Criminal Law
8-26-09
McCord
* Going to study the definition of crimes, policy, and proof (substantive law of crimes)
* Going to study the law of punishment - Why and how severely should crimes be punished?
* Criminal law = Public law
* the consequences in a criminal case are the most dramatic for the loser (i.e. incarceration, loss of
freedom)
* Criminal law and torts are similar (i.e. many intentional torts can also be adjudged as crimes)
* Incarceration is typically the penalty only for criminal acts
Ohypo statute:
For the defense
- The statute is looking to address would-be criminals
- Since it is statutory law, can be considered criminal if violated
- Incarceration is potential penalty
- Will be labeled by the community as a “sexually dangerous person”
-
For the State
No act involved/condition
Plain language of the statute requires burden of proof to be lower
Not committed to jail
No endpoint
Not trying to necessarily punish, but helping the individual and the public
Typically the governmental position wins
* All crimes are codified in statutes
* Common law method – applying precedent, none of which is exactly on-point, to a new case; less
common in criminal law
* Common law = judge-made law
Criminal Procedure
8-27-09
McCord
Jury Nullification
- Jurors have the power to acquit, no matter how overwhelmingly obvious the evidence is
(pointing toward guilt)
State v. Ragland
- Supreme Court of New Jersey
- Defendant was prosecuted for armed robbery and possession of a weapon by a convicted felon
- The trial court judge instructed the jury that if it found that the defendant was in possession of a
weapon during the commission of the robbery, you must find him guilty of the possession
charge
- Defendant was found guilty, and now appeals
- Defendant appeals on the basis that the judge instructed the jury incorrectly and his instructions
conflicted with the jury’s nullification power by using the word “must” in the instruction
- Defendant also argues that the judge should have given his instruction to include “if justice
requires such a result”
- Court found that power of jury to acquit(jury nullification) is not a constitutionally given right or
attribute of a jury trial, it is merely an option at the jury’s disposal
- The Court is not advocating jury nullification, claims it is undesirable
- The Court states the legislature/governor is the proper source for the law
- If every jury is told that it must follow the law, it would make the system more consistent (if the
instruction leaves more flexibility to the jury, then the system would become arbitrary)
- Instructing specifically on jury nullification could become confusing to the jurors
- Instruction specifically on jury nullification would be unpredictable from a utilitarian standpoint
- Reasoning: there is no prevailing precedent that supports the defendant’s position
- Conviction was ultimately reversed on other grounds
Pgs. 9-18 “Beyond a reasonable doubt”
-
-
BRD was originally designed to lower the burden of proof
It is important to have a credible criminal justice system
Having a higher burden of proof makes the system less susceptible of finding innocent persons
guilty
Justice Harlan in his concurring opinion in In re Winship, said the need for a reasonable doubt
standard is to prevent guilty people from being set free, as opposed to the innocence reasoning
Winship established this high burden of proof because there were certain risks for the
defendant such as the defendant possibly facing a loss of liberty if convicted and defendant
being stigmatized as having committed immoral acts
The Court requires those two factors to be present in order to use this higher level of proof
“Beyond a reasonable doubt” requires the juror to be nearly certain of the convicted person’s
guilt (Jackson v. Virginia, 1979)
Preponderance of the evidence is about 51% sure, clear and convincing is a slight step above
preponderance, and beyond a reasonable doubt is 51%+
Burden of proof is a qualitative concept, rather than quantitative
Pgs. 12-13, five forms of BRD instructions, the “thoroughly convinced” instruction may be
unconstitutional
-
Firmly convinced instruction (pg. 12): defines BRD as proof that leaves you firmly convinced of
the defendant’s guilt/ law does not require proof that overcomes every doubt/ if based on the
evidence, you are firmly convinced that the defendant is guilty, you must find her guilty (state of
mind that will suffice for conviction)/ if there is a real possibility of him or her being guilty, then
you must find not guilty (define the state of mind that will suffice for acquittal)
Owens v. State
- Court of Special Appeals of Maryland
- Defendant was convicted by a trial judge (no jury) of driving while intoxicated
- Defendant asserts that the trial judge found him guilty based on evidence that was not legally
sufficient to support such finding
- Defendant’s legal argument is based upon the Transportation Article, which is limited to vehicles
on highways on not private roads (Defendant was found in a driveway in a running vehicle,
asleep, with a can of beer in between in his legs, and two other beer cans in the vehicle)
- Defendant was convicted of drunken driving on a public highway before coming to rest on the
private driveway
- Issue: was the trial court in error for using the evidence that it did in reaching the conviction?
- Holding: No.
- The Court says the conviction was based on circumstantial evidence
- Direct evidence is eyewitness evidence (there was direct evidence of his intoxication, he smelled
like alcohol, slurred speech, eyes red, passed out in the vehicle, the truck was on, lights on,
“suspicious vehicle” in that vicinity, truck matches police alert, St. Pat’s Day, 11pm, residential
area)
- Circumstantial evidence of defendant driving on the highway, no witnesses saying that he was
driving on the highway, inference that defendant had recently arrived from driving on a public
road while intoxicated (must believe that the person giving the evidence is telling the truth, and
that a further deduction or conclusion can be made)
- The prosecution could have done a better job of collecting evidence (i.e. ask the homeowner if
they knew the defendant, was he in their home, ask the person who made the complaint about
the details)
- The Court puts forward 2 inferences/hypotheses that come to 2 different results (pgs 14-15)
- The Court affirms the conviction
- The appellate court’s question: whether a rational factfinder could have came to the same result
with the same evidence
Criminal Law
McCord
8-28-09
Chapter 2: Principles of Punishment
-
-
Key questions: Who should be punished? Of those whom we punish, how much punishment is
appropriate? Do we under-use non-incarcerative methods of punishment? Why do we punish
at all?
Justifications for punishment: Utilitarian and Retributive
Retributive – assaultive (pgs 38-42), protective (pgs. 42-45), victim-worth vindication (pgs 45-48)
Defense responses: not relevant to facts or already achieved or can be satisfied with lesser
punishment; may seek to invoke “mercy factors” (i.e. D will suffer sufficient non-criminal
consequences, D will be harmed excessively by the punishment, others will suffer from
punishment, pure sympathy factors)
Theories of Punishment
- Greenawalt: There is congruence between threat and actual performance that is a good reason
for punishing; if one does not think you will follow through on a threat or sanction, they may
continue in their action
- Punishment is an essential part for a system that wishes to be taken seriously
- Characteristics of punishment: it is performed by, and directed at, agents who are responsible in
some sense; it involves “designedly” harmful or unpleasant consequences; the unpleasant
consequences usually are “preceded by a judgment of condemnation; the subject of
punishment is explicitly blamed for committing a wrong”; it is imposed by one who has the
authority to do so; it is imposed on an actual or supposed violator of the rule of behavior
- Retributivism = people who commit crimes deserve to be punished
- Utilitarian thoughts on the benefits of punishment include: general deterrence (knowledge that
punishment will follow from committing certain crimes); individual deterrence (fear of the
criminal that he may be punished again); incapacitation and other forms of risk management
(takes criminals out of the general population); and reform (once punished, the criminal could
become a happier, more useful person)
- Bentham: the value of pleasure or pain will be greater or less according to its intensity, duration,
certainty or uncertainty, and its propinquity or remoteness
- the general focus for all laws is to promote the total happiness of the community (i.e. exclude
mischief)
- Punishment ought not to be inflicted where: it is groundless (the individual’s act has no bearing
on the whole community); inefficacious (ineffective in preventing the mischief); unprofitable or
too expensive (where the mischief it would produce would be greater than what it prevented);
it is needless (the mischief will cease on its own, cheaper than punishing)
- Moore: retributivism is not just about the guilty deserving punishment, but it is more about the
lack of morality of the offender being a sufficient reason to punish him or her (the moral
desert/moral culpability is a necessary condition of punishment)
- This condition gives society more than a right to punish, it becomes society’s duty
- Deterrence is not a facet of retributivism, it’s just an added bonus
- Society has an obligation to make sure there is retributive justice
- Kant: punishment should not be imposed just because it promotes the greater good; but should
focus on that particular individual having committed a crime
-
By focusing on the individual who has committed the crime, society makes sure that individual
recognizes the moral desert/fault of his actions
Stephen: infliction of punishment by law gives definite expression and justification to the hatred
that is excited by the commission of the offense
Criminal law says that it is morally right to hate criminals
Stephens believes it is right to hate criminals, punishment should be wrought upon them to
express that hatred, satisfies the public’s natural moral sentiments
Stephen is an advocate of assaultive retribution
Morris: we have a right to punish, which is derived from our human rights to be treated as a
person, fundamental right to be punished, denial of this right is a denial of all moral rights and
duties
Criminal Law
McCord
9-2-09
Punishment issues from both sides
Prosecution: General deterrence, specific deterrence, incapacitation, reform, retribution (assaultive,
protective, victim worth vindication)
Defense: One or more of the facts does not need to be or has already been vindicated; mercy factors;
non-legal consequences sufficient
* Mental state of the defendant will become an important factor in the defense and prosecution of the
case
Handout exercise
Forgotten baby in car
1) I think this case should be pursued because the parent’s actions were inexcusable. Another
human being died as a result of her negligence. I don’t think ordinary care was used by the
parent in any respect and she should not be able to just walk away without knowing that the
community being able to reprimand her.
2) I would say the best argument would be on a theory of ordinary care that was not taken, and
not even thought of. Of course there is an element of negligence there as well, but not sure if
that is under criminal law or not. The parent took an unjustified risk in leaving the child in the
car.
3) The best defense argument to a jury would have to be based on an appeal to mercy. I think
most jurors will find that this was a circumstance that was really extreme, so the only way to dial
back that view would be to appeal to their sensibilities and shared experiences. I would say that
the non-legal consequences such as having your child die at your hand, would be enough
punishment.
4) I would probably impose a lenient sentence, because it is a really tragic incident and I don’t
believe the parent should have to be subjected to being placed with hardened criminals.
Baby left in car while parent drinks
1) This should be pursued as a criminal case because the parent’s actions and conduct was
completely intentional and there was an overly likely result that harm to another person would
follow.
2) I would just focus on the parent’s utter disregard for the life of the child in her conduct. The
parent took an extremely unjustified risk in leaving the baby in the car while she did leisure
activities.
3) The best defense argument for a lenient sentence in this case would be that the parent was
4) I would impose a stiff sentence just due to the nature of the parent’s conduct toward a young
child.
Moral theories and rationales for punishment
The Queen v. Dudley and Stephens *will need to remember this case by name
- Dudley and Stephens were prisoners on an open vessel on the open seas during a storm
- The boat was about 1000 miles from any land; food and water was extremely scarce on the date
of the incident
- Dudley and Stephens consorted and made a plan to sacrifice a young boy on the boat in order to
survive; the boy was not told about their plans
- Dudley and Stephens consented to the boy being killed, while Brooks another prisoner
disagreed with the act
- The boy was helpless to the act and did not assent to being killed
- Dudley committed the actual act of murder, with Stephens approval
- Dudley and Stephens were found guilty
- Should be found guilty under the retributivist and general deterrence theories (prosecutorial
argument)
- Circumstances were so extreme, they need not to be incapacitated because they are law abiding
citizens and they are unlikely to be in the circumstances again (defense argument)
- Dudley and Stephens said that the incident was justified, especially amongst fellow sailors
Altruism – act at your own expense
Pure egoism – what’s good for me?
Group egoism – what’s good for my group?
*Kantian – operates on the categorical imperative; would actor be willing for everyone to act on the
same principle?
*Social contract- Would the action be in accord with the social contract, entered into to get greater
protection from the collective than the individual can provide for him/herself?
Act utilitarian- what will result in the greatest balance of good over bad in this particular situation?
*Rule utilitarian – what will result in the greatest balance of god over bad in the long run of situations
like this?
Humeian – moral choices are so complex and contextual that no generally applicable rules can be
formulated need a lot of information about every situation (situational ethics)
* these are the theories used in good lawmaking
Life boat hypothetical
1) All perish
a) By agreement: social contract, kantian, rule utilitatiranism
b) By failure to reach agreement; inability to create a social contract
2) Game of chance
3) One person volunteers: altruism
4)
Criminal Law
McCord
9-3-09
Proportionality of punishment
Severity of punishment
X
*where x is retributive = (severity of the crime + characteristics of defendant)
*personal factors can be compelling
* where x is utilitarian = minimum amount needed to fulfill util. goals (gen. deterrence, spec.
deterrence, incapacitation, reform)
Kant –
- undeserved evil which any one commits on another is to be regarded as perpetrated on himself
- if one has committed murder, they must die; there is no other justified substitution in this case
- the death of the criminal must not be cruel
Bentham –
- laws are in place to prevent mischief
- a legislator must put laws in place to do four things: prevent offenses so that crimes may not be
committed, induce a criminal to commit a lesser offense if he must commit an offense at all,
dispose a criminal to do no more mischief than is necessary to gain a prescribed benefit, prevent
mischief as cheaply as possible
-
the value of the punishment must not be less in any case than what is sufficient to outweigh
that of the profit of the offense
the greater the mischief of the offense, the greater is the expense, which it may be worthwhile
to be at, in the way of punishment
where two offenses come in competition, the punishment for the greater offense must be
sufficient to induce a man to prefer the lesser
the punishment should be adjusted in such manner to each particular offense, that for every
part of the mischief there may be a motive to restrain the offender from giving birth to it
the punishment ought in no case to be more than what is necessary to bring it into conformity
with the rules here given
Ewing v. California
- California imposed “3 strikes” laws for public policy reasons, they wanted to deter repeat
offenders, and ensure longer sentences for felony offenders who have been previously
convicted
- Ewing had an extensive criminal history, 10 months after being on parole (for robbery and 3
counts of residential burglary), he decided to steal some golf clubs and was arrested
- Ewing was then charged with felony grand theft of personal property; prosecutor had alleged
that the burglaries/robberies constituted previous violent felonies; Ewing was sentenced to 25
yrs to life
- Ewing is a habitual drug user, potential explanation for his conduct
- Issue: Are “3 strikes” laws cruel and unusual punishment that is prohibited under the 8th
amendment of the Constitution?
- Holding: No.
- Rationale: the 8th amendment forbids cruel and unusual punishment. This case presents an
issue of whether the punishment fits the crime. In the past, precedent (Rummell, Solem, and
Harmelin) has not been favorable in challenging the proportionality of sentences. In Solem,
there was a proportionality test established. Whether a sentence violates the 8th amendment
depends on:
a) The gravity of the offense and the harshness of the penalty;
b) The sentences imposed on other criminals in the same jurisdiction; and
c) The sentences imposed for commission of the same crime in other jurisdictions.
Proportionality principles apply to both capital and noncapital cases. The 8th amendment,
however, does not require strict proportionality between crime and sentence, only forbids
grossly disproportionate sentencing. There is deference to the legislature on the issue of
sentencing, enacting the legislation in question was for justified public policy reasons. (State’s
interest in preventing crime)
The sentence on its face may seem disproportionate, being that Ewing only stole $1200 of golf
clubs; however, the court considered his extensive prior criminal history (“felony recidivism”).
- Concurring/Dissenting Opinions:
Scalia – the constitution does not mandate any one type of sentencing theory,
proportionality is a concept tied to retributive theory
Thomas – concurred
Breyer (dissenting) – Need to look at the triggering crime, not the recidivist crimes
Precedent cases
Case
Prior offenses
Triggering offense
Punishment
Holding
Rummel
Non-violent
property
Non-violent
property
Life with possibility
of parole 10-12 yrs
Did not violate
8th amendment
Solem
Burglary but
without weapon
Non-violent
property
Life without parole
Violates 8th
amendment
Harmelin
none
672 grams of
cocaine
Life without parole
Did not violate
8th amendment
Ewing
3 burglary
Non-violent
1 grand theft
robbery
property
25yrs to life with
possibility of parole
Did not violate
8th amendment
* Rummel’s crimes weren’t really “horrible”; Harmelin’s crime was considered more horrible to the
legislature
Criminal Law
McCord
9-5-09
Principle of legality
* condemns judicial crime creation
Requirement of previously defined conduct
Commonwealth v. Mochan
- Mochan harassed a citizen so much that it caused harm to her reputation and harm and damage
to her
- Mochan called Zikovich several times throughout the week, making lewd and obscene phone
calls
- Mochan states that he did not commit a criminal offense or misdemeanor under the common
law (because there is no precedent for his offense in PA, he was just convicted under a
generalized statute)
- Mochan argues that the State has to declare what is criminal and what is not, not just after the
fact (does not give fair notice to the public of criminality)
- Issue: Was there justification for Mochan’s conviction and sentence under the common law?
-
-
Holding: Yes.
Rationale: The common law is sufficient to punish as a misdemeanor, although there may be no
exact precedent, any act which directly injures or tends to injure the public to such an extent as
to require the state to interfere and punish the wrongdoer… There is plenty of precedent to
convict Mochan under the common law of Pennsylvania. Defendant’s statements themselves
were not unlawful, but his continuous conduct of lewd behavior was unlawful.
Result: Judgment and sentences affirmed.
Dissenting opinion: The court cannot declare something a crime, which has not ever been
considered a crime. The legislature should determine what injures or affects the morality of the
public. There would be no need for the legislature if the court can just create crimes. The court
must exercise self-restraint in making law.
Keller v. Superior Court (unborn fetus murder case)
- Supreme Court of California , 1970
- Defendant kicked his ex-wife in the stomach on purpose and threatened to stomp it out of her,
and the fetus died as a result
- Issue: Does the death of a fetus constitute murder under California law (Penal Code section
187)? Was the fetus that petitioner alleged killed considered a human being within the meaning
of the statute?
- Holding: No.
- Rationale: The court considers the legislature’s intent at the time of the creation of the statute.
At the time of the statute’s passing, common law stated that an infant could not be the subject
of homicide unless it was born alive. All previous precedent (to 1850) all required that the child
had to have been born to consider any kind of fatal act against it “murder.” The statute must be
construed in a light favorable to the defendant. There are no common law crimes in California;
the legislature is responsible for defining criminal acts and in this case, the defendant’s act
cannot be ruled as criminal (JURISDICTIONAL OBSTACLE). Even if the court accepted the State’s
interpretation of the statute, due process would not be effectuated because the new meaning
would only be applied prospectively (an offender must be given fair warning that their acts are
punishable as crimes) (CONSTITUTIONAL OBSTACLE).
- Result: Conviction of murder overturned.
- Dissenting opinion: A quickened child was considered a human being prior to 1850. The
majority seems confined to common law thought. We have re-thought how we look at corpses,
why not apply the same forward thinking to fetuses? We can rethink the definition of “human
being” without violating due process.
* Would a reasonable person have notice that a fetus is a human being?
Criminal Law
McCord
9-9-09
The values of statutory clarity
In Re Banks
- Supreme Court of North Carolina, 1978
- This is a constitutional challenge to a North Carolina statute (“peeping tom statute”)
- The respondent argues that the statute is unconstitutionally vague and overly broad
- The respondent also argues that the statute cannot mean what it says because then it would
include a number of acts that the legislature did not intend to criminalize
- Respondent also says statute has no mens rea (culpable mental state)
- Elements: A person shall be guilty of a misdemeanor when:
1) Any person
2) Who shall peep
3) secretly
4) Into any room
5) Occupied by a female person
-
Issue: Is the Peeping Tom statute unconstitutionally vague?
Holding: No.
Rationale: Due process and ascertainable standard of guilt are necessary constitutional
proscriptions for a law. The court looks at a statute in terms of the evil it is intended to suppress
and the intent of the legislature in creating the statute. Other aspects that must be considered
in judicial interpretation of a statute are the phraseology, the words ordinary or technical, the
law as it prevailed before the statute, the mischief to be remedied, the remedy itself, the end to
be accomplished, etc. (pg. 102). A law must be construed in light of its common law(judgemade law) meaning, its statutory history, and the prior judicial interpretation of its particular
terms. The court does use precedent in State v. Bivins and State v. Banks. Peeping definition
(pg. 104). The statute is definite and sufficient to give an individual fair notice of the criminality
of their potential actions.
* This case does set forth numerous guidelines for statutory interpretation on pgs. 102-03 presume a
statute is constitutional and must be held as such unless proven otherwise
City of Chicago v. Morales
- U.S. Supreme Court, 1999
- This case involves the question of constitutionality of a Chicago ordinance
- The city council for the city of Chicago enacted this ordinance as a result of complaints from
neighborhood citizens in relation to gang members on their streets; their reasoning was the
gang member loitering creates fear for the safety of persons and property in the area
- There are 4 requirements to be met in order to be charged under the ordinance (Elements): 1)
police officer must have belief that 2 or more persons are gang members, 2) persons must be
loitering or remaining in one place with no apparent purpose, 3) officer must order all persons
to disperse, 4) a person must disobey that order
- There is no reference to mens rea (culpable mental state) could potentially reach innocent
conduct, so there may continue to be a constitutional issue
-
Issue: Does the Chicago Gang Congregation ordinance violate the due process clause of the 14th
amendment?
Holding: Yes.
Rationale: Loitering may have a common and accepted meaning, but the definition proposed in
the ordinance does not. The statute gives officers too much discretion to officers even though
the appellants argue that the citizens would have be given adequate notice once the officer has
ordered them to disperse. The loitering could be potentially harmless and then the ordinance
and the officer’s resultant conduct could become an infringement on their liberty. The dispersal
order does not provide adequate notice to citizens because of its vague phrasing. The
legislature has not established minimal guidelines to govern law enforcement. (the ordinance as
written requires the police officer to order them to disperse without making an inquiry about
their possible purposes) The ordinance includes all citizens, non-criminal street gang members.
This all could lead to arbitrary enforcement.
Criminal Law
McCord
9-10-09
Statutory Interpretation
United States v. Foster
What it means to carry a gun?
* The court uses several forms of statutory interpretation: common understanding, precedent, law
dictionary, policy, precedent of same statute of the word “use”, context within statute (not transport),
rule of leniency (when in doubt, must give benefit to the Defendant)
- Foster was convicted of car
- rying a firearm during a drug trafficking crime
- The gun was in his truck bed, sealed in a bag, under a snap-down tarp
- Previous caselaw has found that the offender must be transporting the weapon (Barber);
carrying the weapon on his person and have it available for immediate use (Hernandez)
- Black’s law dictionary states that movement is not essential to someone carrying a thing
- The court states that the essence of the law is that the weapon moves with the person and can
be swiftly put to use
- USSC has adopted a narrow definition of “use”, suggests we should use a narrow definition of
“carry”
Criminal Law
McCord
9-11-09
Identity issue – thought process
- What evidence does prosecution have?
Direct
Circumstantial
- What are its strengths/weaknesses?
- What evidence does prosecution not have?
- How crucial is its absence?
For defense
- Do we want to present witnesses? If we do, do we want the defendant to testify?
Strengths/weaknesses?
Modes of impeachment(undercut a witness’s credibility)
Testimonial capacities
1. Perception
2. Memory
3. Communication
4.
5.
6.
7.
8.
9.
Ability/willingness to be truthful
Bias
Prejudice
Interest
Corruption
Prior inconsistent statement
Contradictory by another witness
Untruthful character
10. Non-conviction (untruthful in other aspects of their life)
11. Prior convictions
“Doubt” case
Prosecution
* Direct evidence
- had blood on him
- eyewitnesses (wilder, leamy, solder) all ID’d the defendant twice, once through show-up and in court
with photos
* Circumstantial evidence
- Blood was from this attack (boots, hands)
-
Defense
- Perception of the witnesses could be questioned
- Victims were drinking beforehand
- Potential prejudice by the victims, not disinterested witnesses
- No wallet, no knife
- No blood work was done on the gathered evidence
Criminal Law
McCord
9-16-09
State v. Deffabaugh (Supreme Ct of Kansas case, handout)
- Defendant was charged with selling cocaine
- Defendant was caught with drugs and unmarked bills
- Defendant alleges that he has an alibi, this is a case of mistaken identity
- Statute says there has to be prior notice of using an alibi witness, rather an eyewitness
(could potentially prejudice the prosecution if there were last minute alibis)
- Trial court did not allow the evidence showing Defabaugh was not at the scene; says
there was no prior notice
- Defabugh appeals; Supreme Court determines that the alibi witness was an eyewitness
as opposed to an alibi
* An alibi defense is not an affirmative defense; it is just something to undermine the state’s
identity element (identity has to be proven beyond a reasonable doubt In re Winshy)
Common law – DNA of a crime
* identity
*actus reus
* mens rea
Modern law – elements of an offense
* identity (has to be proven by the state)
* act
* result
* attendant circumstances
* culpable mental state
Actus reus
* Actus reus is the physical or external part of the crime, while mens reas is the mental or
internal ingredient
* Actus = the action Reus = the conduct that results in a certain harm
* There are “result crimes” and “conduct crimes”
* Actus reus is viewed as objective, while mens rea is subjective (State v. Utter)
Voluntary Act
* Many criminal codes provide that a person is not guilty of an offense unless his conduct
includes a voluntary act or the omission to perform an act of which he is physically capable
Martin v. State
- Alabama Court of Appeals
- Martin was convicted of driving drunk on a public highway
- He was arrested at his home and was observed manifesting a drunken condition by
using loud and profane language
- Issue: Was Martin’s conviction lawful in that he voluntarily participated in the crime?
- Holding: No.
- Rationale: A voluntary appearance is necessary. There was proof showing that while in
an intoxicated condition Martin was involuntarily and forcibly carried to a place by the
arresting officer.
- Result: Reversed and remanded.
State v. Utter
- Court of Appeals of Washington, 1971
- Utter was convicted of manslaughter by a jury, and appealed
- Utter had been drinking heavily on the date of the murder of his son
- Utter had no recollection of the events
- Utter’s lawyer brought up the defense of “conditioned response” as a result of Utter’s
military service in WWII, alleging ultimately no mens rea/culpable mental state
- The trial court ruled that conditioned response was not a defense under WA law,
thought that defendant was alleging irresistible impulse (a theory of criminal insanity)
- Utter also provided evidence that there was no actual act of “homicide” committed in
his case (the court provides the definition of homicide on pg. 130)
- Issue: Whether it was error for the trial court to instruct the jury to disregard the
evidence on conditioned response
- Holding: Yes
- Rationale: There is a certain minimal mental element required in order to establish the
actus reus…it is an element of volition (choice). An act must be a willed movement or
the omission of a possible and legally-required performance. An act committed while
one is unconscious is in reality no act at all…merely a physical event for which there can
be no criminal liability. The trial should have given an instruction with regard to
voluntarily induced unconsciousness (this court notes that this issue is a question of
fact). There was insufficient evidence presented at time of trial to which the jury could
reasonably infer what occurred on the day in question with regard to the murder, no
-
evidence was given to be able to assert his defense either (reasonable doubt could not
be established). Trial court made the error of viewing the defense as an affirmative
defense.
Result:
Utter could have testified that his son surprised him and thus causing his conditioned response.
Criminal Law
McCord
9-17-09
Omissions to act
* Omissions = “negative acts”
* Criminal law approaches behavior from the opposite direction and sets forth minimal rules of conduct
that a person must not fall below
* the resulting convictions were very serious, and were disproportionate to what the defendants did;
perhaps there should be a failure to aid statutes that would make those type of crimes misdemeanors
People v. Beardsley
- Supreme Court of Michigan, 1907
- Beardsley was convicted of manslaughter and sentenced to a jail term of one to five years
- A woman with whom Beardsley had consorted with had taken morphine in an excessive amount
and died as a result
- Beardsley took her to the basement, where there was another occupant
- The other occupant noticed the woman wasn’t breathing, and called a doctor
- Issue: Did Beardsley have a legal duty to prevent the death of the sick woman?
- Holding: No.
- Rationale: Just because there may be a moral duty to aid, there is not necessarily an equivalent
legal duty to help. “The 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 by contract, and the omission to perform the duty must be the immediate and direct
cause of death (pg. 136).” There must be some type of legal relationship whether voluntary or
not, in order to create some duty.
- Result: Conviction set aside.
* Jones v. U.S. (D.C. Cir. 1962) established 4 situations where an omission may constitute a breach of
legal duty: (1) where statute imposes a duty; (2) where there is a status relationship to another; (3)
where there is a contractual duty to care for another; (4) where one has voluntarily assumed the care of
another and so secluded the helpless person as to prevent others from rendering aid; (5) when a person
creates a risk of harm to another
* Omissions are more ambiguous than wrongdoings; it is harder to determine motives for an omission
or failure to act
Barber v. Superior Court
- California court of Appeal, 1983
- A case where a patient (Clarence Herbert) had surgery by Barber, had a heart attack after
surgery, and was left in a vegetative state
- Herbert’s family requested him to be taken off of life support to which both Barber and Nejdl
complied with that request
- Prosecution brought complaint that defendant violated California murder statute “intentionally
or knowingly act  killing a human being”
- At the trial court level, the complaint was dismissed
- Issue: Whether the evidence presented before the magistrate (court) was sufficient to support
his dismissal of the complaint of murder and conspiracy to murder. Did the doctors have a legal
duty to provide further medical treatment?
- Holding: No.
- Rationale: Life ceases when brain function is so diminished as to not make life (metabolic
processes) sustainable. The cessation of life support measures is not an affirmative act but
rather a withdrawal or omission of further treatment. A physician has no duty to continue
treatment once it has proved to be ineffective…there is no duty to continue its use once it has
become futile in the opinion of qualified medical personnel. Though there was a willful
omission, it was not unlawful to perform a legal duty.
- Result: Decision reversed; Barber and Nedjl do not have to answer the complaint.
Potential “Failure to Aid” statute
“ A person who knowingly allows a person to harm or injure themselves or others and fails to reasonably
act upon said knowledge is guilty of a misdemeanor punishable by up to 90 days in jail and/or fine up to
$1000.”
- MN and VT both have these type of statutes
Criminal Law
McCord
9-18-09
Common law approach to mens rea
* culpable mental state is used to separate criminal offenders from non-criminal offenders
* Evidence from which the jury could infer culpable mental state:
- What defendant said before, during, or after(confession)
- What defendant did
- Other circumstances
Regina v. Cunningham
- Court of Criminal Appeal, England, 1957
- The offender wanted to take the gas meter, it had coins in it
- The offender put his victim in a dangerous situation (stole a gas meter from a building and it
caused gas to seep into the room of Mrs. Wade which partially asphyxiated her)
- The defendant’s argument was that the judge wrongly instructed the jury on the meaning of
“maliciously”
- Issue: Whether the judge erred in his submission of the case to a jury?
- Holding: No.
- Rationale: Malice requires (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. The statute does
require unlawful or maliciously conduct. Generally, mens rea does not require any ill-will
toward the injured person.
- Result: Judgment/conviction quashed.
* Can typically ignore the word “unlawful” (as an element) if it is in a statute
* maliciously does not equal wicked (or some bad state of mind)
* “has foreseen…” requires the jury to look inside the mind of the offender and see that he did not
foresee the harm; under the statute, he would then be acquitted if he said he did not foresee the
consequences
Criminal Law
McCord
9-23-09
The Model Penal Code approach to culpable mental state
* Traditional mens rea = punished only if you were a sinner or had a vicious will
* Statutory mens rea = applying “intentionally” only to the conduct and not asking whether the
defendant knew his conduct was immoral
* 3 major concepts: intent, knowledge, recklessness
* The MPC requires the prosecutor to prove that the defendant committed each material element of the
charged offense with the particular state of mind required in the definition of that crime
* Guilt cannot be adjudged simply because the physical act of the crime (actus reus) was morally
offensive
* Culpability may established at four levels: purpose, knowledge, recklessness, and negligence
* The material elements may involve: the nature of the forbidden conduct, the attendant circumstances,
or the result of the conduct
* An action is not purposeful unless it was the person’s conscious object to perform an action of that
nature or to cause such a result
* For the recklessness element to be sufficed the risk taken must be substantial and unjustifiable (the
jury decides these two questions)
* Conditional intent is sufficient to convict
People v. Conley
- Illinois Appellate Court, 1989
- Conley meant to hit Marty Carroll but instead hit Sean O’Connell, causing severe injuries to his
face and mouth
- Illinois statute states “a person who, in committing a battery, intentionally or knowingly causes
great bodily harm, or permanent disability or disfigurement commits aggravated battery.”
- Defendant alleges State did not meet its burden of proof that O’Connell incurred a permanent
disability; and also argued that the State did not meet its burden of proof that he intended to
inflict any permanent disability
Defendant is right in the fact that the intent applied to the great bodily harm, perm. Disability
or disfigurement
- The way the statute is written, the CMS (mens rea) only applies to the result
- The conviction was affirmed; “intent can be inferred from the surrounding circumstances, the
offender’s words, the weapon used, and the force of the blow
* The placement of the adverbs is right in front of the result
State v. Nations
- Missouri Court of Appeals, 1984
- Defendant Nations ran an establishment and a 16 year old girl was found there dancing for tips,
Sandra was charges with endangerment of a child under the age of 17yrs old
- Defendant alleged that the State failed to show that she knew that the girl was underage and
ultimately failed to show intent to endanger a child
- Issue: Did the State meet its burden of proof in showing that the Defendant intended to violate
the MO statute re: endangering the welfare of a child?
- Holding: No.
- Rationale: The statute provides for a conviction if the offender “knowingly” encourages, aids, or
causes a child to engage in any conduct tending to injure the child’s welfare. Willful blindness is
acting knowingly when what is involved is a matter of existing fact, but not when what is
involved is the result of the defendant’s conduct, necessarily a matter of the future at the
time of acting. MO legislature did not intend on the use of the expanded definition of
“knowingly” as it is used in the MPC (subparagraph 7 of §2.02). The statute is limited to actual
knowledge. The State may have shown that the Defendant was untruthful, but not that she
actually knew of the child’s real age. The State shows recklessness; however, this is not what is
required to be convicted under the MO statute.
- Result: Judgment reversed.
Criminal Law
McCord
9-24-09
Mens Rea
* Transferred intent – a CMS can be transferred from victim to victim and should not be transferred
from crime to crime (each crime has its own set of elements that must be proven, and the punishment is
particular to each crime)
* Specific intent v. general intent offenses
- pg. 156 (will be talked about in Week 6 of the course)
* The MPC §2.02 adopts element analysis, reduces statutory mens rea culpability to four states, and
adopts subjective liability (recklessness) as the default position
- Element analysis: most words in a statute are elements of the statute; can be divided into
simple elements (related to venue, jurisdiction, or SOL) and material elements
- Simple elements are unconnected to the harm or evil, incident to conduct, and sought to be
prevented by the law defining the offense
- Material elements include conduct, result, and attendant circumstances
- Levels of culpability (will be on the exam): purposely, knowingly, recklessly, and criminally
negligent
- Every material element in every statute must be modified by one of the mental culpability
states
- “Willfully” and “knowingly” are interchangeable
- Default position: The MPC says recklessness is the default level of culpability of mens rea; if
there is no culpable mental state in the statute, the element is proved when any of the elements
(excepting negligence) are met
- The MPC rejects the argument that criminal liability should strictly be imposed on the basis of
negligence
United States v. Morris
- US COA, 1991
- Case involving computer crimes
- Morris was a grad student at Cornell, created a computer virus that would only infect a
computer once if there wasn’t already a virus on the computer; would duplicate regardless
every 7th time
- The infection rate for the virus was very high, and Morris tried to remedy the situation but was
too late
- Morris was found guilty under federal statute
- Issue: Whether the government must prove not only that the defendant intended to access a
federal interest computer, but also that the defendant intended to prevent authorized use of
the computer’s information and thereby cause loss.
- Holding:
- Rationale:
- Result: Conviction affirmed.
* The issue in this case is whether a particular mens rea term modifies some or all of the elements in the
definition of an offense
* Statutory construction is addressed in the MPC §2.02
*Actus reus (under the common law) is divided into 3 areas through the MPC – conduct/act, result,
attendant circumstances
* Conduct and result may coincide
Flores-Figureoa v. U.S.
- USSC, 2009
- Flores was an illegal immigrant who had gotten falsified social security paperwork, turns out the
numbers used were assigned to other people
- The court granted cert in this case because there was disagreement amongst the Circuits on
whether knowledge was a necessary element of proof required by the government
- Issue: Whether the federal identity theft statute requires the government to show that the
defendant knew that the “means of identification” he or she unlawfully transferred, possessed,
or used, in fact, belonged to “another person”?
- Holding: Yes.
- Rationale: The word “knowingly” is typically construed as modifying every element of a statute.
In classic identity theft cases, intent is not hard to prove.
Result: COA reversed, remanded for further proceedings.
Criminal Law
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9-30-09
Strict Liability Offenses
* An offense is never a strict liability offense, an act will need to be done intentionally
* There can be a strict liability element of the offense, either an attendant circumstance or a result was
intended to be strict liability
* Generally, strict liability elements are disfavored
U.S. v. Cordoba-Hincapie
- US District Court, Eastern District of New York, 1993
- Mens rea = a guilty mind, a guilty or wrongful purpose, a criminal intent, vicious will,
immorality of motive
- in history, nations have looked at the mental thoughts/intent of an offender to determine the
propriety and grading of punishment
- more narrowly, mens rea = mental state of defendant must have had with regard to the “social
harm” elements set out in the definition of the offense
- A person is guilty of [name of offense] if she intentionally does [X which is the social harm
element of the offense]
Staples v. United States
- USSC, 1994
- Staples was found with an AR-15, that had the capability of becoming an automatic rifle
- Statute is written in a way that if it is violated, the offense becomes a strict liability offense
- The Court says the legislature did not intend to eliminate the mens rea element
Garnett v. State
- Court of Appeals Maryland, 1993
Raymond was found guilty at the trial court level, court found it was a strict liability offense
- Issue: Is there a mens rea element of the Maryland statute?
- Holding: No.
- Rationale: The statute does not set forth a mens rea requirement (no reference to the
defendant’s knowledge, belief, or other state of mind). There is nothing in the statute that
allows for a mistake of age defense.
- Act: sex
Attendant Circumstance: victim was younger than 14 yrs old
Attendant Circumstance: Defendant more than 4 years older than victim
Penalty: no more than 20 years imprisonment
- Result: Conviction affirmed.
- Dissent: Says that the statute was generally contemplated as saying that when a defendant
knows and intends that he or she is engaging in sexual activity with a young person, they are
liable
The legislature assumed that defendant is able to appreciate the risk involved by intentionally
and knowingly engaging in such activities
Mistake and Mens Rea
People v. Navarro
- Appellate Dept., LA County Superior Court, 1979
- Navarro was charged with grand theft, convicted of petty theft
- Trial court modified two jury instructions to lower the CMS to negligence
- State law: Every person who shall feloniously steal the personal property of another is guilty of
theft…
- Act: Steal/taking and carrying away personal property
Attendant Circumstance: of another
Attendant Circumstance: trespassory without the owner’s permission
Burden of proof (CMS): with intent to steal or permanently deprive/knowingly
-
Issue: Did the trial court err in refusing to give (2) certain jury instructions? Whether the
defendant should be acquitted if there is a reasonable doubt that he had a good faith belief that
the property had been abandoned or that he had the permission of the owner to take the
property or whether that belief must be reasonable one as well as being held in good faith.
- Holding: Yes.
- Rationale: The statute (as written) lacks an intent element. “One cannot intend to steal property
which he believes to be his own (pg. 193).” As a matter of law, the jury could have decided how
unreasonable his belief was and still convicted the defendant.
- Result: Judgment reversed.
* Mistake of fact claims care rare to nonexistent as to act elements; they are almost always made as to
an attendant circumstance or result element
* Specific intent crime – acquit if defendant’s belief was actual (COMMON LAW)
* General intent crime – acquit if defendant’s belief was actual and reasonable(COMMON LAW)
*MPC just uses the four CMSs to say acquit if defendant’s belief was actual under the first 3 CMS; under
negligence, acquit if defendant’s belief was actual and reasonable
* Would a retributivist position punish Navarro? This seems to be a utilitarian judgment
Criminal Law
McCord
10-1-09
Subjective terms to assess belief: “actual” “honest” “good-faith” simply “belief/truly believed
Objective terms: “reasonable” and “unreasonable”
Mistake of Fact/Diminished Capacity/Intoxication
* Why teach these topics in this order?
- all have to do with the question of capacity of the offender to have possessed the requisite intent of
the crime charged (reasons why the defendant may not have the CMS required by the statute)
Commonwealth v. Graves
- Supreme Court of PA, 1975
- Graves was convicted by a jury of first degree murder, robbery, and burglary
- During the course of his robbery and burglary, Mr. Patiri sustained injuries that resulted in his
death
- Graves stated he was intoxicated and high on LSD, and had no recollection of the crime
- Graves called a psychiatrist to testify that he was telling the truth about his intoxication
- Issue: Was it error to not allow evidence of Graves’ intoxication?
- Holding: Yes.
- Rationale: Evidence of intoxication is limited to reducing the degree within a crime and may not
be introduced to change the nature of the crime (Tarver). Voluntary intoxication neither
exonerates nor excuses criminal conduct; however, the evidence submitted regarding such can
have probative value as relevant to capacity of the actor to have possessed the requisite intent
of the crime charged. Under PA law, the crimes of robbery and burglary elements must be
accompanied by a specific intent.
- Result: Sentence reversed, new trial granted.
* Overturned Tarver decision
Criminal Law
McCord
10-02-09
Robbery – requires all the elements of larcent (taking property of anpother without authority with
intent to permanently deprive)
- Taking from, in the presence of the victim
Burglary – breaking and entering a dwelling at night with intent (common law definition); complete at
the time of entry, whether the burglar completes the crime that was intended
Diminished Capacity
* Mens rea variant  we’ll be dealing with this one in this class
* Partial responsibility variant
* Most defendant favorable – MPC 4.02(1), pg 999, would negate intentionally, knowingly, recklessly
Middle ground – common law “specific intent” – CMS higher than recklessly
Defendant unfavorable – Clark, not admitted to negate CMS, but only on insanity as an affirmative
defense; if acquitted by insanity  automatic civil commitment; doesn’t allow defendant to claim lack
of prosecutorial proof of CMS beyond a reasonable doubt
* The mens rea variant simply allows a defendant to present evidence of a mental abnormality to make
the following claim: “I did not commit the crime charged because I did not possess the requisite mens
rea…”
* When asserting defendant has a mental disorder, they are straightforwardly denying the prosecution’s
prima facie case by attempting to cast doubt on their claims
Clark v. Arizona
- USSC, 2006
Clark was charged with 1st degree murder for killing an officer
- Clark was found incompetent to stand trial, 2yrs later found his competence was restored
and he could stand trial
- Clark relied on his schizophrenia to show he had no specific intent to shoot a law
enforcement officer or knowledge that he was doing it
- Issue: Whether due process prohibits Arizona’s use of an insanity test stated solely in terms
of the capacity to tell whether an act charged as a crime was right or wrong; and whether
Arizona violates due process in restricting consideration of defense evidence of mental
illness and incapacity to its bearing on a claim of insanity, thus eliminating its significane
directly on the issue of the mental element of the crime charged.’
Mistake or Ignorance of Law
* Ignorance of the law is no excuse, i.e. not a defense; will never be a failure of proof defense
* Mistake of law is in some circumstances, a failure of proof defense
“Unlawfully” – typically not an element; alerts people there may be an affirmative defense to
the crime
“Without authority”
“Without lawful authority”
“Without authority of law”
* The other 3 are sometimes elements, but may just be factual elements
- If it has an element, if refers to law, if it has a CMS
Example: Kidnapping
Voluntary and intentional – Act: taking a person
A.C.: without other’s consent
A.C.: without authority of law
* Question: adequate notice that something was a crime?? Does this factor in?
Criminal Law
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10-7-09
People v. Marrero
- COA New York, 1987
- Marrero was a federal prison guard
- Marrero was arrested for carrying an unlicensed weapon, violation of NY Penal Law
- Marrero moved to dismiss the indictment stating he was immune from liability under a NY
law that allowed peace officers to carry firearms
- The trial court granted his motion to dismiss
- Appellate court reversed, Marrero was convicted
- Issue: Whether defendant’s personal misreading or misunderstanding of a statute may
excuse criminal conduct in the circumstances of this case?
- Holding: No.
- Rationale: A person is not relieved of criminal liability for conduct because he engages in
such conduct under a mistaken belief that it does not, as a matter of law, constitute an
offense, unless such mistaken belief is founded upon an official statement of the law
-
-
contained in a statute or other enactment. The statute never authorized the defendant’s
conduct, it clearly forbade the conduct.
PUBLIC POLICY VIEW: [Utilitarian] The defense should only be recognized where specific
intent is an element of the offense or where the misrelied-upon law has later been properly
adjudicated as wrong. Any broader view on the mistake of law defense would foster
lawlessness.
Result: Conviction upheld.
Cheek v. United States
- USSC, 1991
- Cheek was a pilot and filed taxes through 1979, thereafter, he stopped paying
- His income far exceeded the minimum necessary to trigger statutory filing
- Cheek alleged that the sixteenth amendment did not authorize a tax on wages and salaries
but only on gain or profit; his defense was based on indoctrination from a group and his
own studies
- Cheek was indicted on 10 federal law violations; these are specific intent crimes which
require the defendant act willfully
- Cheek said the trial court gave an erroneous instruction
- The COA affirmed the convictions
- Issue: Whether the defendant knew of the duty purportedly imposed by the provision of the
statute or regulation he is accused of violating.
- Holding: Yes.
- Rationale: The standard for the statutory willfulness requirement is the “voluntary,
intentional violation of a known legal duty.” The Gov’t is required to prove that the law
imposed a duty on the defendant, that the defendant knew of this duty, and that he
voluntarily and intentionally violated that duty.
*”Unlawfully” just makes us aware that there are possible affirmative defenses; doesn’t typically have a
function in a statute
*Mistake of law is never an affirmative defense, but it can be a failure of proof
Criminal Law
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10-8-09
Causation
* Two forms of causation: “but-for”/cause-in-fact OR proximate/legal cause
* Causation issues almost exclusively arise in murder cases
Velasquez v. State
- District Court of Appeal of Florida, 1990
* Cause-in-fact: a defendant’s conduct is a cause-in-fact of the prohibited result if the said result would
not have occurred “but for” the defendant’s conduct
* If the cause-in-fact test fails, a substantial factor test can be substituted: the defendant’s conduct is a
cause-in-fact of a prohibited result if the subject conduct was a “substantial factor” in bringing about the
said result
Oxendine v. State
- Supreme Court of Delaware, 1987
- A child was beaten by Tyree, caused tears in intestine, and resulting peritonitis; Oxenidine beat
the child the next day, and on the way to the hospital the child died
- Defendant was convicted of manslaughter at the trial court level, judge refused to grant a
motion for acquittal, and did not explain the causation element of the statute
- Delaware statute defines causation as the antecedent but for which the result in question would
not have occurred
- None of the medical testimony provided by the state established cause-in-fact beyond a
reasonable doubt
- Inguito: 2 injuries, separately inflicted; somehow one or both caused death
- Hameli: Tyree’s injury caused death; injuries inflicted by oxendine aggravated or were
contributive
- Issue: Did the trial court err in instructing the jury?
- Holding: Yes.
- Rationale: If the second injury caused his son to die any sooner, then defendant who inflicted
the second injury would be deemed to have caused his son’s death within the statute. A
doctor’s medical testimony can only be considered evidence when the conclusions are based on
reasonable medical certainty.
- Result: Tyree’s conviction affirmed, Oxenidine conviction reversed (on manslaughter, not on
assault).
Kibbe v. Henderson
- US COA, 2nd Circuit, 1976
- Defendant Kibbe was found guilty of murder, robbery, and grand larceny
- Stafford (the victim) was very intoxicated, and was taken from a bar by Kibbe and another man,
they robbed him, and left him outside with his pants around his legs and his shirt pulled up; it
was also wintery conditions, snow on the ground
- Stafford had tried to flag down a car, was in the middle of the road, and Blake ended up hitting
Stafford, claimed he had no reaction time, did not apply brakes, was also speeding
- Issue: Did the trial court err in instructing the jury on the issue of causation?
- Holding: Yes.
- Rationale: The judge failed to define or explain causation as mentioned in the statute. The state
was bound to prove to the jury beyond a reasonable doubt that appellant evinced a depraved
indifference to Stafford’s life, recklessly engaged in conduct that created a grave risk of
Stafford’s death, and thereby caused Stafford’s death. Error in the omission of an instruction is
compounded where the legal standard is complex and required that fine distinctions be made.
The liability of one who put an antecedent force into action will depend on the difficult
determination of whether the intervening force was a sufficiently independent or supervening
cause of death.
Velazquez v. State
- District COA of Florida, 1990
- Drag-racing case
Issue: Whether a defendant drive of a motor vehicle who participates in a reckless and illegal
“drag race” on a public road may be properly convicted of vehicular homicide for the death of
one of the co-participant drivers suffered in the course of the drag race-- when the sole basis for
imposing liability is the defendant’s participation in the race?
- Holding: No.
- Rationale: Other courts have refused to impose criminal liability where (1) the prohibited result
of the defendant’s conduct is beyond the scope of any fair assessment of the danger created by
the defendant’s conduct, or (2 ) where it would otherwise be unjust, based on fairness and
policy considerations to hold the defendant criminally responsible for the prohibited result. It is
important to reason whether the defendant’s reckless conduct caused the death of the victim.
The defendant’s conduct was not a proximate cause because the victim took it upon himself to
continue in his reckless driving.
- Conviction and sentence reversed.
* Although a victim’s contributory negligence is a factor to consider in determining whether the
defendant’s negligence caused the victim’s death, it is not a defense (People v. Tims, Michigan Supreme
Court, 1995)
State v. Rose
- Supreme Court of Rhode Island, 1973
- Defendant hit a pedestrian, the victim hit the hood of the car, and then was dragged some
distance and was found dead
- Defendant was charged with negligent manslaughter, and leaving the scene of an accident,
death resulting
- Act/result: killing a human being CMS is negligent
- If the victim was already dead, then he would be acquitted because he was not being negligent
in the result
Criminal Law
McCord
10-15-09
Complicity/Accomplice Liability
Murder (principal)
Accomplice
CMS
CMS
“purposely” act/result: killing a human being
Dual intent
1) Intent to aid defendant AND
2) Intent to aid murder
Act/Result: doing an act that aids defendant
* Most accomplices are premeditated conspirators
* Conspirator = 1) agreement to commit crime and 2) an overt act
* It’s possible to be a conspirator in its early stages and not be an accomplice
* Complicity = “Purposely” assisting (actus reus) another person and with the purpose that a crime be
committed  this implies there is a causation role in the accomplishment of a criminal purpose
*Have to satisfy all elements to be determined as an accomplice
State v. Ward
- Court of Appeals of MD, 1978
- Common law divides guilty parties into principals and accessories
- Principals = perpetrators; one who actually commits a crime
- Principals (second degree) = abettors; one who is guilty of aiding, counseled, commanded, or
encouraged the commission (of a crime) either actually or constructively
- Accessories before the fact = inciters; guilty of felony by reason of having aided, counseled,
commanded or encouraged the commission thereof without having been present either actually
or constructively at the moment of perpetration
- Accessories after the fact = criminal protectors; with knowledge of the other’s guilt, renders
assistance to a felon in the effort to hinder his detection, arrest, trial or punishment
State v. Hoselton
- Supreme Court of Appeals of West Virginia, 1988
- The defendant was charged with the principal’s crime of breaking and entering into a barge
with intent to commit larceny
- The defendant was determined to be a lookout by his own voluntary statement
- Defendant alleged there was not sufficient evidence to uphold the conviction
- Issue: Was there sufficient evidence to uphold the conviction?
- Holding: No.
- Rationale: The Court used the definition of aider and abettor to come to its conclusion that the
defendant had no intent to commit the principals’ crime. The question asked by the prosecutor
-
was misleading, and may have been construed by the jury as the defendant having intent of the
crime. His statement was not sufficient to become an aider and abettor.
Result: Conviction reversed and set aside.
* Pg. 866, Note 3: did Kevin do an act to aid the crime; did Kevin have an intent to aid his friends; did
Kevin have an intent that the crime be committed?
a) Yes/Yes/No
b) Yes/Yes/No
c) Yes/Yes/Yes
d) skip due to being involved with causation
e) Yes/Yes/Yes
f) No/Yes/No
g)No/No/Yes - accessory after the fact
h)Yes/Yes/No - not an accomplice
People v. Lauria
- California Court of Appeal, Second District, 1967
- Lauria was indicted for conspiracy to commit prostitution
- The State’s approach attempts to equate knowledge of another’s criminal activity with
conspiracy to further such criminal activity
- Issue: Under what circumstances does a supplier become part of a conspiracy to further an
illegal enterprise by furnishing goods or services which he knows are to be used by the buyer for
criminal purposes?
- Rationale: Circumstances - 1) Intent may be inferred from knowledge when the purveyor of legal
goods for illegal use has acquired a stake in the venture; 2) intent may be inferred from
knowledge, when no legitimate use for the goods or services exists; 3) Intent may be inferred
from knowledge, when the volume of business with the buyer is grossly disproportionate to any
legitimate demand, or when sales for illegal use amount to a high proportion of the seller’s total
business; 4) A supplier who furnishes equipment which he knows will be used to commit a
serious crime may be deemed from the knowledge alone to have intended to produce the result
* Being an accomplice has nothing to do with the probability that the forbidden result will follow upon
the accessory’s/accomplice’s conduct
* The accessory does not have to a “have a stake” in the commission of a crime
Riley v. State
- Court of Appeals of Alaska, 2002
- Riley and Portalla fired shots into a group of individuals
- Both were indicted on counts of first-degree assault (recklessly causing serious injury by means
of a dangerous instrument)
- Riley challenged his convictions
-
In order to be guilty, Riley must have voluntarily and purposely acted “using a dangerous
instrument” [recklessly] with the result of causing sever bodily injury to another person
- The jury question was whether Riley acted as a principal or an accomplice (aiding and abetting
Portalla to fire the wounding shot)
- Jury found Riley guilty as an accomplice
- Riley alleged that the jury was misinstructed on the CMS in allegations of complicity
- Rationale: The underlying crime requires that the principal acted recklessly with respect to the
result. The State has to prove that the defendant acted intentionally with respect to the
prohibited result, and must prove the CMS as required by the underlying crime. The alleged
accomplice’s mental state has to be evaluated separately from anyone else’s CMS (under the
MPC §2.06(4)). The Alaska statute requires also that the person acts with intent to promote or
facilitate the commission of the offense. A person cannot be convicted as an accomplice to that
offense unless they consciously intended to achieve that result.
- Result: Convictions affirmed.
* “Recklessly” = Defendant consciously disregards a substantial and unjustifiable risk that he is engaging
in this proscribed conduct (PG. 80 in Glannon)
Criminal Law
McCord
10-21-09
Natural and Probable Consequences Doctrine
State v. Linscott
-
Supreme Judicial Court of Maine, 1987
Linscott was a part of a robbery scheme, a bunch of individuals decided to rob a drug dealer
Linscott did wield a hunting knife and switchblade at the time of the crime
Linscott broke through a window with his body while Fuller shot through a window with his
shotgun, killing Grenier (the drug dealer)
Linscott was convicted of one count of murder and one count of murder
Linscott claimed he had no intention of killing anyone during the course of the robbery
At the trial court level, the judge found the defendant guilty of robbery, and on a theory of
accomplice liability, guilty of murder/ Also found that Linscott did not intent to kill Grenier
Linscott alleges that the State can only use negligence as the CMS
Rationale: Liability for any secondary crime that may have been committed by the principal is
established by a two-fold showing: (a) that the actor intended to promote the primary crime,
and (b) that the commission of the secondary crime was a “foreseeable consequence” of the
actor’s participation in the primary crime. The legislature did intend to impose liability upon
accomplices for crimes that were the reasonably foreseeable consequence of their criminal
enterprise, notwithstanding an absence on their part of the same culpability required for
conviction as a principal to the crime.
- Result: Conviction affirmed.
* Doctrine listed in note 1 on pg. 878
Attendant Circumstances
* An accomplice may be convicted if he acts with the kind of culpability, if any, with respect to the
circumstance, that is sufficient to convict the primary party
* Can be an accomplice even without a causal connection, pg. 888, note 4
Actus Reus
State v. Vaillancourt
-
-
-
Supreme Court of New Hampshire, 1982
Vallaincourt and Burhoe were at a residence, proceeded to go around the house, and Burhoe
attempts to break a window while Vallaincourt watched and then they fled the scene and the
police apprehended them
Vallaincourt was charged as an accomplice to the crime of burglary, because he accompanied
Burhoe and watched the commission of the crime
Vallaincourt alleged that the indictment contained no actus reus element/ did not allege any
criminal activity
Issue: Did the trial court err in dismissing the motion to dismiss filed by Vallaincourt?
Holding: Yes.
Rationale: The crime of accomplice liability requires the actor to have solicited, aided, agreed to
aid, or attempted to aid the principal in planning or committing the offense. The crime
necessitates some active participation by the accomplice. Mere presence at the scene of the
crime does not support a conviction for accomplice liability.
Result: Conviction reversed.
Criminal Law
McCord
10-22-09
Actus Reus(cont.)
Wilcox v. Jeffrey
-
King’s Bench Division, 1951
-
Wilcox was charged with aiding and abetting a saxophone player who was denied leave to land
in the UK
- The saxophone player (Hawkins) was in violation of a UK statute that says he must have had
leave of an immigration officer
- Wilcox did not arrange the visit, but he did know they were coming and was there to report
their arrival; attended Hawkins’ concert as a spectator
- Rationale: Appellant paid to go to the concert and he went there because he wanted to report
it. He must therefore be held to have been present, taking part, concurring or encouraging (the
offense). Wilcox was benefiting from Hawkins’ commission of the offense.
- Issue: Appeal denied, conviction upheld.
* The reporter was actively involved in Hawkins commission of the offense, did not protest Hawkins
being present at the jazz club
* When applying this to other hypotheticals, such as the remaining audience, it is important to think
about causation
State v. Helmenstein
-
Supreme Court of North Dakota, 1968
Helmenstein was prosecuted on a charge of burglary of a grocery store; a group of young people
were riding around in defendant’s car, someone suggested to rob a store in a neighboring town
- Three individuals including the defendant proceeded to break into the store and take items
- 5 members of the group testified against the defendant
- Store owner only testified that a crime had been committed
- The trial court found the defendant guilty
- Issue: Was there sufficient evidence to uphold a conviction?
- Holding: No.
- Rationale: Cannot just depend upon accomplice testimony to uphold a conviction; there must be
corroborating evidence that connects the defendant with the crime/scene of crime, as opposed
to just showing a crime had been committed. Everyone at the scene of the crime was adjudged
an accomplice so there is no other evidence outside of this to say Helmenstein was a part of the
actual commission of burglary. Each person was concerned in the commission of the offense.
- Result: Conviction reversed.
* Causation: “The assistance given need not contribute to the criminal result in the sense that but for it
the result would not have ensued. It is quite sufficient if it facilitated a result that would have transpired
without it. It is quite enough if the aid merely rendered it easier for the principal actor to accomplish the
end intended by him and the aider and abettor, though in all human probability the end would have
been attained without it.
* corpus delucti rule - there has to be a crime actually committed and proven, but a defendant’s
confession cannot be sufficient to convict of a crime; the corroboration rule is a weaker version of this
(15 states have this rule)
People v. Genoa
-
Court of Appeals of Michigan, 1991
Genoa was convicted of attempted possession with intent to deliver cocaine
The charge was dismissed by the trial court on the grounds that the police agent never intended
to commit the contemplated crime and did never commit it, though defendant believed he was
committing an illegal act
Rationale: The prosecutor could only charge the defendant with the crime of aiding and
abetting the crime of possession with intent to deliver. There are 3 elements under Michigan
law that must be satisfied in order to convict under aiding and abetting: (1) the underlying crime
was committed by either the defendant or some other person
* MPC 2.06(c) covers aiding and “attempting to aid” under accomplice liability
Criminal Law
McCord
10-23-09
Complicity (cont.)
Causation will be deemed to exist under common law as to all participants unless:
1. The alleged accomplice acts spontaneously, and
2. None of the other accomplices knows about the alleged accomplice’s attempt to aid, and
3. The alleged accomplice’s attempt to aid was entirely ineffectual
* In such a case the alleged accomplice is not an accomplice at all, but a failed wanna-be accomplice,
which is not criminal under common law - look at note D on pg. 866 (would not be an accomplice)
Distinguishing direct from accomplice liability
Bailey v. Commonwealth
-
Supreme Court of VA, 1985
Bailey was having an argument with the victim Murdock; both individuals were intoxicated,
arguing and threatening each other
Murdock was also legally blind, which Bailey was aware of
Bailey taunted Murdock to grab his handgun
-
Bailey called the police and told them Murdock was waving a gun around, had his gun on the
porch, and threatening to shoot up the neighborhood
- Bailey made the calls anonymously and feared revealing his identity
- The cops showed up, Murdock opened fire on the police not knowing they were in the police,
and Murdock was killed
- Issue: Whether it was proper to convict Bailey of involuntary manslaughter?
- Holding: Yes.
- Rationale: One who effects a criminal act through an innocent or unwitting agent is a principal
in the first degree. The important question is whether Bailey undertook to cause Murdock harm
and used the police to accomplish that purpose; the court finds yes he did. An intervening act
(the police confronting Murdock) which is reasonably foreseeable cannot be relied upon as
breaking the chain of causal connection between an original act of negligence and subsequent
injury.
* The “innocent agency” doctrine is used in the rationale of this case, see note 2, pg. 895
U.S. v. Lopez
- US District Court, California 1987
- Mcintosh landed a helicopter to effect the escape of his girlfriend (Lopez) from a federal prison
- Lopez raises the defense of necessity/duress because she felt her life was threatened by prison
authorities
People v. McCoy
In re Meagan R.
- Court of Appeal, 4th District, California 1996
Attempt
* “To attempt” “To try to”  with intent to or intentionally or purposely under the MPC
Solicitation
Conspiracy
“Direct act” test
MPC
Proximity test
Reeves
how close to completion
- on what def. has already done
Miller
Mere bad thought
Last necessary act
People v. Gentry
-
Appellate Court of Illinois, 1987
Gentry was convicted of attempted murder
Gentry and his girlfriend were arguing in their apartment; Gentry spilled gasoline on Hill, and
soonafter the gas ignited causing Hill to be severely burned
- Gentry did attempt to put out the flames with his coat
- Gentry appeals because the jury instructions regarding the intent necessary for attempt murder
was prejudicially erroneous
- Rationale: A finding of specific intent to kill is a necessary element of the crime of attempt
murder. Intent to do bodily harm, or knowledge that the consequences of defendant’s act may
result in death or great bodily harm is not enough.
- Result: Conviction and sentence reversed, case remanded with proper instructions.
* The intent to cause the completed offense becomes the mens rea issue
* The actor must intentionally commit the act(s) that constitute the actus reus of an attempt
* MPC 5.01(1) - does not specify intentionally as the only CMS (a statute can delineate more than one)
Bruce v. State
-
Court of Appeals of Maryland, 1989
The victim Tensor owned a store that was intruded by the defendant and 2 others; Bruce made
threatening comments to Tensor and was bumped into and shot Tensor in the stomach
Jury found Bruce guilty of attempted 1st degree felony murder
Bruce contends that attempted 1st degree felony murder is not a crime under MD law
Issue: Whether attempted 1st degree felony murder is a crime in MD?
Holding: No.
Rationale: The statute as it stands does not create new crimes but only divides the common law
murder statute into degrees for purposes of punishment. It is not necessary to prove a specific
intent to kill or to demonstrate the existence of willfulness, deliberation, or premeditation. The
State would need to prove there was specific intent to commit the underlying felony and the
death that occurred.
Criminal Law
McCord
10-28-09
Attempt (cont.)
Tests for passing the line between “mere preparation” and attempt
Case Name
“Direct Act” test
“Proximity” test
MPC - add: did def.
abandon, MPC § 5.01
§5.02
Peaslee
No
No
Yes/No to 2nd
question
Rizzo
No
No
Miller
No
Yes
Yes/Maybe to 2nd
question
Reeves
No
Yes
Yes
Commonwealth v. Peaslee
-
-
Supreme Judicial Court of Massachusetts, 1901
Defendant was indicted for an attempt to burn a building and certain goods with the intent to
injure the insurers of the building
Defendant alleged that his acts did not amount to a criminal offense
Defendant had arranged combustible materials in a building such that they could be lit and
cause a fire; defendant offered to pay someone else to carry out the plan
Rationale: There was evidence of a crime, perhaps an attempt. A mere collection and
preparation of materials in a room for the purpose of setting fire to them, unaccompanied by
any present intent to set the fire, would be too remote.
Result: Exceptions (of the defendant) sustained.
People v. Rizzo
-
-
Court of Appeals of NY, 1927
Defendant was convicted of an attempt to commit the crime of robbery in the 1st degree
Issue: Whether the defendant’s acts were in preparation to commit the crime if the opportunity
offered, or constituted a crime itself of attempt?
Holding: No, did not constitute attempt.
Rationale: To constitute the crime of robbery, the money must have been taken from Rao by
means of force or violence or through fear. The crime of attempt was committed if the
defendants did an act tending to the commission of this robbery. Because defendant was still
looking for his victim, he never had the opportunity to fully commit the crime.
Result: Conviction reversed and new trial granted.
People v. Miller
-
-
Supreme Court of California, 1935
Defendant was charged with attempted murder; jury found defendant guilty
Defendant was under the influence of alcohol and threatened to kill Albert Jeans
He appeared to be loading his rifle, but never raised the rifle. The gun was taken away from the
defendant by a third party.
Rationale: Up to the moment the gun was taken from the defendant, no one could say with
certainty whether the defendant had come into the field to carry out his threat to kill Jeans or
merely to demand his arrest. The defendant was only left in the condition to commence the first
direct act toward consummation of his threats.
Result: The acts of defendant don’t constitute an attempt to commit murder.
State v. Reeves
-
-
Supreme Court of TN, 1996
Rule of law: When an actor possesses materials to be used in the commission of a crime, at or
near the scene of the crime, and where the possession of those materials can serve no lawful
purpose of the actor under the circumstances, the jury is entitled, but not required, to find that
the actor has taken a substantial step toward the commission of the crime if such action is
strongly corroborative of the actor’s overall criminal purpose.
Result: Conviction affirmed.
Punishing Pre-attempt conduct
United States v. Alkhabaz
-
-
US COA, 6th Cir. 1997
Alkhabaz is being prosecuted for sending certain emails that involved threats of violence
Alkhabaz was alleged to have violated federal law prohibiting interstate communications
containing threats to kidnap or injure another person
Rationale: Even if a reasonable person would take the communications between Baker
(Alkhabaz) and Gonda as serious expressions of an intention to inflict bodily harm, no
reasonable person would perceive such communications as being conveyed to effect some
change or achieve some goal through intimidation.
DISSENT: argues that the Congress did not intend to include as an element of the crime the
furthering of some goal through the use of intimidation
CMS - act/conduct: communicate a threat to kidnap or injure another personvoluntary,
intentionally
a.c.: interstate or foreign commerce strict liability
a.c.: to the intended person to which the threat is directed
* There may be threats, but not to the intended party; it’s the right result
Criminal Law
McCord
10-29-09
Attempt: Special Defenses, Impossibility
* The modern doctrine as exemplified by MPC 5.01 typically says the impossibility defense does not
exculpate
* When there is no issue that can be construed to be a being dependent on a legal status -- neither
common law nor modern law will exculpate for impossibility
* Hybrid(factual)/legal impossibility - hinges on there being an element in the statute at issue that can
be characterized as dependent on legal status
- Examples: (1) In an attempted homicide of a dead body, the status of the body as not a
human being.
(2) In an attempted receiving of stolen property case, the status of the property
as not “stolen”
* D tries to pick V’s pocket, but V’s pocket is empty. - No exculpation under common law/modern law
People v. Thousand
-
Supreme Court of Michigan, 2001
Thousand was charged with attempted distribution of obscene material to a minor
Thousand had sent graphic photos via internet to “Bekka” who was actually a police officer
posing as a minor, in order to seek out offenders
On appeal, defendant’s charge was found to be in error
Abandonment
Commonwealth v. McCloskey
-
Superior Court of PA, 1975
Defendant had contemplated escaping from prison, did approach the prison fence, had
necessary materials to cut the barbed wire, but abandoned the actual escape
Direct act - maybe; Proximity test - yes; MPC - yes (did cross the line between mere preparation
and completed attempt)
Rationale: The defendant was in a position to abandon the criminal offense of attempted prison
breach voluntarily, thereby exonerating himself from criminal responsibility.
Result: Judgment of sentence is vacated and appellant ordered discharged of the conviction of
attempted prison breach.
Assault
* No “battery” is mentioned in the MPC §211.1, pg 1015-16
Solicitation
* Solicitation is closest to mere preparation (on McCord’s given scale) and pre-conspiracy
State v. Mann
- Supreme Court of North Carolina, 1986
- Solicitation is an attempt to conspire
- Solicitation involves the asking, enticing, inducing, or counseling of another to commit a crime
Conspiracy
* Conspirators are responsible for co-conspirators that they may not even reasonably foresee or did not
know about
Pinkerton v. United States* Will need to be cited on the final exam
Criminal Law
McCord
10-30-09
Conspiracy (cont.)
People v. Carter
-
Supreme Court of Michigan, 1982
Conspiracy is separate and distinct from the actual crime
A person can be charged both with conspiracy and the completed offense
Where in order to constitute attempt, preparation has had to proceed so far toward actual
commission of a crime as to itself create an intolerable danger to society, conspiracy has
entered the breach and provided an opportunity for earlier intervention
Pinkerton v. United States
-
USSC, 1946
Walter and Daniel Pinkerton were indicted for violations of the Internal Revenue Code
Walter and Daniel had conspired to not pay taxes on alcohol they had made
Daniel was in jail at the time while Walter had hired others to make more moonshine
One of the employees of Walter ends up stealing a car
Establishes the Pinkerton rule: Each co-conspirator is responsible for 1) any reasonably
foreseeable crime committed by a co-conspirator 2) in furtherance of the conspiracy.
Also establishes vicarious liability for every member of a conspiracy without requiring the
government to establish accessorial liability; establishes the CMS as negligence
Each conspirator by entering into agreement authorizes other members of the conspiracy to act
as his agent to commit crimes necessary to implement their criminal objective
MPC rejects the Pinkerton rule as too broad
People v. Swain
-
-
Supreme Court of California, 1996
Swain was alleged to have been in a van that was a part of a driveby shooting that killed a 15yr
old boy
Swain bragged in jail about having a good shot
Swain was convicted of conspiracy to commit second degree murder
Rationale: There has to be (a) intent to agree, or conspire; (b) the intent to commit the offense
which is the object of the conspiracy. The underlying crime requires “malice aforethought.”
Where the conspirators agree or conspire with specific intent to kill and commit an overt act in
furtherance of such agreement, they are guilty of conspiracy to commit express malice murder.
The conviction of conspiracy to commit murder requires a finding of intent to kill, and cannot be
based on a theory of implied malice.
Result: Conviction reversed.
Actus Reus of Conspiracy
Abraham S. Goldstein - Conspiracy to Defraud the United States
-
Agreement (within conspiracy) must be inevitably be based upon assumptions about what
people acting in certain ways must have had in mind. It is based on circumstantial evidence
Commonwealth v. Azim
-
-
Superior Court of Pennsylvania, 1983
Azim was arrested for simple assault, robbery, and conspiracy; Azim drove the car that had
other defendants in it who had committed the overt acts
Defendant Azim argues that there was insufficient evidence of the conspiracy so the other
crimes which he was charged with, should be moot
Rationale: A conspiracy may be inferentially established by showing the relationship, conduct,
circumstances of the parties, and the overt acts on the part of the co-conspirators have
uniformly been held competent to prove that a corrupt confederation has in fact been formed.
Once conspiracy is established and upheld, a member of the conspiracy is also guilty of the
criminal acts of his co-conspirators.
Result: Conviction affirmed.
Commonwealth v. Cook
-
Appeals Court of Massachusetts, 1980
Cook and his brother engaged in conversation with the victim; she denied them the invitation to
talk and continued to walk to her boyfriend’s home; she saw that he was not home and went to
go back to her friend’s house and wait for their arrival; she then engaged with the defendant for
45 minutes talking; they then decided to go to a convenience store and the victim slipped and
the defendant’s brother then jumped on the victim and raped her while Dennis watched
- Issue: Can the defendant be convicted of conspiracy solely on the evidence tending to show his
complicity as an accomplice in the commission of the substantive crime?
- Holding: No.
- Rationale: Must be shown that there was an existence of an agreement and that the defendant
was aware of the objective of the conspiracy which was alleged. The circumstances upon which
the victim and the defendant met were not indicative of a preconceived plan by the defendant
and his brother. The fact that the defendant may have aided and abetted the crime does not
establish a conspiracy, particularly where the evidence shows no prior planning. Accomplice and
conspiratorial liability are not synonymous.
People v. Foster
-
Supreme Court of Illinois, 1983
-
-
Foster had approached an individual asking him if he wanted to make some money; the
individual tentatively agreed but then informed the police, while leading Foster to believe he
was still interested in perpetrating the crime
Bilateral conspiracy is required by the Illinois statute
Kilgore v. State
-
-
Supreme Court of GA, 1983
Defendant participated in three attempts to kill the victim, with the 4th attempt culiminating in
the victim’s murder
Testimony of an accomplice was inadmissible, but testimony from the defendant’s ex-girlfriend
was
There has to be evidence that defendant was in fact the perpetrator of the independent crime
and there has to be sufficient similarity or connection between the independent crime and the
offense charged
In order for it to be a conspiracy, the defendant must know there are others in the chain (as a
criminal enterprise - common intent - dependent on each other)
There are “chain” conspiracies and “hub and spoke/wheel” conspiracies (individual short chain
conspiracies)
The individuals involved in 2 of the prior attempts on Norman were not considered coconspirators in the actual murder of Norman (not a chain conspiracy)
Criminal Law
McCord
11-4-09
Criminal Homicide
* Highest offense: death sentence-eligible murder (capital murder)
* Common law murder
FIRST DEGREE
- with intent to kill + premeditation and deliberation OR
- while committing one of the big 6 felonies
SECOND DEGREE
-
Spontaneously formed intent to kill without premeditation and deliberation
Intent to cause seriously bodily injury that instead causes death OR
-
While committing a felony other than one of the big 6
With a deprave heard or abandoned/malignant heart, characterized by extreme
recklessness (Doing an extremely dangerous act not directed at any particular victim, i.e.
dropping a brick from a rooftop onto a busy sidewalk; doing an extremely dangerous act
that is directed at a particular victim, but that is not intended to cause death or even serious
bodily injury, i.e. beating a child with fists)
VOLUNTARY/INVOLUNTARY MANSLAUGHTER
- Heat of passion VS. unintentional killing during the commission of a crime other than felony
* MPC 210.2 does not have degrees of murder. The CMS that will support a conviction of murder are:
killing purposely or knowingly OR killing under circumstances indifferent to human life
* MPC does not have felony-murder rule
Criminal Law
McCord
11-5-09
Criminal Homicide (cont.)
* There are common themes that the legislature may lump together to have a murder qualify as “death
eligible” - prior crimes, contemporaneous felonies, status of the victim (pregnant, disabled), pecuniary
gain, aid to someone else
The Protected Interest: “Human Being”
People v. Eulo
-
-
Court of Appeals of NY, 1984
Defendants appealed and alleged that they did not cause the death of the victim and that the
court did not properly instruct the jury on how death is defined by statute
In the opinion, the court had to review how death has been traditionally defined by law; how
brain death is sought to combined into the meaning; and if the court may recognize brain death
without overstepping its bounds
Issue: Does “brain-death” constitute death as intended by the legislature?
Holding: Yes.
Rationale: A recognition of brain-based criteria for determining death is not unfaithful to prior
judicial definitions of death. When the respiratory and circulatory functions are maintained by
mechanical means, their significance as signs of life is at best ambiguous. Under such
circumstances, death may nevertheless be deemed to occur when according to accepted
medical practice, it is determined that the entire brain’s function has irreversibly ceased.
Degrees of Murder: the deliberation-premeditation formula
State v. Guthrie
-
-
Supreme Court of Appeals of WV, 1995
Defendant was found guilty of 1st degree murder
Defendant stabbed his co-worker in the neck after being teased several times; the defendant
had a history of psychiatric problems preceding the murder
Defendant alleged that the jury was not instructed properly on the definition of the terms,
“willful, deliberate, and premeditated”
Rationale: To allow the State to prove premeditation and deliberation by only showing that the
intention came into existence for the first time at the time of such killing completely eliminates
the distinction between the two degrees of murder. Premeditation and deliberation should be
defined in a more careful, but still general way to give juries both guidance and reasonable
discretion.
Result: Judgment reversed, case remanded for new trial.
* This case puts into question whether: (1) there is no time to short for premeditation and deliberation
(2) there is sufficient duration for defendant to be “fully conscious” of intent to kill (satisfies
premeditation) (3) premeditation = think beforehand, deliberation = evaluative choice/take a second
look, requires cold blood
Midgett v. State
-
Supreme Court of Arkansas, 1987
Defendant hit his son in his abdomen and back with intent to cause serious bodily injury
Defendant argues that he did not premeditate and deliberate the killing of his son
Issue: Whether the state’s evidence was sufficient to sustain the conviction of 1st degree
murder?
- Holding: No, it was not sufficient.
- Rationale: The appellant intended not to kill his son, but to further abuse him or that his
content, if it was to kill the child was developed in a drunken, heated rage while disciplining the
child. There was no statute in Arkansas allowing a conviction of 1st degree murder in the
commission of a felony. The court’s duty is to give those accused of 1st degree murder the
benefit of the requirement that they be shown by substantial evidence to have premeditated
and deliberated the killing, no matter how heinous the facts.
- Result: The facts support a finding of 2nd degree murder.
- DISSENT: The jury should decide the degree of murder, not the court.
* this is an easier case for 2nd degree murder-depraved heart
State v. Forrest
-
Supreme Court of North Carolina, 1987
Defendant was found guilty of 1st degree murder at the trial court level
-
-
Defendant’s father was declared terminally ill and was admitted to a hospital, defendant
entered the hospital and made statements to the nurse about “taking care” of his father
Defendant then fired four shots into his father’s temple, and the cause of death was ruled as
the gunshots to the head
Defendant argues that the trial court erred in denying the motion for directed verdict on the 1st
degree murder conviction; argues there was insufficient evidence of premeditation and
deliberation
Issue: Did the trial court err in denying the motion for directed verdict?
Holding: No.
Rationale:
Making the case for 1st Degree murder
Case
Name
Evidence of planning before the killing?
Pre-existing
motive
Defendant’s
actions
Defendant’s
statements
Circumstances surrounding the killing
Provocation
by decedent
Defendant’s
actions
After
Defendant’s Defendan
statements actions
Guthrie
No
No
No
Yes
Stabbed
victim
No
Midgett
No
No
No
No
Beating/abuse
No
took chil
hospital
last bea
Forrest
Yes
Yes
No
Maybe
Shot victim 4
times in
temple
No
Walked o
the roo
calml
No
Criminal Law
McCord
11-6-09
Unintentional Homicides
Lowest level of care
Reasonable care
Ordinary care - No liability
Non-criminal civil liability
Gross negligence
Criminal negligence
Highest level of care or lack of care
Depraved heart
Recklessness
Berry v. Superior Court
-
-
California Court of Appeal, 6th District, 1989
Defendant was charged with murder of a 2 year old who was killed by his dog
The dog was trained to be a fighting dog and was known to have an “exceptionally hard bite”
Defendant is asking for a pre-trial dismissal of the charges being that he did not meet the
requisite mental state for the crime alleged
Issue: Whether a person of ordinary caution or prudence would be led to believe and
conscientiously entertain a strong suspicion that defendant committed the crime charged
(murder)?
Holding:
Rationale:
* Prosecution: had gone out of the way to make the dog viscious and dangerous, did not take
reasonable measures to safeguard and secure the premises
People v. Nieto Benitez
-
Supreme Court of California, 1992
Elaborates on the term “malice”
2nd degree murder is committed when a person does an act, the natural consequences of which
are dangerous to life, which act was deliberately performed by a person who knows that his
conduct endangers the life of another OR malice may be implied when defendant does an act
with a high probability that it will result in death and does it with a base antisocial motive and
with a wanton disregard for human life
State v. Hernandez
-
Missouri Court of Appeals, 1991
Defendant was found guilty of involuntary manslaughter
Defendant was drinking and driving when he collided with the victim’s vehicle, there were
several injured parties including the defendant, and one person was killed
- Issue: Whether evidence of the drinking slogans logically tended to support or establish that (1)
defendant acted with criminal negligence and (2) in doing so, caused the death of the victim?
- Holding:
- Rationale: The state did not have to prove that the defendant knew of the effects of alcohol
upon him. Defendant’s reputation and character was not at issue in the case and evidence
attesting to it is deemed irrelevant.
- Result: Conviction of involuntary manslaughter reversed.
- DISSENT: Under the MPC §2.02 (note 4), a person acts negligently under this subsection when
he inadvertently creates a substantial and unjustifiable risk of which he ought to be aware. The
slogans were relevant to showing what the defendant thought about his actions.
*MPC 2.02 involves some subjective characteristics to be taken into account
* Negligence is considered an objective form of fault because liability is based on the actor’s failure to
live up to the external-objective-standard of care of the reasonable person
Criminal Law
McCord
11-11-09
Felony-Murder rule
BIG 6
- arson, burglary (entering any enclosure unlawfully/intent to commit a felony), escape from custody,
kidnapping, rape, robbery
- there has to be an independent felonious purpose (burglary is questionable on this)
* One is guilty of murder if a death results from conduct during the commission or attempted
commission of any felony
* F-M rule assures that premeditated and deliberate murderers during felonies (who are most of them)
can’t lie their way to a conviction of a lesser charge by getting gullible juries to believe their stories
* It makes a few murdered during felonies who are not lying about such stories, and who have the CMS
only for 2nd degree murder, instead guilty of 1st degree murder
* F-M rule transfers the CMS for the predicate felony to the homicide committed
* 2nd degree F-M rule relatively invoked because the felonies most likely to result in death are
encompassed within the 1st degree f-m rule (Big 6) See People v. Howard
People v. Fuller
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California Court of Appeal 5th District, 1978
Defendant was prosecuted for first degree murder under the felony-murder rule; he had
committed a burglary prior to the accident
Defendant was in a high-speed car chase and got into a car accident with a third party wherein
the third party driver was killed
Issue: Did the trial court err in dismissing the murder charge?
Holding: Yes.
Rationale: By statute, the defendant is guilty of 1st degree murder. If there were no statute in
place, the court would hold he was not guilty of 1st degree murder during the commission of the
burglary, because the burglary itself was not inherently dangerous to human life. Such a harsh
result (the charge of 1st degree murder) destroys the symmetry of the law by equating an
accidental killing from a petty theft with a premeditated murder.
“Inherently Dangerous Felony” Limitation of F-M rule
People v. Howard
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Supreme Court of California, 2005
The defendant was pulled over by a police officer, but then sped away when the officers
approached, defendant got away temporarily but then was chased again by another officer,
when the officer stopped as they were heading downtown, the defendant ran a red light and hit
a third party, killing her
Defendant was charged with 2nd degree murder, and driving in willful and wanton disregard of
the safety of persons
Issue: Is the crime of driving with a willful or wanton disregard for the safety of persons or
property while fleeing from a pursuing police officer an inherently dangerous felony for
purposes of the 2nd degree felony-murder rule?
Holding: No.
Rationale: The 2nd degree felony murder rule is not statutory; it is through virtue of common
law. In order to determine whether a crime is inherently dangerous, the judge would look to the
facts of the case as opposed to the defendant’s specific conduct. The reckless driving is not in
the abstract an inherently dangerous to human life [crime]. The jury should have considered
whether the non-dangerous crime was done with malice.
*Elements of felony in the abstract - legal/matter of law
Elements of felony as committed - matter of fact
* The prosecution would want to have the jury instructed on 2nd degree f-m rule because the burden of
proof is only showing that the predicate felony was committed; with a 2nd degree depraved heart
murder would set the burden of proof as showing an extreme indifference to human life
The “Independent Felony” (or Merger) Limitation
People v. Robertson
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Supreme Court of California, 2004
The victim was participating in a minor crime spree, stealing the hubcaps from defendant’s car,
the defendant shot at the two criminals (Riley and Harris) and wounded Harris and killed Riley
Issue: Is the 2nd degree felony murder rule, incorporated under the merger doctrine,
inapplicable in this case?
Holding: No.
Rationale: The f-m rule is not proper when the predicate felony is an integral part of the
homicide and when, under the prosecution’s evidence, it is included in fact within the offense
charged. If the f-m rule were applied to felonious assaults, all such assaults ending in death
would constitute murder, effectively eliminating the requirement of malice-- a result clearly
contrary to legislative intent.
* The predicate felony was discharging a firearm in a grossly negligent manner
* Merger doctrine - the predicate felony must not be one involving personal injury but have a purpose
other than inflicting harm
* Most courts say that if the underlying felony is assault or mayhem, merger occurs as well
Killings in the perpetration or in furtherance of a felony
State v. Sophophone
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Supreme Court of Kansas, 2001
Defendant was charged with conspiracy to commit aggravated burglary, aggravated burglary,
and felony murder of his co-felon during flight from an aggravated burglary
- The victim was actually killed by the arresting officer
- Defendant argued that he was in custody of the police during the time of the killing so he could
not be adjudged as in flight during the commission of the aggravated battery
- Rationale: The killing resulted from the lawful acts of a law enforcement officer in attempting to
apprehend a co-felon, Sophophone is not criminally responsible for the resulting death of the
victim
- Result: Felony-murder conviction reversed.
* The victim’s actions of shooting at the police officer could be determined as a superseding act
* Agency approach to felony murder rule - the f-m rule does not apply if the person who directly causes
the death is a non-felon; a co-felon cannot be convicted of the homicides because the primary party was
not the person with whom she was an accomplice
Criminal Law
McCord
11-13-09
General Defenses to Crimes
* Five different categories of defenses: failure of proof, offense modification defenses, justifications,
excuses, and nonexculpatory public policy defenses
Failure of Proof
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Because of certain conditions stipulated by the defense, all elements of the offense charges
cannot be proven
Mistake is a common failure of proof defense
Just a negation of a particular element (i.e. CMS or lack thereof)
Offense Modifications
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Provide a more sophisticated account, when needed of the harm or evil sough to be prohibited
by the definition of the offense
While the actor has apparently satisfied all elements of the offense charged, he has not in fact
caused the harm or evil sought to be prevented by the statute defining the offense
I.E. a victim of a crime may not be held as an accomplice even though his conduct has in a
significant sense aided the commission of the crime
Justifications
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Although the justified behavior remains a legally recognized harm, that harm is allegedly
outweighed by the need to avoid an even greater harm or to further a greater societal interest
Negates the social harm of an offense
Triggering conditions permit a necessary and proportional response (has to be proven)
Necessity = demands that the defendant act only when and to the extent necessary to protect
or further the interest at stake
Proportionality = places a limit on the maximum harm that may be used in protection or
furtherance of an interest
Exculpatory mental state - belief was actual/subjective/honest AND reasonable
I.e self-defense
Excuses
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Excuses admit the deed may be wrong, but excuse the actor because conditions suggest that the
actor is not responsible for his deed
I.e. mental illness at the time of an aggravated assault
Although the actor has harmed society, she/he should not be blamed or punished for causing
that harm
Nonexculpatory public policy defenses
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Formality defense
I.e. statute of limitations may bar a conviction for robbery despite clear culpability because by
foregoing that conviction society further other, more important, public interests
- I.e. diplomatic immunity, incompetency, judicial/legislative/executive immunities
- The defendant’s conduct is harmful, and creates no social benefit, the defendant is
blameworthy; however, the social benefit underlying the defense arises not from the actor’s
conduct, but from foregoing his conviction.
* Justifications and excuse are NOT synonymous
Self-Defense
* MPC §3.04(1) -[traditional law] does not incorporate the reasonable belief standard  not popular
with the legislature
* Common law definition of self-defense does look at the actor’s mental state and circumstances
United States v. Peterson
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US COA, D.C. circuit, 1973
Rationale: The right of homicidal self-defenses is denied to slayers who incite the fatal attack. A
defensive killing is unnecessary if the occasion for it could have been averted.
Elements of self-defense: must have been a threat, actual or apparent, of the use of deadly
force against the defender; the threat must have been unlawful and imminent; there must be a
reasonable belief that the elements are present, must be objectively reasonable in light of the
surrounding circumstances exculpatory mental state
The response had to have been necessary to save himself therefrom  necessity
If safe retreat was open, self-defense cannot be asserted
Deadly force may be employed in defense only against a deadly threat (defined as a threat of
death or seriously bodily injury)
MPC 3.11(2) what is deadly force?
State v. Norman (I)
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Court of Appeals of North Carolina, 1988
Defendant and victim were married 25 years, had endured severe mental and physical abuse for
at least 20 years, on the day of the victim’s death, the defendant had been beaten and was
threatened with death, she had went to her mother’s house got a pistol and shot the victim in
the head 3 times
Issue: Was the threat of death or serious bodily injury to Defendant imminent?
Holding: Yes
Rationale: Given evidence of Defendant’s mental condition at the time of the murder, she was
justified in her belief that death or serious bodily injury was imminent. Defendant did not use
more force than reasonably necessary (under the circumstances) to protect herself from death
or great bodily harm.
Criminal Law
McCord
11-19-09
Self-Defense (cont.)
* Justification defenses can often overlap
* There is no justification for use of deadly force solely in the protection of property
* There is a defense of use of deadly force to prevent an unauthorized entry into a home if there exists
reasonable and factual grounds to believe that unless so used, a felony would be committed inside
[Defense of habitation]
* If there is a right to self-defense, there is no requirement for concern for other people
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Available defenses: self-defense, defense of others, defense of habitation, defense of personal
property, crime prevention
All of those defenses may involve use of non-deadly force
Tennessee v. Garner
- USSC, 1985
- Rationale: Such force may not be used unless it is necessary to prevent the escape and the
officer has probable cause to believe that the suspect poses a significant threat of death or
serious physical injury to the officer or others.
* Self -defense/Justification is broken down into:
- triggering condition (immediate and dire, natural forces create situation)
- proportionality (avoid a greater evil to himself or others)
- necessity
- exculpatory mental state (actual and reasonable)
* MPC §3.02