with stealing the car but he presented the
victim a nonprosecution agreement on behalf of his client. he was paid
for the task—he was guilty also.

III.
AGGRAVATED PROPERTY CRIMES
I.
Extortion
Majority Rule: The use of a certain type of threat in an attempt to
obtain property or action. (each jx. then has their own list of threats
that qualify)
Some of the most common are:
1. threats to injure the victim,
2. threats to accuse the victim of a crime (rightly or wrongly)
3. threats to expose or impute something that would disgrace the
victim,
4. threats to publish defamatory matter or to injure his/her business
reputation or personal character,
5. threats to injure victims family or relatives,
6. threats to injure anyone.
california is probably a little broader than other jx’s b/c Calif includes
threats to property and threats to expose a secret.
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When extortion involves threats of immediate force it shades into
robbery—the difference is the temporal aspect.
It doesn’t matter if the threat is explicit or not.
Blackmail: A fully included subset of extortion. A colloquial term when
the threat is for exposure of a crime or other social disgrace. the
paradox of blackmail—you cannot threaten to do something that you
have a right to do. You have a right to seek a job from an employer
AND you have a right to expose that same individual’s extramartial
affair, but you cannot combine these two otherwise legal actions. Why?
1. misappropriating someone elses bargaining points
How is it different from extortion???
In extortion the threat is actively made & in compounding it is the
other person who makes the offer. Turns on who initiates the
offer.
Bribery
Majority Rule: the corrupt payment or receipt of a private price for
official action.
What kinds of officials? depends on the statute. the modern trend is to
include anyone who serves in a position of public trust (even
temporarily).
At Common Law—only judges included.
Today—elected officials, judges, witnesses, potential witnesses,
everyone in the jury pool, delegates to a poliitical convention,
respresentatives of labor unions.
Lots of jx’s have these but they may/may not be maj. rule:
Commercial bribery: the advantage which one competitor gains over
his competitors by secret or corruot dealings with employees or agents
of prospective purchasers.
Sports bribery: point shaving in manu jx. is criminal. Public trust in
athetletes to do their best. * A law against sports bribery kind of
condones gambling—w/out gambling there is no need for sports
bribery law—kind of like clean needles. We see it, we don’t condone it,
but here is a way we will attempt to deal w/ it.
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Bribe can be in the form of money, services, or ANYTHING with a
market value.
An offer constitutes the actus reas.
It is an inchoate offense. You are guilty even if person does not
engage in transaction. Conduct is criminalized at a point before
the harm occurs.
If the other person acceots—they are still guilty even if transaction
is not complete.
Mens Rea required—CORRUPT INTENT. some intent to gain
personally from it. If its just a gift you are not guilty.
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mental Culpability for the offeror is PURPOSE for the offeree is
KNOWLEDGE
corrupt= with intent to influence official action
sex does not have a market value (it does but this is illicit—no
legal market value)
private price—does this apply to political appointments? quid pro
quo in the legislature—my vote for yours—again, nota private
price.
what is official action—lots of grey area.
State v. Bowling (Ariz. 1967)
A guy paid them $4200 above the cost of the liquor license. they were
convicted of bribery & argued that it was not official action. Ct says
bribery is different from “influence peddling”—selling their influence
over an area that they have no official control. Now ariz has antiinfluence peddling statutes.
is the guy who offered cash guilty?
Depends on his emns rea but its an inchoate offense so you have to
subjectively know what he is thinking. Was he thinking “offcial action”?
Probably not tinking in those terms at all. . . “subjective thoughts do
not hue into legal formalities. . .”
An entry occurs as soon as any part of a persons body is within the
structure or at the moment any tool or instrument wielded by the
person is inside, as long as the tool is to be used to effectuate the
felony & not merely as a means of breaking into the structure
Also the entry must be wrongful.
A persons right to enter a store or business is conditioned on their
enetring for a lawful purpose.
Some statutes include unwanted remainder in a propery after you
should have left.
3. Dwelling House/Structure
moedrn statutes include all kinds of structures including motor
vehicles, trucks, trailers, watercraft, aircraft, tents, telephone booths,
currency exchange at the airport, hotels (Watergate).
4. Of Another
A defendant cannot burglarize his own home since he has the absolute
right to be there at all times. Is burglary primarily an offense aganst the
right of habitation or the ownership of property?
5. In the Night
At CL—it was because a person was disguised by darkness & b/c the
night was when people were more vulnerable to fall prey to criminals.
6. W/ Intent to Commit Felony
Criminal intent MUSt exist at the time of entry.
BURGLARY
I.
Common Law
The breaking & entering of the dwelling house of another in the
nighttime, with an intent to commit a felony therein.
II.
Modern Majority Rule
Unauthorized entry into a structure with the intent to commit any crime
therein.

no breaking requirement
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no nighttime requirement
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no dwelling house requirement
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can be any crime
* No MERGER rule—you are guilty of burglary AND the target offense.
III.
Elements
1. Breaking
they kept refining it until it was meaningless and now it is mostly
abolished as an element.
2.
History/Policy
Should burglary be a crime??
The Guaze court says that right to enetr the property is what leads to
absurd results—but it seems that the fact that as soon as you walk in
with intent it is a criem leads to absurd results.
If you walk into Nordstrom w/ intent to steal a tube of lipstick—you
have committed a burglary even if you steal nothing.
INCHOATE
Why do we have it?
Cts created the law of burglary b/c of the inadequacy of the
law of attempt. In attempt you need to take a substantial step.
If you catch him at the window the most you could get him for
is b&e—even though you know he was gonna do something
pretty bad once he got in.
The idea is to nip crime in the bud.
Minority Rule(s)
California—

grand or petit larceny or any felony

doesn’t say “any” structure—it lists them

1st degree—an inhabited dwelling place (2-4-6 years)
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2nd degree—any other structure (1 year)
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does not have to be “unauthorized”
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doesn’t say anything about “of another”
IV.
V.
Entering
Model Penal Code: The big question was whether or not to
put it in or not. Its also a political question—what would your
parents say if they read in the news that burglary was no
longer a crime.
VI.
Cases
People v. Gauze (Cal 1975)
Felony is assault with a deadly weapon on his roommate. The penal
code did not specify “of another” just said any home, etc. . .Calif.
Supreme Ct said he could not burglarize b/c he had a right to enter the
premises. Ct says that if it stayed that way you could be convicted of
burglary for entering your own hoem with the intent to forge a check—
even if you never actually did it.

People v. Berry (1892 Calif.)
This case that a person could be convicted of burglary even if they
entered a store during regular business hours. Wrongful= without
permission & you don’t have permisisoon tio enter if you have the
intent to steal inside.
II.
MPC & Majority rule differ in one respect. IN MPC there is merger
of attempt 7 conspiracy and w/ the Majority Rule you can b
punished for both attempt and conspiracy of the same crime.
Actus Reas issue
How close to success in committing the offense do you have to be?
Both tests below have wide following.
MPC/Substantial Step Test: Asks how much have they done?
Physical Proximity Test: asks how much is left to do?
The overt act required for an attempt must be proximate to the
completed offense, or directly tending toward the completion of the
offense, or must amount to the comencement of the consummation.
III.
Mens Rea Issue
Is it possible to attempt an unintentional crime?
In MPC jurisdictions you need either PURPOSE OR KNOWLEDGE.
In non-MPC 2.02 Jurisdictions (California) —you need the SPECIFIC
INTENT.
As a matter of policy you cannot be convicted of attempting an
unintentional crime—it is not logically compelled. Why? Because what
if you know your brakes don’t work & you offer someone a ride. But
you cant start the car b/c the battery is dead. Are you not guilty of
attempt at reckless endangerment?
ATTEMPT
I.
Majority Rule/MPC
Requires:
1. an intent to do am act or cause results that would constitute a
crime AND
2. an act that goes beyond mere preparation
MPC §5.01(1)
Definition of attempt. a person is guilty of an attempt to commit a crime
if, acting with the kind of culpability otherwise required for commission
of the crime, he:
(a) purposely engages in conduct which would constitute the
crime if the attendant circumstances were as he believed
them to be; or
(b) when causing a particular result is an element of the crime,
does or omits to do anything with the purpose of causing or
with the belief that it will cause such result without further
conduct on his part; or
(c) purposely does or omits to do anything which, under the
circumstances as he believes them to be, is an act or
omission constituting a substantial step in a course of
conduct planned to culminate in his commission of the crime.
MPC §5.01(2)
Conduct which may be held a substantial step under (1)(c) :
[lying in wait, enticing or seeking to entice the victim to the place for
commission of the crime, reconnoitering, unlawful entry of a structure,
vehicle, or enclosure, possession of materials to be employed which
are designed for an unlawful purpose or serve no lawful purpose of the
actor under the circumstances, possession, collection or fabrication of
such materials, soliciting an innocent agent]
THREE CLASSES OF ATTEMPT:
1(a) Impossible Attempts. smallest class. This is the inherently
impossible attempts—doomed to failure b/c of actors misunderstanding
of attendant facts. (A tries to kill B, but B is already dead)
1(b) Complete Attempts. Where the actor has done everything he
intended to do but didn’t get the job done for some reason. (A aims
gun at B’s head & pulls the trigger, but the gun jams OR pulls the
trigger & misses OR hits him but he is saved by a brilliant surgeon.)
1(c) Incomplete Attempts. Where the actor has not done everything
he had originally intended to do but nonetheless he has gone far
enough down the road to be guilty of attempt.
IV.
Defenses
Two defenses to attempt that you will probably never see or see
properly upheld:
Renunciation/Abandonment (50% of states follow & 50% don’t)
At Common Law—no renunciation defense. (Minority Rule: staples)
Majority Rule/Model Penal Code—the actor should have the oppty to
erase attempt liability. Note that they have already incurred liability.
There is no other place in the criminal law where you can become
guilty and the unguilty!
It has to be a “complete & voluntary renunciation of criminal purpose”

cannot just transfer intent to another victim or another crime

has to renounce based on moral awareness, not just postpone for
a different (safer to not get caught) time!
MPC says it is a defense for both complete & incomplete attempts.
scholars believe this is WRONG and that it was merely a mistake—that
it really only applies to INCOMPLETE attempt cases..
Impossibility
Old rule/Minority Rule: Legal impossibility is a good defense but factual
impossibility is no defense.
MPC/Majority Rule: No defense. the defendant is guilty of attempt if it
would have been a crime if circumstances were as he believed them to
be. (???)
V.
History/policy
How severely should we punish attempt?
How much significance do we attach to the actual harm occuring?
Model Penal Code: Punish at the same level as the offense.
Not very many (if any) jurisdictions follow this.
Majority (Plurality) Rule: Punish the attempt at some fraction of the
completed offense. California—cuts punishment in half. some states it
is one third.
Minority rule (more than 1 state follows it): Don’t punish attempt so
harsh. Create a statute that punishes a “criminal attempt” and have a
low punishment (6 months or 1 year. . . )
VI.
Cases
United States v. Jackson (1977 F Supp)
Good example of incomplete attempt.
under the MPC Substantial step test this is an easy case—lots of
activity that falls into 5.01(2) But they argued for adoption of the
Physical Proximity Test.
Example: New Bedford Rape Case. bar patrons shouted out
encouragment in the desire that the rape would continue. Bottom
line—it makes no difference that the crime was already in progress and
it makes no difference that the solicitation has no effect at all—STILL
GUILTY.
People v Rizzo (NY 1973)
Example of Physical Proximity appraoch. Planned to rob the payroll
guy—they were driving around looking for him when they were
arrested. Hadnt even found the victim yet—were not close enough to
commission of crime.
Uncommunicated Solicitation:
An attempt to attempt to conspire to commit the crime. Majority of
Jurisdiction just said “enough is enough” That is TOO INCHOATE!
The common law tradition approach is the majority rule: It has to be
communicated.
People v. Staples (Cal 1970)
drilled holes in floor (not all the way through—otherwise may have
been a burglary rather than an attempt) Traditional rule—NO
RENUNCIATION DEFENSE.
People v. Dlugash (NY 1977)
Follows traditional approach on impossibility. Legal vs. factual
distinction.
SOLICITATION
I.
Majority Rule/MPC
Model Penal Code 5.02
(1) Definition of Solicitation. A person is guilty of solicitation to
commit a crime if with the purpose of promoting or facilitating its
commission he commands, encourages, or requests another
person to engage in specific conduct which would constitute such
crime or an attempt to commit such crime or which would
establish his complicity in its commision or attempted
commission.
(2) Uncommunicated Solicitation. It is immaterial under subsection
(1) of this section that the actor fails to communicate with the
person he solicits to commit a crime if his conduct was designed
to effect such communication.
(3) Renunciation of Criminal Purpose. It is an affirmative defense
that the actor, after soliciting another person to commit a crime,
persuaded him not to do so or otherwise prevented the
commission of the crime, under circumstances manifesting a
complete and voluntary renunciation of his criminal purpose.
Majority Rule: section (1) and (3)
section 3 is probably a plurality
Few have adopted (2)
* You can be guilty under MPC of soliciting ANY crime
NON MPC Jx:/ Minority: California has not adopted 5.02 in any
respect.Calif. also has an exhaustive list of crimes that you can be
guilty of soliciting. (page 621 top)
Non MPC 2.02-- you have to have the specific intent to facilitate the
commission of the offense. Not enough that you are aware
(knowledge) that it will cause person to commit crime, you have to
desire it (Purpose)
--------------------------------------------------------------------------------------------Another INCHOATE offense. You are guilty at the moment you
command, encourage etc.—even if they do not commit a crime.
Solicitation – as a prosecutorial rule of thumb—merges into the
completed offense. If the person actually does it you will convicted of
conspiracy or accomplice liability, but not for solicitation.
It is almost an ATTEMPT TO CONSPIRE. .. It is VERY Inchoate—
almost criminializes thought, but not quite. But law can nip the criem
very early in the—at the expression of the thought.
II.
Actus Reas
Actus reas: The command, request, or encouragement
Encouragement can even be words that bolster the fortitude of
someone who has already decided to do it.
Hypo: teenage drivers racing in street. people on side cheering them
on. they are already engaging in reckless driving—are the people
encouraging? This is controversial. . .
Specific Conduct standard (MPC)
criminalizing of speech can create tension with the first amendment.
the response was to put in “specific conduct” requirement. It cannot be
generalized incitement/stirring up passion in a crowd/venting of anger.
Has to be “specific conduct” How specific does it have to be?

no need for great detail, must have some concrete content to
incite

must specify victim or subset of victims
Brandenberg v. Ohio Standard (Supreme Court)
1) imminent lawless cation
2) likely to incite or produce such action
III.
Mens Rea
Mens Rea: The intent that they should actually do it.
IV.
Defenses
Impossibility defense to solicitation?
Under MPC—no impossibility defense for solicitation OR attempt.
V.
Cases
State v. Schleifer (Conn. 1923)
1923—Labor relations = violence & bloodshed
Defendant addresses a large crowd tells people to break formans
windows, lie in wait for the scabs, take them in a dark alley 7 hit them
with a lead pipe, don’t forget to bump off a few now & then, wreck
trains etc. . .
Ct held that a soliciatation has to be directed at one individual. Under
MPC? under Brandenberg?
People v. Quentin (NY 1968)
How to make a firebomb brochure & how to make a certain drug.
same as above—made tyo a large undefinable group
(3)
When recklessly or negligently causing a particular result is an
element of the offense, the element is not established if the actual
result is not within the risk of which the actor is aware or, in the
case of negligence, of which he should be aware unless:
(a) the actual result differs from the probable result only in the
respect that a different person or different property is injured
or affected or that the probable injury or harm would have
been more serious or more extensive than that caused, or
(b)
CAUSATION
(4)
I.
Majority Rule
the actual result involves the same kind of injury or hram as
the probable result and is not too remote or accidental in its
occurrence to have a [just] bearing on the actors liability or
the gravity of his offense.
When causing a particular result is a material element of an
offense for which absolute liability is imposed by law, the element
is not established unless the actial result is a probable
consequence of the actors conduct.
Majority Rule:
An actor is not liable for result unless his conduct 1) is a but/for cause
or 2) is the proximate cause.
But/For Cause:
If the actor had not engaged in the conduct the harm would not have
occurred in the same way. “But for the conduct. . .”
Proximate Cause:
the actor’s conduct is sufficiently related to the resulting harm and has
not been superceded by another force. Falls into three categories:
[1] Direct causes:
Nothing out of the ordinary happened between the conduct &
the resulting harm. Causal chain is unbroken.
= Liability
[2] Dependent Intervening Causes
An intervening cause which constitutes a conscious
response to the defendants conduct. It is human conduct or
a natural event which follows naturally from defendants
conduct.
= Liability, unless the response was extremely unusual or
bizarre
[3] Independent Intervening Causes
An intervening cause that does not consciously respond to
the defendants conduct. Has to take place after the
defendant has engaged in the conduct.
= Liability, but only if the intervening occurrence is
forseeable
Substantial Factor Test
An exception to the But/For requirement. If two people shoot at same
time—the test becomes whether conduct was a substantial factor in
resulting harm.
II.
Model Penal Code
Model Penal Code §2.03:Causal Relationship Between Conduct &
Result; Divergence Between Result Designed or Contemplated
and actual Result or Between Probable & Actual Result
(1) Conduct is the cause of a result when:
(a) it is an antecedant but for which the result in question would
not have occurred; and
(b) the relationship between the conduct & the result satisfies
any additional causal requirements imposed by the Code or
by the law defining the offense.
(2) When purposely or knowingly causing a particular result is an
element of the offense, the element is not established if the actual
result is not within the purpose or the contemplation of the actor
unless:
(a) the actual result differs from that designed or contemplated,
as the case may be, only in the respect that a different
person or different property is injured or affected or that the
injury or harm designed or contemplated would have been
more serious or more extensive than that caused, or
(b) the actual result involves the same kind of injury or harm as
that designed or contemplated and is not too remote or
accidental in its occurrence to have a [just] bearing on the
actors liability or on the gravity of his offense.
III.
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IV.
When is Causation An Issue?
All causation cases are homicide cases. (felony murder?)
There can be more than one proximate cause of a harm. . .
“defendant takes the victim as he finds him”—Eggshell Plaintiff—
pre-existing weakness
are you comfortable with saying one person caused another
persons conduct?
Acts of third parties
Suicidal Acts of Victims
Other Self Destructive Acts of Victims
Complementary 7 concurrent acts
Cases
People v. Kibbe (NY 1974)
Guy was waving his money around In a bar. he asked for a ride & the
defendants—intending to rob him, agreed. Victim was very
intoxicated. They took his money & threw him out of the car with his
pants down, shoes off, no jacket or glasses—in the snow in a rural
area. He was hit by a truck while he sat in the middle of the road.
defendants were charged & convicted of murder—Ct found their
conduct was the DIRECT CAUSE. (Lee says more like an independent
intervening cause – not a conscious response (dependent) but it was
forseeable.
Rex v. Beech (1912 english case)
victim lived alone in upstairs apartment. she said that if defendant
came in she would jump out window. she did jump—sustained injuries
but did not die. Dependnet intervening cause—conscious response.
But it was so bizarre & unusual that causal chain was broken.
Stephenson v. State (Ind 1932)
Kidnapped victim & took her in a train from Indianopolis to Hammond.
Numerous bites/attempted rape and/or actual rape? (facts not clear)
Medical cause of death—shock, lack of food & rest, poioning, infection
from bite wounds—not one would have been enough to kill her but
they all contributed. Ct had to find that she was rendered mentally
irresponsible for her actions by what she went through—why did they
have to find this in oredr to convict? b/c of the problems of saying one
person is responsible for anothers suicide—if the suicide victim was a
responsible moral agent of their own. Doesn’t it break causal chain?
Tate v. Canonica (Cal App 1960)
wrongful death action in tort--- guy killed himself & his family says it
was because of harrassment etc. Defense said that suicide is always
an independent intervening cause which breaks the caussal chain in
every case. Ct disagrees-- In tort all you have to prove is that conduct
was a “substantial factor” (see above) rather than “forseebale” (which
is required by the criminal law.)
Shirah v. State (Ala. 1989)
They gave him liquid morphine & he guzzled it down. then died in his
sleep. Ct holds that rather than an intervening act this was a
concurrent act. therfore, liability is not cut off.
Commonwealth v. Root (Pa 1961)
found guilty for involuntary manslaughter for the death of his
competitor during an illegal race on highway/ they both agreed to race
& then the victim pulled out into other lane & hit a truck head on (he
was the only fatality). Ct says that in crim law proximate causation is
not enough—you need direct cause. Dissent says no way—this was
forseeable & he is guilty.
State v. Bauer (Minn. 1991)
Suicide pact—he backed out & started to walk away & then she shot
herself. he called a priest & told him about it. He was convicted of
aiding a suicide 7 felony fetal homicide. He said that her decision to kill
herslf was an independent intervening cause which broke the causal
chain. Argument—it was not Justins aid that caused the fetus detah,
her suicide did. But b/c they acted in concert to kill rachelle, they are
both responsible for the homicide of the fetus. Analysis—an
accomplice to the suicide & suicide was the proximate cause of fetus’
death.
PERJURY
1 ) 18 U.S.C. § 1503: Obstruction of Justice
Essential elements are:
1)
2)
3)
corruptly
endeavor to obstruct
a pending judicial proceeding
1) Corruptly—what is definition? Some say “with evil
or wicked purpose”. Most courts say it is the
“specific intent—conscious goal—to obstruct
justice”.
2) Endeavor to something. Something that would
tend to impede administration of justice. Doesn’t
actually have to do so
3) Pending judicial proceeding. Seems easy but it
can depend on when the case starts.
2) 18 U.S.C. § 1622: Subornation of perjury
Essential elements are:
1) defendant has to convince them to do it
2) the perjury must be committed
3) defendant has to know that the proposed statement is
false
Subornation of perjury falls under the umbrella of
obstruction of justice.
Difference: Obst. of Just. requires a pending judicial
proceeding.
Obstruction of Justice is the easier statute—you don’t
have to show that the person suborned actually
committed perjury.
3) 18 U.S.C. § 1621: Perjury
Essential elements:
1) while under penalty of perjury (either having taken an
oath, or made a sworn statement in writing)
2) made a material statement
3) they knew to be false (does not include an honest
mistake)
Why do we look at the materiality of the statement?
What is the moral gravity of perjury
- The lie itself, or
- The harm likely to arise from the lie, or
- a little of both?
What difference does it make?
- You would not have to prove materiality if you didn’t
care about the potential harm, and
- If ALL you cared about was the harm, you would have
to show that harm occurred
- It is a RISK CREATION OFFENSE—behavior creates
a risk of harm
US v. Allen
Facts-- Def. used a false name while filing affidavit seeking
appointment of an atty/ w/o payment.
Issue—whether a statement that does not influence or is not capable
of influencing the outcome is a material statement.
Rule—“the test for materiality is whether the false statement has a
natural tendency to influence or was capable of influencing the
decision required to be made.
US v. Gremillion
Fact—fraudulent sale of securities—he said under oath that he was not
a shareholder & he was
Issue— does the statement have to be material to the decision to be
made or to any proper matter of inquiry
Rule—any proper matter of inquiry
Theory & Stuff
I. Justifications for punishment
Why do you need justification?
In a liberal democracy the government has to have a justification for
any coercive act it takes. The presumption is always against
punishment—govt has to have a good reason.
Importance of understanding why some things are a crime and some
things are not.
Some acts just are criminal and always have been.
Knowing why we criminalize helps us draw the boundaries of those
areas
We need to know what kinds of reasons/justifications for punishment
we consider legitimate reasons—paternalism etc. Often we criminalize
for more than one reason.
Retribution
The primary moral unit is the individual.
If we take an individual’s rights away we have to have a good reason.
The term retribution is used in two different ways to answer two
different questions
1. What JUSTIFIES punishment?
Umbrella term—professes a complete disinterest in whether
it brings about good or bad effects
No consequences are considered—only matters that “justice
is done.
RETROSPECTIVE.
jus talionis- an eye for an eye
unfair advantage theory- life is a competition, by not
following rules a person gets an unfair advantage over
others
social contract theory- person has already agreed to be
punished ahead of time through the social contract
People v. James
People v. McCray (98 Misc. 2d 755 NY Crim Ct 1979)
Facts: Two cases—two defendants. Both first time offenders. Recent
escalated enforcement of Johns has resulted in increase in
enforcement of prostitutes.
Issue: Does specific deterrence work with prostitutes?
Rule: they should get one chance to clean up their act—no punishment
(esp. a fine) for first time offenders.
Unprotected Sex as assault
State v. Stark
Facts: HIV+ and is engaging in unprotected sex
Issue: Is the Washington statute unconstitutionally vague because the
average person would not know that unprotected sex was covered?
Rule: He should have known—not constitutionally vague.
2. What LIMITS punishment?
we never punish people we know to be innocent, no matter
how useful it may be
“Let justice be done though the heavens may fall”—Rodney
King example or if you could save the world by torturing one
innocent baby. . .
Important Corollary—we may only punish in PROPORTION
to the wrongdoing
Kantian notion—a human being is not to be used as a
means to other goals.
Retributive cap on consequentialist reasons for punishment
Flip—if you do something wrong & we don’t punish for it—we
are not treating as a full adult human being.
Utilitarianism/Deterrence
scare people out of doing it
GENERAL deterrence
SPECIFIC deterrence
forward/future looking
assumes that people make a cost-benefit analysis
may be more effective on some types of crimes than other (white collar
crime v. child molesters)
Incapacitation
take wrongdoers out of circulation so they cannot reoffend in general
population
entirely forward looking—ability to predict recidivism
example—3 strikes you’re out rule
Denunciation
Rehabilitation
COMPLICITY (ACCOMPLICE
LIABILITY)
I.
II. Controversial Crimes
Prostitution.
Historically is was criminalized on moral grounds—is that relevant
now?
Things to consider—victimless crime, majority should not impose a
certain kind of morality on the rest, disease control/health, economic
efficiency, tax it?, some exceptions to regulate? does it discriminate on
race/class/gender?
Paternalistic justification? Protect the prostitute.
Can the state be a victim—deleterious effects on society?
Majority Rule
Majority Rule:
A defendant is guilty as an accomplice to the crime if he purposefully
aids or encourages the other person to commit the crime, and the
other person actually commits or attempts to commit the offense.
Liability is derivative—if the principle actor is not guilty, then you are
not guilty either. They are both punished at the same level. Unlike
CL—Obst. of Justice (harboring fugitive) is a different crime.
Rationale: the accomplice is punished for the target offense because
aiding or encouraging a crime is tantamount to adopting the crime as
their own. (morally identifying ones self with the crime)
* Most complicity cases are also conspiracy cases. Usually when
people act in concert it was planned. Exception is “spontaneously
joining in” – New Bedford Rape Case.
have any liability UNTIL the person commits the crime—so if you pull
out first you havn’t yet incurred liability.
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The Extent of participation Necessary: MINOR
II.
Common Law Rule
At common law it was broken down into four categories:
1.
2.
3.
4.
Principle in the first degree= the actor
Principle in the second degree= aider & abetter. An accomplice
who is present at the scene (or constructively persent. ) ???
accessory before the fact = an aider & abetter not present at the
scene (went to scene ahead of time & set something up)
accessory after the fact = harboring a fugitive or obstruction of
justice to prevent apprehension
#3 & #4 could not be convicted until principle was—if principle dies,
they got of scot free
III.
MPC
Must give “actual aid”
IV.
Mens Rea
Majority Rule:
1) Actor must purposefully aid the principle.
2) Must have whatever other culpability is required for the target
offense.
* It is possible to be guilty as an accomplice to a crime requiring
recklessness, negligence or strict liability because he PURPOSELY
AIDS the UNDERYING CONDUCT.
VI.
SPLIT OF AUTHORITY: The motivation for withdrawal.
1. some states it has to be moral realization that crime is
wrong—no defense if withdrawal is b/c of fear of
apprehension
2. other states consider the motivation irrelevant
Cases
United States v. Buttorff (8th Cir 1978)
Guy gave a speech—15 members of audience were convicted of filing
fraudulent W4 forms. he was charged with fraudulent filing on an
accomplice theory.. They argued 1st amendment—ct held that this was
more than advocacy it was incitement to immediate action that was
likely to result in filing of fraudulent forms—not protected speech.
Wilcox v. Jeffery (1951 English case)
Hawkins was a jazz musician who, in violation of the Aliens Order of
1920, gave a concert. Wilcox attended the concert. He was charged
with violation of the aliens order on an accomplice theory. Mens rea
problem—did he purposefully aid in the performance?
State v. Gladstone (Wash 1970)
Gladstone convicted of selling marijuana as Kent’s accomplice. did he
really have the purpose of aiding kent? (no prior relationship) Could be
just good will toward a fellow pot smoker and/or customer service. he
had knowledge but not purpose—not good enough. He has to have
purpose.
Commonwealth v. Huber (PA 1958)
What if you give aid & they take enough steps to be guilty of attempt &
then you withdraw aid. Can you be guilty of attempt as an accomplice.
gave them his rifle—did not have a successful withdrawal b/c he didnt
get the rifle back before the commission of the crime. He merely went
to the police after he had reason to believe that the crime had
occurred.
United States v. Poindexter (1991 DC Cir)
Example: A robs a bank & B is the getaway driver. A accidentally kills
someone. A is guilty of felony murder. B is guilty as an accomplice to
felony murder. (A has to a have purpose with respect to robbery, but A
does not have to have any culpability w/ respect to the felony murder
which is strict liability)
Minority Rule:
Any intentional aid—purpose or knowledge sufficient.
CONSPIRACY
I.
Criminal Facilitation:
some states (new york) punish a separate less erious crime of criminal
facilitation.
V.
Defenses
WITHDRAWAL
Majority Rule: One who has purposefully aided may avid accomplice
liability by withdrawing the aid or by notifying the police in a timely
manner, It is not necessary that they actually stop commission of the
crime.
aid is physical—have to take it back
aid is encouragement—have to tell them that you have changed your
mind
Must be successful (you have to actually get the rifle back!)
Majority Rule:
1. Agreement to commit a crime. (the majority rule says criminal not
just unlawful, although the CL and certain minority rules—federal
statutes—say that an unlawful act is enough)
2. At least one overt act in furtherance of the crime. (this does not
have to be manifestly criminal—just a physical act taken in
furtherance) It is IMPUTED to ALL MEMBERS of the conspiracy.
Looking up phone number, filling up gas tank are enough.
3. Purpose to promote the target offense. This is an
oversimplification because there are actually three potentially
different kinds of culpability—with respect to the agreement, the
target offense, and other intent (specific intent).
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** Different from renunciation of attempt. With renunciation you are
erasing liability that has already incurred. With withdrawal you don’t
Majority Rule (Substantive)
AGREEMENT: It is easier to prove a criminal conspiracy than a
civil contract. Does not have to be overt. as little as a nod, a wink,
a knowing look, the main thing is the CHEOREOGRAPHED
quality of the actors behavior.
if it LOOKS cheoreographed the jury is entitled to find agreement
indirectly—circumstantial
UNDER COMMON LAW—you had to have two people to have a
conspiracy—no husband-wife b/c they are really one person.
UNDER MAJORITY RULE & MPC: You can have a “Unilateral
conspiracy” if one person thinks they are part of a conspiracy.
(undercover cop etc.)
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II.
Whartons Rule (majority Rule): There are some criminal acts that
necessarily require at least two people. (Dueling, prostitution,
gambling) = No conspiracy
MPC—says they are??? Not sure ask Lee.
2.
3.
4.
5.
3.
Also Under COMMON LAW conspiracy merged into the target
crime. Today the MAJORITY RULE is that it is a separate &
distinct crime. WHY? Because there are special dangers to
society when people get together for a criminal purpose. “Group
Danger” rationale.
Procedural Advantages
The prosecutors allegation of conspiracy endows the prosecution with
certain procedural advantages:
1.
2)
An exception to the hearsay rule. It is not admissable in a
proceeding. There are 29 exceptions b7 this is one of them.
Incriminating statements by co-conspirators are admissable—as
your agent it is just like a self-incriminating statement.
Venue. All co-conspirators can be tried together. In any place
where any act in furtherance of the conspiracy occurred.
Nationwide conspiracy= inconvenient for defendants & you can
choose the forum most likely to convict.
Joint Trial of defendants. Ring leader & low level operatives all
tried together. Try the sympathetic people with the unsympthetic
people & you can get them all.
Pinkerton Doctrine. This is a MINORITY rule—but the fed. govt.
uses it & most big conspiracies are federal cases. Says that coconspirators are liable for all forseeable crimes in furtherance of
conspiracy.
Statute of Limitations. Doesn’t begin to run until conspiracy ends.
When does conspiracy end? Probably when there is tacit
agreement not to do it anymore.
where the target offense is aggravated. (does this mean
a felony?)
Attendant Circumstance/Result Element cases: Two problem
areas: HOMICIDE & STRICT LIABILITY OFFENSES.
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Homicide
No jx. that Lee knows of allows conspiracy for anything but
intent to kill murder. there is no logical reason for this, but
judges don’t like it or it doesn’t get prosecuted.
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Strict Liability Offenses
statutory rape outside of california, robbing a federally
insured bank, assaulting a federal officer. If you don’t need
any mental culpability to commit the traget offense, you don’t
need any
Corrupt Motive Requirement
Minority Rule. an exception to the general rule that ‘ignorance of the
law is no excuse”. When it is a malum prohibitum offense (vs. mala in
se) a conviction for conspiracy to commit will require proof that the
defendant KNEW of the malum prohibitum law.
V.
Pinkerton Doctrine
Learned Hand: “The darling of the modern prosecutor’s nursery”
Minority Rule. But it is followed by the federal governement.
III.
MPC
Unilateral conspiracy allowed
IV.
Mens Rea
As stated above there are THREE POTENTIAL Mental Culpability
questions:
1. what level of mental culpability required with respect to the
agreement?
2. what level of mental culpability required with respect to promoting
the target offense?
3. what level of mental culpability required with respect to attendant
circumstances or result element of the target offense?
1.
2.
Walter & Daniel agreed to sell whiskey 7 not pay taxes on it—
conspiracy to defraud the IRS.
Daniel was in jail but was convicted of substantive offenses anyway,
even though there was no evidence that dabiel actually comitted them.
Supreme Ct. affirmed that he could be convicted of all crimes in
furtherance of the conspiracy.
Agency relationship--- Walter acted as Daniel’s agent. Same as how
the one overt act is imputed to all conspirators. Why/ Agency Law.
RULE: Every co-conspirator is derivatively liable for all forseeable
crimes of every other co-sonspirator in furtherance of the
agreement.
This is especially useful in more complicated conspiracies: chain
conspiracy or wheel conspiracy.
Chain—Typical in contraband—drugs, weapons. Not all the links talk to
each other. For complicity there has to be actual communication.
Conspiracy steps in when they don’t actually talk to each other.
Wheel—typical of criminal syndiactes. Hubs & spokes—they all
communicate w/ the hub but not necessarily with each other.
Must be 1) forseeable and 2) in furtherance
VI.
Agreement requires PURPOSE. Each member of the conspiracy
must have the conscious object or desire to reach an agreement.
if you know or thought someone was joking- no conspiracy.
Promoting the target offense : debate between PURPOSE &
KNOWLEDGE. The underlying course of conduct—this is the
same debate as with accomplice—should knowing just be
criminal facilitation? Split of authority—Majority Rule is probably
PURPOSE. people v lauria represents the california hybrid
approach. But some jx.’s say mere knowledge is enough.
Lauria Rule (not a maj rule b/c there is no clear maj.)
Lauria says that purpose will be implied:
1) where the defendant has a stake in the venture
(financial or other) or
Defenses
Withdrawal
Majority Rule
A withdrawal:
1) cuts off Pinkerton liability
2) starts the statute of limitations running
3) no hearsay statements allowed after withderawal.
4) it destroys the agency Relationship—anything that could be
predicated on that realtionship is cut off.
Rule: It has to be successfully communicated to all of the other coconspirators. *this can be a problem if you are in prison, or the
conspiracy is so large that you don’t know who the other people are or
how to contact them.
Minority Rule
This is the federal govt’s rule: All you have to do is act in a amnner
whicjh is inconsistent with the agreement (like informing the authorites)
Renunciation (half the states recognize & use the MPC
version)
Under CL a conspiracy could not be renounced. they could withdrawal
& cut off Pinkerton liability—but could not erase liability already
incurred.
some states—a substantil attempt to thwart.
some states—actually has to thwart. Does not have to be the sole
casue of its being thwarted (Sisselman) just has to eb a substantial
effort
It is a complete Defense if the Statute of Limitations has run
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Difference between withdrawal & renunciation:
withdrawal cuts off further liability, starts the S/L, and
cuts off hearsay liability, but you are still guilty of
conspiracy. Renunciation is a complete defense for
everything!
Justification Defenses
I.
VII.
Cases
United States v. Conover (11th Cir. 1985)
the purchasing agent for a company that as spending government
money. Conover buys limerock from Tanner without reviewing any
other options. turns out C & T are buddies & this attracts the attention
of the govt. Conspiracy to defraud the US govt. Coolusive & dishonest
business practice—the fed. statute does not require a crime & so this
is good enough to make the conspiracy criminal. What you could do
alone is not a crime but if you join with others it is a crime.
People v. Lauria (Cal App 1967)
Charged with conspiracy to commit prostitution. Note that Wartons rule
does not apply to him b/c he is a third party. he argued that he did not
have purpose, only knowledge. The ct came up with the Lauria Rule
(not a maj rule b/c there is no clear maj.)
Lauria says that purpose will be implied:
3) where the defendant has a stake in the venture (financial or other)
or
4) where the target offense is aggravated. (does this mean a
felony?)
Pinkerton v. United States (Supreme Ct. 1946)
see above
People v. Sisselman (NY 1989)
Paid patterson to beat Marrero with a baseball bat. Patterson was a
police agent so assault never happened. He was charged with
solicitation to assault and conspiracy to assault. Unilateral
conspiracy—state followed the MPC. He argued that he renounced &
that renunciation is 10 a voluntray & complete renunciuation and 2) a
substantial & succesful step to thwart the target offense. Prosecution
said “succesful” mean sthat the effort had to be the sole factor. BUT he
never intended to do it in the first place! they tell the jury to pretend that
patterson intended to do it—if so, would the renunciation been the sole
reason he didn’t. asks the jury to engage in rank speculation but it I the
only way to be consistent w/ renunciation defense. One solution isto
get rid of the “sole factor” requirement—but a legislature has to do
that.
Self Defense
*it is not wrong to meet force with defensive force if there is no other
choice. Is it more like an excuse defense? An excuse for human
nature—it our instinct to defend self.
Majority Rule:
A person is justified in using deadly force against an aggressor if
he/she reasonably believes that such force is necessary to fend off
imminent unlawful and deadly force by the aggressor. the rule has two
elements:
1. proprortionality- force must be proportional to the threat
2. necessity—always has to be a last resort
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no pre-emptive strike allowed—it must b IMMINENT
if it is at some indeterminate time in the future then you have to
seek a safe haven w/ police.
Based on reasonmable percetions—if the gun was a toy but it
looked real & you reasonably perceived it was real—you get the
defense
If it an honest but unreasonable mistake—NO DEFENSE under
the Majority Rule. under the MPC if you have an honest belief that
was negligently formed (unreasonable) you can only eb liable for
negligent homicide
Minority Rule
california.
Imperfect self defense
An honest but unreasonable belief as to proportionality or necessity—
you get voluntary manslaughter instead of murder.
Battered Woman Syndrome Theory

Imminence vs. Inevitability?

Is imminence a requirement in./of self or does it speak to
necessity?

Look at it as one continuing assualt—then it is imminent

real test is the reasonble perception of imminence —this is where
BWS theory comes in. Use it as a way to bolster self defese (it is
nor a defense on its own.
Dr. Lenore Walker
Two aspects:
(1) The cycle theory (less controversial)
(2)
Learned helplessness (controversial)
Cycle Theory:
(1) Stage 1 is the Tension Building Phase. Minor physical
attacks & verbal abuse.
(2) Satge 2 is the Acute Battering Phase. Severe attacks,
explosion. During this phase the attack is long lasting &
continuous—pauses only for sleeping etc.
(3) Stage 3 is the Loving Contrition Phase.
Romance/flowers/apologies/promises.
Even in a jx that requires retreat—or ina situation where you are the
original aggressor—you never have to retreat if you are in your own
home. Majority Rule: limited to home & it doesn’t matter if it is a cotenant. MPC—applies also to place of work & does not apply to a cotenent. How does this square with BWS cases (they are in their
home)—b/c those cases have a problem of IMMINENCE—not of
retreat. Also—the home is man’s castle, not woman’s.
Learned Helplessness
If she is abused enough, she will learn that she is helpless.
laboratory dogs—electric shocks—would not escape their cages
when opened.
Very controversial on both sides. Feminists think it is degrading.
The other side argues ‘if they are so helpless why do they kill?”
II.
Defense of Others
Majority Rule: You are permitted to use whatever defensive force the
victim would have been able to use.
Two possible approaches:
How does this correspond to the Afiirmative Defense of self-defense?
Two doctrinal elements:
1) imminence
2) proprtionality
Alter Ego Approach: Half the states follow this. You inherit only
whatever rights the victim has. If you screw up (say attacker was a
cop) then too bad—no defense.
Reasonable Perception Approach: the other half follow this approach.
If you reasonably belive that x had a right to self defense—you get the
defense.
The cycle theory shows that it is one prolonged attack. A reasonable
battered spouse will see Phase 2 as one continueing attack—goes to
the imminence.
the cycle theory shows that abuse goes up on a predictable escalating
curve. So the battered woman can reasonable believe that the next
attack will be worse/ deadly. *A deadly force attack does not have to
culminate in death. . .
the learned helplessness theory answers the 1st question the jury
ass—why didn’t she leave/get help/etc? Jurors tend to think she is
lying on the stand—if it was that bad why didn’t she leave? It is the
only thing that gives a jury a plasuible explanation for why she didn’t
leave.
BURDEN OF PROOF
Majority Rule—prosecutor has to prove beyond a reasonable doubt
that they did NOT act in self defense.
It is constitutional (Ohio) to place the burden of proof on the
defendant—but most states have not done this.

RETREAT REQUIREMENT
Majority Rule is that there is no generalized retreat requirement.
Minority Rule is that if there is a place for you to retreat to in complete
safety then you must retreat—NO SELF DEFENSE if you do not. In
states that do have it it applies only to deadly defensive force—you are
always allowed to defend self with fists

ORIGINAL AGGRESSOR RULE:
Majority rule: the original aggressor does not have a right to self
defense, but you can regain your privelege of self defense:
1) if original aggression was non-deadly & response is deadly, then
the original aggressor may use self defense but only if he cannot
retreat
2) if original aggression was deadly the aggressor can only use
deadly force in self defense if he avails self of RETREAT and also
WITHDRAWS from the confrontation first. he must effectively
communicate that he is no longer a threat—
throwing down gun etc.

CASTLE EXCEPTION
III.
Defense of Home & Property
Four Majority Rules:
(1) A person may not use deadly force to protect personal property
(only real property)
(2) A person may use non-deadly force if they reasonably believe it
was necessary to prevent an imminent threat to property
(3) One may use deadly force to prevent an unlawful entry into ones
dwelling if he reasonably believes that the intruder intends to
commit a forcible felony.
(4) One may use a spring gun to protect ones own dwelling if he
would have been justified in using the deadly force if he had been
present when the intrusion was attempted . If you use a spring
gun you are taking your chances!
** In a majority of states Burglary is a forcible felony. What that means
is that you can kill an intruder even if you think they are unarmed &
intending to steal your VCR—TO PREVENT THEM FROM
ENTERING. The privelege is to prevent entry, once they are in, you
cannot kill them.
MINORITY RULE: You can kill them to prevent the underlying crime.
So even if they are already in, yu could kill them to keep them from
stealing the VCR.
IV.
Necessity
A classic justification defense. the “lesser evils” defense.
Majority Rule:
An actor has a defensive necessity if he reasonably believes that
commiting a crime is necessary to prevent an imminent harm and the
harm prevented is greater than the harm caused, and the actor is not
responsible for creating the emergency.
The weighing of harm is by SOCIETY. The individual actors perception
of harm is irrelevant.
Exceptions:
(1) Necesity is never a defense to homicide. (MAJ RULE)
(2) Necesity is never a defense to theft when the theft was for
poverty. Society deems it better for poor people to starve than to
steal.
MODEL PENAL CODE: (Modern trend is to liberalize)
(1) Requires only an honest (not reasonable) belief in necesity
(2) harm does not have to be imminent
(3) Does not categorically deny defense when the defendant is
responsible for creating the emergency
(4) Does not rule out the defense in homicide prosecutions.
State v. Reese (Iowa 1978)
Escaped prison. wanted defesne of necessity under intolerable prison
conditions. Adopts Lovercamp but says he did not immediately report
self & therefore doesn’t get defense.
People v. Lovercamp (California 1974) (50% 0f jx’s FOLlow)
A 5 part test. If any one of the five is missing—no defense.
1) prisoner is faced with specific threat of death, forcible sexual
attack or substantial bodily injury in the immediate future
2) There is no tiem for a complaint to the authorities or there exists a
history of futile complaints which make any result from such
complaints illusory
3) No tiem or oppty to resort to the courts
4) No evidence of force or violence used towrds prison personnel or
innocent persons in the escape
5) prisoner immediately reports to the proper authorites when he has
attained a position of safety from the immediate threat
ILLINOIS APPROACH: (other 50% of jurisdictions) Looks at
same five elements but considers none of them a
requirement—only guides.
** WEIGH THE HARMS. WHICH IS WORSE?
V.
Cases
People v. Goetz (NY 1986)
State v. Norman (NC 1989)
gigarettes, glass on face, made her sleep on floor like a dog, thretened
to kill her, hot coffee etc. Each time she tried to lave he tracked her
down & brought her back. Forced her into prostitution. At one point she
called police & they told her there was nothing they could do—she tried
to kill herslef & was saved. Talked to therapist about her hsuband. She
took her grandaughter next door so baby woulndt wake him & also
tried to get some aspirin from her mothers purse. She found her moms
gun there & took it hoke—shot him three times in the head while he
was sleeping (after stopping to fix the jammed gun.) She got
VOLUNTARY MANSLAUGHTER. Tried to get self defense—was it
imminent.
People v. Tomlins (NY 1914)
Man killed his son in self defense. there is no retreat requirement in
your own home. The Castle Exception
People v. Aris
Trial court excluded BWS Theory testimony & held that as a matter of
law (could not go to jury) she was unreasonable in her perception of
imminence b/c he was sleeping. Later lenore Walker was allowed to
testify about the theaory—but could not etstify that Brebda Aris was a
bettered woman, or that this heightened fear of imminece (was not
allowed to tie theory to facts) But forimperfect self defense all she
needs is honest belife (not reasonable) At CL this testimony about the
relationship was not allowed—only evidence of the immediate contxt.
All the jury would know is that she was marrried to him & he was
sleeping when she shot him.
** New development is that prosecutors are using BWS theory in cases
against the bettere—what if the star witness wont etstify b/c she is
scared etc. they can show why she wont testify wiyth BWS theory.
Norman got vol. manslaughet. Aris got 2d degree murder—wjat was
the differnec? that Norman was dragged back while Aris was talked
into it?
Ct says that law of self defense does not provide her with an
alternative to her problems!
maybe ct I just trying to get nbetter services for battered women?? Doe
sthis violate the Kantian notion that you cannot use people to enact
other goals?
Bishop v. State (GA 1987)
You cannot use a spring gun in georgia.
The Queen v. Dudley & Stephens (1884)
** Governer question
Other states have freed women who killed their abusers: Maryland,
Ohio, washington.
the law on self defsne assumes two adult men in a combat situation.
Until the 70s it was okay for men to beat their wives—women were
property.
extenuating circumstnaces
expression of remorse
rehabilitation
EXCUSE Defenses
I.
DURESS
Majority Rule:
1) reasonably apprehends
2) a human threat
3) of imminent
4) death or serious bodily injury
5) to themselves or a member of immediate family
6) no reasonable means of escape
7) not at fault for being in situation
Classic paradigm: “gun to the head & tells you to do it” We don’t think
the conduct is desirable—but we find it hard to blame the person.
NEVER a defense to a homicide prosecution.
This paradigm assumes a one-on-one situation—no superstructure of
a gang or organization.

acontextual- “out of the blue”

one time occurrence

not predictable
What happens if you move away (step by step) from the paradigmatic
example?
State v. Scott (Kansas 1992)
Kansas said:
1) no proof of imminent threat by Woods
2) No proof that it was continual (could have left)
3) No evidence that he had reasonable apprehension of death or
bodily injury
4) reasonable oppty to escape (own car & own home)
Is imminence implicit in an organized heirarchical structure?
What about the element of his not being at fault for being in situation—
we don’t know the circumstnaces of his joining the gang.
Policy argument—we don’t want the leader to be the only culpable
one!
United States v. Contento Pachon (9th Circuit 1984)
9th Circuit reversed a conviction & told the jury to consider a duress
defense. Is it distinguishable from Scott case?






not vague threats of potential future harm but a specific
threat to wife & kids
moral difference? victimless crime vs. assault
Scott maybe could have gone to police or at least didn’t
give a reason why he didn’t—if Contento went to police it
would have made the situation worse
Not at fault for getting himself into the situation—just in
the course of taxi driving—more random
Involvement of family in the threats? makes it more
imminent??
more continual—someone on the plane was watching
him.
State v Barnes (p 819)
Should BWS theory be allowed in duress defenses? Battered woman
(he had shot & stabbed her etc.) forged checks b/c he threatened to kill
her. Ct. held no duress defense b/c there was no imminence (he was
in the car).
Patty Hearst
brainwashing? I s BWS a slippery slope—brainwashing, rotton social
background defense, post traumatic stress diorder.
Majority Rule for the Insanity Defense (#1 above)
M’nachten test.
1. mental defect must result from a disease (cannot just be
emotionally overwrought) What does disease mean? –either
“organic brain damage” or “any abnormal condition of the mind
that affects mental & emotional processes” (DC CIRCUIT)
2. mental impairment must be total. Did not know what he was doing
or did not know right from wrong. This test addresses only
COGNITIVE CAPACITY, and NOT Volitional Capacity.
II.
ENTRAPMENT
Sting operations.
Worst case is that you pick someone with no predisposition to commit
the crime & convince them to do it! (manufacturing crime)
Best case is that an average looking undercover cop waits around to
be propositioned (by prostitute, drug dealer etc.)
MAJORITY RULE: Subjective Test. (Shearman-Sorrels Approach
/Federal Approach) Was the defendant predisposed to commit the type
of offense charged? (predisposed= ready & willing to commit the crime
as soon as the oppty arose)
factors court will look at:
(1) character/reputation
(2) who initaited the sugestion of criminal activity
(3) profit
(4) evidence of reluctance
(5) nature of inducement by govt.
*many allow jury to look at past convictions also
MINORITY RULE: Objective Test. (model penal Code & California)
Regarrdless of predisposition of defendant, whether the govt. acted in
a way likely the intigate a crime. Asks was the offense induced by
methods that had a substantial risk of making those who are not likley
to commit a crime commit it? “reasonable person”
Usually the results are the same but sometimes not (US v. Russell)
United States v. Russell (Sup. Ct 1973)
Govt supplied him with propanone—hard to get! Trial Ct—subjective
test. Asks supreme ct to change to objective test. Dissent agrees but
majority said that subjective test stays. he loses anyway – ct finds he
probably could/would have gotten propanone from another source.
Jacobsen v. United States (Supreme Ct. 1992)
rule: predisposition is measured at the time of first givt. contact not
when the inducement occurs. (Found that at the time he dod it he was
predisposed, but was not before the givt convinced him”
** IN ANY CASE where there is buttering up to gain confidence—
Jacobsen is an issue.
III.
INSANITY
Mental health is relevant to the criminal process at three times:
1) the moment at which they commit the crime. If legally insane=
complete defense
2) When the defendant is about to stand trial. If not competant to
stand trial= no trial & he sits in a mental institution until he is
competant.
3) Moment of execution. They cannot be executed if they are insane.
Majority Rule (for #2):
Defendant may not b tried or sentenced at a time that he 1) lacks
capacity to understand proceedings or 2) lacks capacity to assist in his
own defense.
Rule (Supreme Ct) for #3:
It is cruel & unusual to execute an insane person. they did not define
insanity for this purpose. ?? Powell (swing vote) said that the person
has to understand the nature of the death penalty & why it is imposed.
Cognitive--- the way the defendant sees the world
Volitional—ability to control oneself. Ability to act/not act on feelings.
** This test does not care if they cannot control themselves—no
defense.
Minority Rule: Irresistable Impulse Test.
very few jx use this. It just slaps another clause at the end of the
M’Nachten test. . .
OR. . . defendant acted from an irresistable & uncontrollable impuse.
(just prove that they lacked volitional capacity.)
Minority Rule: Model Penal Code § 4.01
This was well on its way to being the Maj. rule until 1984 when
Hinckley shot Reagan.
1) does not require total impairment. If you lack substantial capacity
to know what you are doing or know that it is wrong—that is
enough.
2) cognitive portion is reduced to “appreciate wrongfulness of
conduct”
3) cognitive portion substitutes “appreciates” for “knows” drafters
belived there was big differnece from knowing it & emotionally
appreciating it. (example—ask a 5 year old: Is it bad to take
drugs” They know the answer is “yes” but do not appreciate why)
Minority Rule: Durham Product Test
This is similar to what the M;nachten ct really used (as opposed to
what they gave the queen)
This is no longer the law anywhere except the state of New
Hampshire.
Test: was the defendants unlawful conduct the product of a disease or
defect? A casuation test. How do you prove this? = expert testimony.
The problem is that experts were given total control over a LEGAL
question.
IV.