Theories of Punishment i. ii. 1. 2. 3. 4. 5. 1. 11/26/2008 12:30:00 PM Types of Punishment Fine Probation Imprisonment Death Penalty Social Stigma Purposes of Punishment RETRIBUTION o a. Individuals are responsible moral agents capable of making choices between wrong and right (wrong = violate societal norms) i. Vengeance ii. Pay back debt to society iii. Send a message about societal norms b. Looks backwards. Based on belief that humans have free will to make wrong and right choices. o c. Criticisms i. No evidence that retribution serves society ii. Does not really make victim whole, never bring back someone who’s dead o d. Regina v. Dudley & Stephens (Q.B., 1884, P 73) – Two men (D &S) killed and ate a fellow sailor when they had been out to sea for 21 days. In evaluating the purposes of punishment, the court cited retribution as the reason to punish these men. “It is therefore our duty to declare… this case was willful murder.” Deterrence had been rejected because of the uniqueness of the circumstances, figuring that neither these defendants nor many others would ever be in this position again. Rehabilitation and incapacitation were rejected because it was thought that this situation would not arise again and there was almost no possibility that they would offend again. Ultimately the court wanted to send a message that it was not ok to eat your fellow sailors no matter the circumstances, but the message was softened when the death sentence was commuted to 6 months in prison. 2. DETERRENCE o a. Utilitarian theory in which punishment is used to deter future crimes. Based upon a rational actor who weighs the benefits and risks of committing an act, based upon Bentham’s Principles of Penal Law, en economic based perspective. i. General Deterrence: punishment is meant to be an example for others considering crime, deterrence for society ii. Specific Deterrence: dissuade individual offender from committing crime again. b. Criticisms of Deterrence: i. Crimes are not based on rational thought, often crimes of passion. ii. Making an example of one person for the good of society is not really fair. iii. Most people refrain from committing crimes based upon internal morals, no empirical data that deterrence works. o c. Looks forward: discourage future crimes. Based on belief that humans will act in their own interest. o d. United States V Bergman (NY, 1976, Handout) – a Rabbi was convicted of Medicaid fraud. He had embezzled a lot of money from the government, but was only sentenced to 4 months in prison. In an unusual move, the trial court issued an opinion explaining why they had only given 4 months in prison, in which they evaluated the purposes of punishment. i. Rehabilitation: imprisonment should never be given when only the goal of rehabilitation is being served. ii. Incapacitation: given defendant’s age and stature, it is unlikely that he will commit any future offenses and therefore it would not be justifiable to imprison him to meet incapacitation goals. iii. Specific deterrence: again, it is unlikely that this individual will be committing these crimes again. iv. General Deterrence: this goal is met because whitecollar crimes such as fraud are the crimes where the actors are the most rational and can weigh the risks and benefits of imprisonment. v. Retribution: served in order to send message to society that these crimes were serious and would not go unpunished. 3. REHABILITATION o a. Humanitarian effort to cure the criminal. o b. Criticisms: i. For “our” benefit and not the criminals ii. Assumes people are capable of changing iii. In practice rehabilitation is last priority in prisons and jails. 4. INCAPACITATION o a. Deny or reduce the opportunity to commit future offenses or cause future harm to society. o b. Criticisms: i. Assumes we have enough resources to build enough prisons. ii. Ineffective in reducing recidivism: often exposes offenders to more crime. iii. Assumes offenders are not committing crimes in jails iv. In practice: more than 50% of people are incarcerated for drug offenses. b. Theories of Crime: What to punish? o i. Criminal laws are intended to reflect societies morals. 1. Criticisms: morals change faster than court can keep up, how does court know what are majority morals most morals are based upon a Judeo-Christian outlook, overcriminalization occurs. 2. Overcriminalization of moral conduct– a. Discriminatory enforcement b. Engender disrespect of laws c. Diverted resources (are we using them in right way?) d. Stigmatize criminals 3. Lawrence v. Texas (US, 2003, p 121)- overturned 1986 ruling in bowers v. Hardwick that made sodomy in the home a crime. Bowers had been based upon the presence of laws that were not enforced and JudeoChristian morals. In the 2003 case, the court’s analysis stated that the morals had already changed by 1986 and the court had gotten it wrong and private. Homosexual acts between consenting adults were not a crime. (Interracial couple – may have been reason why this was prosecuted when the law had gone unenforced for years). c. Legality o i. Nulla poena sine lege: no punishment without law o ii. Rationale: 1. Give notice of what is a crime/ punishable. 2. Control discretion of authority figures (police) 3. Prevent retroactivity and vagueness in crimes (restricts punishment of something that wasn’t a crime when it was committed and requires laws to be reasonably clear) 4. Prevent courts from making new laws – leave that to legislature o iii. Commonwealth v. Mochan (PA, 1955, P 134) - Man was indicted for a misdemeanor of making lewd and lascivious calls to a woman. This crime was not specified in any statute or precedential case. The court justified the conviction by citing Commonwealth v. Miller that stated, “Whatever openly outrages decency and is injurious to public morals is a misdemeanor at common law.” Because the call could be heard by an operator/ 4th party and was heard by members of the victim’s household it was deemed injurious to the public morals. The dissent cited that it was not the court’s place to fabricate this crime and that if the legislature wanted these acts to be criminalized; they should and could write a statute. d. Criminal Justice System o i. General View: 1. Primary mechanism for enforcing conduct standards upon society 2. Decent realized: many agencies and districts and methods 3. US system a. High volume of cases (Judges: 21 states elect judges, 29 states judges are appointed, 3766 criminal case dispositions per judge.) b. Chronic shortages of personnel and resources c. Uncontrolled discretion (Police – often individual officer is picking which crimes to arrest; Prosecutors: great pwr in whether to pursue or drop charges, often elected) Elements of a Crime: Actus Reus 11/26/2008 12:30:00 PM i. All crimes require that the defendant committed a voluntary act. The scope of involuntary acts is narrow b/c other defense will be available at other times. ii. Act vs. Thoughts: an actual act is required, bad thoughts are not a crime. 1. Everyone has bad thoughts. 2. Problem of proof iii. Positive Acts 1. Voluntariness: brain is engaged. o a. MPC 201.1: 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. Defenses: o a. Automaton: brain is not engaged. Ex: People v. Newton – defendant was “blacked out” when he shot officer. o b. Movement by another. Ex: Grand Canyon hypo; Martin v. State – defendant was taken from home involuntarily. 3. Rationale: if the act isn’t voluntary then there is no purpose for punishment because there was nothing that was done wrong, there was no choice to commit crime. o a. MPC 201.2 The following are not voluntary acts within the meaning of this Section: (can be defenses, but doesn’t mean that jury will believe them) (exclusionary definition = everything else is voluntary) i. A reflex or convulsion (Newton: (D) shot police officer while unconscious, reflexive action) ii. A bodily movement during unconsciousness or sleep (Cogden: woman killed her daughter while sleeping – prior history of sleepwalking, no apparent motive) iii. A conduct during hypnosis or resulting from hypnotic suggestion (most jurisdictions don’t allow hypnosis b/c it makes it too easy to commit a premeditated act “under” hypnosis) iv. A bodily movement that otherwise is not a product of the effort or determination of the actor, either, conscious or habitual. (Martin: (d) physically carried out of home while drunk and placed in a public place) (hypo: grand canyon example) 4. Special applications: o a. Habit: considered voluntary act because it’s determined effort of actor o b. Possession: (D) must know that he possessed the item 5. Extending actus Reus o a. Epilepsy: when the (D) knows he has this condition and voluntarily commits and act that leads to a punishable crime, he is still culpable (Decina: man knew that he had epilepsy and was subject to seizures, he chose to drive his Buick on highway and killed 4 people when he had a seizure while driving, court stated that his prior knowledge and knowledge of what could happen made him criminally negligent and culpable because actus reus began when he voluntarily chose to drive) (not a risk society is willing to tolerate) (stretched AR timeline to INCLUDE a voluntary act) iv. Omissions 1. General rule: no duty to respond to help needed unless specific duty o a. Based upon Anglo-American law i. American ideals of freedom and privacy. ii. Fear of diverting attention from true perpetrator iii. Good Samaritans may face harm 2. Examples: o a. Kitty Genovese Case: woman was stabbed on her front steps. Attacker left twice and came back twice in order to finish the killing. Spectator’s failure to assist was not a crime. o b. New Bedford Rape Case: 1983, several different men in the middle of a bar raped a woman. No one came to her assistance until she left the bar. None of the “watchers” were indicted because there was no requirement to help. (Later CN passed a law that made it a misdemeanor to fail to report a crime). 3. Criticisms: no moral difference between failing to help and committing crime when there is no peril to self when helping. 4. Duty to Act – certain relationships or statutes make it someone’s duty to act. (People v. Beardsley, 1907: law recognizes that under some circumstances the omission of a duty owed by one individual to another, where such omission results in the death of the one to whom duty is owing, will make the other chargeable with manslaughter… This rule of law is always based upon the proposition that the duty neglected must be a legal duty and not a mere moral obligation. It must be a duty imposed by law or contract, and the omission to perform the duty must be the immediate and direct cause of death. When legal duty applies: o a. Statute imposes a duty to care for another (not always criminal) o b. One stands in certain status of relationship to another (pg 193 footnote: husband-wife; parent-child; master to apprentice; ships master to crew; innkeeper to inebriated customers) (Pope v State: woman did not have status because the mother was still present and we cannot usurp parental rights) o c. One has assumed contractual duty to care for another (lifeguard, coach, teacher) o d. One has voluntarily assumed the care of another and so secluded the helpless person as to prevent others from rendering aid. (Commonwealth v. Pestinikas: agreed to feed elderly man that had not other way of getting food) o e. Put someone in peril (Jones v. State, 1942: man created a duty to care when he raped a girl and she jumped into a river to kill herself.) o f. Duty when you can help without putting yourself in danger. 5. Active v. Passive Euthanasia: o a. When a physician stops medical treatment it can be seen as an omission of a duty to care for a patient under his treatment. Without a duty to continue care the omission is not considered culpable conduct. Barber v. Superior Court, 1983, p208: a physician has not duty to continue treatment once it has been proven ineffective, this is different from administering a fatal drug to end life. 6. Misprison of Felony o a. Common law – one who fails to report a crime could be guilty of “misprison of a felon.” o b. Pope v. State (MD, 1979, P 194): could not be convicted under common law misprison because the law is too broad and been too long out of use. If the legislature wants a misprison crime, they need to write a statute. o c. Current misprison = concealment of felon. Elements of Crime: MENS REA 11/26/2008 12:30:00 PM i. The kind of awareness or intention that must accompany the prohibited act, under the terms of the statue defining the offense. ii. Common Law Language: 1. Malicious: default level of reckless despite language of wickedness. o a. Regina v. Cunningham (QB 1957, 214): A man was indicted for maliciously poisoning his next-door neighbor when he tore off the gas meter and gas leaked into her house. Court defined malice as 1) an actual intention to do the particular kind of harm that in fact was done or 2) recklessness as to whether such harm should occur or not. It is not limited to nor does it require an ill will towards the injured party. o b. Regina v. Faulkner (QB, 1877, P 216): a sailor went to steal rum below deck on a ship. He lit a match to light his way and caused a fire on the ship. He was convicted under the “Malicious Injuries to Property Act,” but the court reversed, stating that it must be proven that he could foresee the risk and chose to act despite it (recklessness). 2. Negligence: Fails to perceive a substantial and unjustifiable risk that a particular result will occur o a. (State v. Hazelwood: spilled 11 million gallons of oil in ecologically sensitive area, Capt. was drunk, issue: what does negligence mean? Ordinary negligence or super negligence b/c of damage.)… standard is only met when risk is of such a nature and degree that the failure to perceive it constitutes a gross deviation from the standard of care that a reasonable person would observe in the situation. Ordinary negligence b/c the court was not worried about over deterring. o B. Santillanes: uncle cut throat of nephew; criminal negligence applied b/c of moral condemnation/ stigma attached to criminalization. iii. Model Penal Code §2.02 1. PURPOSELY (specific intent; common language “with intent to”): a defendant acts purposefully with respect to a material element of an offense when: o a. (Goal or aim) 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 i. why is this highest level of culpability: purposes of punishment work best on person who really wants to commit crime. o b. If the element involves the attendant circumstances, he is aware of the existence of such circumstances or he believes or hopes that they exist. 2. KNOWINGLY: a defendant acts knowingly with respect to a material element of an offense when: (virtually certain/ practically certain it will happen – knowingly will usually be enough to meet requirement of crime.) o a. If the element involves the nature of his conduct of the attendant circumstances, he is aware that his conduct is of that nature or that such circumstances exist; and o b. If the element involves a result of his conduct, he is aware that it is practically certain that his conduct will cause such a result. 3. RECKLESSLY: (usually the minimum for culpability: default level of MR) (aka general intent): defendant consciously disregards (subjective) 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 purpose of the actor’s 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. o a. Conscious disregard of risk (subj) – substantial risk – unjustifiable risk. o b. No Ostrich defense: if you strongly suspect illegal activity, but intentionally avoid knowledge in order to avoid culpability, deemed recklessly. i. Ex: US v Jewell: hidden compartment in car with drugs. 4. NEGLIGENTLY: defendant 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… that that failure to perceive it…involves a gross deviation from the standard of care that a reasonable person would observe in the actor’s situation. o a. Should be aware b/c some reasonable person would have been. (obj) o b. Dip down to negligence when crimes cause a lot of damage. iv. Mistake of Fact. 1. Material Element: something you need to know to make the conduct illegal. 2. Non-material element: a fact you don’t need to know, often jurisdictional (motivates prosecution), rationale: you already knew you were doing something illegal so you took the risk of it being worse. o a. Ex: Prince: did not need to know that girl was under 16, it was enough to know that she wasn’t married and that he didn’t have dad’s permission before he took her. o b. Ex: Feola: didn’t need to know that they were assaulting Federal officers because 1. Statute only used knowingly in regards to assault, 2. Intent not clear, and 3. Maximize protection to officers. The ∆s already knew what they were doing was wrong. i. Dissent: if we impose federal time, the ∆s should have to know that they were federal officers. 3. How to determine what you need to know. o a. Language of Statute. o b. Legislative Intent o c. Policy. v. STRICT LIABILITY: no mens rea required. 1. Don’t need to know that which makes your conduct a crime. 2. INDICIA o a. Public welfare, not like common law crimes. i. US v. Balint: unauthorized drugs sold (congress purpose= strict liability) o b. Highly regulated areas. o c. Small Penalties. i. Ex: US v. Dotterweich: mislabeled drugs, recv’d 60 days, small penalty makes strict liability ok. ii. Ex: Morisette v. US: needed to know it was government property b/c purposes of punishment wouldn’t apply if it wasn’t someone else’s property. iii. Ex: Staples v. US: needed to know that firearm was automatic b/c punishment was too harsh for SL. o d. High Volume. i. State v. Baker: strict liability for speeding even when cruise control malfunctioned b/c stretch AR to make putting it on voluntary act. (still need a voluntary act in SL though) o e. Vicarious Liability: not generally accepted when there is no act. i. Purpose of punishment don’t apply if there is strict liability b/c even if employer took all care and employee still violated law, nothing more employer could do. ii. Ex: State v. Guminga: bar owner who’s waitress served alcohol to underage girl. 3. Traci Lords Case: court found a way to balance strict liability and striking down a child pornography statute due to first amendment violations. The court shifted the burden of evidence onto the ∆ to prove that their mistake of fact was in good faith and reasonable. Punishment seemed harsh. vi. Mistake of Law 1. General Rule: MOL is not ∆. (prevent everyone from using it) o a. Rationale: safety, prosecutorial discretion, jury, sentencing. o b. Problems: cultural ∆, law complicated, purposes of punishment? o c. Misread/ misinterpret is not ∆: Marrero (gun statute, p.o.) 2. Exceptions: o a. Negates a material Element i. Clues: “knowingly… unauthorized manner” ii. Ex: Liparota: food stamp violation (how could he know what was unauthorized. iii. Ex: Regina v. Smith: if he destroyed own property there was no crime. o b. Estoppel Theory (MPC 2.04 (3) (b)) Official misstatement of the law. Judicial decision Administrative order Official interpretation o c. No Notice of Regulation of an offense of affirmative duty. i. Lambert: anomaly, courts now give notice of registration at sentencing. ii. Mere disagreement with law is insufficient: iii. Mistake need not be reasonable: Cheek: allowed to present honest belief, despite reasonable or not b/c it’s π’s responsibility to prove beyond doubt that ∆ did know. HOMICIDE 11/26/2008 12:30:00 PM Definition: the killing of another human being by another human being. Elements: o AR: Killing o MR: depends on level of homicide LEVELS OF HOMICIDE MURDER 1 – Premeditation o Carroll standard: instant purpose. (no time too short, premeditation is met by purpose to kill) o Anderson/ Guthrie Standard: purposeful + preconceived design. o MURDER 2 o o o Planning Motive Manner Felony murder: BARKRM - Malice Intent to kill Intent to cause great bodily harm Gross recklessness Recklessness? Realize and disregard risk? (Must have known) Gross? Social utility v. magnitude of risk. Ex: Malone: boys playing Russian roulette: Knew risk, took it anyways, no social benefit and great magnitude of harm. Ex: Fleming: drove drunk, very fast and recklessly. Drove so bad for so long, must have known risk and disregarded. No social utility v. great harm. o Felony Murder Voluntary Manslaughter: HOP o Actual HOP Legally Adequate Provocation o Categorical – extreme assault/ witnessing adultery. Adultery See not just hear about adultery. Ex: Dennis v. State: embrace not enough, must be sex. Must be married. State v. Turner: not legally married, HOP not ∆. Traditionally mere words are not enough. Ex: Girouard: wife insulting husband was not enough provocation to mitigate murder, cannot allow domestic disputes to end in death. o Reasonable person in ∆’s situation Obj – Camplin (Physical characteristics – age, gender, size) Camplin: 15 year old boy who killed his abuser was allowed standard of “person having self control to be expected of an ordinary person of the age and sex of the accused.” Subj – Cassassa (emotional characteristics) Ex: Cassassa: adopted MPC standard but Cassassa still guilty b/c his emotional stress was so unique that could not be reasonable. MPC: from perspective of reasonable person in ∆’s situation as he believes it to be. No act of provocation required. No consideration of cooling time. Must be reasonable explanation for ED though. o Inadequate Cooling time Traditional: no provocation instruction if long time btn provocation and killing. Ex: State v. Bordeaux: man killed at party by son of rape victim, killing occurred long after revelation and beating. Ex: State v. Gounagias: sodomy + bragging, then 2 weeks later victim of assault killed. Court said 2 wks = adequate cooling time. Modern Approach: (some jdxs) jury determines if there is sufficient cooling time. Rekindling Long Smoldering Ex: People v. Berry: man waited for 20 hours in victim’s apartment = long smoldering Involuntary Manslaughter – Gross negligence or mere recklessness. o Negligence or recklessness? (should have or must have known) o Gross Negligence? Ex: Welansky: club owner should have known of huge risk of fire and blocking exits was not a social benefit. Ex: Hall: skiing in that manner was substantial and unjustifiable risk therefore IM. Ex: Williams: Native American couple held criminally liable for death of their baby. (dangers of purely objective standard) o DANGEROUS INSTRUMENTALITY o Misdemeanor Murder/ Unlawful Act Doctrine Proximate cause Malum in se vs. malum prohibitum ( wrong v. regulatory) Dangerousness FELONY MURDER RULE: General rule: death that occurs during the commission of a felony is automatically murder. o EX: Regina v. Serne: felony murder is any act known to be dangerous to life and likely in itself to cause death, done for the purpose of committing a felony which causes death. o Ex: People v. Stamp: Take victims as you get them. Man died of HR, foreseeable harm would occur. Limitations: o Inherently Dangerous. Abstract Approach: “is there a way to commit this crime without death resulting?” Ex: PPL v. Phillips: chiropractor (felony) defrauded family, it was not inherently dangerous crime, so daughter’s death from eye cancer was not murder. CA use Abstract approach. As Committed Approach: “was this crime committed dangerously?” Ex: PPL v. Stewart: felony – child neglect (crack binge, didn’t feed child), used as committed and since it resulted in death, it was inherently dangerous. Ex: Hines v. State: felony = felon possessing gun, killed fellow hunter, was murder b/c used as committed approach. o Merger Doctrine: some felonies will merge and felony murder will not apply Independent? Separate purpose from killing (not step towards killing) Would π have to prove malice required for M2 anyways? Ex: PPL v. Burton: felony = robbery, intent was to steal, separate act from murder, FM applies. Ex: Ireland: no FM, felony = assault with a deadly weapon, just a step towards killing, π should be able to prove MR anyways. o Furtherance of Felony During felony (begins with planning, continues through escape) Ex: kill someone during escape = FM, gillis. Whose Acts? Agency Theory: felon/ accomplice hand. Ex: ST. v. Canola: applied agency and did not hold ∆ liable for victim shooting and killing co-felon. Lmt doctrine b/c don’t want to encourage vigilantism Proximate Cause: 3rd party commits killing. Shield cases. (Taylor v. State) Provocative Act Doctrine: atmosphere of malice. Police shoot outs Who died? Felon Justifiable v. no one deserves to die. Innocent victim Death Penalty for Felony Murder not by your hand? Tison: sons who helped father escape from prison, father killed victims of carjacking. 1) major participation (objective) 2) reckless indifference (subjective) boys did not get DP b/c they did not realize risk and consciously disregard it. CAUSATION 11/26/2008 12:30:00 PM Common Law Approach: ACTUAL CAUSE - But For Approach: Proximate cause (legal cause) [sufficiently related] o Foreseeability of harm Just foresee that harm would occur, don’t need to see specific manner (Kibbe) Exclude extraordinary results. Ex: PPL v. Acosta – some form of harm was foreseeable so it did not matter that helicopter crashes had not occurred before. Ex: PPL v. Warner-Lambert – although there was a dangerous chemical atmosphere, there was no evidence of act to start explosion, so court did not impose liability b/c couldn’t know if it was extraordinary event. ∆ takes victim as he finds him. Extends to jehovah’s witness cases where victim refuses treatment (religion part of person). ∆ need not foresee who victim is ∆ need not foresee greater harm – c/l ∆ will be responsible for greater harm. o Intervening Act Superseding or Dependent Foreseeability Control and Policy (who do we want to punish/ what result do we want) Acosta – blame driver not helicopter pilots Deterrence 1. Acts of Nature a. Routine i. Kibbe – leaving man in freezing cold was foreseeable harm would occur. b. Extraordinary 2. Acts by another person a. Victim i. Conditions (don’t break chain, DETERRENCE) ii. Acts (choice v. rendered irresponsible) 1. Ex: Stephenson (biting, KKK dude) 2. Kern – attempts to elude captor don’t break chain. 3. Assisted suicide: (Campbell/ Kevorkian) chain breaks, but may be guilty of lesser crime in some JDXS. b. Medical Care i. Neglect (somewhat expected in US medical system so neg doesn’t break causation chain.) 1. Shabazz ii. Intentional Maltreatment – (MD intentionally gives poor care – may break chain) iii. Disease – only rare disease breaks the chain (bush- scarlet fever from MD) c. Additional Perpetrator i. Related – jointly involved in same scheme. ii. Unrelated d. Complementary Human Action i. Drag racing – McFadden ii. Russian roulette – Atencio (deter from playing games) iii. Mutual encouragement 3. Transferred Intent – a. MPC – intent is what we punish, not who was killed b. Common law – may allow for higher punishment if the victim was “special” person. MPC APPROACH A) cause in fact o But for o Does not address concurrent causes. B) Proximate Cause o Different victim: transferred intent applies o Lesser level of harm: ∆ only responsible for harm that resulted, not intended. o Greater/ Different harm: allows case by case analysis of ∆’s deserving larger punishment. o Strict liability: still requires causation. ATTEMPT 11/26/2008 12:30:00 PM Elements: Inchoate crimes – incomplete crimes ∆ must have purpose/ specific intent to commit crime. Substantial step toward completion of the crime. Punishment: Traditionally: misdemeanor Majority approach: attempt carries less punishment than completed crime. o CA – ½ of max term for completed crime. o Less harm = less demand for retribution. Minority approach/ MPC: attempt punishable the same as completed crime, except death/ life in prison. o Punish intent, don’t let criminals get lucky. POLICY: Police intervention: way JDX defines attempt alters when police can intervene. Not punishable for bad thoughts: law requires criminal intent and criminal act. Chance for abandonment: if punishment too early, then disincentive for abandonment. Certainty that ∆ intended to commit crime: problems of proof arise. MENS REA MAJORITY: Specific intent to commit crime – Purposely MPC: purpose or belief that conduct will cause…. Knowingly, more flexible standard. o EX: Smallwood – could not prove it was purpose to infect with HIV and kill, so no attempted murder. MINORITY: same mens rea as the crime attempted. Attendant knowledge – if ∆ doesn’t need to know a material element for the completed crime, he does not need to know it for the attempt (statutory rape) RECKLESS ENDANGERMENT: some jdxs created lesser crime to charge ∆ who lacks purposeful with attempt, misdemeanors. ACTUS REUS Approaches: o First step approach: not efficient mere preparation exception – first poisoning in prolonged poisoning. o Last step approach (eagleton test) - ∆ must complete the last step. c/l approach no abandonment approach may put victim in too much danger o Dangerous proximity – holmes “dangerously close to success” Considers how many steps ∆ has taken how much more action needed why the harm never occurred amount of harm likely to occur seriousness of prospective harm appropriateness of law enforcement interference. Ex: Rizzo – no opportunity to commit crime, no attempt. o Unequivocality test – act must leave no doubt to ∆’s intention. RIL – the act speaks for itself, is so clear we can assume intent. Ex: buying matches could be innocent or could be first step towards arson, but we can’t tell. Ex: Miller – man told ppl he would kill someone, was walking toward that person with gun, but not attemot until he indicates intention. Ex: Mcquirter: black man following white woman in 1953 in AL could only mean one thing. o MPC 5.01 (1)(2): substantial step strongly corroborative of intent. Combines dangerous proximity and unequivocality. Federal standard. Ex: Jackson – return to site, guns, masks, no LP – all evidence of substantial step DEFENSES TO ATTEMPT ABANDONMENT (renunciation) o c/l didn’t recognize attempt b/c it to last step approach. o MPC- affirmative defense if: Voluntary: didn’t quit b/c afraid of getting caught, ∆ in circumstances. Complete: not looking for better opportunity, victim or time. CAV: Complete renunciation, Abandonment before the crime, Voluntarily abandon. Ex: Johnson – no ∆ b/c clerk only had $50. Ex: mcNeal – victim convinced ∆, so no defense. IMPOSSIBILITY o FACTUAL IMPOSSIBILITY – “except for the fact that….this would have been a crime” Not a defense. EX: pick-pocketing but the pocket is empty; shooting but gun malfunctions; “had the circumstances been as the ∆ believed them to be, would there be a crime?” o LEGAL IMPOSSIBILITY – “….can’t be a crime b/c ____ is not illegal.” A defense. True legal impossibility - ∆ attempts to commit crime, but there is no law making that conduct illegal (ex: scalping.) Hybrid: A situation can often be described both as factual and legal impossibility. Label determined by seriousness of the crime. EX: Jaffee – rec’vd goods that weren’t stolen – could have been fact/ legal, but b/c harmless = legal. Ex: DLugash – shot a dead body – both legal/ factual, but shooting ppl is dangerous. o MPC legal APPROACH: attempt to remove confusion of factual/ impossibility. Generally does not recognize impossibility as a ∆. Exception – when crime is so unlikely to result in crime or no public danger the ct can mitigate. MERGER o If the attempt succeeds, the attempt merges with the substantive crime. No doubling up. o ACCOMPLICE LIABILITY 11/26/2008 12:30:00 PM AIDER AND ABETTOR Not a separate crime. Common Law Principal in 1st degree – person who committed crime. Princiapl in the 2nd degree – present but not actor. Accessory before the fact – help plan. Accessory after the fact – only know about crime after it’s committed. Modern Law Does away with distinctions except accomplice after the fact. ELEMENTS AR o Help Encouragement is sufficient. Principal doesn’t need to know of accomplice. Doesn’t need to actually help in success of crime (Tally) Presence is enough if there is previous agreement. (hicks – not enough b/c no agreement) MR o Purpose for crime to succeed. Purposely not knowingly (Galdstone) Don’t need to know what principal doesn’t need to know (ex: age in statutory rape) Negligence crimes = need same MR (ex: drag racing) If it’s a different crime than that accomplice is helping with – needs to be reasonably foreseeable or natural and probably result. o Evidence for purpose Nexus Stake in venture PRINCIPAL o Does not need to be convicted, but there needs to be a crime. OTHERS o Cannot be victim. o Cannot be protected class (child labor laws, underage girl). o Cannot be someone used as instrumentality. DEFENSES Abandonment o Common law – majority did not recognize abandonment. Voluntary and complete, w/ substantial efforts to prevent crime if it was recognized. o MPC – ∆ terminates before the crime and prevents it or warns authorities/ other measures to prevent crime. CONSPIRACY Agreement between 2 or more people to commit a crime. Separate crime. Elements o AR: AGREEMENT (dif from A/A b/c need to know/ meet someone in conspiracy). Need not be expressed, can be shown through conduct. Tacit/ implied Shown by concerted action. All co-conspirator’s need not know everyone or agree at the same time. WHO HAS TO AGREE? Gebardi rule: not victim. Wharton’s rule: if the crime takes 2 by definition, it can’t be conspiracy. Bilateral vs. unilateral – if an undercover is conspirator B ≠ conspiracy, U = conspiracy (MPC – hung up on MR). o MR: Intend to agree & purpose for the crime to succeed. Purpose can be proven through: Stake in venture No legitimate use Price variations Grossly disproportionate volume o OVERT ACT: Any act (doesn’t need to be illegal) Committed by any co-conspirator Only need one Co-Conspirator Liability o Hold people responsible for other’s crimes. o PINKERTON LIABILITY: co-conspirator is automatically guilty of criminal acts of other co-conspirator in furtherance of conspiracy. Scope of conspiracy: o Kotteakos – Wheel conspiracy – multiple conspiracies connected by middle man. Spokes can be connected like in Anderson – common goal for conspiracy to continue. o Chain – all links of chain (drug distribution) Competitors at bottom can be seen as different conspiracies or as combined b/c they all need up chain to succeed. DEFENSES 11/26/2008 12:30:00 PM JUSTIFICATION DEFENSES: reason to commit the crime was a good reason. Triggering condition that requires ∆ to act. Necessity element that gives the ∆ no choice but to act; Proportionality that place limits on how ∆ may respond. o Self Defense - ∆ justified in using force to protect himself from the threat of immediate and unlawful force. Elements: Fear: o Honest fear – subjective o Reasonable – objective Common Law: RP for person in ∆’s situation. Physical attributes ∆’s prior experience. Relevant knowledge about the attacker. MPC: ∆ believed – subjective Imperfect self ∆ = honest but unreasonable. Danger of death or SBH o Common Law: strict standard – had to be Death/ SBH o MPC- “or threat of serious felonies, like kidnapping, rape and robbery.” Imminent o Common Law: Here and now o Modern: RP believed it would be imminent o MPC: Inevitable No pre-emptive strikes. No excessive force o Deadly force can be responded to with deadly force/ non-deadly force Non-deadly force can only be met with nondeadly force. Duty o o o Can’t use deadly force in response to property threat. (Ceballos) to Retreat Arises when Use of deadly force by reactor (∆). (Abbott) may stand ground if using non-lethal force. CL – strict duty to retreat when you could do so safely. Modern - ∆ knows he can retreat safely. Exception – castle – never have a duty to retreat from home. Initial Aggressor Rule – can’t create own necessity. o Peterson – windshield wiper case. o ∆ argue just an instigator. Imperfect Self Defense – mitigate to voluntary manslaughter. Battered Women’s Syndrome: Expert testimony goes to reasonable standard and imminent standard. o Problems: perpetuates stereotypes, allows women to continue to be victims. Defense of others – Stand in shoes –if victim could use force, rescuer can use same force to save the victim. o CL – had to be right o Modern – reasonable belief. Defense of Property CL – could use deadly force to prevent any felony (b/c all were punishable by death). MPC – deadly force only when dispossessed of dwelling; intruder committing felony and has used deadly force; an attempt to use non-deadly force would put ∆ at substantial risk of SBH/ death. MAKE MY DAY – some JDXS permit any force to respond to any intruder who ∆ reasonably believes will commit crime. o NECESSITY – this action normally is illegal, but here it is right choice. CHOICE OF EVILS – usually choice between physical harm and committing crime Ex: Unger – attacked in prison v. escape. Economic necessity is insufficient. NO APPARENT ALTERNATIVE Need to know alternative. LESSER EVIL Honest belief Reasonable belief o MPC 3.02 – Believes is subjective, but objective evaluation of harm levels. No necessity for murder. IMMINENCE CL: Here and now Modern: Reasonable belief MPC: Inevitable DID NOT BRING IT UPON SELF Aggressor v. instigator Mpc – may allow ∆ of necessity to mitigate if brought upon self. Jury decides. NO CONTRARY LEGISLATION Civil disobedience cases – not necessity b/c legislature already weighed the protest and made it illegal. (SCHOON) o Harm not imminent. o ∆s have legal alternatives. o Society already weighed and decided case. Special cases – PRISON ESCAPE o Add – SURRENDER immediately upon reaching a place of safety. Narrow subscription to avoid prison craziness. Necessity w/ homicide: o CL – no necessity ∆ too hard to measure life. o MPC – maximize lives saved. Torture? Israel case – no pre-emptive approval of torture. EXCUSE DEFENSES: ∆ didn’t do the right thing, but the ∆ is not morally blameworthy because ∆ is not fully capable of controlling his behavior. No duress defense for economic or property threat. DURESS: o common law approach: Threat of imminent harm. Here and now. Toscano: vague future threat probably wouldn’t have passed CL test. Death or SBH To the ∆, close friend or relative. Such an fear that ordinary man would yield. ∆ did not bring it upon himself Gangs crime can’t be murder o MPC Approach: Threat of unlawful force Sliding scale: greater harm needs greater threat. o Toscano – minor crime, so vague threat was enough to allow duress ∆. Against ∆ or any person RP in ∆’s situation would yield Imminency is a factor. Fleming: backfired on ∆ b/c he was army, higher standard of RP. ∆ did not put self recklessly in the situation. Available for any crime Murder – would need a really large threat level to excuse, most likely only mitigate. INSANITY: o Purposes of punishment don’t fit: Deter – can’t deter if they don’t control themselves; general populace not deterred b/c people don’t id with insane ∆. Retribution – based on choice to do wrong act, but insane don’t have choice. Rehab/ incapacitation – better served in hospital facility. o History: Ecclesiastical: needed to confess, so insane couldn’t confess. Humanitarian reasons – reflects on us if we are punishing insane. o Competency: DUSKY STANDARD – well enough to stand trial: Consult with a lawyer. Rational understanding of proceedings. Minimal understanding – deem complete amnesia ok to stand trial. Will allow forced medication to make competent for trial and for death. o Insanity Defense: mental state at the time of the crime. What is disease or defect? History of mental illness Clear/ verifiable symptoms # of people that would qualify o PMS o Get around commonality by label psychosis instead of syndrome – like YATES: Post partum psychosis. stigma? Sincere/ fake? Self infliction/ brought upon self o Compulsive gambling. M’naghten Standard (CL) Presume people sane. @ time of the offense. Defect or disease of the mind o What is disease should be answered first. ∆ did not know nature or quality of acts; OR o ex: think chopping wood, but really chopping up body. that acts were wrong. o Truly think that killing wasn’t wrong. o Wrong: Legal or moral? Knowing legally wrong will usually exclude insanity ∆. Knowing morally wrong, but not knowing law will usually exclude insanity ∆. Legal wrong comes from moral wrong. MODERN ADDITIONS o Irresistible Impulse – Police at Elbow Most JDXS don’t allow b/c line between couldn’t and didn’t resist is too difficult to establish. Truly insane will meet the M’N standard anyways, so this prong is unnecessary. o Deific Decree – voice of god. Exception applies to MPC too. Crenshaw: not voice from god (made up religion) – so not meet exception. Cameron: did meet deific decree b/c “heard” voice directly from god. MPC Standard Presume sane @ time of the offense Disease/ defect of mind Lacks substantial capacity to appreciate criminality; or to conform to requirements of the law. o Substantial capacity: not black or white, allows flexibility. o Ex: schizophrenia – lucid and insane moments. DIMINISHED CAPACITY: o If ∆ allowed in jdx/ ct – then ∆ gets to present expert testimony to address MR of offense. o Reasons against DC: Battle of the experts. Confuses/ misleads jury Diagnosis unpredictable. o Reasons for DC: Similar to voluntary intoxication. Civil commitment Judge has discretion to exclude bunk experts. o 3 APPROACHES TO DC: Brawner (Partial): SI GI, mitigate to lesser committed crime. Wilcox: NO DC AT ALL 13 states, CA included. o Twinkie ∆. MPC: Always use DC. Even if it is a general intent crime no crime if no intent. INTOXICATION o INVOLUNTARY INTOXICATION: full defense. Force Deceit Pathological (disproportional affect of drug/ alcohol due to pathology of individual). o VOLUNTARY INTOXICATION: partial defense if at all. Only speaks to MR when allowed. SI GI (purpose) No ∆ for reckless or negligence. o Liquid courage: Never is a ∆ b/c ∆ formed MR before they got drunk. o SPECIFIC INTENT VS. GENERAL INTENT: Specific: requires some level of thinking, premeditation, etc. General – not much thinking. CTs will arbitrarily label one or the other. Elements to interpret statute for the crime: MR level of crime Historically (factor not determinative) o How much “brain juice?” Policy considerations Is there a lesser crime that they can still be guilty of? Entrapment Federal standard: If the ∆ is predisposed to commit the crime and agents only afforded him the opportunity to commit it, no entrapment. o Subjective standard. o To prove presidposition π can use any evidence (hearsay, rumors, trash). o Exception: motion to dismiss for outrageous government conduct can be a question for judge. CA standard: entrapment if it is likely that the government’s conduct would have induced a law-abiding person to commit the crime. o Objective test – RP in the situation. o Presumption of resistance. o CA standard GOES TO JURY. MPC Standard: CA standard, but it goes to the judge. Ex: Russell – federal case, followed precedent, did not allow entrapment ∆ b/c he was predisposed to crime (already making meth w/out officer’s involvement. Ex: Barraza: CA case, applied CA standard and conviction reversed for prejudicial error. o Entrapment will work under federal standard only for those who have never really done anything wrong – must be another reason they would suddenly begin to commit crime. o Not used for murder – must be some predisposition if you will go that far. Rape 11/26/2008 12:30:00 PM Rape: sex without consent with the use or threat of force. Question of perspective. Consent: if there is a mistake it needs to be HONEST and REASONABLE. 11/26/2008 12:30:00 PM Favor - Against - money spent on incarceration. Retribution American Cultural Automatic appeal Incapacitation - Still danger to society; Tool for prosecution Deterrence – in prison, ex: punchy. - litigation cost a lot eye for eye doesn’t work moral authority – killing is wrong. No empirical deterrence. Fatalization Innocence Discrimination Opportunity to rehab. - Society prefers death penalty - When do we bluff? Force innocent to admit guilt to avoid DP Lengthy appeals cost state more money -