Criminal Law Outline

I. Overview of the Criminal Justice System A. What is Criminal Law? - Definition: The use of state power to deliberately condemn and harm culpable individuals who have violated public interest. 1. involves the gov’t as the plaintiff 2. gov’t can prosecute even if victim doesn’t want them to 3. high procedural hurdles to protect defendant; ex: burden of proof, sanctions higher 4. more serious harms: public harms; community harms a. what is public v. private 5. distinct from civil law-many more limitations on action (ex: grand jury)

II.Criminal Law Outline The Purpose of Punishment A. The Case of Dudley & Stephens Facts: Dudley and Stephens (D’s) while shipwrecked, killed Parker and ate him in order to avoid starving to death Issue:Was the killing justified by “necessity?” Can you kill an innocent person to save yourself? Not a case of self defense-there is not aggressor Holding: Declared the defendants’ actions as willful murder Rationale: Not legally justified to kill another to save oneself in absence of self defense

Moral Arguments: Is it just/unjust to allow a person to have a defense in this case? 1. Killing an innocent person- no say in his plight 2. Playing God 3. court admits that if in that situation, may not be able to live up to those standards, but still must lay down rules Policy Argument: 1. slippery slope, necessity defense might become the legal cloak for unbridled passion and atrocious crime in future 2. One death instead of four – is this an issue? Is there a right answer or a more correct approach to resolution of the situation

Discretion is a multi-edge sword—opportunity to be lenient (react to unjust law), also opportunity to discriminate

What is the rule of statutory interpretation? Rule of Lenity: if ambiguous text with no statute legislative history, rule in favor of Defendant

B. The Traditional Purpose of Punishment -The rapid increase in incarceration is on the most dramatic social changes of our era, yet there has been a reduction in crime. -The “theories” of punishment affect legal decision making by: 1. influence the decisions of legislatures in defining offenses/defenses, prescribing penalties, and allocating resources 2. influence judges in interpreting and applying criminal statutes 3. influence judges in sentencing offenders

2 Views on the justifications of Punishment: 1. Retributive View: punishment is justified on the grounds that wrongdoing merits punishment. That a criminal should be punished follows from his guilt, and the severity of the appropriate punishment depends on the depravity of his act. a. Retribution involved both a limiting principle (there must be no undeserved punishment) and an affirmative justification for punishment (punishment must be justified by desert) b. Deserved when wrongdoer freely chooses to violate society’s rules c. Looks backward and justifies punishment solely on the basis of the voluntary commission of a crime d. Based on premise that humans generally possess free will and therefore may justly be blamed 2. Utilitarian View: Punishment is justifiable only by reference to the probable consequences of maintaining it as one of the devices of social order. Only future consequences are material to present decisions. a. Utilitarian thought held that punishments sole aim was to prevent crime and that it could do so by deterring, reforming and incapacitating offenders. b. justified if good outweighs bad—punishment promotes social welfare i. purpose of laws is to maximize net happiness of society ii. do not advocate punishment unless believe it will provide an overall social benefit c. Premise is that people are generally hedonistic and rational calculators

1. Utilitarian Justifications for Punishment DETERRENCE a. General Deterrence: punish to scare future offenders; send message to reduce crime b. Assumptions: way to communicate law, potential offender is a rational person/ balance costs-benefits, that there is an actual risk of punishment (won’t just get let off anyways) c. Possible that punishment of innocent person could be justified

REHABILITATION transform them from someone who commits crime to those that do not  one of the principal ideas in early penal system—humanistic (til about 1970s when shifted to punitive approach)  believed that offenders could be rehabbed, and the gov’t was capable of doing that  doesn’t consider what offender deserves, only what will cure him  costs

INCAPACITATION a. Collective and Selective Incapacitation 1. Incapacitation works by definition: Its effects result from the physical restraint of the offender and not from his subjective state a. It works provided 3 conditions are met: i. offenders must be repeaters ii. offenders taken off the streets must not be immediately and completely replaced by new recruits iii. prison must not be “schools of crime”, increase post-release criminal activity of those incarcerated list’s predictive potential=lead to a lot of false positives +recidivist statutes often do not catch up with an offender until after she is no longer in her crime prime

2.Retribution Alex Cabarza Case Idea of culpability- must have some amount of free will

III.Criminal Law outline Sentencing the Criminal Offender Remedy: do something to constrain judges at sentencing stage Adopted series of steps that led to Determinate Sentencing: statutory and admin rules

A. Statutory Constraints 1.Mandatory Minimums -laws enacted by legislature that compels judges to impose a certain sentence by kind of offense or record a. offense related • particular crime=mandatory min sentence: you do a certain crime, certain time at a minimum • almost every state and fed jurisdiction has this for drug crimes

b.recidivist statutes impose min sentence for offenders with significant prior offenses Ex: CA 3 Strikes Law: law triggered when you have a certain prior offense. If you have 2 serious felonies then any felony will trigger application of 3 strikes law; serious felonies include things like murder, even not that bad of burglary; non violent felony can be the final offense; court obligated to sentence offender of at least 25 years

- criticism: does not eliminate discretion: shift from Judge to Prosecutor -treat people the same w/different factors ex:mens rea, background -legislators not well equipped to make a code that takes into account everything

novel approach that take into account risk factors and constrain judicial discretion = guidelines

2. Federal Sentencing Guidelines Background: 1984 Congress passed a Sentencing Reform Act for the federal criminal justice system designed to promote determinate sentencing, and establish a Sentencing Commission to set up guidelines that would reflect these goals and limit sentencing discretion. The Commission’s guidelines make sentencing “proportionate” to factors other than the actual offense committed. Criticism is that the guidelines render the offense of conviction irrelevant and that it eliminates sentencing discretion and produces excessively harsh sentences. • Discretionary parole abolished • Sequence for setting sentences: 1. Judges in setting sentences are supposed first to consult a schedule for the particular offense which specifies a “base offense level” 2. Then, on the basis of various offense circumstances (ie whether was armed, value of property taken), the offense level is adjusted 3. Next, judge must determine the offender’s criminal history score 4. Finally, judge is to consult a 2D grid to learn the presumptive sentence for the offender, given his adjusted offense level and criminal history…also permitting adjustments for acceptance of responsibility and assistance to gov’t • Features of federal guidelines make them more restrictive than existing state guidelines: 1. Guidelines are in principle “presumptive” and judges have authority to depart from them, although the grounds for departure are exceeding limited 2. application of the guidelines is based on “actual offense behavior” which the Commission refers to as “relevant conduct”—uncharged conduct need not be proved beyond a reasonable doubt, but only by a preponderance of evidence

• Racial Disparity: significant difference not only in the arrest and prosecution rate, but also in the average length of sentence received by black and white offenders under new guidelines • In addition to failure to eliminate unwarranted disparities, the guidelines sentencing process raises serious due process issues: 1. adequate notice of the charges by indictment or information 2. the standard of proof with respect to uncharged conduct which will significantly affect length of sentence 3. right to confront and cross-examine witnesses with respect to uncharged conduct 4. right to jury trial with respect to uncharged conduct • Sentencing Commission to set up guidelines to bind judges into how to sentence; extremely detailed; aspire to be comprehensive • 2 factors important to sentencing: measure of criminal record and offense level

Relevant Conduct Concern: take into account extra crimes: judge permitted with lower standard of review (preponderance of evidence) to add additional time at sentencing with respect to grid; incorporate indeterminate sentence discretion

Leniency/Discretion: Departures upwards/downward left to judge discretion but under strict guideline: must conclude that relevant factor was not adequately considered by sentencing commission; policy statements: guidelines severely limits grounds for departure; across the board is seen as overly rigid; 90% of departures are downward though; substantial assistance is most common departure, esp drug cases

Koon v. United States Supreme Court of the US 1996

• Facts: After the police had beat Rodney King severely during arrest, police officer Koon was convicted of willfully permitting officers to use unreasonable force. The District Court departed from the Sentencing Guidelines and reduced the sentencing range • The Court of Appeals reviewed de novo whether the district court had authority to depart. Reversed 5 level, rejected 3 level; said not legitimate departures • Supreme Court granted certiorari to determine the standard of review governing appeals from a district court’s decision to depart from the sentencing ranges in the Guidelines. They concluded that the appeallate court should not review the departure decision de novo, but instead should ask whether the sentencing court abused its discretion.How much deference should the court of appeals give to trial court sentences? 1. De novo standard=”like new” 2. deferential- abuse of discretion • The act did not eliminate all of the district court’s discretion, the act authorizes district courts to depart in cases that feature aggravating of mitigating circumstances of a kind or degree not adequately taken in consideration by the Commission—allows for deferential standard; trial court has some discretion

Policy Argument: District court has better sense of case and more experience in sentencing, so may have an institutional competence that Court of Appeals does not have. Also, district courts have traditionally had discretion in sentencing.

Summary: Mandatory Mins and Guidelines lead to changes: 1. less judge discretion=more uniformity in decisions 2. Dramatic increase in punitiveness of punishments

IV.Criminal Law Outline Constitutional Constraints on Punishment A. Proportionality Solem v. Helm 1983 Facts: State appealed a court of appeals decision granting Helm’s writ of habeas corpus, finding that the sentence of life imprisonment imposed upon Helm under the State’s recidivist statute was grossly disproportionate to the felonies which it was predicated and therefore violative of 8th Amend (cruel and unusual punishment) -7th felony: uttering a “no account” check for $100; ordinarily max punishment for this crime is 5 yrs + $5K fine -But as a result of S. Dakota recidivist statute: When a D had been convicted of at least 3 prior convictions in addition to the principal felony, the sentence for the principal felony shall be enhance to the sentence of a Class I felony which was life imprisonment with no parole and only the governor is authorized to pardon. Holding: the Court of Appeals for 8th Circuit reversed and concluded that Helm’s sentence was grossly disproportionate to the nature of the offense and directed district court to issue writ unless state resentenced him and US Supreme Court affirmed Rationale: Hold as a matter of principle that a criminal sentence must be proportionate to the crime for which the defendant has been convicted (8th Amendment)

-Reviewing courts, should grant substantial deference to the broad authority that legislatures necessarily possess in determining types and limits of punishments for crime, as well as discretion that trial courts possess in sentencing convicted criminals -A courts proportionality analysis under the 8th Amendment should be guided by the objective criteria, including : gravity of the offense and harshness of the penalty; the sentences imposed on other criminals in same jurisdiction; and the sentences imposed for commission of the same crime in other jurisdictions

Harmelin v. Michigan • Left status of Solem proportionality principle (aggressive) in considerable doubt (Harmelin ruling show a more conservative stance) Facts: D convicted of single crime of possession 672 grams of cocaine and sentenced to life imprisonment without parole Holding: Supreme Court affirmed sentence Rationale: Justice Kennedy retained a “narrow proportionality principle”: 1. fixing of prison terms for specific crimes involves substantial penological judgment that=primacy of legislature 2. 8th Amendment does not mandate any one penological theory; variances 3. divergences both in the underlying theories and lengths of sentences are inevitable=nature of the federal system 4. requirement that proportionality review be guided by objective factors 8th Amendment does not require strict proportionality between crime and sentence, rather, it forbids only extreme sentences that are grossly disproportionate to crime (Solem) -Principle of proportionality generally thought of as retributive limit on punishment, precluding more punishment than is deserved -Utilitarian Rationale: yield principle of proportionality precluding pointless punishment, however consideration of incapacitation and rehab might dictate longer sentences; purpose is the good of the whole

V. The Boundary Between the Civil and Criminal Law A. Kansas v Hendricks Facts:1994 Kansas enacted Sexually Violent Predator Act which establishes procedures for the civil commitment of person who due to a mental abnormality or a personality disorder are likely to engage in predatory acts of sexual violence -Hendricks challenged commitment on “substantive” due process, double jeopardy, and ex post facto grounds Holding: Supreme Court hold that the Kansas Sexually Violent Predator Act comports with due process requirements and neither runs afoul of double jeopardy principles nor constitutes an exercise in impermissible ex post-facto lawmaking.

Rationale: 1. Due Process: - Generally, this Court has sustained a commitment statute if it couples proof of dangerousness with proof of some additional factor, such as a "mental illness" or "mental abnormality," for these additional requirements serve to limit confinement to those who suffer from a volitional impairment rendering them dangerous beyond their control 2. Double Jeopardy - The Act does not establish criminal proceedings, and involuntary confinement under it is not punishment. The categorization of a particular proceeding as civil or criminal is a question of statutory construction. - He has failed to satisfy this heavy burden. Commitment under the Act does not implicate either of the two primary objectives of criminal punishment: retribution or deterrence. Its purpose is not retributive: It does not affix culpability for prior criminal conduct, but uses such conduct solely for evidentiary purposes (status of dangerousness); it does not make criminal conviction a prerequisite for commitment; and it lacks a scienter (culpable mental state/mens rea) requirement, an important element in distinguishing criminal and civil statutes. Nor can the Act be said to act as a deterrent, since persons with a mental abnormality or personality disorder are unlikely to be deterred by the threat of confinement. . - The conclusion that the Act is nonpunitive removes an essential prerequisite for both Hendricks' double jeopardy and ex post-facto claims. Is civil in nature

Fundamental Principles of Criminal Liability -the core elements are what the prosecutor must prove beyond a reasonable doubt to achieve a conviction 1. actus reas (bad act)-conduct…the special rule of omissions aside, some conduct by D is constitutionally required, may not punish person for thoughts (culpable mind) or mere propensity (status) to commit crimes alone a. external; objective 2. mens rea (culpable mental state)-intent a. subjective

1. The Conduct Requirement = Actus Reus -It is commonly said that criminal punishment requires that the individual have committed an “act” and that the “actus reus” (criminal or bad act) is a necessary element in the equation establishing criminal liability -The conditioning of desert on choice implies that deserved punishment must be for some conduct, either action or failure to act where action is called for. -In sum, “the requirement of an act” may refer to some or all of the following seven conditions for just punishment: that punishment must be for 1) past 2) voluntary 3) bad 4) conduct 5)specified 6) in advance 7)by statute.

2 Types of Acts 1. Specific prohibitive act = conduct oriented crimes 2. Result Oriented (like homicide-action that causes the death; act causes result)

A. Requiring Actus Reus Proctor v. State Facts: Proctor was convicted of keeping a dwelling with the intent of selling alcoholic beverages Issue: Can an unexecuted intent be punished? Holding: Appeal court reversed trial court judgment; That the statute fails to connect such unlawful intent with any overt act--criminal intent alone is insufficient to convict a person, some sort of illegal act must be performed in furtherance of the intent. Rule: A criminal conviction requires an overt illegal act -court looking at general principles of fairness: punishing someone for a lawful act does not serve purposes of actus reas

State v. Palmer -WA state Court of Appeals upheld a statute that allowed a conviction of gross misdemeanor to every person in possession of a tool that could be used in a burglary or other crime under circumstances evincing an intent to use or employ in the commission of a crime. -upheld it against a claim that the presumption of a guilty intent from the described possession violated Due Process Clause of 14th Amendment. -Palmer court concluded there was enough connection between the fact allowed to be inferred and the fact proved to warrant a jury in concluding beyond a reasonable doubt that a particular D had intended to commit a crime by mere fact of possession

People v. Valot -D was charged with violating a state law making it a crime for a person to possess or to have under his or her control any narcotic drugs. -Mich Court of Appeals held that trial judge could have reasonably found that Valor had control of the marijuana, regardless of who brought the drug into the room Expansion of act requirement: possession includes constructive possession

B. Voluntariness Martin v. State Court of Appeals of Alabama, 1944 Facts:Martin was convicted of being drunk on a public highway; officers arrested him at his home (other charges) and took him into the street where he allegedly committed the proscribed acts Holding: an accusation of drunkenness in a designated public place cannot be established by proof that the accused while in drunken condition was involuntarily and forcibly carried to that place. **External forces as undermining a voluntary act

MPC Section 2.01 Requirement of Voluntary Act 1. A person is not guilty of an offense unless his liability is based on conduct that includes a voluntary act 2. Possession is an act, within the meaning of this Section, if the possessor knowingly procured or received the thing possessed or was aware of his control thereof for a sufficient period to have been able to terminate his possession

Involuntary Acts MPC defines “act” only implicitly (largely by exclusion) and stresses the element of conscious control

Anticipating Involuntariness People v. Decina Time Framing: not just time of crashing car (involuntary), when get into car he is acting voluntary—which satisfies homicide statute Facts: Decina had an epileptic seizure while driving his car and struck and killed 4 people on sidewalk. Court held that although his seizure was involuntary, he nonetheless was criminally liable. Holding: Decina made a conscious choice of a course of action in disregard to consequences which he knew might follow from conscious act, and which in this case did ensue. His disregard for consequences renders him liable for culpable negligence

C. Status v. Conduct Robinson v. California Facts: Appellant convicted due to a CA statute that makes it a criminal offense for a person to be addicted to the use of narcotics. Issue: May states outlaw the condition of narcotics addiction? Is it a violation of 8th Amendment? Holding: Reverse, states cannot outlaw the condition of drug addiction Rationale: Statute under which R was convicted punishes the status of addiction (propensity to use narcotics) rather than any actual use, sale, or antisocial behavior resulting from use. Narcotics addiction is an illness, which may be contracted involuntarily, thus the CA statute inflicts a cruel and unusual punishment in violation of 8th and 14th amendments. Thus the law authorized criminal punishment for the mere desire to commit a criminal act Dissent: law should be read as prohibiting the regular, repeated, or habitual use of narcotics immediately prior to R’s arrest. Robinson = can’t punish status or conditions (for simply being an alcoholic); needs to be an act

Powell v. Texas Facts: D arrested and charge with being found in a state of intoxication in a public place in violation of Texas Penal Code. Counsel for D urged that D was afflicted with the disease of chronic alcoholism and that his appearance in public while drunk was not on his own volition and thus to punish him criminally would be cruel and unusual Holding: 5/4 Decision in favor of conviction Rationale: unlike Robinson v. CA, the D was convicted not for being a chronic alcoholic, but for being in public while drunk on a particular occasion. Thus, Texas has not sought to punish a mere status as CA did in Robinson; nor has it attempted to regulate D’s behavior in the privacy of his own home. Rather it has imposed upon appellant a criminal sanction for public behavior which may create substantial health and safety hazards for D and the public. Knowingly failed to take feasible precautions against committing a criminal act, here the act of going to or remaining in a public place

D. Omissions Individual can be punished for failure to act Rule: not under a general obligation/duty to be a good Samaritan **So develop limited categories of omission liability Courts are not making rules for specific case in front of them; put everyone on notice for ruling of principle that will be announced; does not want to make a broad obligation and rule for all of us and in that context it is a challenging situation.

Pope v. State Facts: Pope (took mother and child in) did nothing to protect child or call authorities or seek medical attention when mentally ill mother beat child; actually left for church with Melissa leaving child; child died that night Issue: Did Pope have responsibility for the supervision of the child in the circumstances? Appeal Holding: set aside child abuse: no legal obligation as mother was present Rationale: She may not be punished as a felon under our system of justice for failing to fulfill a moral obligation, and the short of it is that she was under no legal obligation

Bystander Indifference Why people do nothing? 1. Fear of retaliation 2. Not knowing what to do in case of emergency 3. presence of bystanders 4. choice of nightmares: watch and feel guilty or possibly get hurt too 5. threat of being mistaken for cause of harm

Problem is to draw the line between harm-producing omissions which ought to be legally proscribed, and those which ought not. Macaulay proposes that only where there are already existing legal duties to aid should the failure to aid by indictable.

SOME states have enacted Good Samaritan Statutes which make it criminal to refuse to rescuer a person in emergency situations. Exceptions: 1. rendered w/out danger or peril to himself 2. w/out interference with important duties owed to others 3. unless assistance or care is being provided by others

Jones v. United States Facts: decedent baby was placed with D, a family friend, and child’s mother Shirley lived in the house for some time Issue:-was D under a legal duty to supply food and necessities to baby and/or had D entered into a contract with mother for care of child or whether she assumed the care of the child and secluded him from the care of his mother? Holding: Reversed conviction of manslaughter and remanded: instructions given in the case failed to suggest the necessity for finding a legal duty of care. Rationale: a finding of a legal duty is the critical element of the crime charged and failure to instruct the jury concerning it was plain error

Rule: 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 5 situations in which failure to act may constitute breach of a legal duty. One can be held criminally liable: No general legal duty to act, only specific circumstances that you will have a legal duty: 1. status relationships: category where you have a legal duty to act recognized by law; when one party is dependent on another party: ex, parents to children, married couples, inn keeper to guests 2. statute imposes duty: you have to act in these circumstances 3. Contractual Duty: civil law usually; but where your violation leads to serious harm this can trigger a criminal liability 4. voluntary assume care/seclude: take a person away, prevent others from helping 5. create peril yourself: duty to warn people of the peril you create; ex: BBQ and accidentally start fire, obligated to notify others

Case of David Cash Handout -Facts: Strohmeyer pleads guilty to murder of girl in bathroom, but Cash is not actively involved in girl’s death -Moral Question: is he really that morally culpable? Does he fit under the 5 categories of omission liability? No -there is not a good Samaritan statute on the books As a result, CA legislature enacted Good Samaritan Bill (2000) -any person who reasonably believes that have observed the following offenses of a child 14 years or younger must report to police: violations is misdemeanor -Limited to: murder, rape, lewd and lascivious acts -Limited to against children -Limited to misdemeanor -Individuals are not required to report if puts themselves or family in danger

Criminal Law Outline REVIEW of Actus Reus Rule: Every crime must have an act Qualifications 1. common everyday acts to not satisfy as actus reas (Proctor) 2. possession generally thought to be an act (Palmer) a. constructive possession may also be an act 3. Voluntariness: says that only one element must be met to meet voluntary requirement in a statute, not all of them. a. voluntary with regard to actus reas: any act under conscious direction or will regardless of the motivation; limbs move i. standard exceptions: seizures, irresistible reflexes ii. external force or coercions (Martin v State) iii. sleepwalking b. issue of time frame—looking for an earlier voluntary act (actus reas) see People v. Decina 4. Can’t Punish status or conditions 5. Omissions (failure to act) Is there some legal duty to act? 1. confer by statute 2. embedded in common law to apply to cases; courts infer into cases 3. may be charged even if statute does not specifically state liability result oriented crime: homicide (held liable for causing death of another) -doing nothing is causing a harm if there is legal duty to act

Contrast With MPC Tracts the CL General Principles of Liability pretty closely Section 2.01 -need a  voluntary act; or • lists what acts are not voluntary  omission • Omission liability: statutory basis or duty to perform otherwise imposed by law  Possession is an act Tracts the General Principles of Liability pretty closely

II. The Guilty Mind Requirement = Mens Rea RULE: that the criminal law should punish proscribed conduct only when that conduct is accompanied by bad thoughts. Must be a concurrence of actus reus and mens rea

Criminal law generally conceives bad thoughts as 1. the desire to harm others or violate some other social duty; OR 2. disregard for the welfare of others or for some other social duty

Retribution: mens rea shows person is culpable; feature of being blameworthy Utilitarian: mens rea signifier of who is really dangerous, don’t want to waste resources on mistakes

Exception: Strict Liability offenses; do not need a mens rea Desire to try and control possibility of serious harms to society Desire for ease of prosecution to prosecute for cases hard to determine mens rea Desire for significant deterrent effect to ensure people act with care --Purely Utilitarian approach, but are some retributive concerns

A. Searching for Mens Rea

US v. Balint Facts: Balint and others were charged with unlawfully selling to another a certain amount of opium contrary to provisions of the Narcotic Act Issue: Is punishment of a person for an act in violation of law when ignorant of the facts making it so, an absence of due process of law? Holding: Supreme Court believed demurrer to indictment should have been overruled. Rationale: held that in the prohibition or punishment of particular acts, the State may in the maintenance of a public policy provide that he who shall do them shall do them at his peril and will not be heard to plead in defense good faith or ignorance. Rule: In the interest of the larger good, it puts the burden of acting at hazard upon a person otherwise innocent but standing in responsible relation to a public danger

*5th Amendment’s Due Process Clause does not bar Congress form punishing violators of the Narcotics Act who act without scienter or knowledge. 1. Strict Liability: liability without fault 2. According to MPC (does not like strict liability), when the state imposes even partial strict liability, the criminal offense may be punished only as a minor penalty or violation a. Model Penal Code attempts to condition liability on fault by conditioning liability on some level of awareness of every act, circumstance, and result that defines the actus reus of the offense.

US v. Dotterweich

Facts: Dotterweich, president of a drug company, was convicted of shipping adulterated and misbranded drugs, something done by the company Issue: May one in a position of responsibility be liable for a strict liability offense w/out conscious knowledge of the wrongdoing? Yes Holding: Supreme Court found that the District Court properly left the question of responsibility of D for the shipment to the jury and there was sufficient evidence to support its verdict Rationale: Such legislation dispenses with the conventional requirement for criminal conduct—awareness of wrongdoing (strict liability). Like in US v. Balint, In the interest of the larger good, it puts the burden of acting at hazard upon a person otherwise innocent but standing in responsible relation to a public danger. Congress has preferred to place the burden upon those who have at least the opportunity of informing themselves of the existence of conditions imposed for the protection of consumers before sharing in illicit commerce, rather than to throw the hazard on the innocent public Dissent: -Guilt is imposed based solely on position of authority in corporation **Vicarious liability statute: get punished for actions of another In this case employee actions imputed on officer of company ***Statute imposed with no mens rea or actus reus (fundamental elements of criminal liability)= Social Welfare Goal Guilty for act of another and that you didn’t know about

US v. Park Facts: D, president of Acme Markets, was charged with allowing food that was being stored for shipment in interstate commerce to be contaminated in violation of 21 USC. Holding: Court held Park criminally liable for the adulterated shipments Rationale: public has a right to expect of those who voluntarily assume positions of authority -Duty imposed by Congress on responsible corporate agents is one that requires the highest standard of foresight and vigilance, but the Act, in its criminal aspects does not require that which is objectively impossible

Morissette v. US Facts: D, a junk dealer, openly entered an air force practice bombing range and appropriated spent bomb casings that had been lying around for years, flattened them and sold them for profit. Indicted and convicted of violating 19 USC 641 which made it a crime to knowingly convert gov’t property. No question that D knew that he took and sold air force bomb casings, but his defense was the he honestly believed that they had been abandoned by the air force and that he was therefore violating no one’s rights by taking them Holding: Court reversed his conviction Rationale: -Public Welfare offenses: cases that do not fit neatly into any of such accepted classifications of common law offenses -the offenses before the Court in Balint were of a class of offenses for whose definition the courts had not guidance from common law, except the Act itself, however, court cannot accept them as authority for eliminating intent from offenses incorporated from the common law

Court says when analyzing: it matters whether categorize as public welfare offense v. common law crime 1. Public Welfare Crime 1. text – how far does “knowingly” term travel, what does it qualify: not clear 2. legislative intent 3. policy consideration 4. rule of lenity 2. Common Law Crime 1. assume legislature wanted to include mens rea 2. strong presumption that include mens rea, BUT if legislature wants to make a strict liability out of a common law offense, must be explicit about it

B.Categories of Culpability Regina v. Faulkner Facts: Faulkner, trying to steal rum from a ship, accidentally started a fire, destroying the entire ship. Faulkner was tried and convicted of both attempted theft and for feloniously, unlawfully, and maliciously setting fire to the ship. Doctrine of Transferred Intent used in trial 1. by committing a bad crime with intent to stealing, satisfies mens rea for arson crime; liable for all other crimes that result from first crime Issue: Is one criminally liable for a crime collateral to an intended crime only when it is a natural and probable consequence of the intended crime? Holding: Quash conviction Rationale: One is not criminally liable for a crime collateral to an intended crime when it is an accident and not done willfully. Only those consequences that are natural and probable from a crime should be chargeable to a D

**Movement of CL away from Doctrine of Transferred Intent towards adopting specific mens rea terms for ultimate crime at issue

Common Mens Rea Terms in Common Law: 1. Intention: to do act or cause a result a. Used to refer to 2 mental states i. Conscious Objective: D had desire to accomplish a specific result ii. Knowledge: D knows a certainty that result will occur even when not conscious objective b. either will satisfy intention term 2. Negligence a. Did not have to prove intention or knowledge b. Civil Negligence: the act of D constitutes a deviation from the standard of care that a reasonable person would have observed in actors situation c. Criminal Negligence: gross negligence; gross deviation from standard of care; aggravated degree of negligence; more than ordinary (civil) negligence; flagrant; acted grossly unreasonable behavior 3. Recklessness a. Some courts treat same as criminal negligence b. Majority courts see as heightened form of criminal negligence+; Approaches: i. Some courts say that reckless is a heightened form of risk taking: more than a gross deviation, it is an extreme deviation from standard of care; higher degree of risk ii. Turn on awareness of likeliness of risk – reckless is acting grossly unreasonable, but aware of it, disregard of risk(negligence is when not aware)


1. Minimum Requirements of Culpability: Except as provided in Section 2.05, a person is not guilty of an offense unless he acted purposely, knowingly, recklessly, or negligently, as the law may require, with respect to each material element of the offense. a. The nature of the forbidden conduct; attitude, awareness b. The attendant circumstances c. Result of conduct 1. Purposefully a. Break up into 2 terms of CL Intentionality: viciousness (conscious) and callousness (knowledge) b. Conscious object (CL Intention 1) to do this act c. Subjective standard: turn on what D himself wanted done d. motive will not undermine conviction, but can still be relevant in sentencing or duress; in terms: do not confuse motive with purpose 2. Knowledge a. Knew result was practically certain (CL Intention 2) b. Subjective standard: turn on what D himself knew 3. Recklessness a. CL term ambiguous: higher degree of risk or awareness b. MPC adopts awareness: aware of substantial and unjustified risk but disregard it c. Subjective standard: what was D aware of? 4. Negligence a. CL term ambiguous b. Similar to CL definition: when D should have been aware of a substantial and unjustified risk c. objective, would ordinary person be aware of risk; but courts have subjectified term: consider whether if he should have been aware when compared to someone in his perspective = selective subjectification 5. Strict Liablity = MPC doesn’t like it; limits it a. Violation liability

C. Mistake of Fact

Regina v. Prince Facts: Prince went away with a 16 year old girl believing her to be 18. Prince charged with having unlawfully taken an unmarried girl, being under age of 16, out of possession and against the will of her father. Issue: When statute does not make mens rea an element of a crime, is knowledge of the pertinent facts relevant? Holding: Found guilty of illegal abduction Rationale: Court sees intention of legislature: to punish the abduction unless the girl was in fact old enough to give valid consent. When a statute does not make mens rea an element of a crime, knowledge of the pertinent facts is irrelevant (strict liability) Moral Wrong Doctrine a. D will be held liable even if makes a mistake of a circumstance element in 2 cases: i. Mistake is unreasonable ii. If facts were as D thought they were, he still committed a moral wrong 1. Transferred intent qualities to these doctrines Legal Wrong Doctrine Liable if: 1. mistake is unreasonable; or 2. facts were as D supposed, he committed a crime i. Transferred intent qualities to these doctrines

Movement towards getting rid of transferred intent and keeping unreasonablness standard

General v. Specific Intent 2 kinds of statutes in Common Law: General Intent Crime: unreasonable is the mens rea for circumstance elements Mens reas = UNREASONABLENESS (civil neg) Easier to prove, thus penalties less severe Vs. Specific Intent Crime: identify specific crimes where have to prove a higher standard of mens rea = purposefully or knowledge Mens rea harder to prove, penalties more severe

Make assessment of classification of a general v. specific intent crime How do you Classify: 1. look at statute – sometimes classified in text 2. look at precedent in your jurisdiction 3. certain kinds of statutes classically fall under specific intent crimes a. most common shape: act + intent to do further act

MPC 3 basic steps 1. Break statute into core elements 2. Assign mens rea to each element Does not use specific intent/general intent 1. Traveling rule: sect 2.02 (4) a. If statute only mentions one mental state, assume applied to all elements except when specified that it does not b. Caveat: suppose statute written in differ way: it is unlawful to possess 625mg knowing the drugs are hallucinogens i. Here knowledge is in middle of statute 1. use default rule for part that can’t find mens rea 2. when legislature writes a statute when list mens rea term in middle of statute, only apply to everything after term 3. Mens rea term travels forward not backward 2. Default Rule 2.02 (3) assign minumum mens rea term of reckless when can’t find qualifying term

People v. Ryan Facts: Ryan claimed that he was convicted of felony drug possession even though he did not know how much weight of the drug he had. Penal Law makes it a felony to knowingly and unlawfully possess 625 mg of a hallucinogen. Issue: Question of statutory interpretation: whether knowingly applies to the weight of the controlled substance? Appeal holding: Court of Appeals concludes that knowingly applies to the weight and that the trial evidence was insufficient to satisfy that mental culpability element Rationale: 1. Question of statutory interpretation a. Language: seems evident that knowingly does apply to weight and D’s awareness must extend not only to fact of possessing but also to nature of material possessed = mens rea element associated with weight b. Reading fortified by 2 rules of construction i. a statute defining a crime unless clearly indicating a legislative intent to impose strict liability should be construed as defining a crime of mental culpability ii. Penal Law, when one and only one term of intent or knowledge appears in statute defining an offense, it is presumed to apply to every element of the offense unless an intent to limit its application clearly appears

State v. Guest Facts: respondents concede that in most jurisdictions a reasonable mistake of age is not a defense to a charge of statutory rape -exception to universal rule that an injury can amount to a crime only when inflicted by intention is categorized as public welfare offense or when foreclosed as a strict liability offense Issue: Whether an honest and reasonable mistake of fact regarding a victim’s age may serve as a defense to a charge of statutory rape? Holding: hold that a charge of statutory rape is defensible where an honest and reasonable mistake of fact as to the victim’s age is shown (not a complete defense but reduce offense) Rationale: -Statutory rape may not appropriately be categorized as a public welfare offense -Although statute is silent as to any requirement of intent, this is true of many felony statutes and it is then commonly inferred.

MPC and affirmative defenses Mistake of fact defense: is an affirmative defense only in sense that it allocates the burden of production, not the burden of proof to the D -must be evidence of affirmative defense, before it must be disproved

D.Capacity 2 basic defenses: 1. Intoxication: to drunk or addicted to drugs a. CL Approach 1. Depends whether classified specific/general intent • intox can never serve in general intent crime • May be used for specific intent crime if intox makes it impossible for D to satisfy element of offense; requisite mens rea c. MPC (1) Is a defense if it negatives one of the elements of the offense (2)Mens Rea Terms: a. Purpose and knowledge crimes: intox is a defense if undermines capacity of mens rea b. Recklessness: not a defense if you would have been aware had you been sober i. Crim Negligence: never a defense, only care what a reasonable person would have known in that situation

State v. Cameron Facts: D involved in altercation w/ men playing cards. Bothered men for some time, then attacked one man w/broken bottle and he sustained an injury. D also reacted w/violence to arrival of police. D claim voluntary intoxication as defense to charge of assault, weapon possession, and resisting arrest. Holding: voluntary intoxication may be a defense to a charge of assault, illegal weapon possession, and resisting arrest -at Common Law, vol intox could be a defense to a specific intent crime but not a general intent crime but, NJ has statutorily change culpability element so that mens rea has the four categories of : knowing, purposeful, reckless, and criminally negligent By statute, vol intox may be raised as a defense to crimes involving knowing and purposeful.

MPC rejects specific/general intent distinction, and instead like NJ statute, allows consideration of evidence of intoxication only to negate certain levels of culpability Recklessness as element of offense, cannot exonerate D from crimes

2. Diminished Capacity

Common Law Analogous to CL for intoxication defense Mental Illness can be used as defense in specific intent crimes, but not general intent

MPC 4.02 Slightly differ than approach to intoxication Can introduce evidence to disprove mens rea when it is element of offense Can always, not same limitations of intoxication Intox is usually voluntary, incapacitation is some sort of disease --not widely accepted by states (only 10 states)

Hendershott v. The People Facts: Henderchott contend that it was unconstitutional to prohibit him from presenting evidence of impaired mental condition showing lack of requisite culpability for 3rd degree assault -DA wanted to exclude evidence saying that state law restricts evidence of impaired mental condition to specific intent crimes and that state law states that all crimes in which mental culpability requirement is expressed as intentionally or w/intent are declared to be specific intent offenses and crimes as knowingly or willfully are general intent crimes Issue: whether opinion evidence of mental impairment may be admitted to negate mens rea for a nonspecific intent crime? Rationale: -Yes it is admissible whenever it is relevant to prove that D did or did not have a state of mind which is an element of the offense. It would be a violation of due process to require prosecution to estab culpable mental state beyond a reasonable doubt, but to prohibit D from presenting contesting evidence =permissible presumption of culpability

Montana v. Egelhoff Issue: is state legislation defining mens rea to eliminate the exculpatory value of voluntary intoxication unconstitutional? Rationale: No -states enjoy a wide latitude in defining elements of criminal offenses -when a state’s power to define criminal conduct is challenged under DPC, we inquire only whether the law offends some principle of justice so rooted in traditions and conscience of our people to be ranked as fundamental

RULE: requirement of concurrence of act and intent—when criminal statute requires both Must have requisite mental requirement at time of committing act

Substantive Crimes A. Homicide Offenses

A.Intentional Homicide

Common Law Mens Rea: Intent INTENT TO KILL 1. Knowledge or purpose satisfy intent to kill a. presumed to intend natural consequences of action 2. Can use circumstantial evidence to prove intention to kill

E. CL TABLE: Assume D acted w/ intent to kill: Common Law

Murder 1: aggravated intent a. show D killed premeditated and deliberate manner a. reflected calmly on decision (contrasted w/ killings w/out reflection) i. was there an appreciable amount of time, where D had opportunity to think about matter ii. did he act dispassionately, calmly; not impulsive b. punish cold blood murders more severely than hot blood murders c. Need both time and calmness to prove 1st degree, if don’t, is a lesser charge Murder 2: regular intent a. distinction turns on subjective factors i. see US v. Watson b. unplanned c. impulsive Vol Manslaughter: diminished intent a. penalties usually significantly less than murder charges b. need intent to kill + some mitigating factor that makes is a lessor intent to kill a. had to kill in heat of passion i. grips in violent, intense, high wrought emotion ii. inquiry into D state of mind; subjective question iii. Objective prong: Reasonable person : CL don’t want to give license to act however limitations to narrow scope or provocation 1. cooling off period--reasonable prudent person a. interval between assault and killing b. reasonable provocation for killing i. CL court give subjective prong and objective question 1. was he reasonably provoked; subjectively 2. objectively, would a reasonable person been provoked ii. Classical Categories or reasonable provocation 1. adultery: find wife in the act, can kill spouse or lover or both 2. assault on close relative 3. mutual combat: chance medley 4. Physical Attack: essentially any attack satisfy a. Talking about threat to honor b. Now, a more serious injury required 5. Words typically not enough

Attack on line between 1 and 2nd degree murder: MPC has taken out this distinction of 1st and 2nd degree murder

Francis v. Franklin Facts: Franklin, a convict, escaped from custody during a dental exam, and apparently accidentally shot a man when he slammed the door -sole defense was a lack of requisite intent to kill Issue: whether a reasonable juror could have understood the 2 sentences as a mandatory presumption that shifted to the D the burden of persuasion on the element of intent once the State had proved the predicate acts. Holding: Reverse conviction Rationale: An irrebuttable or conclusive presumption relieves the state of its burden of persuasion by removing the presumed element from the case entirely if the State proves the predicate facts (that a person intends the natural consequences of his acts) -DPC and Sanstrom cases prohibits state from making use of jury instructions that have the effect of relieving State of burden of proof on critical question of intent in a criminal prosecution Jury can draw commonsense inferences when looking at objective features of case, cannot create presumption about mens rea resulting from actus reus

2.Premeditated Murder (1st Degree)

US v. Watson Facts: Watson (after police see him stealing a car) was convicted of murder even though no one witnessed the few moments prior to Watson’s firing a gun at police officer after struggle Hold: Affirm murder conviction, jury could reasonably find Watson to have deliberated Rationale: premeditation and deliberation may be inferred from sufficiently probative facts and circumstances -Understand Procedural Context of case: has to be viewed in deferential standard (reasonable person) Premeditated and Deliberate Manner Requirements: 1. Sufficient time to deliberate premeditated intent to kill a. Court says mere seconds are enough; time need not be long i. Qualitative (definitive decision; consideration; time to reflect) not quantitative b. Court says D had time to reflect; deferential standard so just have to show any evidence 2. Did he act coolly/calmly? a. Fired one direct shot b. Appears calm afterwards c. Motive to escape Some evidence on both sides of this issue, but due to procedural context, deferential standard: could any reasonable jury find that the factors could be met

3.Voluntary Manslaughter Theory of Mitigation: Manslaughter encompasses 2 diff kinds of killings 1. Voluntary = intentional; D had w/knowledge or purpose killed another human a. There has been provocation that has caused D to act in the heat of passion 2. Involuntary = unintentional; done so w/ gross negligence or recklessness or merely w/intent to commit some other crime

People v. Walker Facts: Walker, having killed a man during an altercation (stranger came up and demanded they gamble; had knife and made lunges and cut Walker) contended that it was done in the heat of passion and therefore was, at most, manslaughter Holding: murder conviction changed to manslaughter and remanded Rationale: manslaughter = unlawful killing w/out malice, express or implied, and w/out any mixture of deliberation. Must be voluntary, upon a sudden heat of passion, caused by a provocation apparently sufficient to make the passion irresistible. Common Law Voluntary Manslaughter 1. 2 essential requirements a. Objective: provocation must be adequate as measured by the objective standard of a reasonable man i. Categories that deem Reasonable provocation: 1. physical attack 2. Mutual Combat 3. unlawful arrest 4. witnessing adultery 5. violent or sexual assault on close relative **words alone no matter how insulting could not amount to adequate provocation b. Subjective: Must in fact be provoked; act in response i. Passion, rage, fear, violent or intense emotion sufficient to dethrone reason 2. Rationale for Mitigation a. 2 categories to explain why crim law mitigate the grading and punishment for provoked killing: i. Partial Justification 1. Every provoked killer thinks he has a good reason to kill a. If he truly had a good reason = merit exoneration b. However, if he somewhat exaggerates premise for killing or is an excessive reaction, law splits the difference and reduces crime from murder to manslaughter 2. Retributive: deserves some punishment 3. Utilitarian: trying to find optimal level of deterrence; deter excessive provocation ii. Partial excuse: 1. No social value, but do recognize that so enraged that actions were slightly less voluntary and hence less culpable than had he not been provoked 2. Retributive: killing is less ascribable to malevolent character 3. Utilitarian: less deterrable due to rage, but also less dangerous in general as external force motivated killing

1. Does it serve any purpose of punishment? a. Retribution a. Sense that act was as freely willed; triggered by outside forces b. Acting less voluntary, less culpable c. Blameworthiness? b. Utilitarianism a. Less dangerous: unusual situation and nature; sympathize provocation b. Incapacitation: don’t feel really dangerous, not real threat to public Rehab: hard to rehab person that is just acting in an unusual situation

CL- Rowland v. State Facts: Rowland killed his wife immediately after seeing her commit adultery Issue: What is the proper charge against one killing a spouse in reaction to witnessing adultery? Manslaughter or murder? Holding: Reverse murder conviction and remand for manslaughter charge -find that conviction for murder was not warranted by facts and should be reduced to manslaughter Rationale: shown that D found deceased in very act of adultery (highly provocative nature of adultery) w/wife and law provides that a homicide committed in the heat of passion is property chargeable as manslaughter, not murder

1. Rules and their boundaries a. Minority: Strictest version of this category of provocation required proof that D actually witnessed physical act of intercourse b. Majority: adultery itself may be established and proven by circumstantial testimony 2. Provocation and Mistake a. What if D believed that his wife had committed adultery under conditions that would constitute adequate provocation but was mistaken about facts i. Court ruled in favor of husband: law justifies a jury in calling it manslaughter when on find in act of adultery, a man, in first transport of passion, kills her paramour. Malice cannot be implied. It is the belief so reasonably formed that excites the uncontrollable passion ii. Dissent: Injury must have been done, intentional unlawful killing in a rage is murder; victim is not the aggressor here

Reform—People v. Berry Facts: Berry strangled his wife after she had repeatedly frustrated him sexually and tormented him with tales of her involvement with another man Issue: May a party be convicted of murder if he killed in the heat of passion produced by a long period of taunts and provocation? No, but can be convicted of vol man Appeal Holding: Reverse murder conviction; can only be convicted of vol man Rationale: Series of provocations (rejection) by RB in state of uncontrollable rage, completely under sway of passion a. Render ordinary men of average disposition liable to act rashly or w/out due deliberation , from his passion rather than from judgment CA remove categorical rules; no specific provocation required (minority)—words can justify provocation; Trust jury

MPC MPC: reformed provocation standard a. Expanded notion of provocation = extreme emotional disturbance (EED) Nourse Argument b. Reform code purport to focus on the emotional condition of the D rather than the objective provocatory circumstances i. Ask juried not only to look into persons’ minds but also to indentify their personal characteristics 1. extend coverage to nontraditional relationships Youth and other factors c. MPC speaks of the viewpoint of a person in the actor’s situation under the circumstances as he believes them to be d. How does MPC identify cases where the reasonable person standard will be modified by facts peculiar to the D’s situation or character? i. Word “situation” is designedly ambiguous 1. clear that personal handicaps and some external circumstances must be taken into account 2. equally plain that idiosyncratic moral values are not part of the actor’s situation 3. yet, affords sufficient flexibility to differentiate in particular cases between those special aspects of the actor’s situation that should be deemed material for purpose of grading and those that should be ignored

MPC-Intent to Kill 1. Murder a. Killing w/ purpose or knowledge satisfy i. Doesn’t matter whether premeditated or impulsive b. Not separated into degree, just murder c. Does this mean will receive same punishment? i. Judges have discretion; take into account difference 1. broad statutory range 2. Manslaughter a. Intent to kill provision b. Extreme mental or emotional disturbance i. Subjective: must experience EED ii. Objective: must have a reasonable explanation or excuse c. Reasonable provocation MPC eliminated all categorical rules, leave to jury

What does it mean to speak about a reasonable person? -Typical man/woman in community -sometimes this seems unfair; certain features of D seem so special -Subjectivise reasonable person standard: ex.blind person Narrow scope of what counts as average person: somewhere between whole community and portion of it is where we need to be How far should you subjectivise a person? Most courts are comfortable taking into account: physical char. Age, physical handicap, disease Hesitant: personality traits Don’t want to give person a break for killing

B.Unintentional Homicide

1.Involuntary Manslaughter In CL Same Actus Reas: causing death in another human Mens Rea: distinguishing factor

Commonwealth v. Welansky Facts: A fire erupted at a nightclub belonging to Welansky, and many patrons were killed because emergency exits were blocked Issue: Is considered disregard for the safety of other sufficient for the sort of recklessness which may support a manslaughter conviction? Holding: Affirm conviction for manslaughter Rationale: invited members of the public and were under a legal duty to their invitees to use reasonable care to keep the premises safe for their use…that in reckless disregard of such duty to victims who was lawfully upon premises -to distinguish wanton or reckless conduct from mere negligence • essence of wanton or reckless conduct is intentional conduct by way of either commission or omission where there is a duty to act, which conduct involves a high degree of likelihood that substantial harm will result to another 1. indifference, disregard or probable consequences How satisfy Actus Reas: 1. W did not start fire himself, bar boy did –impute actus reas on W a. Vicarious liability: hold managers responsible as if they commited acts of employees i. No statute on the books for this kind of offense in Mass b. Failed to act, owed a legal duty = Omission Liability i. Categories of status relationship: owner of a public place ii. Had a duty of care What is Mens Rea of Invol Manslaughter? 1. Wanton and Reckless Conduct a. Reckless is one of those ambiguous CL terms i. Criminal negligence ii. In this case, however, Mass CL: require wanton and reckless conduct mens rea for invol man; Standard: criminal negligence + plus 1. What transforms conduct from mere crim neg to reckless conduct in Mass 2. objectively aware of the risk, higher risk 3. scale of risks, criminal neg is a substantial risk, in this case we are looking at a bigger risk Involuntary Man is the bottom charge for CL jurisdictions

Majority Rule for mens rea for Invol Man: Criminal Negligence is dominant today to prove involuntary manslaughter =deviation from what a reasonable person would have known not a subjective requirement

State v. Williams Facts: Williams’ failed to obtain medical aid for 17mos old child and he died as a result -parents did not understand the significance or seriousness of the baby’s symptoms Issue: Is ordinary or simple negligence sufficient to convict for involuntary manslaughter? Holding: Affirm manslaughter charge; case of ordinary or simple negligence is sufficient to support conviction of statutory manslaughter Rationale: -Under CL in a case of invol manslaughter, breach or duty had to amount to more than mere ordinary or simple negligence—gross negligence (criminal negligence) was essential -In WA statute: crime is deemed committed even though death of victim is the proximate result of only simply or ordinary negligence a. failure to exercise the ordinary caution ; omission liability: status relationship w/child and parent b. man of reasonable prudence would exercise under same circumstances c. duty to furnish medical care became activated in time to prevent death of the child

Vehicular Homicide 1. Many states have defined a category or criminal homicide less severe than invol man or even less severe than negligent homicide for those who accidentally kill while driving 2. Vehicular homicide falls under negligent homicide section of MPC a. MPC does not have a separate vehicular homicide section i. Punishes all forms of neg hom as an offense of lesser grade ii. MPC opposed to criminal sanctions against ordinary negligence 3. Alcohol Related Car Accidents a. Cal Penal Code: Gross vehicular man is the unlawful killing of a human being w/out malice aforethought in the driving of a vehicle, where the driving is in violation of statute (driving under the influence) and the killing was the proximate result of the commission of an unlawful act, not amounting to a felony, and w/ gross negligence

2.Reckless Murder

Mayes v. The People Facts: Mayes was convicted of murder following a charge to the jury that said, in effect, that an act done with an abandoned and malignant heart causing death may be murder, even if death was not intended (hit wife with beer mug, she caught on fire and died) Issue: can murder be charged if not intended, but in situation where unlawful act is committed where great bodily harm is likely to result? Yes Holding: Affirm conviction of murder Rationale: CL: malice shall be implied when no considerable provocation appears or when all circumstances of killing show an abandoned and malignant heart 1. malice does not require intent to kill 2. malice may be inferred when an unlawful action is committed w/ deliberation in a situation such that great bodily harm is likely to result  Where the act is in itself lawful, or even if unlawful, not dangerous in its character, the rule is different a. Result is accidental, not presumed to have been w/in contemplation of party and not received assent of his mind

CA charge of murder w/ malignant heart (unintentional murder) requires key factors: 1. high probability of death 2. subjective awareness of risk of human death (consciously know, but disregard) 3. base, anti social motive Usually 2nd Degree murder charge.

MPC Unintentional Homicide 1. Manslaughter for unintentional killings a. Mens rea of Recklessness i. Recklessness in MPC= subjective awareness of substantial and unjustifiable risk and conscious disregard 1. CL: don’t have to subjectively aware for invol man a. Criminal negligence: should have been aware of risk b. Harder to prove under MPC (have to be subjectively aware) b. Don’t separate by name the 2 types of manslaughter, but support both i. Involuntary man: killed recklessly, no intent ii. Voluntary man: intentionally, but w/provocation 2. Negligent Homicide (lower) category: where not reckless but criminally negligent a. If only negligent b. MPC doesn’t like negligence for standard for manslaughter because there is not subjective awareness of risk (not retribuitively guilty) c. Create new category w/ much lower penalties 3. Reckless Murder a. Can you be charged for unintentional murder under MPC? i. Committed recklessly under circumstances manifesting extreme indifference to value of human life 1. not just reckless (manslaughter), but must be reckless manifesting extreme indifference to human life a. equivalent to CL reckless murder b. MPC does not list 3 part standard though, but leaves issue up to jury to interpret language c. Whether reckless is so extreme, left directly to jury under instructions that extreme reckless is murder and less extreme is manslaughter 1. whether the actor’s conscious disregard for risk, given circumstances, so far departs from standard of conduct that a law abiding person would observe in the actor’s situation ordinary recklessness, ok for manslaughter extreme indifference to value of human life-murder

C.Felony Murder and Related Crimes

CL Approach Basic Rule: if a D,commits or attempts to commit, a Felony that causes death of another human being, D will be guilty of murder

Elements of felony murder doctrine: 1. commit or attempt to commit a felony 2. causes a death to human being a. causation: death would not have occurred but for the felony i. =but for causation ii. Take victim as you find him

Prosecutor’s like Felony Murder 1. no mens rea; Strict Liability 2. Accomplice Liability (intentionally aid in commission of crime and treated as if committed a crime himself) a. FMR says that murder charges applied not only to perpetrator, but also every accomplice b. Vicariously liable for actions of cohorts

Justification for Felony Murder Rule: all debatable 1. burden of proof: anyone committing a felony is acting w/ malignant heart; assume that he acted w/ recklessness, why force prosecutor to prove it, can just assume it 2. transferred intent, if do something bad, should be responsible for every other bad act that occurs a. retributive 3. raising stakes to felony, for deterrence reasons 4. FMR encourages safer felonies a. Take more care, you get lower penalty in our system; do we really need the FMR with this system intact

CL courts uneasy about scope of FMR Limitations and Rules to Restrict Scope of FMR 1. Predicate Offenses: limitations to kinds of felonies; type of felony will also determine if 1st or 2nd degree murder a. Felony Murder 1st Degree: List requisite felonies (serious felonies) Enumerated i. Rape, Robbery, Arson, Burglary, Kidnapping; examples ii. CA statute: §189any perpetration of and attempt to perpetrate arson, rape, carjacking, robbery, burglary, mayhem (feloniously maiming or dismembering of body—serious bodily injury), sexual assaults on minors, kidnapping b. Felony Murder 2nd Degree i. Most jurisdictions: courts in case by case basis have identified felonies that satisfy; have to look at precedent ii. CA adopted standard 1. inherently dangerous to human life in abstract a. one where there is a high prop that death will result b. dangerousness: must judge felony in abstract i. abstract: not judge specific felony that D has undertaken (specific facts), look at typical case of this felony statute ii. See People v. Hanson case for limitation on 2nd degree FL murder charge 2. Durational Rule a. Deaths that occur during the commission of felony i. What is the timeline of felony (begin/end) 1. Beginning: RULE: a felony begins when D takes any act for which he could be prosecuted for attempt to commit felony a. Attempt: substantial step to completion of crime b. Ex: possibly driving to bank and death occur at that time 2. End (most controversial): a. See People v. Gladman i. Minority view b. Majority Rule: Res Gestae Doctrine (incl. CA) i. Says that the ending of felony occurs when D reaches point of temporary safety 3. Agency Rule: immediate cause of death a. Majority: can only be evoked when perpetrator and accomplice are the immediate or direct cause of the killing; not responsible when innocent third party does the killing; Focus on who does the killing i. People v. Washington pg. 496 1. but could probably bring reckless murder charges instead 2. provocative act response: know that there is a risk when you commit this crime==another name for applying reckless murder in this context of commiting crime and triggering act b. Minority: Hickman case; can be held liable for death caused by 3rd party a. Focus of Innocent Victim Rule: Matters who is killed 4. Merger Doctrine Rule a. Rule: no assault, invol man, vol man are not predicate offenses for felony murder charge i. These are common offenses, don’t want to extend FM that far ii. Pragmatic grounds

People v. Stamp Facts: Stamp(gun), Koory(blackjack), and Lehman (driver) convicted of murder of Honeyman who died 15-20 min after held up at business of a heart attack Issue: Can D be convicted to felony murder where death was induced by robbery but due to an internal weakness (heart disease) which the felon did not know about? Holding: CA Supreme Court: Affirm conviction; felony is a strict liability concept Rationale: 1. Felony murder rule in CA penal code a. A killing committed in either the perpetration of or an attempt to perpetrate robbery is murder of the first degree; true whether the killing was willful, deliberate and premeditated, or merely accidental or unintentional, and whether or not the killing is planned as part of commission of robbery b. Doctrine presumes malice aforethought on basis of the commission of a felony inherently dangerous to human life i. No intentional act is necessary other than the attempt to or the actual commission of a robbery itself c. No requirement that the killing occur while committing felony, other than that the few acts be a part of one continuous transaction d. Not limited to those deaths which are foreseeable i. Felon is held strictly liable for all killings

2 Variants of Felony Murder 1. Misdemeanor Manslaughter or “unlawful act” doctrine a. Common Law Doctrine that creates a form of manslaughter liability parallel to felony murder i. MPC and majority of states have abolished this b. Example: US v. Walker i. D charged w/ invol manslaughter and carrying a pistol w/out license ii. Court concluded that carrying a pistol w/out a license necessarily exposes the public to so serious risk of harm that when any death results the D merits a manslaughter charge iii. Court does not seem interested in mens rea, but merely asks whether death resulted from the commission of the misdemeanor 1. MPC criticize that misdemanor manslaughter dispenses proof of culpability and imposes liability for a serious crime w/out reference to mens rea

Limiting Predicate Felonies -which felonies by their abstract definition or by the manner in which they are performed, are so inherently dangerous to human life that felony murder should apply if a death results 1. Danger in the Abstract a. Major principle in most states has been that before the court can apply the felony murder rule, it must first determine whether the felony itself is dangerous to human life, and it must ask the question in the abstract

2. Danger in the Commission a. While many courts look to the least dangerous means of committing a statutory offense in the abstract, other states are willing to examine the facts in their FM cases i. Circumstances of the commission of the offense

Foreseeability and Proximate Cause -limits on the causal link between the predicate felony and the death including issue: 1. temporal scope of felony event 2. role of intervening causal actors or unanticipated victims

A. Scope of the Felony Event People v. Gladman Facts: After robbing a deli, Gladman was approached by an officer in a nearby lot, whereupon G shot the officer Issue: Was the jury properly permitted to conclude that the shooting of the officer occurred in the immediate flight from the robbery? Holding: Court of Appeals of NY found that jury was property instructed and FM conviction holds Rationale: 1967 Penal Code in NY: provided that the doctrine would apply to a killing committed in immediate flight 1. In this case, jury could properly find, as a question of fact, that killing of officer occurred in immediate flight from robbery a. Shooting occurred less than 15 min after robbery b. And less than ½ mile away c. D made off w/ cash and was attempting to secure possession d. Police in pursuit e. D tried to hide when saw cop; perceiving he was on his trail f. D had not reached place of safety

Res Gestae Theory Majority of state follow the “res gestae” theory—whether the killing was committed in about and as a part of the underlying transaction

B.Intervening Actors and Unintended Victims People v. Hickman Facts: During course of burglary by Hickman and others, one police officer shot and killed another police officer (believed was one of the suspects) Issue: Whether the actual shooting which caused death of an innocent victim must have been performed by the d’s or someone acting in concert w/ them in order to comply w/ requirements of FM doctrine under Ill law? Holding: Reverse: FM rule applies when homicide committed by arresting officer Rationale: 1. Interpret State Statute by wording of statute and considering notes and reports of commission creating statute to interpret intent a. One can be guilty of murder where the killing resulted from the act of 3rd person trying to prevent the commission of a felony (Payne) b. Period of time involved in an escape w/ immediate pursuit after committing a crime becomes part of the crime itself c. Natural and probably that a crime will be met by resistance and the possibility that one resisting the crime will kill another is ever-present 2. Rule: he whose act causes in any way, directly or indirectly the death of an innocent victim is guilty of murder by virtue of the FM doctrine 3. Chain of events leading to death was set in motion by felons, responsibility was theirs

1. CA limits a. Ex. People v. Washington i. When a killing is not committed by a robber or by his accomplice but by his victim, malice aforethought is not attributable to the robber, for the killing is not committed by him in the perpetration or attempt to perpetrate robbery 1. not enough that killing was a risk reasonably to be foreseen 2. requires felon or accomplice to commit killing

2. Penn rules a. Expanded FM doctrine by adopting a doctrine of proximate cause, attaching liability for any death proximately resulting from commission of a felony. If the risk of death was foreseeable and death occurred, the felon was guilty of felony murder b. Killing must have been done by the D or by an accomplice or by one acting in furtherance of the felonious undertaking

The Merger Doctrine

People v. Hansen California Supreme Court, 1994 Facts: H confessed to firing shots aimed at apt a. Said waiting for someone who owed him $40 (for drug purchase) and that he was shooting at just the house and would not have done it had he known the kids were inside i. Observed lights were on, but after he had knocked on door and gotten no response, he believed no one was inside ii. Child killed Issue: Whether the offense of discharging a firearm at an inhabited dwelling house is a felony inherently dangerous to human life for purposes of the 2nd degree felony-murder doctrine? Holding: 2nd degree murder = unlawful killing that occurs during the commission or attempted commission of a felony inherently dangerous to human life 1. felony shooting at an inhabited dwelling is inherently dangerous to human life Rationale: 1. FM rule imputes the requisite malice for a murder conviction to those who commit a homicide during the perpetration of a felony inherently dangerous to human life Determining whether a felony is inherently dangerous: a. Courts look to elements of the felony in the abstract, not the particular facts of the case (i.e. D’s specific conduct) b. Offense carrying high probability that death will result 2. §246: any person who shall maliciously and willfully discharge a firearm at an inhabited dwelling house is guilty of a felony a. when considered in abstract: involves high probability that death will result and therefore inherently dangerous felony 3. D contend, that even if §246 felony is dangerous to human life, the commission of that felony “merged” with the resulting homicide (Ireland Case) thereby precluding application of FMR a. Ireland: offense that was “an integral part of” and “included in fact” w/in the homicide could not support a 2nd degree murder instruction (assault charge in this case) a. whether the underlying felony was committed w/ a collateral and independent felonious design

MPC on Felony Murder Does not like FM, but have not entirely rejected it -at least a finding a mens rea of killing w/ abandoned and malignant heart Even for unintentional killing: committed recklessly under circumstances manifesting extreme indifference to the value of human life. Such recklessness and indifference are presumed if actor is engaged or in an accomplice in commission of, or attempt to commit, or flight from committing or attempting….felonies listed

Diff: CL FM doctrine: there is no rebutting MPC: opportunity to defeat FM rule, can rebut presumption -kept FM, adopted watered down version since so many jurisdictions had it and was worried that MPC would not be adopted if did not allow this -CL limitations and restrictions do not exist in MPC

Criminal Law Outline Review of Homicide CL 1. Murder a. First degree i. Intent to kill w/ premeditation and deliberation ii. Unintentional: felony murder 1. strict liability for death resulting from enumerated felony a. Limitiations i. Predicate offense ii. Duration rule iii. Agency rule iv. Merger Rule (can charge felony if it does not merge into homicide) b. Second degree i. Intentional Killing, but not premeditated and deliberated ii. Unintentional 1. Abandoned and Malignant heart (Reckless Murder) a. High prob of death b. Subjective awareness of the risk c. Base, anti-social motive 2. Felony murder a. Same rules as first degree, except enumerated felony is instead inherently dangerous in the abstract ***Malice: in CL refers to all mens rea terms that satisfy murder -express: murder w/ intentional mens reas -implied: murder w/ unintentional mens rea

2. Manslaughter a. Voluntary i. Mens rea: intent to kill, and both: 1. reasonable provocation; and a. Test i. D was subjectively provoked ii. Whether provocation was reasonable b. Traditional categories 2. Heat of passion a. Test: i. Whether D was subjectively in the heat passion ii. Whether reasonable person would not have cooled off b. Involuntary i. Mens rea: Criminal Negligence 1. not require subjective awareness 2. reasonable person should have known

MPC Homicide ii. Murder 1. Intentional Killing i. Mens rea: Purposeful and knowledge 2. Reckless Murder a. Reckless, manifesting extreme indifference to value of human life i. Presumption : for death during enumerated felonies (Felony Murder) iii. Manslaughter 1. Killing w/ mitigation (kind of like vol man) a. Killing that was otherwise murder, but committed under extreme emotional disturbance w/ reasonable explanation 2. Involuntary Man a. Reckless: subjective awareness of substantial risk iv. Negligent Homicide 1. Criminal Negligence

Death Penalty 1. 38 states + Fed Gov’t authorize death penalty 2. Supreme Court reinstated DP in Gregg v. Georgia in 1976 3. History of Death Penalty a. Crim law’s efforts to grade homicides according to culpability reflected desire to limit the number of D’s eligible for death penalty b. By 1963, every capital punishment statute envisioned that the sentencing judge or jury would have freedom to determine whether or not to sentence a D to death i. Under discretionary statutes, sentencer had complete latitude, unaided by guidelinesreluctance to impose death sentences 4. Early Constitutional Cases a. Furman v. Georgia (US, 1972) i. Exercise of standardless discretion in capital cases violated 8th Amend prohibition of cruel and unusual punishment b. Within 5 years 35 states and fed gov’t enacted new death penalty statutes; 2 Groups of Statutes: i. Those that imposed mandatory death sentences in certain cases 1. Constitutionality? a. Woodson v. N. Carolina (US, 1976) i. Court struck down a statute mandating death for any D convicted of 1st Degree murder 1. inconsistent w/ contemporary standards of decency; does not solve problem of discretion ii. Those that articulated guidelines in an effort to limit the sentencer’s discretion 1. Given court’s negative response to mandatory DP statutes, most DP statutes now provide for a system of guided discretion, enumerating aggravating factors and permitting imposition of DP so long as the sentencer finds that one such aggravating circumstance exists and that the aggravating factors are not outweighed by any relevant mitigating factors a. Gregg v. Georgia (US, 1976) i. 7 justices rejected argument that DP is under all circumstances cruel and unusual punishment ii. DP serves purposes of deterrence and retribution 5. Constitutionality of Executing D’s for Crimes other than Murder a. Coker v. Georgia (US, 1977) i. Struck down portion of statute that authorized DP in certain rape cases (excessive punishment) 6. Constitutionality of Executing Murder D’s Who did not Intentionally Kill a. Enmund v. Florida (US, 1982) i. D did not perform actual killing; convicted of felony murder ii. Court held that 8th amend prohibits executing D who does not himself kill, attempt to kill, or intend that a killing take place or that lethal force will be employed b. Tizon v. AZ (US 1987) i. Enmund does not limit the DP to cases where D demonstrably intended to kill ii. Held that major participation in a felony committed combined w/ reckless indifference to human life is sufficient culpability requirement

1. Debate over when, when, why DP should be applied; 2 sets of rules; Narrow application of DP; violation in certain cases of 8th Amend a. Categorical Rules (Bright line rules) that say DP cannot be applied in certain circumstances i. Offense Limitations 1. Narrowed range of permissible offenses a. Coker v. Virginia: can’t be imposed on rape cases where no one has died i. Only be applied when a homicide occurs (dicta) b. Non-homicidal crimes still on the books i. Treason 2. Basic Rule: Strong suggestion by Supreme Court that there has to be a homicide though ii. Mens rea limitations 1. Limitation on Mens Rea D must have 2. Basic Rule: have to show at least extreme reckless conduct = reckless murder mens rea iii. Offender limitations 1. Kind of offenders that can be held liable 2. Can you execute someone who is so mentally ill that they are insane? a. Found not-guilty if found insane b. Controversy: what if sufficiently sane at trial, but become insane after trial i. Can’t execute: can’t understand why penalty is applied to them = barbaric ii. Long history in US history: don’t execute insane (no penological objective) 3. Can’t execute someone who is insane, even just at time of death penalty a. What happens if you can give medication to alleviate insanity i. Consistent w/ constit, to medicate D 4. Mental Retardation a. Executing someone w/ mental retardation is not a violation of 8th Amend i. National consensus not against this b. 1980-2002: 20 states and fed gov’t prohibited execution mentally retarded 5. Age of Offender a. Legal to execute minors (one of few nations that does) b. How low can you go? i. Stanford v. Kentucky 1. no constitutional bar to execute above 16 a. no national consensus against giving Death Penalty to 16 year old b. but 15 found too young iv. Limitations on how execute someone 1. methods: are there any that are constitutional? a. 9th cir ruled that gas chamber violates 8th Amend i. choice given: lethal injection or electrocution **Categorical Rules eliminate a group from eligibility for the death penalty

8Th Amendment Violations -National Consensus against the Process -Penological Purpose: practice could not be justified under deterrence or retributive grounds

b. Procedural Rule about how you should carry out DP, weigh factors, should jury have discretion i. For those still in eligible pool now narrowed by limitations above, how do you choose which ones will still get the Death Penalty ii. Historical: first death penalty to all 1st degree murder 1. 19th C: concluded that not all 1st degree murders equally culpable, and broad application may deter from giving out DP 2. most states shift from automatic DP, to system of unfettered discretion by jury a. complete discretion and limited info (only info from trial which is focused on guilt/innocence, not D’s background) 3. Constitutional Challenges: unguided discretion is unconstitutional in application a. Lack of uniformity i. Bias 4. Challenges Succeeded in 1972 a. Furman v. Georgia b. Mandatory Death Penalty unconstitutional in all 50 states due to this discretion c. Wantonly and freakishly imposed 5. Narrow Circumstances a. Woodson v. N. Carolina i. Mandatory DP is unconstitutional ***Middle Course between Mandatory DP and unfettered Discretion ( Modern Procedural Rule) iii. Guided Discretion Approach (current approach) 1. Formally approved by Supreme court a. Gregg v. Georgia 2. Basic Features a. Separate DP hearing i. After trial sentencing b. Statutory Standards Guidance i. Provide standards of making assessment Guided Discretion Approach Statutory Guidance: Death Penalty statutes say has to make 2 different assessments

Statute Guidance Test: 1. Threshold question a. To make assessment whether is eligible at all: jury has to find at least one aggravating circumstance is present 2. Question of Balancing a. Found an aggravating factor, then consider all aggravating and mitigating factors to determine if DP is appropriate b. Balancing: Not a uniform standard i. Weigh mitigating factors and aggravating factors c. Not simply the number of factors, jury is allowed to provide own weight for factors when balancing them

1. Aggravating Circumstances 2. Mitigating Factors I. Locket v. Ohio i. Can you introduce mitigating evidence that is not listed in the statute Yes, after this case Lockett v. Ohio US Supreme Court (1978) Facts: Lockett, a driver for armed robbery that lead to a death, was given death sentence when convicted to felony murder Issue: Whether Ohio violated 8th or 14th Amend by sentencing Lockett to death pursuant to a statute that narrowly limits the sentencer’s discretion to consider the circumstances of the crime and the record and character of the offender as mitigating factors. Holding: Ohio statute violates 8th and 14th Amend Rationale: The Court argues “that the Eighth and Fourteenth Amendments require that the sentencer, in all but the rarest kind of capital case, not be precluded from considering, as a mitigating factor, any aspect of a defendant’s character or record and any of the circumstances of the offense that the defendant proffers as a basis for a sentence less than death.”

Supreme Court: trial court in error in barring personal info even if statute says can’t enter it; Unconstitutional to bar entering Relevant mitigating evidence Judge can bar irrelevant info Limitation of relevance; as a constitutional matter, statute limitations cannot hold

What about prosecutor? Can he enter aggravating evidence not in the statute? Does constitution allow this? 8th Amend does not require court to allow non-statutory aggravating factors; protection of individual liberty of defendant Narrowing Feature: Must keep the threshold test of statutory aggravating factor (ensure narrowing); additional aggravating factor can be introduced if state allows discretion to introduce non-statutory factors (essentially no limitation at all) 1. MPC prohibits executing anyone who is under 18 at time of crime 2. Doubts about guilt as Mitigating Circumstance a. Empirical evidence suggests that residual doubts about a D’s guilt are by far the strongest mitigating factor in jurors’ minds i. MPC agree b. Narrowing function: use of aggravating circumstances is not an end in itself, but a means to genuinely narrowing the class of death –eligible persons and thereby channeling the jury’s discretion

3. Judge v. Juries as Sentencing Authorities a. Majority: delegate sentencing function to jury, although in some states the jury makes a nonbonding recommendation to the trial judge or the judge makes the decision w/out imput from jury i. Gregg v. Georgia 1. jury sentencing has been considered desirable in capital cases in order to maintain a link between contemporary community values and penal system 4. Automatic State Supreme Court Review a. Majority: DP statutes provide for an automatic review of all death sentences, usually by highest court, that typically covers challenges to both the conviction and sentence i. Include proportionality review McCleskey v. Kemp US Supreme Court (1987) Facts: McCleskey contended that statistics demonstrating that capital punishment was more severely applied against blacks made capital punishment unconstitutional -In support of claim, used statistical study (Baldus study) showing that capital punishment was more likely applied when the killer is black and victim is white Issue: Does evidence of racial bias in the imposition of capital punishment make it unconstitutional? Holding: Affirm Dismissal of habeas petition Rationale: To show an equal protection violation, a party challenging such a sentence must show a discriminatory intent; Statistics here show at best a result. 8th Amend Claim 1. for a violation to occur, must be arbitrary as to application 2. a system that sets clear guidelines but at same time permits discretion as to aggravation and leniency will not violate 8th amend Current DP statutes, however, have built in procedural protection of bifurcated penalty and guilty-phase trials, as well as due process protections in the penalty phase. Statutes also require a finding that aggravating circumstances outweigh mitigating circumstances before a DP is legal

Causation When is causation a relevant consideration? Result oriented crime: prosecution has to show that D produced/causing a given result Causation is the actus reas in Homicide: Prove beyond a reasonable doubt that he caused the death Also need to show mens rea Was there an event that broke chain of causation? Intervening force

CL Rule of Causation Someone is the criminal (ultimate) cause of offense, have to show 2 things: 1. Factual Cause= “but for” the D’s conduct the resulting harm would not have occurred a. But For Causation = factual causation i. Regina v. Martin Dyos b. To prove D is the criminal cause, have to prove at a minimum that they are the But for cause 2. Proximate Cause a. Lots of but for causes, limit them with proximate cause b. Commonweath v. Rhoades i. Natural and continuous sequence c. Many courts attempt to create guidelines on what is and what is not a proximate cause i. Some leave it up to the jury d. Classifications of Intervening Acts i. Independent act: deliberate and informed act by a third party; cut chain of causation on most cases (unless extremely/reasonable foreseeable) 1. novus actus intervenes: free, vol, deliberate act a. Commonwealth v. Root -novus actus is criminal standard for causation Foreseeability is a secondary factor (especially when highly foreseeability) -Novus actus definition: intervening act only cuts chain of causation if is free, voluntary, and deliberate b. US v. Hamilton ii. Dependant Acts: act taken in reaction/response to D’s conduct and thus do not cut chain of causation in most cases (unless highly unusual) 1. Common Categories a. Medical care given to victim after injuries from D i. Even If receive medical care that is negligent, still does not break chain of causation 1. however if grossly negligent or worse, chain will be broken b. Preexisting condition i. Stamp Case 1. take victim as you find him 2. does not break chain of causation ii. special rules in CL courts: cut off D’s responsibility after certain amount of time as passed (year and a day= traditional rule) 1. majority today has abolished rule c. Police pursuit and rescuer i. Specific harms of pursuit; event that occurred during pursuit or rescue 1. even negligent pursuit won’t cut chain d. escape i. victim acting in reaction to D’s conduct Stephenson v. State

1.But For Causation Regina v. Martin Dyos Facts: Martin had caused an injury to the right forehead of decedent, but no evidence could be offered as to the cause of a 2nd injury or which injury was the cause of death 1. Both wounds potentially fatal; either wound would very probably cause death 2. No telling which injury came first 3. Reasonable and sensible possibility that MD might have recovered from first injury, whichever it was Issue: Is an act the cause of death if the death would or could have occurred w/out the act? Trial Holding:On count of murder, judge upheld the defense submission at the close of the prosecution that it would be unsafe to leave count to the jury 1. crown had failed to prove that MD was responsible for the cause of death

2. Proximate Cause: Foreseeability and Related Limitations Commonwealth v. Rhoades Mass. Supreme Judicial Court, 1980 Facts: Rhoades was found guilty of 2nd degree murder after the judge charged the jury that R was liable for 2nd degree murder if the victim dies as a result of his act, or if hi act in any way contributed to hasten, or was part of the proximate cause of the death. -Rhoades set a fire, which firefighters responded to and one died Issue: Must One’s actions be the proximate cause of the death of another in order for one to be held criminally liable for said death? Holding: Conclude that judge’s charge exposed R to potential liability for events not proximately caused by his felonious act in setting the fire. Indictment charging R w/ death of T is reversed, verdict set aside, and case remanded to Superior Court for further proceedings consistent w/ opinion Rationale: Judge’s charge failed to explain the need to find that his action was the proximate cause of death (ie, a cause which, in the natural and continuous sequence, produced the death, and without which the death would not have occurred.

1. Intervening Causes

Commonwealth v. Root Supreme Court of Penn, 1961 Facts: Root’s conviction for invol man was reviewed to determine if his unlawful and reckless conduct participating in an automobile race on a highway was a sufficiently direct cause of the death of the competing driver to warrant his being charged w/ criminal homicide Holding: Reverse judgment of sentence and D’s motion in arrest of judgment is granted Rationale: 1. Involuntary Man a. Elements i. Unlawful or reckless conduct (yes, in this case) ii. Conduct was direct cause of death in issue (majority say no) 2. Action of deceased driver to swerve into oncoming traffic was not forced upon him by an act of Root a. Deceased was aware of the dangerous condition created by D’s reckless conduct in racing cars, Deceased reckless chose to swerve car bringing about his death 3. Trial Judge erroneously instructed jury that negligence or want of care on the part of the deceased is no defense to the criminal responsibility of the defendant a. In regards to evidence, conduct of the D was not the proximate cause of decedent’s death as a matter of law

US v. Hamilton US District Court, DC, 1960 Facts: Victim, who was recuperating in hospital after being severely beaten by Hamilton during quarrel, died when he had a convulsion and pulled out life support tubes -H argue that immediate cause of death was fact that patient pulled tubes out (affirmative action contributed to death) Issue: Should the D be deemed guilty of homicide or guilty merely of assault w/ dangerous weapon when victim receives a wound from another which may or may not be mortal, but disconnects life support and dies? Holding:Court found D guilty of manslaughter Rationale: Rule: well established that if a person strikes another and inflicts a blow that may not be mortal in and of itself, but thereby starts a chain of causation that leads to death, he is guilty of homicide. This is true even if the deceases contributes to his own death.

Stephenson v. State Facts: Stephenson abducted a woman who poisoned herself and later died Holding: Court affirmed-S found guilty of 2nd degree murder Issue: Are persons responsible for all consequences resulting from a single criminal program? Rationale: The required causal connection between a criminal act and the result encompasses the entire criminal program and all the natural and probable consequences.

People v. Kevorkian Facts: K was charged with murder for assisting a suicide Issue: Is providing the means for another’s suicide chargeable as murder? Appeal Holding: Supreme Court of Mich remand matter to circuit court for reconsideration of D’s motion to quash in light of principles discussed Rationale: 1. Modern statutory scheme in the majority of states treats assisted suicide as a separate crime, with penalties less onerous than those for murder a. Recent decisions draw a distinction between active participation in a suicide and involvement in the events leading up to the suicide (providing means) b. Only where there is probable cause to believe that death was the direct and natural result of a D’s act can the D be properly bound over on a charge of murder

Contrast with MPC on Causation Key provision: Section 2.03 on pg. 303 Focus on But For Causation Limit But For Cause by mens rea (not proximate cause limitations) Mens rea: limits scope of relevant but for causation 1a: but for cause What do you do with an intervening act of unusual nature? MPC: 1. 2b : deal w/ criminal statute of purpose and knowledge a. something that is but for cause will only be held to be criminal cause i. actual result has to be same kind injury or harm; and ii. result can’t be too accidental to be just (is it fair to hold D liable) to hold him responsible 1. goes to jury, no category rules; just general standard 2. eliminates categorical rules of CL and instead relies on jury 3b deal w/ criminal statute of reckless and negligence

Rape 1. Definition a. Typical CL statute would define rape as i. Sexual intercourse ii. By means of force iii. Against the will of the woman iv. Without her consent v. Where’s the mens rea? 1. not sure if beyond awareness b. Distinction i. Stranger Rapes 1. tend to presume nonconsent and even force 2. easier to establish ii. Acquaintance Rapes 1. majority 2. D will not use or threaten violent force unless encounters resistance in many cases 2. Evolution of Rape Rules a. Reform rape law schemes in an effort to increase the prosecutor’s ability to win convictions, thus protect rape victims and induce more to report b. Reform efforts: (3 kinds) i. Evidentiary barriers to rape prosecution have been lowered ii. Many jurisdictions have effected substantive reforms that frame the crime of rape very generally iii. Effort to redefine the core elements of force and nonconsent 1. many jur have lowered or even eliminated state’s obligation to prove resistance as part of proving force or nonconsent 2. broadened criteria for establishing force key factor in many famous CL cases was the amount of resistance “required” of the complainant.

Traditional CL Approach 1. Defined: carnal knowledge of woman forcibly and against her will A. Elements to be satisfied i. Carnal knowledge: sexual intercourse: penetration of female by male ii. Forcible compulsion: required that D used force or threats of force iii. Non-consent: victim had to be of particular state of mind 1. seems victim is put on trial 2. Early CL cases A. Special requirement = Resistance Requirement which served to show when elements met i. Standard: resist to the upmost

Utmost Resistance Requirement provides: 1. Dramatic evidence of non-consent D used sufficient force

Brown v. State—Utmost Resistance Facts: Brown was alleged to have raped his neighbor Nethery while she was walking to her grandma’s house (acquaintance rape) -N alleges that she tried as hard as she could to get away, that she screamed, but he put his hand over her mouth -Brown denied any resistance; there were not marks on his face, hands, or clothing to indicate a struggle Issue: Was there evidence to satisfy a reasonable mind beyond a reasonable doubt that resistance existed sufficient to make this rape? Rationale: 1. There must be the entire absence of mental consent or assent; AND 2. There must be the most vehement exercise of every physical power to resist the penetration of her person, and this must be shown until the offense is consummated a. Exception where power of resistance is overcome by unconsiousness, threats, exhaustion b. One exception: reason to believe that resistance would lead to serious bodily injury or death; threats must be likely to be carried out—Very narrow exception i. Hard to prove in non-stranger case

Rape Law Reform: Redefined the required resistance as reasonable or earnest, and became far more willing to accept arguments of futility 1. Changes to Resistance Rule a. Courts had begun to moderate utmost resistance test i. Reasonable Resistance Test 1. degree of physical resistance would turn on the context of the situation and force used by the D

Reasonable Resistance: what a reasonable person in her situation do (OBJECTIVE Test) No resistance acceptable in some cases under certain circumstances

People v. Dorsey—Reasonable or Earnest Resistance NY State Supreme Court, 1980 Facts: Dorsey raped a woman in an elevator, having manipulated the controls to stall the elevator between floors Issue: whether the D either exerted physical force capable of overcoming this P’s reasonable, earnest resistance? whether the P was overcome by fear of immediate death or serious physical injury due to threat from the D? Holding: Deny motion to dismiss rape indictment Rationale: NY Law: Definition of forcible compulsion changed by explicitly stating that a woman has to exert only earnest resistance 1. Earnest resistance = resistance of the type reasonably to be expected from a person who genuinely refuses to participate in sexual intercourse, deviate sexual intercourse or sexual contact, under all the attendant circumstances a. victim need only offer so much resistance as is reasonable under the circumstances (objective) 1. whether the D either exerted physical force capable of overcoming this P’s reasonable, earnest resistance 2. whether the P was overcome by fear of immediate death or serious physical injury due to threat from the D 3. many instances where no resistance could reasonably be expected from a person who genuinely refuses to participated in sexual acts

State v. Powell Similar to NY statute that defines forcible compulsion as force that overcomes reasonable resistance

Facts:Victim said that D offered her a ride; he drove her instead to secluded area and threatened to kill her when she refused to have sex; he slapped her while threatening; allegedly threatened to use a weapon (that she never saw) Trial: Acquittal on rape charges Rationale: Court held that there was sufficient evidence for the jury to find that victim had not consented but, Nevertheless: no showing of resistance and very little evidence that she was prevented from resisting by force or threats of physical violence

People v. Warren Facts: D (stranger) approach girl (alone) and start to talk. D lifted her off the ground and carried her into a wooded area and laid her on the ground. D told her to take her pants down and she did Issue: Can resistance requirement apply to a stranger rape case? Holding: Court Reverses conviction; State failed to prove that the acts were committed by force or threat of force or against the will of victim Rationale: To sustain a conviction there must be evidence that D, by threat or force, compelled another to perform or submit to any sexual act. There is no definite standard which fixes the amount of force which is required to sustain the charge of rape or sexual assault. However, Evidence does not show that resistance would be futile or endangering Complainant’s failure to resist when it was within her power to do so conveys the impression of consent and removes from the act performed an essential element of the crime

Reasonable Resistance is the Majority Rule in the CL today Show non-consent and proof of force or threat

Reform Proposals to Rape Laws First look at 3 core elements: a. non consent, b. force, and c. sexual intercourse

California: eliminate resistance People v. Barnes—Forcible Compulsion Supreme Court of CA, 1986 Many States have gone a step further, formally eliminating any requirement of resistance, so that the elements of rape become the combination of force and nonconsent. Though resistance might help establish force, it is not necessary to it.

Facts: D invited Marsha over to his house next door and Marsha wanted to buy some weed so she did, but D started to demonstrate some psychotic behavior; started to make threats to her. D demanded sex and M complied, which she ascribed to fear for her safety -D claims that she consented Issue:Was the Court of Appeal correct in relying on a rape victim’s lack of measurable resistance to overturn convictions of rape as unsupported by sufficient evidence? No Holding: Supreme Court of CA holds that evidence was sufficient to sustain D’s conviction of rape; Court of Appeal incorrectly read a resistance element into the offense; reverse Rationale: Post 1980 Amendments to CA Penal Code Delete most references to resistance and Statute defines rape as an act of sexual intercourse accomplished w/ a person not the spouse of the perpetrator, under any of the following circumstances where it is accomplished against a person’s will by means of force or fear of immediate and unlawful bodily injury on the person by another Resistance is neither an evidentiary requirement not an element—it is simply one possible type of evidence that goes to establish nonconsent or force

MPC on Rape 1. use term “by force” but no term for nonconsent 2. makes it a lower grade felony to commit gross sexual imposition by compelling woman to submit by any threat that would prevent resistance by a woman of ordinary resolution

Washington State: eliminate nonconsent Reformers: problem with statutes is that they have victim’s nonconsent as part of statute To solve: eliminate nonconsent and focus on force (nonconsent can be assumed if necessary force is used) Rape = sexual intercourse + forcible compulsion: physical force and threats of force put person in reasonable fear (objective) of injury

Commonwealth v. Berkowitz Supreme Court of Penn, 1994 Facts: Female college student went to see a friend and entered his dorm room to find his roommate Berkowitz. He approaches and starts to take her clothes off, gets up to lock the door, then pushes her onto the bed and proceed to have sex. Issue: What is the precise degree of force necessary to prove the forcible compulsion element of the crime of rape? Holding: Supreme Court of Penn affirm reversal on conviction of rape, but vacate decision reversing and remanding charge of indecent assault (reinstate verdict) Rationale: A. Crime of Rape a. when one engages in sexual intercourse with another person by i. forcible compulsion ii. threat of forcible compulsion that would prevent resistance by a person of reasonable resolution b. victim need not resist i. force necessary need only be such as to establish lack of consent and to induce victim to submit w/out additional resistance c. Degree of force required is relative and depends on facts and particular circumstances of case B.In regards to forcible compulsion, Complaintant’s testimony devoid of any statement that adequately describes the use of force or threat of force 1. do restraint 2. weight of body, only force 3. no verbal threats 4. never attempted to go to door

C. Legislative Intent -term forcible compulsion be interpreted as something more than a lack of consent -physical force, threat of force, or psychological coercion may be sufficient to support element of forcible compulsion if found to be enough to prevent resistance by a person of reasonable resolution

By not focusing on nonconsent, rape conviction cannot go forward Underinclusive rule: leave out date rape cases like this

Connecticut: Nonconsent; Eliminate Force/Resistance Some jurisdictions go still a step furthers, eliminating a force as well as resistance as independent requirement and focusing on the fact of nonconsent as the crucial element of the crime

Question: Perspective of reasonable person in D’s perspective of whether victim consented (objective) = seems like mens rea question

State v. Smith Facts: Smith met a woman and her friend at a bar. Then group went to dinner where S paid for woman’s dinner. After dinner, S and Woman walked back to his apartment, woman believed her friend was meeting her there but they never showed up. While on the couch with S, S started making advances (he hadn’t paid for dinner for nothing) and woman repeatedly asked him to stop (spit in his face and kicked him) -S was much bigger and told her not to the make the situation harder than it had to be -woman feared S would hurt her so she agreed to go along with it Rationale: 1. Nonconsent a. Whether a complaintant should be found to have consented depends upon how her behavior would have been viewed by a reasonable person under the surrounding circumstances (objective standard) i. Do no need actual awareness of nonconsent or a reckless disregard of it 2. Case at hand, is evidence sufficient to prove that a reasonable person would not have believed that woman’s conduct under all circumstances indicated her consent a. Jury could have properly find BRD that woman’s words and actions could not reasonably be viewed as consent to intercourse i. Declined advances, spit on him, kicked him ii. Gave in only after S threatened her if she kept resisting 1. reasonably regard this as a threat of physical injury RULE: Whether a complaintant should be found to have consented depends upon how her behavior would have been viewed by a reasonable person under the surrounding circumstances

NJ Rule: Lack of Affirmative Expression of Consent; Eliminate Force/nonconsent/resistance Last step in this continuum (utmost resistancereasonable resistanceforcible compulsionnonconsentlack of affirmative expression) is a definition of the actus reas of rape as sexual penetration absent some kind of affirmative expression of consent.

State Ex Rel. MTS Facts: MTS was a houseguest in CG’s family’s home. After engaging in consensual kissing and heavy petting, MTS engaged in sexual penetration of CG in which she had not consented. Issue: Whether the element of physical force is met simply by an act of nonconsensual penetration involving no more force that necessary to accomplish that result. Holding: Reverse Appellate Division: determined that the absence of force beyond that involved in the act of sexual penetration precluded a finding of 2nd degree sexual assault Rationale: 1. NJ Code does not refer to force in relation to overcoming will or physically overpowering or submission of victim. Does not require the demonstrated nonconsent of the victim 2. In reforming rape laws, legislature placed emphasis on assaultive nature of crime, altering elements so they focus on forceful or assaultive conduct of the D. Eliminate references to victim’s state of mind and conduct and broadened definition of penetration 3. Under new reform law, victim no longer required to resist and therefore need not have said or done anything in order for sexual penetration to be unlawful a. Alleged victim is not put on trial b. Responsive and defensive behavior is immaterial 4. In a case such as this one in which the State does not allege violence or force extrinsic to the act of penetration, the factfinder must decide whether the D’s act of penetration was undertaken in circumstances that led the D reasonably to believe that the alleged victim had freely given affirmative permission to the specific act of sexual penetration. a. Such penetration can be indicated by words or through actions that when viewed in the light of all the surrounding circumstances, would demonstrate to a reasonable person affirmative and freely given authorization for the specific act of sexual penetration

Mens Rea People v. Mayberry Facts: Victim walking to grocery store when approached by Mayberry who began to harass her. He proposed they have sex and she refused, he then hit her and threatened her. Trying to buy time, she went to buy cigarettes, but feeling completely beaten, she left store w/out asking for help. Went to M’s apartment, tried to get him to change his mind, but they had intercourse and she had marks all over her body. Holding: Supreme Court sustained jury finding that she had not consented, but in court’s view, the D’s mens rea argument was another matter altogether.

Rationale: Penal Code states that one is incapable of committing a crime who commits an act under mistake of fact (consent) disproving criminal intent -there must exist a union of act and intent -if D entertains a reasonable and bona fide belief that a woman voluntarily consented to engage in sex, it is apparent he does not possess the wrongful intent

Policy Debate 1. proposed eliminating the force element and conditioning rape liability on nonconsent plus negligence. Need to inquire about mens rea.

People v. Williams Facts: Victim and Defendant told very divergent stories about encounter -Large size difference between two -Deb: says was threatened in hotel room, hit in the face, screamed, and couldn’t get away because of size disparity -Williams: Deb came onto him and totally consented; only hit her when she provoked it afterwards and demanded money -Williams charged with forcible rape (against victim’s will by means of force, violence, fear and unlawful bodily injury) Holding: Supreme Court of CA: Reverse; No substantial evidence warranting an instruction on reasonable and good faith mistaken belief of consent to sex Rationale: 1. People v. Flannel a. Must give instruction only when the defense is supported by substantial evidence sufficient to deserve consideration by jury 2. Supreme Court of CA a. Find no substantial evidence supporting an M instruction b. Wholly divergent accounts create no middle ground from with W could argue he reasonably misinterpreted D’s conduct i. No substantial evidence of equivocal conduct warranting an instruction as to reasonable and good faith, but mistaken, belief of consent to intercourse

Affirmative Defenses

Contrast to substantive crimes 1. Prosecution bears burden of proving elements of crime BRD 2. but even if prosecution proves all elements, D can raise affirmative defenses a. I committed all the elements and technically guilty, but for should be criminally accountable for extenuating circumstances i. Duress ii. Self defense 3. Don’t confuse with a challenge to an element: My defense that didn’t have an element (like mens rea), challenge to an element, not an affirmative defense 4. Supreme Court hold True defenses don’t have BRD requirement a. Some states shift burden to D

Justification v. Excuse Defenses are often classified as: 1. Justification Defenses a. What I did was otherwise criminal (against the law), but what I did was the right thing to do for society so does not deserve sanction i. Morally right/ good for society 2. Excuse a. Done nothing that is deemed morally right or socially beneficial, yet might not want to hold criminally liable because don’t think he is blameworthy i. Not personally blameworthy even if socially harmful 3. Legal Ramifications on how classify

F. Domestic Violence Video

Legal System Response 1. man right to use violence to control household 2. until 1970, remedy was an injunction 3. tort remedy not even available to women a. inter-spousal immunity 4. Changes a. Efforts to protect victim i. Battered women shelter funding ii. Expanded use of civil protection order provision 1. require abuser to stay away from victim for specified duration 2. decrease, but not eliminate abuse a. frequently violated and underenforced 3. seems like a soft response iii. Creation of New offenses 1. movement by courts to expand rape law to include marital rape 2. stalking statutes: willfully maliciously harasses another and makes credible threats 3. separate crime of crossing interstate lines to commit crimes 4. heightened penalties in certain circumstances 5. Even with greatened number of substantive crimes and sentences, need to enforce them… iv. Changing arrest policies 1. previously didn’t respond or encouraged mediation 2. police policies changes a. include response in police training b. modified laws to remove obstacles to aggressive police enforcement c. mandatory arrest policies in dom vio situations i. probable cause ii. debate: whether they are effective v. Changing Prosecutorial Policies 1. Underenforcement in prosecutors charging 2. Response: No Drop Policies a. Once charges brought, case will move on if enough evidence vi. Education Programs 1. raise questions of effectiveness

**Doctrine of Self Defense is not well suited with dealing with nuances of Domestic Violence situations

A.Self Defense

CL Self Defense Affirmative defense Elements 1. D honestly (subjective) and reasonably (objective) believes 2. Deadly force 3. Is necessary to repel 4. Imminent use of deadly force by another

Requirements 1. Honest and Reasonable Belief that Deadly force was necessary a. Subjective: honestly; AND b. Objective: Reasonable i. Majority: Lose opportunity to bring defense if you are unreasonable in your belief in ii. Minority: D can raise an imperfect defense (genuine belief) 1. partial mitigation from murder to man 2. CA takes this view c. Doesn’t matter if you eventually are wrong 2. Deadly Force is Necessary Requirement a. No alternatives available b. Exception: Obligation to Retreat i. Majority: retreat in face of attack is not necessary in face of attack 1. CA follow this ii. Minority: do have to retreat if feasible 1. castle exception: don’t have to retreat from house 2. reasonable standard c. Why don’t American jurisdictions require retreat i. Saw as cowardly; frontier tradition ii. Fear of unintended consequences iii. Emboldens aggressors 3. Imminent a. Upon instance 4. Must be Proportional to the Harm a. Majority: Must be to avert deadly force, serious bodily injury by another b. Minority: some states allow against property

CL Doctrinal Point: Aggressor Exception An individual forfeits right to self defense if that individual was aggressor in the altercation; unless aggressor expressly renounced his aggressive act (make intention to withdraw known to other party (and victim is in state to understand) by words or conduct to regain status as a non-aggressor) --SD waived so long as D takes any act that is reasonably calculated to cause the fray

People v. La Voie Supreme Court of Colorado Facts: L, during drive home late after work, was rammed by 4 men in a car who started to threaten him. He had a gun (w/permit) and shot and killed one of the group. Holding: Affirm trial holding, was a justifiable homicide Rationale: 1. Law of Justifiable Homicide a. When a person has reasonable grounds for believing and does in fact actually believe, that danger of his being killed, or of receiving great bodily harm is imminent, he may act on such appearances and defend himself, even to extent of taking a human life when necessary; although it may turn out that appearances were false or that mistake was made to extent of danger Notes: 1. Justifying defensive force a. Intangible interests i. Society values: highly values protection of innocents and deplores unjustified aggression b. Self Defense and Defense of others are available c. One life for one life demands reliance on intangible societal interests to break deadlock d. Aggressors culpability may be seen as discounting the value of their lives in the balance; or life – evil of physical harm

MPC on Self-Defense 1. when the actor believes that such force is immediately necessary for purpose of protecting himself against the use of unlawful force by such other person on the present occasion 2. when D’s belief is unreasonable and is negligent or reckless, justification afforded is unavailable a. can still be charged with reckless(manslaughter) or negligent homicide b. tailored to mens rea of self defense claim c. mitigates punishment if there is a sincere but unreasonable belief d. analogous to CA view (minority) of imperfect SD 3. Retreat: a. Follow minority rule: you have to retreat where you can b. Only required if can retreat w/ complete safety c. Castle argument; dwelling and place of business 4. Does it have an aggressor exception: Yes a. Similar to CL: qualified in this case to purpose i. Narrowing ii. Could be charged with intentional killing anyways iii. Actor only loses privilege if he is aggressor in same encounter iv. meant to incorporate idea of withdrawal and regain non-aggressor status

State v. Leidholm Supreme Court of N. Dakota, 1983 Facts: L was involved in a stormy marriage marked by alcohol abuse and moments of violence exhibited by both parties on night of incident; L contended she acted in SD in stabbing her husband to death while he slept Issue: Does a person act in SD if, under circumstances perceived by that person, such acts appeared necessary to protect him from imminent harm? Holding: reverse conviction and remand for a new trial; jury given improper statement of the law of self defense vital to the case Rationale: 1. ND law relies heavily on the MPC a. Conduct which constitutes self-defense may be either justified or excused i. Justified: force necessary to prevent imminent unlawful harm is justified in using such force if his belief is a correct belief 1. corresponds with what actually is the case ii. Excused: person reasonably but incorrectly believes that the force he uses is necessary iii. Decisive issue under ND law of self defense is not whether a person’s beliefs are correct, but rather whether they are reasonable and thereby excused or justified 2. Elements of Self Defense a. Person must actually and sincerely believe that the conditions exist which give rise to the claim of self defense b. Person must reasonably believe that circumstances exist which permit him to use defensive force i. Standards of reasonableness: Subjective Standard Used 1. Accused actions are to be viewed from the standpoint of a person whose mental and physical characteristics are like the accused and who sees what the accused sees and knows what the accused knows a. View that court’s instruction was a misstatement of the law of self defense (use objective standard of reasonably prudent person instead of subjective)

Trial court: dispute about reasonable belief interpretation 1. Pure Objective: reasonable prudent man a. Trial court adopt this b. Harder to prove 2. Subjectivised objective standard a. Supreme Court adopt this i. Viewed from person w/ mental and physical char are like accused and who sees that the accused sees and knows that person knows 1. essentially is a pure subjective standard here 2. essentially what D himself believed 3. good for D

Hurdle: even if take subjective standard 1. Was deadly force really imminent? 2. were there alternatives? 3. Argument: Battered Women Syndrome a. D wanted to introduce testimony, even if batterer is asleep to counter juror belief that D should have taken an alternative i. Learned Helplessness 1. creates belief that no way to escape, even if in fact there was ii. Idea as kind of Post-Traumatic Stress Syndrome 1. cycle of violence, followed by apology, then renewed violence a. constantly fearful of attack; trigger severe anxiety of impending danger b. even if there is none at all Battered Woman Syndrome 1. Not itself a defense, but still must be considered in the context of self defense 2. Don’t need it if use subjective standard

BWS is not a defense itself: only relevant to educate jury to syndrome and how applies to SD doctrine and create reasonable belief of imminent danger

Courts are hesitant to allow experts to testify due to fact that it may sway jury to excuse from conviction 1. only on certain kinds of evidence, they are allowed a. the matter at issue is beyond understanding of lay person b. based on research that has gained reasonable acceptance by scientific community Criticism, that BWS has not reached this level, to be allowed as testimony; doesn’t fully fit that facts of these cases: makes claim that women are passive, yet women that kill deviate from the norm (motivated to kill rather than escape); not clear how relevant BWS is to JX that have fully subjectivised reasonableness standard.

Courts until recently, have not all allowed BWS. CA legis: ordered courts to allow BWS to come in (generally accepted scientific evidence) Imposed limitations on what can say: generally talk about BWS, not about individual

Justification v. Excuse 1. Society views: a. Excusable act to be wrong but tolerates it because of the actor’s state of mind b. Justifiable act to be correct and even laudable behavior Other Battering Syndromes a. At least one state extends claim of self-defense to battered children b. If used objective standard, would the danger have been imminent enough to allow self defense to be raised? c. Battering and Cultural Defenses i. Courts have been largely negative in extending battering syndrome as relevant to SD in broader cultural factors ii. Need reasonable and actual belief Manslaughter Alternative d. MPC provide that the defense is proper when actor believes the force is necessary e. Limited by 3.09 i. Justification unavailable when 1. erroneous and due to ignorance or mistake 2. actor is reckless or negligent in having such belief a. subject to conviction of a crime for which recklessness (manslaughter) and negligence (negligent homicide) is otherwise sufficient to establish culpability

Reprise on the Reasonable Self-defender Leidholm: addressed difference between subjective and objective standard of reasonableness; it state that the issue is not whether a reasonable person would have believed something, but rather whether the D reasonably believed it.

What if the D is unreasonably fearful or belligerent? People v. Goetz Court of Appeals of NY, 1986 Facts: G shot (no permit) 4 unarmed teenagers on a subway train because he believed they were attempting to rob him. Holding: Reverse, and reinstate dismissed counts of indictment Rationale: Appellate Court: rejects pure subjective standard; motivated by policy concerns (citizens will set own standards on what reasonable use of force is); concern about public welfare Danger of Pure subjective standard: D’s can benefit from this, some of which we would be nervous about allowing this v. BWS

So what standard should you use? Adopt an obj standard, subj a little bit (certain specific facts), but not to extent that Liedholm did Poss Factors: 1. relevant knowledge about person threatening them 2. physical attributes of people involved 3. prior experiences to form a reasonable belief that he will be robbed and deadly force would be necessary a. dangerousness of urban life Don’t involve emotional and psychological factors; what most people get nervous about

Liedholm v. Goetz Jury Nullification: jury may be sympathized; didn’t care about what law said about what is reasonable Nervous of extending subjectivised standard to other cases; thus narrowly defined See typically: is obj standard with some subj (physical, concrete factors, not emotion and psychological) = Goetz case Dilemma: when you think about L case, the way courts try to express sympathies is to relax subjective reasonableness standard; suggestion is that L deserves sympathy on temporary insanity about what is imminent even though we know that is not right = create fiction --another reason why she is not culpable: may be few other options in terms of acting Utilitarian: who is more dangerous to society? Retributive: are they culpable; sympathize?


Lesser evil defense Satisfy elements of offense, technically guilty, but shouldn’t be guilty because took action to prevent greater evil or social harm

More important things sometimes than following law…higher moral law

Troubling: makes jury into mini-legislature; look at specific applications of when to break the law; greater harm is going to be avoided

So court and legislature develop pretty sharp rules to when can bring affirmative defense

CL RULE Honestly and reasonably believed that conduct is necessary • subjective: honest belief • Objective: Reasonable belief o No partial necessity defense; so if unreasonable, then no defense • Necessary o Imminent o Unavoidable: no other reasonable alternative To prevent greater harm • Assessment of value of harm: court or jury make judgment of objective value To persons or property

Additional Limitations telling where necessity cannot be applied 1. D has to have clean hands a. If negligent in bringing about situation, no defense is available 2. No legislative pre-determination a. Where legislature says that necessity does not apply; can be barred 3. Applies to natural forces only (trespass to avoid natural disaster, but not from armed robber) a. Traditional CL rule b. REPEALED in most jurisdictions 4. Does not apply to homicide crimes a. Ex: Dudley v. Stephens

The Case of Dudley & Stephens Facts: Dudley and Stephens (D’s) while shipwrecked, killed Parker and ate him in order to avoid starving to death Issue:Was the killing justified by “necessity?” Can you kill an innocent person to save yourself? Not a case of self defense-there is not aggressor Holding: Declared the defendants’ actions as willful murder Rationale: Not legally justified to kill another to save oneself in absence of self defense Moral Arguments: Is it just/unjust to allow a person to have a defense in this case? 4. Killing an innocent person- no say in his plight 5. Playing God 6. court admits that if in that situation, may not be able to live up to those standards, but still must lay down rules Policy Argument: 3. slippery slope, necessity defense might become the legal cloak for unbridled passion and atrocious crime in future 4. One death instead of four – is this an issue? Is there a right answer or a more correct approach to resolution of the situation

Notes: 1. Justification v. Excuse 2. Utilitarianism v. Retributivism; judges decision a. Util: concern for social impact of judgment i. No excuse: fear that legal def of crime will change b. Retrib: judge takes moral stand about the unqualified evil of killing the innocent i. No justification 3. Lesser Evils a. Harm is outweighed by the need to avoid an even greater harm or to further a greater societal interest b. Choice of Evils Justification = Necessity when the threat of greater harm stems from natural forces 4. Lesser Evils in MPC a. Cannot succeed if issue of competing values has been previously foreclosed by a deliberate legislative choice b. Balancing of evils not committed to private judgment of actor, is an issue for determination at trial i. Requires that the harm or evil sought to be avoided be greaten than that which would be caused by the commission of the offense

Escape from Intolerable Prison Conditions People v. Unger Supreme Court of IL, 1977 Facts: Unger escaped from a min security honor farm to allegedly avoid homosexual assaults (fear of retaliation) and threat of death; did not report; Alleged escape was not voluntary and caused by: 1. Compulsion (acts of others)= duress 2. Necessity (outside forces; natural conditions) Issue: Whether the evidence presented by D justified the giving of an instruction on the defense of necessity? Holding: entitled to submit defense to jury Rationale: 1. Traditionally, courts reluctant to permit defenses for escapees 2. Compulsion defense requires: a. Impending, imminent threat of great bodily harm or death; and b. Demand that person perform specific criminal act for which he is eventually charged c. No free will in committing crime 3. Case at hand, best analyzed in terms of necessity a. Consideration: whether D chose the lesser of 2 evils i. Accused was w/out blame in occasioning or developing situation ii. Reasonably believed such conduct was necessary to avoid a public or private injury greater than the injury which might reasonably result from his own conduct Majority Rule: Lovercamp Rule (CA rule) b. Lovercamp Decision: conditions to meet i. Faced w/ specific threat of death, forcible sexual attack, or substantial bodily injury in immediate future ii. No time for a complaint to authorities; history of futile attempts iii. No time or opp to resort to courts iv. No evidence of force or violence towards prison officials or innocent persons in escape • Different from Trad Necessity defense • Policy Judgment v. Immediately report to proper authorities when safe • Different from Trad Necessity defense • Policy Judgment c. Court says that existence of all conditions is not as a matter of law necessary to estab defense i. Only add weight and credibility to testimony

Political Necessity State v. Warshow Supreme Court of Vermont, 1980 Facts: W and other demonstrators contended they were justified in committing criminal trespass because they were fighting the danger of a nuclear accident in entering the complaintant’s nuclear power plant Issue: Should defense of necessity be available to D? Holding: Affirm conviction Rationale: 1. Fundamental Requirements of Necessity a. Situation of emergency arising w/out fault on part of actor b. Emergency must be so imminent and compelling as to raise a reasonable expectation of harm either on actor or upon those he’s protecting c. Injury impending from emergency must be sufficient seriousness to out measure criminal wrong 2. Case at hand a. Evidence showed rather a chance or possibility of an accident in future i. Speculative, uncertain Why does majority act so aggressively? 1. didn’t believe testimony a. political activists just trying to make a point 2. Don’t want to cause panic 3. Institutional division of responsibility a. Months away, want policy makers to make assessment b. Imminent, insulate individuals from liability

2nd Dissent: Not a case of imminence at all, this is about legislative preclusion Legislatures have already dealt/resolved issue Not a convincing argument in these facts—argument here is that this plant is not working

RULE: Defense of Necessity is only available if D acts in response to an emergency so imminent and compelling as to raise a reasonable expectation of harm

MPC RULE Section 3.02 Difference 1. Eliminated some of restriction of CL rule a. Nothing about imminent b. Or reasonable alternative c. Jury has ultimate discretion however 2. Issue of Mistake a. Had sincere, but unreasonable belief b. MPC, don’t lose defense entirely c. If negligent or reckless, tailor ultimate charge to D’s mens rea and degree of unreasonableness 3. Set of Limitations a. Clean hands i. Does not mean forfeit defense entirely, just tailor charge to D’s mens rea b. Applies to homicide or non-homicide c. Applies to natural or human forces d. No legislative pre-determination Dudley Stephens could argue under MPC

C.Duress 1. Always involves a response to a human threat rather than a natural danger (necessity) 2. offense is committed to further rather than resist the criminal project of the aggressor (self defense) 3. Excuse not a justification a. Deflects responsibility for a coerced wrongful act b. Fear that rendered D blameless or undeterrable 4. Traditionally been limited to considerations of proportionality a. Offense too great or threat facing her insufficient b. Required that alleged coercion involved imminent threat of death or serious bodily harm and would not excuse killing of innocent person

State v. Crawford Supreme Court of KS, 1993 Facts: C embarked on a robbery spree that included multiple criminal acts after alleging he had been coerced into committing crimes by another person whom he owed money for cocaine. Holding: Agree with district courts jury instruction; convicted; Duress does not apply Rationale: 1. Jury Instruction a. Acted under compulsion or threat of imminent infliction of death or great bodily harm, and reasonably believed it would be inflicted upon him or his child if he did not act b. Such a defense if not available to one who willfully or wantonly placed himself in a situation in which it was probable that he would have been subjected to compulsion c. Compulsion which will excuse commission or criminal act must be i. Present, imminent and impending to induce fear of death or bodily harm if act not done ii. Must be continuous iii. No reasonable opportunity to escape w/out committing crime iv. Threat of future injury is not enough 2. Present Case a. Imminent threat missing, compulsion not continuous, there was opp for escape b. Weakness lies in indefiniteness of any threat c. Could say that C willfully or wantonly place himself in situation d. Distinguishable because of dependency i. This does not bear on imminence of threat, but reasonableness of fear

MPC on Duress 1. affirmative defense that actor coerced to do so by use or threat of use of unlawful force against his person or another 2. person of reasonable firmness in situation would have been unable to resist 3. unavailable if actor recklessly placed himself in situation or negligently did so if negligence suffice to estab culpability for offense charged