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Criminal Law Outline Dan Markel I WHAT IS CRIME i Crimeiconduct which if duly shown to have taken place will incur a formal and solemn pronouncement of the moral condemnation of the communityiHart ii Crime social harm de ned and made punishable by law not all crimes involve actual harms attempts and not all wrongs are crimes defamation malicious tortiBoyce and Perkins II WHAT IS CRIMINAL LAW gtA criminal sanction unlike civil sanction is accompanied and justi ed by the judgment of community condemnation gtCriminal law involves something more than the threat of community condemnation of antisocial conduct it involves the threat of unishment A Theories of Criminal Law big issues of structuring criminal law i Legislation Question what kind of conduct should be punished what should the legislature prohibit gtpeople may be less likely to enforce the law if the law in someway was unjust ii Justi cation Question what justi es the institutions of punishment what justi es the imposition of punishment in a particular case iii Defense Question what kinds of justif1cations or excuses should be available to defendants iv Sentencing Question how much punishment should be meted out B Rules i Conduct Rulesitell citizens what they can and cannot do ii Decision Rulesirules and practices in place that guide officials on how to respond to breaches of those conduct rules C Sources of Criminal Law i Statutes mostly ii Also constitutional provisions Cases interpreting those statutes and provisions precedent iv Academic commentary on rare occasion might be cited as persuasive authority V Model Penal CodeiDEFINITIONiacademic drafted code of criminal law that is basis for many state criminal codes III RIGHT TO A JURY TRIAL i 6th Amendment the accused shall enjoy the right to a speedy and public trial by an impartial jury i A juror is not impartial if her state of mind in reference to the issues or parties of the case would substantially impair her performance as a juror in accordance with the court s instructions on the law ii Over 95 of cases are resolved through plea bargain iii SIZE OF JURY typically but not always 12 as small as 6 is constitutionall ermissible iv STATE COURTS unanimity NOT required to convict 1 93 is ok I so far the court has NOT given approval on less than 93 v FAIR CROSS SECTION jury MUST be drawn from fair cross section of community to protect D s right against exercise of arbitrary governmental power III PROOF OF GUILT AT TRIAL a STANDARD proof beyond a reasonable doubt 1 beyond a reasonable doubt on every fact necessary to constitute the crime charged 2 hels reduce risk of convictions restin on factual error 3 in 39 b APPEAL appellate court can be MUCH more deferential than the way they would interpret the facts themselves c CASES a D was arrested while sleeping in his car with an open beer and other empty cans He was parked in a private driveway b RULE a conviction upon circumstantial evidence alone is NOT to be sustained unless the circumstances are inconsistent with any reasonable hypothesis of innocence c HOLDING totality of circumstances are inconsistent with a reasonable hypothesis of innocence Conviction affirmed MARKEL case more than anything else is about the standard of review judge seeks to see if result of trial below is rational appellate judge reviews the case with a view partial to winning side when reviewing a conviction an appellate court faced with a record of historical facts that supports con icting inferences must presume prosecution and must defer to that resolution IV JURY NULLIFICATION gtJury nullification is when the jury ignores the facts and the judge s instructions on the law and acquits the defendant gtJury nullification signals to the legislature that the law needs to be changed gtPolice Misconductimaybe the case was dealing with thisicrazy sting operation etc Jury might feel that given the situation it does NOT make sense to punish the D compassion or there may be some race related reason a POWER OF JURY Jury has power to nullify without review 1 Should they have the RIGHT to do so a Some st say they do NOT have the rightiif they had the RIGHT to nullify they would get a jury instruction informing them of such power b DIFFERENCE BETWEEN RIGHT AND POWER jury nullification is a right that judges do NOT like judges think that if juries knew that they had this power giving them a right by including in instruction would be chaotic and there would really be no rule of law JUDGES CANNOT DIRECT A CONVICTION AFTER A JURY HAS NULLIFIED double jeopardy a RACE BASED NULLIFICATION Arguments for race based jury nullification Butler In prosecutions of AfricanAmericans for nonviolent offenses such as theft nullification is an option that the juror should consider although there should be no presumption in favor of it In victimless crimes like narcotics offenses there should be a presumption in favor of nullification African Americans do not have the say that they should in the making of the law Arguments against race based jury nullification Leipold Juries don t get the information necessary to make informed costbenefit analysis in particular case They also don t get information necessary to show that African Americans were especially targeted in a particular community with respect to a particular crime b CASES a I r f V 1 Equot Equot a D brings appeal b c he thinks that the judge should have instructed the jury on their ability to use jury nullification Judge used the word must in instruction regarding nding D guilty based on the law which D asserts prejudiced his constitutional right by jury b RULE Jury nullification is an unfortunate but unavoidable POWER is neither a constitutional nor other legal RIGHT It should NOT be advertised and to the extent constitutionally permissible it should be Limited Efforts to protect and expand it are inconsistent with the real values of our system of criminal justice c HOLDING A jury nullification instruction would confuse any conscientious citizen serving on a jury by advising that that person after the meticulous de nition of the elements of the crime can do whatever he pleases Effect of D s argument would be to lead the jury to nullify the law no matter how overwhelming the proof of guilt and how convinced the jury is inconsistencies PRINCIPLES OF PUNISHMENT THEORIES OF PUNISHMENT In General a Kent Greenwalt Punishment i Since punishment involves pain or deprivation that people wish to avoid its intentional imposition by the state requires justification ii Congruence between threat and actual performance on the scene does constitute one good reason for punishing For any system in which threats of punishment are to be taken seriously punishment must be carried out Approaches to justification retributivism and utilitarianism iv Greenawalt asks two questions 1 Why do we enact laws that define specific conduct as criminal and impose punishment for violation of those laws 2 To whom may punishment be applied and in what amount Satisfying both retributive and utilitarian criteria may be thought necessary to warrant punishment Use retributive criteria to determine who gets punished but utilitarian criteria for why punish at all RETRIBUTIVISM a claims that punishment is justified bc people deserve it people who commit crimes irrespective of whether this will achieve positive social consequences moral desert of an offender gives society a duty to punish him objective is to scale punishments proportionately to the severity of their respective crimes BACKWARD LOOKING the justification for punishment is found in the prior wrongdoing d TYPES OF RETRIBUTIVISM i Negative says that the finding of guilt is a prerequisite in order to punish someone Other factors are still considered ii Positive says that if there is a guilty person then there is an obligation to impose punishment Guilt in itself is not only necessary but is sufficient to punish Limiting Retributivism mixed approach sets the maximum and minimum punishment for an offense on the basis of retributivism whereas utilitarian goals would determine within those parameters the actual sentence e Kant punishment must only be in icted b c the person has committed a crime he must first be found guilty and punishable before there can be any thought of drawing from his punishment any benefit for himself or his fellow citizens One man should never be dealt with as subservient to society 139 Moore positive retribution says moral desert moral culpability is a suf cient criterion for punishment Says that if we punish anyone we must punish all who are 9 i similarly situated moral approach rather than legal approachiidea that everyone should be treated equally Stephan assaultive retribution says that punishment is needed to express and ratify our hatred of criminals for their offenses Says the fact that someone has been convicted and punished for his crime stamps a mark upon him for lifeipunishment shows the hatred of those acts Criminal law shows the principle that it is morally right to hate criminals h Morris protective retribution says that not only does society have a right to punish culpable wrongdoers but criminals have a right to be punished Punish those that redistribute the benefits and burdens of society Problem is that he assumes a human appetite for crime Assaultive V protective retribution 1 Assaultive funder Stephan s view of this death is ajustif1able penalty for various offenses 2 Protective capital punishment is more complicatedimany opposed to death penalty Not only does a just society have a right to punish culpable wrongdoers but criminals themselves have a right to be punished i Hampton by victimizing one the wrongdoer has basically said that he is elevated above himiso retributive punishment is the defeat of the wrongdoer at the hands of the victim which symbolizes the correct relative value of wrongdoer and victim The retributive motive for in icting suffering is to annul or counter the appearance of the wrongdoer s superiority and thus affirm the victim s real value assaultive j Markel retribution is NOT about hatred or fear It is about instantiating commitments to equal liberty moral responsibility democratic self defense and showing the internal intelligibility about the practice of retributive punishment Confrontational conception of retribution CCR F 4 UTILITARIAN39SM quot A I A L F p a Believes that justification lies in the useful purposes that punishment serves b FORWARD LOOKINGijustiflcation for punishment is based on the supposed bene ts that will accrue from its imposition c Jerry Bentham Says that punishment should only be in icted so far as it promises to exclude some greater evil All laws should augment the total happiness of the community Says that punishment should NOT be given 1 where it is groundlessino mischief to prevent 2 where it must be inef caciousiwhere it cannot act so as to prevent the mischief 3 where it is unprofitable or too expensiveiwhere the mischief it would produce would be greater than what it prevented 4 where it is needlessiwhere the mischief may be prevented or cease of itself without it that is at a cheaper rate d Kent Greenwalt classical utilitarianism whether an act or social practice is morally desirable depends upon whether it promotes human happiness better than possible alternatives Good must outweigh the harm Most impOItant bene ts of punishment 1 General Deterrenceipeople are generally deterred when they have knowledge that punishment follows crime An increase in the detection arrest and conviction rate is of greater deterrent consequence than an increase in the severity of the penalty upon conviction 2 Individual Deterrenceifear in the offender that if he repeats his acts he will be punished again More severe punishment warranted bc offender has shown first punishment ine ective 1quot 1quot Equot Equot 5 3 Incapacitation and other forms of risk managementilmprisonment temporarily puts convicted criminals out of general circulation and the death penalty does so permanently 4 Reform Punishment may help to reform the criminal so that his wish to commit crimes will be lessened and perhaps so that he can be a happier more useful person ii Objections to Utilitarianism 1 Classic Objection you re violating my rights to facilitate some possible social good Example if community would be saved by killing one personKant What is punishment Time and Punishment a Standard View on Retributivism punishment is warranted bc the offender deserves it in virtue of his past offense b Standard View on Utilitarianism punishment is warranted bc of the future benefits to society that will occur by punishing this offender class of offenders HOW MUCH PUNISHMENT SHOULD BE IMPOSED 8th Amendment Excessive bail shall not be required nor excessive fines imposed nor cruel and unusal punishments in icted Weems says 8A applies to limit punishments whose severity is grossly disproportionate to offense charged 8A only prohibits grossly disproportionate sentences quotU 391 o o E o 5 H I F FACT S Girl came into store and attempted to steal The store owner got out a gun which she was not familiar with and ended up killing the girl the gun was altered Store was located in bad part of town Sentenced to 10 years for voluntary manslaughter Statutory presumptioniagainst probation when a firearm is used a Court said this is an unusual case that overcomes the statutory presumption against probation To get past this used the three reasons to call this case unusual first time offender statute aimed at criminals and crime committed after provocation Court said in light of the terror experienced by her family in the store Mrs Du s overreaction in this case was understandable HOLDING Since the crime was committed bc of unusual circumstances such as great provocation Du should be placed on probation the sentence to 1 0 years in state prison is suspended SENTENCING OPTIONS Equot 1quot Indeterminate Sentencing System judges have broad sentencing discretion Judge sets appropriate punishment within very broad legislatively imposed parameters Fell into disfavor in the 1970s because judges were seen as too lenient on criminals Determinate Sentencing Systemthe legislature sets a specific sentence for each crime although sometimes permitting a specified higher or lower sentence if specific aggravating or mitigating circumstances are proven No parole boards in these jurisdictions Sentencing Procedures Judges have to adhere to sentencing guidelines Any departure from the guidelines is subject to reasonableness review MORE DISCRETION in the uidelines than there used to be Important BC incarceration is incredibly expensive for tax payers It may make sense from an economic perspective for taxpayers and social perspective able bodied men and women to sit there when thei can be iut to use in the work force in some way DEFINITION theory of justice that emphasizes repairing the harm caused or revealed by criminal behavior ii Examples victimoffender mediation conferencing circles victim assistances eXoffender assistance community service Restorative programs are characterized by four key values 1 Encounter for victims offenders and community members 2 Amendsisteps to repair the harm they have caused 3 Reintegrationiseek to restore victims and offenders to whole citizens 4 Inclusioniprovide opportunities for parties with a stake in a speci c crime to participate in resolution iv Problemiresults could be very different even with similar situationsibased on one victim being very forgiving and another not being forgiving L v Utilitarian view of general deterrenceiif you re still worried about general deterrence you would make sure that if there is any way that they are not judgment proof that they have to suffer some type of a set back like pay some amount of their wages into the future etc i Stigmatizing publicity direct stigma Scarlett letter forced apologies ii Examples Someone stole mailihad to hold sign Private Shaming like intemet sites v State Shaming harder to find arguments for private shamin FACT S Gementera stole letters from a mailbox He had a prior record Was sentenced to the lower bound of US Sentencing Guidelines on condition that he wear a sign saying I stole mail and this is my punishment Sentence was modified so that Gementera had to do lOOhours of community service RULE Sentencing Reform Acts gives courts broad discretion in fashioning conditions for supervised release mandating that such conditions serve legitimate objective 1 must be reasonably related to the nature and circumstances of offense 2 must involve no greater deprivation of liberty than is reasonably necessary Three legitimate statutory purposes are deterrence protection of the public and rehabilitation HOLDING Ct said the shaming punishment was within the conditions of the Sentencing Reform Act Markell seems like shaming punishment is more conducive to general deterrence instead of rehabilitation general deterrence might have been really easy to show in this situation Shamingian attempt to debase degrade or humiliate the offender Degradation occurs before the public eye often but not always w aid of public iv Guilt Punishments can occur in private Tries to elicit some kind of moral awareness in what was wrong with a particular kind of offender s actions Potential problems with guilting regularization of the punishmentihowever in order to make a guilt punishment truly effective you have to make it radically individualized D might not feel guiltyino internalization of the guilty message Example guy makes a racist slur and then he is forced to watch something that will make him feel guilty Example man who owns an apartment building which is not up to code is forced to sleep there PROPORTIONALITY OF PUNISHMENT Jeremy Bentham make sure crime doesn t pay scale severity of offense to severity of punishment when competing offenses might eXist give a discount in sentence to induce the less severe offense if possible Punish only that which is necessary Too severe a punishment can escalate a crime Cannons that govern the proportion of punishments CONST IT b 1 Equot Equot 5 Equot 0 1quot Rule 1 The value of the punishment must not be less in any case than what is sufficient to outweigh that of the pro t of the offence Rule 2 The greater the mischief of the offence the greater is the expense which it may be worth while to be at in the way of punishment Rule 3 Where two offences come in competition the punishment for the greater offence must be suf cient to induce a man to prefer the less Rule 4 The punishment should be adjusted in such manner to each particular offense that four every part of the mischief there may be a motive to restrain the offender from giving birth to it These four serve to mark out the limits on the side of diminution Rule 5 The punishment ought in no case to be more than what is necessary to bring it into conformity with the rules here given Limits on the side of increase don t increase past this point UTIONAL PRINCIPLES quot Proportionality between rape and death penalty FACT S GA code provides that a person convicted of rape shall be punished by death or by imprisonment for life or by imprisonment for not less than one nor more than 20 years Presence of one aggravating circumstance must be found D was convicted of rape and sentenced to the death penalty RULE A punishment is excessive and unconstitutional if a 1 makes no measurable contribution to acceptable goals of punishment and hence is nothing more than the purposeless and needless imposition of pain and suffering OR b 2 is grossly out of proportion to the severity of the crime HOLDING Court concluded that a sentence of death is grossly disproportionate and excessive punishment for the crime of rape and is therefore forbidden by the 8Lh Amendment as cruel and unusual punishment RehnquistBurger DISSENT does NOT agree that rape is a minor crime so does not think that the 8Lh Amendment includes it in the bar of disproportionality Dissents bc he does not agree that Georgia lacked the constitutional power to impose the penalty of death for rape Powell CONCURRENCE agrees except for the fact that the opinion said that regardless of the circumstances capital punishment is a disproportionate penalty for rape Says plurality s opinion is too sweeping BenthamUtilitarian ViewiNot cleariwhile it would be nice to get these people off the street so give more punishment than the crime might deserve we do not want to give them an incentive just to murder a erson they raped since they would get the same punishment Might incentivize murder 539 Three Strikes and You re Out Law FACT S D was sentenced to 25 years to life in prison under the 3 strike rule On parole from a 9 year prison term D walked into the pro shop of a golf course and stole 3 golf clubs worth 399 each Ca statute says that if a D has two or more prior serious or violent felony convictions he must receive an indeterminate term of life imprisonment RULE In weighing the gravity of a D s offense we MUST place on the scales not only his current felony but also his long history of felony recidivism Thus the offense is NOT shoplifting but shoplifting after being convicted of at least 2 serious or violent felony offenses Two part test from Kennedy concurrence in H amerline i Thresholdicomparison of the crime committed and the sentence imposed ii Comparative analysisiif disproportionality claim crosses threshold then the ct should compare sentence to other sentences imposed on other criminals a The length of the prison term in real time time offender is likely actually to spend in prison b The sentencetriggering criminal conduct offender s actual behavior or other offense related circumstances c The offender s criminal history A Aw 1 4 3 HOLDING D s sentence of 25 years to life in prison imposed for the offense of felony grand theft under the 3 strikes law is NOT grossly disproportionate and therefore does NOT Violate the 8Lh Amendment s prohibition on cruel and unusual punishments a Court said sentence was justified by the State s public safety interest in incapacitating and deterring recidiVist felons and amply supported by his own long serious criminal punishments 4 Mthere is one single crime here shoplifting The prosecutor could choose to charge with just a misdemeanor so get off with a slap on the wrist or charge with the same crime a felony and thus get tagged with the three strikes 8th Amendment cruel and unusual punishment encompasses punishment proportionality Punishment should always be in line with utilitarian goal good coming from it outweighs the bad from doing it balancing only do it if it brings about a greater good 0 Can justify extra punishment bc there is a greater good to society even maybe if it were a greater punishment that the person deserves Retributivist the punishment is not weighted against society s bene t but against someone s moral blameworthiness 0 Can t justify more punishment for repeat offenders bc those people have already paid their debt to society VII ROLES OF CRIMINAL STATUTES A Requirement of Previously Defined Conduct a The Relationship between courts and legislatures is prescribed by 3 doctrines 1 Nulla Poena Sine Lege no crime without a preexisting lawino judicial crime creation Gudiciary cannot create new crimes 2 Void for vagueness no wholesale delegation of lawmaking authority to the courts a Serves purpose of fair notice separation of powers prevention of arbitrary law enforcement 3 Rule of Lenity Strict Construction says that ambiguity in statutory interpretation must be read in favor of the accused default rule in which it penalizes the legislature in favor of the accused to make sure that there is going to be continued clarity about meaning of statute a Only comes into play if it was so controversial if it could go other way if you ve exhausted your search after looking to other options serves as a tie breaker rule of lenity only exists for common law jx 1quot Equot Equot b CASES m7 Statutorily Defined Conduct a FACTS Mochan was charged in separate indictments with intending to debauch and corrupt and further devising and intending to harass embarrass and Vilify one Louise Zivkovich and the members of her family by telephoning her various times during which he did wickedly and maliciously refer to the said as a lewd immoral and lascivious woman 8 of an indecent and lewd character Conduct was NOT prohibited by statute The prosecutor contended that D s conduct was unlawful under Penn Common law b RULE n0 law but suf cient for misdemeanor OUTLIER CASE the common law is sufficiently broad to punish as a misdemeanor although there may be no exact precedent any act which directly injures or tends to injure the public to such an extent as to require the state to interfere and punish the wrongdoer as in the case of acts which injuriously affect public morality or obstruct or pervert public justice or the administration of gov t Test is whether D could have been prosecuted punished under CL c HOLDING The factual charges identify the offense as a common law misdemeanor and the testimony established the guilt of the D 1 Court says common law is broad enough 2 Court says that anything that outrages decency and is injurious to public morals d DISSENTisays majority s opinion is too broad any act that might injure public morality is too broad i Also saysiit is the legislature s role to create the laws e So basically the guy should have gotten off this is an outlier and then the legislature could have changed this Markel this is a void for vagueness problemino advance notice to Dicase is used to show how at odds it is with current 39 Holding t0 the Principle of Legality a FACTS parties had just divorced and wife was living with another man and was pregnant with other man s child Husband found wife and beat her in the face and abdomen causing the baby to die of head trauma while still inside Doctor said that the baby was viable and could have had a 7598 percent chance of living if not for the attack b ISSUE whether an unborn but viable fetus is a human being within the meaning of the California statute c RULE Subject to the constitutional prohibition against cruel and unusual punishment the power to define crimes and fix penalties is vested exclusively in the legislative branch Stated differentlyithere are NO common law crimes in California it is the policy of this state to construe a penal statute as favorably to the D as its language anal the circumstances of its application may reasonably permitiRule of Lenity d HOLDING Legislature did NOT intend such a meaning and that for us to construe the statute to the contrary and apply it to this D would exceed our judicial power and deny D due process no fair notice of punishment of feticide NOTE Califomia then amended its murder statute to include fetuses B VALUES OF STATUTORY CLARITY i Why are vague laws unconstitutional 1 May trap the innocent by not providing fair warning 2 If arbitrary and discriminatory enforcement is to be prevented laws must provide explicit standards for those who apply them cops judges 9 3 uncertain meanings inevitably leads citizens to steer far wider towards the unlawful zone than if the boundaries were clearly marked ii US Supreme Court on Vagueness no more than a reasonable degree of certainty can be demanded nor is it unfair to require that one who deliberately goes perilously close to an area of proscribed conduct shall take the risk that he may cross the line iii VAGUENESS V OVERBREADTH 1 Overbreadth may be encompassing something that should remain innocent the statute reaches too far 2 Vagueness provides insufficient guidance to person of ordinary intelligence to know what is permitted too much discretion which allows for ad hob arbitrary discriminatory application iv CASES 39 Void for Vagueness must adopt the interpretation resulting in constitutionality a FACTS D contends that the questioned statute is unconstitutionally vague bc men of common intelligence must necessarily guess at its meaning and differ as to its application This is the peeping tom statute which says any person who peeps secretly into any room occupied by a female person shall be guilty of a misdemeanor b RULE Where a statute is susceptible to two interpretations one constitutional and one unconstitutional the court should adopt the interpretation resulting in a nding of constitutionality Where a statute is ambiguous or unclear in its meaning resort must be had to judicial construction to ascertain the legislative will and the courts will interpret the language to give effect to the legislative intent look at legislative history trying to decifer the intent HOLDING the statute is sufficiently definite to give an individual fair notice of c the conduct prohibited and to guide a judge in its application The statute does NOT violate the constitution by reason of vagueness and uncertainty d Wainwright v Stone critical to the Banks caseithe judgment of federal courts as to the vagueness of a state statute must be made in the light of prior state constructions of the statute Statute should be judged in light of its common law meaning its statutory history and the prior judicial interpretation of its particular terms Surplusageavoid surplus no redundancy If there is ambiguity then we look to legislative intent Plain meaningapply un inchingly unless it leads to an absurd result in light of the evident meaning of the statute Constitutional avoidance couit begins with the presumption that it is constitutional and must be so held unless it is in con ict with some constitutional rovision of the State or Federal Constitution 2 Vagueness in Enforcement a FACTS In 1992 the Chicago City Council enacted the Gang Congregation Ordinance which prohibited criminal street gang members from loitering with one another or with other persons in any public place b RULE Vagueness may invalidate a law for either of two independent reasons 1 1 it may fail to provide the kind of notice that will enable ordinary people to understand what conduct it prohibits OR 2 2 it may authorize and even encourage arbitrary and discriminatory enforcement c HOLDING Court said that the ordinance does not provide suf ciently speci c limits on the enforcement discretion of the police to meet constitutional standards for de niteness and clarity l C Statutory Interpretation 39 S 1 What does carry mean FACTS D was convicted of possessing meth and of carrying a rearm during and in relation to a drug traf cking crime D was pulled over and a cop found a bucket with meth and a gun in the bed of the truck What does it mean to carry a gun P 1 It left the term carry ambiguous for the average citizen as to what type of conduct is actually covered by the statute so we do not know how to comply with the statute in terms of a conduct rule RULE In interpreting a word in a statute refer to the dictionary meaning the legislative intent and the precedent cases interpreting the word 1 The court also looked to the Rule of Lenity HOLDING Carry meant to have the gun on your person and easily accessible DISSENT Trott says that carry is not complicated It should not be thought of as a verbal problemiit should be thought of as more of a real world issue There is a plain meaning that is intuitive to the average person and the average meth dealer 1 Focuses on the legislative intentisays that carry means to transport Said that Congress was trying to prevent these people from bring the gun in the rst place What do we know about statutory interpretation and legality Is there suf cient guidance about the conduct rules can we reasonably avoid an unconstitutional reading can we de ne some kind of meaning from the meaning or statutory purpose is there any basis for believing that the rule of lenity should apply P as VIII SOCIAL HARM There are enerally two types of offenses the law punishes because of an unwanted outcome such as the death of another person criminal homicide or the destruction of a dwelling house arson the law prohibits speci c dangerous behavior such as driving under the in uence of alcohol or solicitation to commit murder Because the result is a crime we can call the outcome a social harm That is the loss suffered from a murder or other violent crime is experienced not only by the immediate victim but also by society Does this exist with conduct crimes There may in a tangible sense be no harm The social harm may be the endangering of an interest that is deemed socially valuable MIf you look at the actus reus elements of some criminal offenses you will nd both conduct elements as well as result elements Offenses also contain 4 i J t x tr elements Such elements constitute part of the actus reus of an offense Attendant circumstance is a condition that must be present in conjunction with the prohibited conduct or result in order to constitute a crime eg it is an offense to drive an automobile in an intoxicated condition The words in an intoxicated condition represent an attendant circumstance IX ACTUS REUS A DEFINITION actus reusiphysical part of the crime 1 B VOLUNTARY voluntary conduct causation the harmiresult crime 1 Must be VOLUNTARY act UI a FACT SiD was arrested at his home taken into a public place by police where he allegedly manifested a drunken condition by using loud and profane language D was convicted of public drunkenness and appealed b RULEiThe act MUST be voluntary to be criminalized c HOLDING Under the statute a voluntary is required D s conviction was erroneous MPC 20117person is NOT guilty of an offense unless his liability is based on conduct which includes a voluntary act or the omission to perform an act which he is physically capable of MPC 2012 NOT considered voluntary acts a re ex or convulsion a bodily movement during unconsciousness or sleep conduct during hypnosis or resulting from hypnotic suggestion a bodily movement that otherwise is not a product of the effort or determination of the actor either conscious or habitual Pre Cogs like minority reportiarrest someone before they do the crime a Retributivist would require an act before punishment b Utilitarian would go with the precog For the social good Time Slicing using a prior voluntary act to replace a subsequent involuntary act resulting in the commission of a crime a It is a crime to voluntarily sneeze You get into a car and sneeze Your voluntary act of getting into the car which caused you to sneeze is sufficient Under MPC court is less likely to engage in time slicing asms or Re exes BUT where one uts himself in that state is a liable 3 h i 7 a FACTS s son said his father stabbed him before he died The D was severely intoxicated and claims that the movement that killed the son was a conditioned response automatic response b RULE An act committed while one is unconscious is in reality no act at all It is merely a physical event or occurrence for which there can be no criminal liability A spasm is NOT an act BUT if the D puts himself in that position then he may be liable c HOLDING the evidence presented was insufficient to present the issue of D s unconscious or automatistic state at the time of the act to the jury His drinking was voluntary Responsible for act i VOLUNTARY UNCONSCIOUSNESS7when the state of unconsciousness is voluntarily induced through the use and consumption of alcohol or drugs then that state of unconsciousness does NOT attain the stature of a complete defense The trial court should give a cautionary instruction with respect to voluntarily induced unconsciousness I f you decide to take a drink an action then you have to take the responsibility for what that action might lead you to do Conceptual issue the distinction between mens rea and actus reus When we talk about mens rea we are talking about the state of mind of the defendant with respect to the speci c social harm prohibited by statute Actus reus is the volitional mental element or will that demonstrates this action was done in a voluntary way BURDEN OF SHOWING ACTUS REUS IS ON STATE C OMISSIONS NEGATIVE ACTS i Liability for omissions is restricted to a few kinds of situations a l a statute that explicitly makes it a crime to omit the act in question such as paying taxes b 2 there are other factors giving rise to a distinct legal duty to act ii Legal Duty a When is there a duty 39 Duty by StatusiClose blood relationship is clearest example marital or parental Duty by StatuteiCops custody doctor iii Contractual assumption of duty to care for another iv Voluntarily assuming care of another which prevents others from rendering aid Creating risk of harm to another whether that is purposely negligently or innocently lt J lVIistress Overdoses a FACTSiD a married man had affair with woman who overdoses on morphine in his presence D who was intoxicated at the time arranged for acquaintance to take woman to another room in the house Woman died and D was convicted of manslaughter b RULEiThe omission of a duty owed by one individual to another where such omission results in the death of the one to whom the duty is owed will make the other chargeable with manslaughter The duty must be imposed by law or by contract and the omission to perform the duty must be the immediate and direct cause of death MORAL OBLIGATION IS ELIMINATED c HOLDING D assumed no care or control over decedent therefore no legal duty He did not have a status relationship to her since he was not her husband Why do we not have omissions liability Various justifications are offered for the common law rule 1 Omissions are inherently more ambiguous than wrongdoings acts It is harder to determine the motives and thus the culpability of an omitter 2 Difficult linedrawing problems arise in omissions cases 3 Wellmeaning bystanders often make matters worse by intervening in ongoing events 4 There is an issue of freedomican say don t kill but can you say you have to help Misrepresentation of a felony Absent special circumstances a person has no legal duty to inform the police of another person s plans to commit a criminal offense Person cannot actively conceal however Distinguishing Acts from Omissions FACT S Two physicians were charged with murder and conspiracy to commit murder after they removed respirator and feeding tubes from patient who had virtually no chance of recovering cognitive and motor skills in accordance with the request of the patient s family RULE Cessation of heroic life support measures is NOT an af rmative act but rather a withdrawal of act an omission There is NO criminal liability for failure to act unless there is a legal duty to act A physician has NO duty to continue treatment once it has proven ineffective HOLDING The physicians omission to continue treatment though intentional and with knowledge that the patient would die was not an unlawful failure to perform a legal duty Court determines that the physicians were just letting him die instead of killing him EXAMPLE Evildoer Machine if you do nothing someone dies if you push a button someone else dies The act of pushing the button would be worseibc it is an act rather than an omission X MENS REA A DEFINITION Culpability standard of Mens Rea a guilty mind a vicious will immorality of motive or a morally culpable state of mind In this sense a D is guilty of a crime if she commits the social harm of the offense with any morally blameworthy state of mind Intention is not significant B NEGLIGENCE typically criminal law does NOT punish negligenceiit must be some type of gross negligence in order to be punished under criminal law Retribuvist no morally culpable state of mind no punishment Ut tarian why punish when you can t deter negligent actions THE NATURE OF MENS REA i CASES a 1 w w Defining Malice FACTS D lived in a house which was connected with his inlaws He ripped the gas mater off of the gas pipes in the connected cellar for cash D did not pull the stop tap off the meter which was only two feet away which allowed a considerable amount of as to escae and artiall ash Xiated his mother in law 4 391 139 1 1 i z i 1 iii HOLDING We are unable to say that a reasonable jury properly directed as to the meanin of the word maliciousl would have convicted Conviction reversed H E GENERAL ISSUE IN PROVING CULPABILITY i INTENT 1quot Implied it is hard to see into another s mind So we operate by inference that one intends the natural and probable consequences of his actions This inference can be A but it creates a 39 39 39 39 Gov t must still prove intent beyond a reasonable doubt w Intent can be implied by surrounding circumstances 2 FACT S D approached another and asked for a beer Kid refused D swung a wine bottle at kid kid ducked The bottle struck victim in the face D charged with aggravated battery 3 RULE Intent can be inferred from the surrounding circumstances the offender s words the weapon used and the force of the blow HOLDING The surrounding circumstances the use of the wine bottle the absence of warning and the force of the blow are facts from which the jury could reasonably infer the intent to cause harm 5 2 COMMON LAW a Fquot 0 3 1 Common Law IntentiFor Result crimes intent includes knowledge and purpose not only what he wants to occur but also those results that the actor knows are virtually certain to occur 1 I might know certain results are highly likely to be caused by my conduct even if I do not intend them to occur that is it is not my conscious objective to bring those results about 2 MPC refers to common law intent as knowledge or purpose Transferred Intent legal fiction which finds intent when a D intends to harm one person but accidentally causes another 1 Pembliton Doctrineicannot transfer intent from person to property like attempt to do something to person and then hits the window with the rock Social harm is different General Intent when no particular mental state is set out in the definition of the crime and thus the prosecutor need only prove that the actus reus of the offense was performed with a morally blameworthy state of mind 1 Sometimes reserved for crimes that permit conviction on the basis of a less culpable mental state such as recklessness or negligence 2 ExampleiAssaultiit is enough that the D had an intent to willfully commit the act GENERALLY MEANsiwhen courts hold that a crime requires merely general intent they usually mean that all that must be shown is that the D desired to commit the act which served as the actus reus Speci c Intent an offense in which a mental state is expressly set out in the definition of the crime 1 Sometimes used to denote an offense that contains in its definition the mens rea element of intent or erhas knowled e E 3 ExampleiBuglaryimust e shown that the D not only intended to break and enter the dwelling of another but also that he intended to commit a felony inside the dwelling One of three types of special mental elements is typically found in the definition of specific intent crimes examples pg 157 answers in notes 1 To be guilty of some offense the State must prove an intention by the actor to commit some future act separate from the actus reus of the offense possession of marijuana with intent to sell 2 An offense may require proof of a special motive or purpose for committing the actus reus offensive contact upon another with the intent to cause humiliation 3 Some offenses require proof of the actor s awareness of an attendant circumstance intentional sale of obscene literature to a person known to be under the age of 18 years e Voluntary Intoxicationiwill rebut the mens rea for a speci c intent crime BUT NOT for a general intent crime 3 MPC and MENS REA 202 no general and speci c intent distinctions General Requirements of Culpability a Applies elemental approach state of mind for each element to the issue of mens re a 1 The prosecutor must prove that the D committed each material element of the offense with the particular state of mind required in the de nition of the crime c Motive V Intent motives do not usually matter but state of mind does doctor could intentionally kill patient to put him out of his miseryikilling is intentional even if his motive is good d MPC abandons the countless common law statutory mens rea terms and replaced them with four culpability terms 20217a person is not guilty of an offense unless he acted purposely knowingly recklessly or negligently with respect to each material element of the offense N when it is the D s conscious object to engage in the particular conduct in question or to cause the particular result in question a person acts knowingly with respect to the nature of his conduct or the surrounding circumstances if 1 ii39 v39 1 he is aware that his conduct is of a certain kind or that certain circumstances exist 2 OR if the crime is defined with respect to a certain result of the D s conduct the D has acted knowingly if he was aware that it is practically certain that his conduct will cause that result subjective standard knowingly not established if D actually believed the fact or that D was stupid or negligent or mistaken Willful Blindness D is not required to have had actual knowledge or belief of a fact to be held that he acted knowingly This is where the D has a suspicion that something is the case but in order to be able to deny knowledge has purposely refrained from making inquiries which would have led to the knowledge in question MPC 2027 Ostrich The implication of willful blindness is that in fuzzy cases there is the risk that the jury is going to convict someone who is simply negligent about nding out information Evidence of deliberate ignorance can be placed into two general categories Evidence of overt physical acts easy to deal with bc there is evidence the D physically acted to avoid knowledge Evidence of purely psychological avoidanceicutting off of one s normal curiosity by an effort of will Troublesome Difficulty lies in distinguishing between a mental effort to cut off curiosity and a D s simle lack of mental effort lack of curiosity 39 Willful Blindness Knowledge of Attendant Circumstances generally a substitute for knowledge a FACT Sidancing 16 year old girl found in club Owner of club convicted for endangerment of child D argued state failed to prove that D KNEW child was under 17 and thus did not KNOWINGLY endanger her Statute requires knowingly encouraging child to engage RULEiMPCiKnowledge is established if a person is aware of high probability of a particular fact s existence unless he actually believes that it does not exist HOLDINGiD s conviction is overturned bc the state only proved that the D allowed the girl to dance but she did not know she was under age Missouri Code excludes those cases in which the fact would have been known had not the person willfully shut her eyes in order to avoid knowing DOES NOT USE MPCiNOT ACCEPTED VIEW bc they did not allow willful blindness to be a substitute for knowledge it was only a substitute for recklessness 3 involves conscious risk creation like knowledge but the probability is less than certainty when he consciously disregards a substantial and unjustifiable risk where considering the nature and purpose of the actor s conduct and the circumstances known to him his disregard involves a gross deviation from standard of conduct that a law abiding person would observe in the same situation i Subjective inquiryisubjective as to what type of risk the person saw BUT the jury will always police the parameters of such a claim like playing with gunsithe jury is going to say you were aware of such risk of shooting someone 4 no state of awareness reckless you have to know you re causing a risk a D is negligent when he should be aware of a substantial and unjustifiable riskithe risk must be of such a nature and degree that the actor s failure to perceive it involves a gross deviation from the standard of care that a reasonable person would observe in the situation i Objective standardinot just based on D s perception i39 Higher degree than for civil liability for negligence ii39 easier to satisfy than recklessly bc reasonable person standard here H will MA Descending down each will satisfy the categories below it ie purpose will satisfy a statute that requires knowledge recklessness or negligence ii Conditional Intent a MPC 20267existence of such a condition is irrelevant unless the condition negatives the harm or evil sought to be prevented by the law defining the offense 1 ExampleiD breaks into a house intending to steal something only if no one is at home Under MPC D will be found to have had the necessary intent for burglary since the evils sought to be prevented by laws against burglary are present despite the condition 2 BUT ExampleiD breaks in with the purpose of having sex with the dwelling s owner but only on condition that she consent He will be held not to have had the necessary intent for burglary Since there is no statutory purpose to discourage consented to sexual intercourse F Statuto Interretation a FACT S D was convicted for releasing a worm which caused computers at various educational and military sites to cease functioning He argued the gov t had to prove not 17 only that he intended the unauthorized access of a federal interest computer but that he also intended to prevent others from using it b RULEiWhen interpreting a statute s enumerated mens rea requirement courts will look at the legislative history legislative intent the statute s wording and structure and the purpose of the subsection c HOLDING In comparing the statute to its predecessor the court concluded the intentionally standard only applied to the access and not to the damages phrase of the statute The D had the mens rea to satisfy the speci ed mens rea in the statute and since there was no speci ed mens rea in the second part of the statute he had the general intent to satisfy that position Conviction affirmed iv MPC and Statutory Interpretation When the law prescribes the kind of culpability that is sufficient for an offense without distinguishing among the material element such provision shall apply to all the material elements of the offense unless a contrary purpose plainly appears a Morris may have gotten away since the intentional requirement would have gone through to all material elements of the offense There are two things to think about in MPC analysis Is there any contrary purpose that is shown by the statute first test in 2024 With MPC when there is silence in the mens rea even in the absence of the contrary purpose the government has to show at least recklessness knowledge or purpose G STRICT LIABILITY OFFENSES i Strict Liability offenses do not have a mental state element only have to prove the actus reus ii Public Welfare Offenses liability attaches wo regard to fault in instances where actor s conduct involves minor violations to liquor laws pure food anti narcotics cars sanitary conditions 1 Two questions to ask a 1 Did punishment of offender outweigh regulation of social order as purpose of law in question i If yes then mens rea is probably required b 2 Is the penalty light involving a relatively small fine and not including imprisonment i If yes then mens rea is probably NOT required iii Statutory Rape most widely permitted strict liability crime outside of public welfare offenses iv Criticisms 0f Strict Liabilityi 1 SL does NOT deter since an actor is unaware of the facts that render his conduct dangerous 2 It is unjust to condemn a person who is NOT morally culpable v CASES 39 Strict Liability a FACTS under the Act statutorily defined firearms must be registered Upon executing a search warrant at D s home local police and agents of the ATF recovered a ri e which was the civilian version of the Ml6 and is unless modified a semi automatic weapon At trial ATF agents testified that when the gun was tested it fired more than one shot with a single pull of the trigger D testified that the ri e had never fired automatically when it was in his possession b RULE If a statute is silent as to mens rea there is a presumption that mens rea should apply c MPC says that if statute is silent as to mens rea court must prove recklessness u ose 0r knowled e t ublic welfare offenses share certain characteristics 1They regulate dangerous or deleterious devices or products or obnoxious waste materials 2 They heighten the duties of those in control of particular industries trades properties or activities that affect public health safety or welfare and 3They depend on no mental element but consist only of forbidden acts or omissions The National Firearms Act unquestionably is a public welfare statute Constitutional innocence strict liability is constitutional when but only when the intentional conduct covered by the statute could be made criminal by the legislature In other words strict liability runs afoul of the Constitution and violates the due process clause if the other elements of the crime with the strict liability element excluded could not themselves be made a crime Criticism strict liability punishment is irreconcilable with fundamental standards of criminal culpability which prevail in the community And if payment of nes is treated merely as a license to continue in operation then unscrupulous persons will not be deterred by the imposition of this sanction Also it is hard to deter those that are unaware what they are doing is wrong 0 PP E E 3 71 9 U m a FACTS7D is a 20 year old retard victim is 13 The two talked then had sex Girl had a baby of D s Defense entered evidence which showed that girl and her friends told D that she was 16 The trial court did not allow the evidence claiming that this was a strict liability offense b RULE Strict liability is constitutionally allowed for the offense of statutory rape There is no mens rea requirement to the offense THIS IS THE COMMON LAW RULE HOLDING Maryland s second degree rape statute defines a strict liability o ense that does not require the state to prove mens rea it makes no allowance for a mistake of age defense The statute does NOT expressly set forth a requirement that the accused acted with a criminal state of mind or mens rea 0 vi MPC 0n Strict Liability 1 Rejects criminal strict liabilit in almost all cases EXCE 205 5 1 139 39 39 39 39 F 2 Violations may only permit neforfeiture no prison have to ask if the court is going to imply some type of mens rea requirement as was done in Staples or it will assume that the case pertains to strict liability PT violations under u H MISTAKE and MENS REA 39 v Mistake of Fact FACT S D was charged with stealing four wooden beams from a construction site a b ISSUE whether or not the state of mind has to be in good faith AND reasonable or simply in good faith c HOLDING if D in good faith believed that he had the right to take the beams even though such belief was unreasonable as measured by the objective standard of a hypo reasonable man D was entitled to an acquittal since the specific intent required to be proven as an element of the o ense had not been established mistake of fact negatives the requirement of specific intent so only has to be in good faith does not matter it unreasonable First determine which C0mm0n Law RULE l Strict LiabilityiMistake of Fact irrelevantinot a defense 2 Speci c Intent Crimesimistake of fact has to be in good faith doesn t have to be reasonable a Fquot 3 General Intent Crimesimistake of fact has to be in good faith and reasonable the reasonableness negates the requisite culpability required for the offense EXCEPTION to CL Rule Moral Wrong Doctrineisometimes this worked as an exception to the mistake of fact doctrine at common lawiCourt could allow conviction of D whose MOF was reasonable in a general intent crime if D s action was a moral wrong assuming the actus reus was committed To apply the moral wrong doctrine a court looks at the defendant s conduct through the accused s eyes i Problem is that society as a whole cannot agree on what a morally wrong ct is EXCEPTION to CL RuleiLegal Wrong Doctrine similar to Moral Wrong Doctrine but illegal is substituted for immoral If the D s conduct based on the facts as he believes them to be constitutes a crimeinot simply an immoralityihe may be convicted of the more serious offense of which he is factually guilty Example Assume Statute 1 provides that it is a felony to furnish particular contraband to a person under the age of eighteen Statute 2 provides that it is a misdemeanor to furnish the contraband to a person age eighteen or older If D furnishes the item to a seventeenyearold the actus reus of Statute l whom he reasonably believes is eighteen years old the mens red of Statute 2 the legal wrong doctrine provides that D may be convicted of the felony and punished accordingly MPC and Mistake 0f Facti 204mistake of fact is a defense if it negatives the state of mind required to establish a material element of the offense MPC looks at the subjective state of mind of the D and the common law takes a slightly more objective approach 1 Navarro under MPCiconviction reversed also b c his mistake negatives the material mens rea element Navarro and Policy7What is the danger in having this decision as the dominant pattern I won t this encourage people to develop unreasonable beliefs about the world like a belief that a victim who says no actually means yes Determine whether it is general intent speci c intent strict liability Strict liabilityino mistake of fact defense Specific intentidoes the mistake relate to the specific intent portion of the statute go to the elemental approach If it does not relate to the specific intent portion follow it as if it was a general intent situation General intentimorally culpable If not morally culpable gets acquitted If morally culpable then is it reasonable Legal wrong doctrineieven if defendant s mistake of fact is reasonable was the act still legal under MPC mistake is a valid defense if it negative the specific mens rea Morally wrong and legal wrong are minority positions Mistake 0r Ignorance 0f Law if a reasonable person would not have ii 1 known about the law rather than Marrero just being mistaken that it applied to him a Basicallyihard to get this defense unless there is a statute that says something erroneous there is a new statute or you relied on an official statement Seems to be pretty similar for MPC and CL COMMON LAW RULE Mistake of law is no excuse harsh common law rule from Gardner FACT S D a guard at a federal prison in Conn Was arrested in NY social club in 39 of an quot J loaded quot pistol in alleged violation of NY Penal r 20 Law Marrero moved to dismiss his indictment bc of NY penal law which says peace of cers were exempt from criminal liability under the rearm possession statute d ISSUE Whether D s personal misreading or misunderstanding of a statute may excuse criminal conduct in the circumstances of this case e RULE Mistake of law does NOT relieve the D of criminal liability unless mistaken belief is founded upon an of cial statement of the law contained in a a statute or other enactment OR b a statement made b a ublic aenc or body legally charged with interpreting such law 1 HH39H v V il i 77 f HOLDING Unless Mistake of Law negatives speci c intent of statute p or where the misrelied upon law has later been properly adjudicated as wrong there is no Mistake of Law defense Weapons statute poses liability irrespective or intent was eneral not s eci c so court af rmed here a Policy for not allowing broad MOLiencourages learning of law avoids people trying to loophole through ambiguity g MPC 2029 same result as Marrero similar to Common Law Mistake of Law i 1 start with presumption that MOL is NO defense ii 2 204l applies when de nition of offense includes an element requiring knowledge recklessness or negligence as to the meaning of law 3 2043 permits limited defense even when knowledge of the law is not an element but it does not permit a defense based on a personal misunderstanding the D must reasonably rely on an of cial statement of the law afterward determined to be invalid or erroneous contained in a statute or 39udicial o inion or administrative order iRuled that D s due process rights were violated after she was mistaken on the law requiring her to leave the city after being incarcerated It is unconstitutional to prohibit ordinary conduct under circumstances that fail to alert doer to the consequences of his deed she violated the law through omissioninot an af rmative act Constitutional ignorance test Distinction between ignorance and mistake Lambert case is saying I had no knowledge of the statute s existence Case is kind of an outlier Statute punished omission Duty based on status offense was malim in prohibitum not malim in se i Defendants misread a statute and mistakenly believed that their conduct was legal Court insisted however that the mistake of law did not relieve the defendants of criminal liability Applied by court in Marrero Liability irres ective of one s intent Court held it was error to exclude testimony since a good faith belief in the legality of the D s conduct would negate an express and necessary element of the crime MPC allows mistake of law defense if it is genuine and in goodfaith reasonableness is not required M arerro under MPCi Step 1 start with 209 that mistake of law does not provide a defense as a general matter Step 2 look at MPC 204l 2043 permits a limited defense when a knowledge of the law is not an element does not allow defense based on a misunderstanding of the statute Applying all these points under Marrero what would be the outcome comes out the same way it did at trial ii39 z 3 2l Malim in se murder rape theft Malim in rohibitum driving on the wrong side of the road peci c intent and mistake of law a FACTSiD began increasing his withholding allowances and claimed to be exempt from fed income taxes D was charged with 10 violations of federal law Tax offenses are speci c intent crimes that require the D to have acted willfully D had been attending seminars and followed the advice of that group that believes that the federal tax system is 39 39 39 Statutory quot39f 39 J 39 is the voluntary intentional violation of a known legal duty b RULE A claimed belief must be in goodfaith but not objectively reasonable Of course the more unreasonable the asserted belief or misunderstanding the more likely the jury will consider them to be simple disagreement with known legal duties Misunderstanding even if unreasonable is suf cient to overcome speci c intent required by statute c HOLDING Remanded It was not necessary that D s misunderstanding be reasonable only that it be in good faith XI CAUSATION Prosecution must prove that the D s actus reus caused the harmful result To do this the prosecution must in reality make two different showings o 1 that the act was the cause in fact of the harm AND 0 2 that the act was the proximate case or as MPC calls itilegal cause of the harm A ACTUAL CAUSE cause in fact i Approaches a But for iaskiwould the prohibited result not have materialized but for the D s conduct b Acceleration c Substantial factor iuse this when two Ds acting independently commit two separate acts that alone would have suf ced to bring about the prohibited result iv CASES FL DCA 1990 1 ISSUE Can there be criminal liability for a result type offence if it cannot be shown that the D s conduct was a cause in fact of the prohibited result No 2 RULE There can be no criminal liability for a result type offense unless it can be shown that the D s conduct was a cause in fact of the prohibited result 3 MPC 203 codi ed but for testi conduct is the cause of a result when a it is an antecedent but for which the result in question would not have occurred and b the relationship between the conduct and result satis es any additional causal requirements imposed by the law FACT SiD s girlfriend beat his six year old child The next day he also beat him The child died from injuries which were sta1ted when child was beaten by girlfriend Both convicted of manslaughter at trial court 2 ISSUEiD is trying to pin liability on the girlfriend Although codefendants the causation analysis is distinct bc Idea is not that they acted in concertithe idea of this case is that there were two separate actions and it is not certain who caused the injury that killed him D s action alone was not suf cient to kill child 4 Bc D s blow would not alone have been suf cient you cannot make it a substantial factor test s0 it has to be a but for test Accelerati0n theory instead of original theory that D s Equot 22 blow was suf cient would have worked had the state tried to do it in the beginning but they did not have that evidence until testimony which was an expert called by D Brought acceleration theory too late Didn t give D sufficient notice Violation of due process c HYPO Accelerated Death another kind of but for analysis V gets stabbed by X and at the same time is intentionally shot by D in the leg V dies Who is the cause This gun shot would not kill V alone V dies in 10 minutes and would have died in 15 minutes without the gun shot wound i WHAT HAPPENS D accelerated the death since the decedent died faster unless another intervening cause Thus both X and D are actual causes of deathiboth under CL and MPC Equot 1quot B PROXIMATE CAUSE legal cause Point of proximate cause anlaysis is to reduce the number of butfor causes out there so that criminal justice can pin liability more appropriately 0 Problem with just but for causationifails to exclude remote causes for legal responsibility of social harms 0 Not all but for causes are proximate causes BUT all proximate causes are but for causes 0 The essence is on foreseeability and fairness i ISSUE SPOTTING FOR PROXIMATE CAUSE a TYPICALLY ARISES THIS WAYiLook for intervening force before the social harm materializes i Is there an act of Godsome event untraceable to human activity ii Is there an act of a 3d party that accelerates or aggravates the harm caused by the D or which causes the harm to occur unusually iii Is there an act omission by the V that assists in bringing about the outcome Proximate causation analysis is an effort by the factfinder to determine based on policy considerations or matters of fairness whether it is proper to hold the defendants criminally responsible for a prohibited result V May be more than one proximate cause a Example If X and Y both shoot V so that either wound would have been fatal and he in fact dies from the combined effect of both wounds both X and Y will be held to be proximate causes of V s death Vi CSES v r 39bbe Test 1 FACT S D met codefendant at bar and when another patron was trying to solicit a ride D who confessed to having already decided to rob decedent offered him a ride and the three men left the bar together After robbing decedent D and coD abandoned him on the side of the road Driver saw decedent sitting in the middle of the road with his hands in the airihe said he went into shock and did not his brakes RULE Where death is produced by an intervening force such as the driver s operation of his truck the liability ofone who put an antecedent force into action will depend on the dif cult determination of whether the intervening force was a suf ciently independent or supervening cause of death a The controlling questions are whether the ultimate result was foreseeable to the original actor and 2 whether the victim failed to do something easily within his grasp that would have extricated him from danger Preslar Doctrine Potential acts ruleimom wants to kill boy and wants nurse to give the boy poison in form of medicine nurse doesn t dispense it but rather leaves it on a table and YoYo comes up and gives the poison to the boy The nurse was supposed to be the conveyer of the poison to the boyimom would be on the hook for this Equot 23 There is a question of whether the nurse s actions should act as an intervening cause to the mother s act Just because yoyo turns out the be the vehicle does not mean that the mom is off the hook Responsive V coincidental causes 3 COINCIDENTIAL intervening cause then that makes D s action too remote to be proximate cause a UNLESS coincidence was foreseeableithen D is not too remote to be the proximate cause b c0incidentalidefinitioniwhen the D s act put the victim at a certain place at a certain time and b c the victim was so located it was possible for him to be acted upon Presumption is that causal chain stops RESPONSIVE intervening cause rather than coincidental to the D s prior actionithen D s action can be part of the causal chain and proximate cause can be attributed unless the response taken is abnormal and if abnormal also unforeseeable That would relieve D of being proximate cause responsive de nitioniwhen intervening act involves a reaction to the conditions created by the 5 a b Presumption is that causal chain continues b CASES r responsive but unforeseeable FACTS D and decedent met and decided to drag race Decedent crashed and died He was not wearing a seatbelt There was no contact between the cars just the fact that D was racing b RULE Even where D s actions are the cause in fact of a prohibited result courts have declined to impose criminal liability where the prohibited result ofthe D s conduct is beyond the scope ofany fair assessment ofthe danger created by the D s conduct OR 2 where it would otherwise be unjust based on fairness and policy consideration to hold the D criminally responsible for the prohibited result HOLDING D not liable D s participation in the subject drag race was NOT a proximate cause of the deceased death bc the deceased killed himself by his own volitional reckless driving AND subsequently it would be unjust to hold the D criminally responsible for his death The victim s action were responsive under LS Test to the D racing him but it was not foreseeable that he would turn and race back MPC 0n Proximate Cause 2032 purpose knowledge and 3 reckless negligentithis works for purposely knowingly recklessly and negligently 1 Subsection a The actual result differs only in the respect that a different person or different property is injured or affected or that the probable injury or harm would have been more serious or more extensive than that caused 2 Subsection b Act is proximate cause of the harmful result if it is not too remote or accidental in its occurrence to have a just bearing on the actor s liability or on the gravity of his offense 3 Is essentially a foreseeability and fairness test P Can Omissions be intervening causes 4 GenerallyiNO treatise by Perkins and Boyceino matter how unforeseeable the omission will NOT cut off liability of an earlier positive act a Why Bc nothing cannot supersede something b might be trend away from this now c EXAMPLE7Stafford s father won t pick up Stafford Under the general Perkins rulei the dad s failure to help Stafford might not be sufficient to stem liability of Ki bbe but might give rise to alternative liability for dadimaybe something like child endangerment Continuing Act Le al Fiction 5 EXAMPLEMV a police officer directs D to park his car near the curb where V was standing D accidentally drives onto V s foot V cries for D to get off of his foot but D replies rudely andfmally drives car off of V s foot 24 a D is charged with batteryiwhich is in this jxi any act that intentionally or recklessly causes harmful or offensive contact to another b PROBLEMithis is an omissioninot an act COURT UPHOLDS CONVICTION BYi continuing act legal fictionithe act became criminal from the moment the intention was formed from the continuing act of staying put Intended Consequence Doctrine 6 Perkinsiany intended consequence of act is proximate even if it results in an unforeseeable manner 7 EXAMPLE 5 caseimother wanted to kill her son by poison in medication Mom instructed the nurse to give him his medicine Nurse did not A few days later a ve year old child finds the medicine and innocently gives it to the son who then dies a According to intended consequence doctrine Perkins Ruleimother is still the proximate causeidoes NOT matter that there was an alternative delivery mechanism b if son was then shotiaccording to Perkinsimom wouldn t be proximate causeibc she wanted him dead by poison Apparent Safety Doctrine 8 says thatiwhen a person reaches a position of safety the original wrongdoer is no longer 0 responsible for an ensuing harm 9 EXAMPLEmP V s husband strikes V and threatens to kill her As a result V leaves their rural home on a freezing night and travels to her parents nearby home When she gets there she doesn t wake them and sleeps on the ground and freezes to death 10 P is not liable Free Deliberate and informed human intervention 11 Criminal law does NOT hold a person responsible for resulting harm if there is an intervening cause that spring from free deliberate and informed human action a that isionce an informed and voluntary human action is discovered this doctrine suggests that the law will NOT trace back the causal chain any further Contributory negligence of the Victim Is a factor to consider when determining whether the D s negligence caused V s death It is not a defense Concurrence of Elements c CASES a FACTS As the pedestrian reached the middle of the road he was struck by a car Pedestrian s body was thrown upon the hood of the car The car stopped momentarily the body rolled off and D immediately drove away The body was wedged beneath the vehicle when it was found over 600 ft from scene of accident D was charged with negligent manslaughter HOLDING If the V died on impact then no negligent manslaughter If V died later then the negligent or worse omission failure to stop caused the death Medical testimony was inconclusive so there was only a partial chance that the omission of stopping caused the death and thus the court sets aside the manslaughter conviction 5quot XII CRIMINAL HOMICIDE A Common Law Origins and Statutory Reform 39 Common Law De nition of Murderikilling of human with malice aforethought Common Law INTENTiintent to kill includes Knowingly and Purposely homicides Four Different state of mind mens rea constituting malice aforethought for murder in CL jxs malice aforethought is both i ii39 25 3 4 V39 6 Intent to Kill At common law intentional killing was murder awareness that the death of another would result from one s actions even if the actor had no particular desire to achieve such a consequence UNLESS there was provocationiin which case the crime was manslaughter 1St DEGREE MURDER Intent to Cause Grievous Bodily Harm Causing serious bodily harm knowingly or purposely that resulted in death would also be murder like if you beat the crap out of someone and it killed themieven though your intent was not to kill them 2ND DEGREE MURDER Depraved Heart Murder Did the circumstances of V s death reveal D to have a depraved heart usually extreme recklessness wanton disregard for unreasonable risk exampleishooting into a crowd and you were not trying to kill someone speci cally but it is so obvious that such can and likely will result 2ND DEGREE MURDER Intent to commit a felony Felony Murder where actions result in deathiStrict liability for homicide committed during the commission of a felony ii CL Year and a Day Rule deals with proximate causeivictim must die of D s actions within a year and a day in order to count as a homicide by hands of D Rule not used everywhereimostly bc of technology being able to keep people alive longer B MPC 210 3 Kinds of Criminal Homicide i Murderiis there evidence of D s purpose knowledge or recklessness showing extreme indifference to value of human life recklessness plus with respect to murder have to show there is evidence of defendant s purpose knowledge or motive Extrordinary recklessness that show special disregard to the value of human life recklessness plus 1 Recklessness is presumed but rebuttable in context of commission of most felonies iii Manslaughteriregular recklessness Oriwas it otherwise a murder but D was under extreme mental or emotional disturbance for which there is reasonable explanation from the D s perspective as he believes iv Negligent Homicide was homicide committed negligent not the same as tort negligencei still some form of culpability C MURDER 1 N Degrees of Murder 397 39 First Degree Murderigenerally limited to murders committed with premeditation and deliberation and to killings committed during the course of certain felonies Second Degree Murderiall the rest is second degree murder unless some reason to downgrade furtherilike to manslaughter unlawful killing of a human being with malice aforethought but without the additional elements and deliberation that would be suf cient for lSt degree murder premeditation ii First Degree Murder 1 Premeditation and deliberation Required under Common Law a Premeditation is function of quantity of time exercised b Deliberation has to do with quality of the thought process c Courts are not in agreement as to how much time is necessary for premeditation i Traditional viewino substantial amount of time need is necessary between formation of the intent to kill and the killing 26 In order to constitute a premeditated murder intent to kill need exist for onl an instant OVERRULED SHRADER FACT S Victim was poking fun at D who appeared to be in a bad mood Told D to lighten up and then snapped him with a towel D removed a knife from his pocket and stabbed his coworker in the neck D appeals his conviction of rst degree murder RULE Any interval of time between the forming of the intent to kill and the execution of that intent which is of suf cient duration for the accused to be fully conscious of what he intended which is of suf cient duration for the accused to be fully conscious of what he intended is suf cient to support a conviction for rst degree murder HOLDING Ct believes that the Shrader de nition of premeditation is confusing if not meaningless Is worried that nding premeditation at the time of the killing will swallow up the distinction between 1st and 2quotd degree murder V 39l 7 Wl l ll l L39 Hw H39 quotHli39f pquot 1 m we I Ww 1 says that premeditation and deliberation involve thought process undisturbed by hot blood was there enough time to give a reasonable person a chance to give his action a second look a Comparing Guthrie and MorriniMorrin is tougher standard would be in favor of D Doctrine of lesser included 0 enses generally speaking a defendant has the right to a jury instruction upon request that he may be found guilty of an offense included within the offense charged as long as the fact nder could reasonably conclude from the evidence introduced at trial that the defendant is guilty of the lesser but not the greater offense FACTS father was drunk and repeatedly beat child Court determined that death was from intraabdominal hemorrhage caused by blunt force trauma consistent with having been delivered by a human st Charged with lSt degree murder and convicted of 2quotd degree murder ISSUE whether there was suf cient evidence to show that there was 1st degree murder HOLDING The evidence supports only the conclusion that the appellant intended not to kill his son but to further abuse him or that his intent if it was to kill the child was developed in a drunken heated rage while disciplining THERE WAS NO EVIDENCE OF PREMEDITATION OR DELIBERATION Which are required elements of the crime of rst degree murder The conviction was lessened to second degree murder d RULE Premeditation and deliberation are required for conviction of crime of first degree murder Without those the homicide is lessened to second degree murder Hickman Dissent says that the majority is substituting its judgment for that of a jury Aftermath state legislature amends the murder statute so future Midgets commit ca ital murder E Fquot 0 Fquot quot1 a FACTS7father was terminally ill in the hospital so son shot father in the head four times Father s cause of death was the bullet wound Jury found son guilty of rst degree murder 27 b Fquot HOLDINGiEuthanasia can still be rst degree murder Court relies on the Jackson precedent and factors Court found premeditation and deliberation Jackson circumstances to consider in determining whether a killing was with premeditation and deliberation 1 Want of provocation on the part of the deceased 2 The conduct and statements of the defendant before and after the killing 3 Threats and declarations of the defendant before and during the course of the occurrence giving rise to the death of the deceased 4 Illwill or previous difficulty between the parties 5 The dealing of lethal blows after the deceased has been felled and rendered helpless and 6 Evidence that the killing was done in a brutal manner RULEiCircumstantial evidence lying in wait is just as good as direct evidence for purposes of a jury making its decision there was premeditation and deliberation Motive of pity does not contradict malice aforethought Forrest under Morrin rule rst degree murder b c he had time to take a second look Or even after he took the rst shot since he shot him 4 times Forrest compared with Midgett we see that it is not always the more culpable D who gets assigned with rst degree murder f Dangerous Analysis 2 MPC 0n Premeditation and deliberation no requirement of premeditation and deliberation under MPC Not always the case that premeditation and deliberation makes the crime of murder worse D MANSLAUGHTER 39 Residual category for all homicide without malice aforethought and without justi cation or Lquot emotiona excuse Pssion even 1f1nadequae provocatlon makes a killing suf ciently hot blooded to negate deliberation requirement Kinds of Manslaughter Voluntary Manslaughter Intentional Killing Federal manslaughter ruleikilling occurring in the heat of passion as the result of adequate provcation Involuntary Manslaughter Unintentional Killing Federal manslaughter rulei unintentional killings committed recklessly grossly negligently or during commission of an unlawful act misdemeanor manslaughter l N Heat of Passion Killings heat of passion is only common lawiMPC is extreme mental or 1 disturbance TS Husband caught wife talking on the phone to eXbf kicked her food away from her F and went into the room The wife followed him and stepped on his back and pulled his hair and taunted himitelling him he is lousy in bed and she wants a divorce Husband left the room and brought a knife back to the bedroom and she taunted him again and he stabbed her 19 times D was convicted of 2quotd de ee murder quot 39 w J u l Discovering one s spo objective reasonable person standard words alone are not adequate provocation Insults v informational words some courts recognize informational words as suf cient rovocation A erson should develop thick skin for insults use in the act of sexual intercourse with another 2 Mutual combat 28 3 Assault and battery There is also authority recognizing injury to one of the defendant s relatives or to a third party quotPassionquot has been interpreted to include any violent or intense emotion such as fear jealousy and desperation HOLDING problem in this case is prong lbc words are insufficient to cause a reasonable man to stab someone 19 times Court affirmed 2quot degree murder conviction a Does Girouard seem more dangerous than Forrest Euthanasiaipossiblyi seems that someone who can t take an insult is very dangerous But he got 2quotd degree and Forrest got 151 BUT NOT ASSESSING DANGEROUS7WE RE AS SESSING CULPABILITY i Dangerousness is a predication of future activityiUtilitarians care about future ii Culpability Retributivist care more about this b c they are backward looking 2 Last Straw Theoryisome courts allow more exibility with the doctrine allowing this theory of smoldering resentment Dressler Heat 0f passion Justi cation V Excuse With a justi cation society indicates its approval of the actor s conduct such as selfdefense A defendant asserting an excuse admits to wrongdoing but assets that he should not be punished because he is not morally blameworthy for the harm Thus whereas justi cation focus on the act excuses focus on the actor The modern defense is about excusable loss of selfcontrol It is not enough simply to say that a defendant s anger which was mediated by judgment and reason was justi able or excusable MPC MANSLAUGHT ER no distinction between voluntary and involuntary In General A person is guilty of manslaughter if he 1 Recklessly kills another or 2 Kills another under circumstances that would ordinarily constitute murder but which homicide is committed as the result of extreme mental or emotional disturbance for which there is a reasonable explanation or excuse extreme mental or emotional distress MPC Approach FACT S D was dating the victim and when she rejected him he went to her house and stabbed her and submerged her in water to make sure she was dead The D claimed that he suffered from emotional distress that negated the crime of passion The emotional disturbance was genuine and his reason was reasonable RULE The particular defendant must have acted under the in uence of extreme emotional disturbance no matter how seemingly unreasonable is entitled to manslaughter instruction if presentthreshold test and there must have been a reasonable explanation or excuse for such extreme emotional disturbance the reasonableness of which is to be determined from the viewpoint of a person in the defendant s situation under the circumstances as the defendant believed them to be HOLDING The D s actions were not 39 39 under the obj ectivesubjective test MPC approach to Reasonable Man There has to be a finding of extreme mental or emotional disturbance entirely subjective threshold THEN there is a question of whether the emotional disturbance was reasonable objective Equot Situation The word situation is ambiguous Includes personal handicaps but not idiosyncratic moral values There are factors in between these two extremes and the MPC formulation affords exibility to differentiate in particular cases between those special aspects of an actor s situation that should be deemed material and those that should be ignored PROCEDURE S0a jury instruction can be given if it can be shown that there was an extreme mental or emotional disturbance Then the jury can decide whether 5 5quot reasonable l a specific provocative act is not required to trigger the EMED defense 2 even if there is a provocation it need not involve quotan injury affront or other provocative act perpetrated upon the defendant by the decedentquot 3 even if the decedent provoked the incident it need not fall within any fixed category of provocations 4 words alone can warrant a manslaughter instruction 5 there is no rigid coolingoff rule The suddenness requirement of the common law 7 that the homicide must follow almost immediately after the provocation 7 is absent from the EMED defense E UNINTENTIONAL KILLINGS Unjustifiable Risk Taking i Common Law 1 Depraved Healtigoing to be looking for risk taking that showed a depraved heart a Some fuzziness in drawing the line between depraved heart murder and involuntary manslaughter at common law 39 39v Implied Malice a RULE Implied malice is present when a person does an act the natural consequences of which are dangerous to life which act was deliberately performed by a person who knows that his conduct endangers the life of another and who acts with conscious disregard for life OR malice could be implied where the defendant for a base antisocial motive and with wanton disregard for human life does an act that involves a high degree of probability that it will result in death i w Pit Bull Killing D claims that the evidence falls short at the preliminary hearing to show implied malice sufficient to prosecute for murder Pit bull was tethered to a tree but there was no other barrier to keep children out Facts of this case are probably su icient tofmal implied malice Engaging in Russian roulette is basically the quintessential definition of what it means to engage in an activity with a depraved heart The MPC does not describe murder in the common law s colorful terms but rather in terms of recklessness Ordinary recklessness is made sufficient for a conviction of manslaughter under section 2103la In a prosecution for murder however the Code calls for the further judgment whether the actor s conscious disregard of the risk under the circumstances manifests extreme indifference to the value of human life Recklessness that can fairly be assimilated to purpose or knowledge should be treated as murder and that less extreme recklessness should be punished as manslaughter Intent to cause Grievous Bodily Harmi At common law murder occurs if you beat someone severely with intent and the person then unintentionally dies Under MPC page 1025 2103 the question is generally resolved by looking at whether the conduct at issues satisfies extreme indifference to the value of human life or recklessness 30 0 3 1 a 0 FD FACTS D was convicted of involuntary manslaughter from DUI car crash There were various signs and stickers with drinking slogans all over the D s van and they were admitted as evidence D contends that those items were irrelevant to the criminal charges against him RULE The elements of the offense of involuntary manslaughter that were required to be proven were 1 that D acted with criminal negligence and 2 that in so doing D caused vicitm s death i Criminal negligence two distinct elements l that D failed to be aware of a substantial and unjustifiable risk that a result will follow AND 2 such failure constitutes a gross deviation from the standard of care which a reasonable person would exercise in this situation HOLDING Stickers were not allowed as evidence Conviction of involuntary manslaughter reversed i Negligence is considered an OBJECTIVE form of fault bc liability is based on the actor s failure to live up to the extemaliobjectiveistandard of care of the Reasonable person MPCi In a sharp departure from the common law the Code precludes liability for manslaughter based on criminal negligence A criminally negligent homicide involuntary manslaughter at common law constitutes the lesser offense of negligent homicide under the Code MPC 2104 Negligence 0f Parents OUTLIER ORDINARY NEGLIGENCE FACTS D s husband and wife were charged with manslaughter for negligently failing to supply their baby with necessary medical attentionibaby died as a result Under WA statute simple ordinary negligence sufficed for negligence if it proximately caused the death RULE in this case since ordinary negligence was the test in the statuteithe D could be liable for manslaughter even though he was unaware of the danger to life HOLDING since standard is ordinary negligence there is sufficient evidence from which the court could find D s were put on notice concerning the symptoms of the baby The failure to do so in this case is ordinary negligence and such is sufficient to support a conviction of statutory manslaughter MPC civil negligence is insufficient for MPC so mere ordinary negligence would not have sufficed under MPC for any form of criminal homicide requires that the person have actual awarenessibc a person acts recklessly only when he consciously disregards a substantial and unjustifiable risk Outlier case TYPICALLY YOU HAVE TO FIND GROSS NEGLIGENCE RATHER THAN SIMPLE NEGLIGENCE TO TRIGGER CRIMINAL LIABILITY under the involuntary manslaughter label where gross negligence or recklessness is required most courts would require an actual awareness of danger on the D s part With negligence think aboutithink about what defendants know what they didn t know and what they should Markelisuggests that physical and mental disabil es would be the kind of things a negligence inquiry would be willing to consider We would not consider such qualities as homophobia religion or racist beliefs We are 31 not looking at how people weight costsbene ts but are looking at a person s ability to actually engage in such an analysis Why punish gross negligence when D has shown not to be subjectively aware Pros Makes people take more precautions conduct activities with more care Cons If I m negligent how am I culpable I wasn t aware of what I was doing you can t prevent what you don t know could cause arbitrary enforcement of law as to certain classes of people Indians and kids being taken away F UNINTENTIONAL KILLINGS FELONY MURDER COMMON LAW i De ned homicides that occur in the course of other unlawful conduct 7 felony murder AND misdemeanor manslaughter ii OLD RULE treats homicide on a strict liability basis if you re engaged in a felony iii TODAY there are so many kinds of felonies that we have to be specific about which felonies really warrant a strict liability approach for homicides that occur Most severe 1 Degree Felony Murderiin a state like Cali the underlying felony is enumerated in the statute If you are engaged in a particular felony enumerated by the legislature prosecution does not have to show that you have malice it is enough that you engaged in the robbery 239 1 Degree Felony Murderionly exists in some jurisdictions like Cali for unenumerated felonies and here the felony is not terrible but it is none the less a felony that resulted in death Misdemeanor manslaughter Least severe iv Attractive to prosecutors b c they do not have to prove the mens rea for the death that occurs they only have to show mens rea for the underlying felony provides a presumption of the necessary mens rea for the death that occurs MPC The Code also provides for felonymurder by setting forth that extreme recklessness and thus murder is presumed rebuttable presumption of recklessness if the homicide occurs while the defendant is engaged in or is an accomplice in the commission attempted commission or ight after committing or attempting to commit robbery rape or deviant sexual intercourse by force or threat of force arson burglary kidnapping or felonious escape MPC 2102lb May be Rebutted D is free to show that he was NOT recklessly indifferent to the value of human life and that he should therefore not be guilty of murder CL cannot be rebutted even if the D can show that the killing was unintentional and not reckless CASES iquot FACTS D convicted of lSt degree murder Homicide during car chase following theft from vans The doors were locked on the vans in which they were stealing stuff from would be different if the doors were not locked b c then the underlying crime would not be a felony RULE All murder which is committed in the perpetration of or attempt to perpetrate arson rape robbery burglary mayhem or lewd acts with a minor is murder of the lSt degree This statute imposes strict liability for deaths committed in the course of one of the enumerated felonies whether the killing was caused intentionally negligently or merely accidentally HOLDING The felony murder rule applied and D can be prosecuted for first degree murder DICTA court does not agree with the felony murder rule but must rely on it bc precedent It said that such harsh results for crimes that aren t that bad destroys the symmetry of the law by equating an accidental killing Resulting from petty theft with a premeditated murder 32 I basically suggests to the legislature to ensure that the predicate felony is dangerous to human life Remove burglary from list of enumerated offenses V OTHER AVAILABLE ACTIONS depraved healt recklessness murder would be 2quotd degree instead of lSt degree though Also thereithey would have to prove mens rea to the homicide under MPC burglary is an enumerated felonyibut this was auto burglary which is different so underlying felony is not an enumerated felony If you could possibly consider robbery then robbery would trigger presumption of extreme recklessness and thus maybe try extreme recklessness murder auto burglary different from burila and thus no iresumption of recklessness FOR Deterrenceicofelons will dissuade each other from the use of violence if they may be liable for murder Punishing both accidental and deliberate killings that result from the commission of a felony is the strongest possible deterren to undertaking inherently dangerous felonies Retribution and General Culpability not requiring a separate mens rea element for the homicide but as justifying conviction for murder simply on the basis that the defendant committed a felony and a killing occurred You did something bad and something worse resulted deal with it Condemnation distinguishes crimes that cause human deaths thus reinforcing the reverence for human life Optimal Allocation of Criminal Justice Resources may aid in the optimal allocation of criminal justice resources Minimization of Perjury prevents D s from asserting perjurous defenses AGAINST Signals Not sure D is receiving signals the criminal law doctrine is trying to emit to the public D has to acknowledge the signals and process them appropriately Utilitarian Ds may calibrate their activity to the severity of the punishment and engage in activity more purposely to eliminate risks If I m responsible for death anyway then screw it I ll kill all the witnesses Deterrence If these killings are not intended how is it possible to deter something that occurred accidentally Retributivist if you had the classic American rule any felony and any homicide is attached then you would not like it bc the punishment would not always be adequate to the crime committed vi Inherently dangerous felony Limitation Utilitarian 0n Inherently Dangerous Felony Requirementithis is a way of trying to encourage Ds to take the least mischievous route The danger of overpunishing the less dangerous felonies is that it may encourage Ds to make crimes more dangerous gives them no encouragement not to Inherently dangerous felony Limitation FACT S D ed police after being pulled over officers gave chase D ran 2 stop signs and a red light drove with his lights off and sped 15 to 20 mph over the posted speed limit Officers gave up chase and later saw the D run a red light and collide with a car driven by V V was killed D had stole he car he was driving earlier that day RULE A homicide that is a direct causal result of the commission of a felony inherently dangerous to human life constitutes at least 2quotd degree murder Eliminates the need for proof of malice in connection with a charge of murder HOLDING Ct says that section 28002 which the D had violated is not in the abstract inherently dangerous Legislature created ambiguity in the statute by expanding the violations contained within and made it so that a violation of 28002 was not in itself necessarily inherently dangerous points violations 33 Merger DoctrineIndependent Felony Limitations on Felony Murder the felonymurder rule only applies if the predicate felony is independent of or collateral to the homicide If the felony is not independent then the felony merges with the homicide and cannot serve as the basis for a felonymurder conviction For example most jurisdictions hold that felonious assault may not serve as the basis for felonymurder The Independent FelonyMerger Doctrine Limitation FACT S Vs were using drugs and stopped in front of D s residence to remove hubcaps from vehicle D came out Vs ed D f1red shots allegedly to scare Vs away but shot one in the foot and one fatally in the back of the head Jury was instructed on felony murder rule D was convicted of 2quotd degree murder RULE felony murder instruction is not proper when the predicate felony is an integral part of the homicide and when under the prosecution s evidence it is included in fact within the offense charged used to only be applicable to felonious assault Mattison merger doctrine does not apply for D s commission of a felony with a collateral and independent felonious design HOLDING Ct concludes merger doctrine did not bar instruction on felonymurder theory DISSENT Majority misapplied the test D s claimed purpose to scare the victims by shooting them was not independent felonious design Kilings in the Per I etration of in Furtherance of a Felony Killings in Perpetration or in Fultherance of a felony in ight i FACTS D and cofelon broke into a house then tried to run from the cops After D was arrested and in the cop car cofelon was shot by a cop in self defense D was convicted of felony murder death of cofelon during ight from burglary D argued that he was not eeing he was caught HOLDING Criminal responsibility for the lawful act of a cop is NOT the legislature s intent for the felony murder rule DISSENT says the statute does NOT require an agency approach Plain words of statute say that if there is killing in commission or ight from felony then FM applies iv RULE Two Approaches 1 Agency Approach majority approach precludes any killing committed during the commission of the felony by a person other that the defendant or his accomplices from serving as the basis for felonymurder However a killing by an accomplice can be imputed to others involved in the commission of the felony so that felonymurder can be charged against the nonkillers 2 Proximate Cause Approach minority approachia felon may be held responsible under the felonymurder rule for a killing committed by a non felon if the felon set in motion the acts which resulted in the victim s death If an act by one felon is the proximate cause of the homicidal conduct by the nonfelon or the police officer murder liability is permitted Proximate cause approach says you did bad things and someone died and if this death was in anyway responsive to the things you ve done then you are going to be a proximate cause of the death Could deter underlying injury and crime by holding felon responsible for everything or could cause felons to be more violent Res Gestae Doctrineifelony murder applies when a killing occurs during the commission or attempted commission of a felony Nearly all courts agree that felony murder doctrine still applies after felony is technically completed if the killing occurs during the escape from the scene of the crime if it is part of one continuous transaction Requires both 1 temporal and geographical proximity 7 There must be a close proximity in terms of time and distance between the felony and the homicide The res gestae period begins when the ii39 34 defendant has reached the point at which he could be prosecuted for an attempt to commit the felony and it continues at least until all of the elements of the crime are completed Most courts provide that the res gestae of a felony continues even after commission of the crime until the felon reaches a place of temporary safety still on hook while eeing 2 A causal relationship between the felony and the homicide vi MISDEMEANOR MANSLAUGHTER RULE i MPC has abolished the rule Some jxs retain it for homicides that occur during minor unlawful conduct Felonyitypically something that allows a crime to be punished for more than one year iv Misdemeanoritypically less than a year punishments V similar to felony murder for felonies Here it permits a conviction for involuntary manslaughter when a death occurs accidentally during the commission of a misdemeanor or other unlawful act severely criticized The concept violates the important principle that a person s criminal liability for an act should be proportioned to his or her moral culpability for that act i ii39 XIII DEFENSES A Generally DEFENSEiany conditioncircumstances that may prevent conviction for an offense CATEGORIES OF DEFENSES Failure of Proof Defensesidefenses which negate an element of the offense so the o ense cannot be proven Example good faith mistake of fact negates specific intent Offense Modi cations provide a more sophisticated account when needed of the harm or evil sought to be prohibited by the definition of the offense D says he didn t create the harm of the kind the statute prohibits e g parent pays ransom on kidnapping specific defense bc it will only apply to particular charged crime D may still be guilty of other charged crimes Justificationsirecognized harm is outweighed by the need to avoid an even greater harm or to further a greater social interest eg selfdefense general not specific applies to many crimes not just some I did nothing wrong that deserves punishmentifocuses on the alleged social harm Excuses admit that the deed may be wrong but excuse the actor because conditions suggest that the actor is not responsible for his deed e g insanity general defense no social value like w justifications not looking so much at the actions looking at the actor You have proved that I did X beyond a reasonable doubt but I should NOT be held criminally accountable for my actions Non Exculpatory public policy defense purely public policy arguments D is still culpable public policybased bars to prosecution include statute of limitations diplomatic immunity judicial legislative and executive immunities and incompetency immunities further impt Societal interests n DZ v1 A justification defense deems conduct that is otherwise criminal to be socially acceptable and non punishable under the specific circumstances of the case Justification focuses on the nature of the conduct under the circumstances I did nothing wrong for which I should be punished negates social harm of offense 35 L Burden of Proof prosecutor has burden of proofi Justi cation BEFORE excuse if someone is justi ed in his actions then there is no need to look at whether or not the actions can be excused iii Examples Self Defense defense of others defense of property and habitation necessity Internal structure Triggering conditions permit a necessary and proportional response Triggering conditions are the circumstances that must exist before an actor will be eligible to act under a justi cation Necessity requirement demands that the D act only when and to the extent necessary to protect or further the interest at stake Proportionality requirement places a limit on the maximum harm that may be used in protection or furtherance of an interest To be justi ed responsive conduct must satisfy 2 requirements 1 It must be necessary to protect or further the interest at stake and 2 It must cause only a harm that is proportional or reasonable in relation to the harm threatened or the interest to be furthered THEORIES OF JUSTIFICATION 1 Public Benefit Theory conduct performed for public interest cop kills felon resisting arrest private party kills to prevent atrocious felony 2 Moral Forfeiture TheoryiV has forfeited their protected right by Virtue of their antecedent conduct Focuses on V Denies socially protected interest to V 3 Moral Rights Theory D has right to protect signi cant moral interest Focuses on D Provides D an af rmative right to protect moral interest 4 Superior Interest lesser harm When the interests of the D outweigh V s interest I iv Common Law Self Defense Elements A non aggressor may use A reasonable amount of force when he or she reasonably believes that he or she is in immediate or imminent danger of unlawful bodily harm and that the use of this force is necessary to avoid the harm NOTE7WHERE D IS NOT INITIAL AGGRESSOR AND IS CONFRONTED WITH DEADLY FORCEiNO REQUIREMENT TO RETREAT SOME JX S SAY IF YOU CAN RETREAT IN COMPLETE SAFETY YOU SHOULD IIBMNht RETREAT IS NEVER REQURIED BEFORE USING NONDEADLY FORCE IN SELF DEFENSE GENERAL RULE Once valid self defense claim the prosecutor has the burden to prove beyond a reasonable doubt that self defense is NOT applicable v MPC 3041 Self Defense DOES NOT SAY REASONABLE a the use of force upon or toward another person is justi able when the actor believes that such force is immediately necessa for the purpose of protecting himself against the use of unlawful force by such other person on the present occasion 309 REINCORPORATES A REASONABLNESS COMPONENT OF SORTS underlined portioniallows for self protective force sooner than may be allowed at common law 36 1 Deadly force is not justifiable unless D believes that deadly force is necessary to protect himself against death serious bodily harm kidnapping or sexual intercourse compelled by force or threat 2 Retreat no deadly force is permitted if D knows he has avenue of avoidance a b Exceptioniretreat from homework is unnecessa unless D was initial a Exception to exception ressor does not need to retreat if assailant is codweller 3 Aggressor Rule If D starts a nonlethal con ict he does NOT lose his privilege of self defense if V escalates it into a lethal assault However D is liable for the initial assault MPC v COMMON LAW MPC is more subjective inquiry common law approach requires reasonable belief Under MPC if belief is recklessly or negligently formed defendant MPC might take an imperfect defense approach MPC takes a more forgiving approach more subjective MPC defendant has to believe force is immediately necessary but this is different than the CL approach which says the danger has to be imminent temporal issueidoes danger manifest itself right now CASES 4 5quot a a General Principles of Self Defense FACTS Victims were trying to steal windshield wipers off of D s car D came out in protest then went back into his house and came out with a pistol Victim was trying to leave but was called back by D Victim took a couple steps toward D with a wrench and D shot him in the face D claims self defense RULE COMMON LAW RULE A non aggressor is justi ed in using force upon another if D believes that such force is necessary to protect himself from imminent use of unlawful force by the other person i lethal force is only justi ed if D believes he is in imminent eril of death or serious bodily harm and his response was necessary to save himself This must be subjectively believed 1d 391 reasole in li r L H m 1 9 HOLDING It was not until D fetched his hf the vita i it i i pistol and returned to his backyard that his confrontation with victim took on a deadly case Hm m1 d D tries to use castle rule court says only good if the D is faultless D was provoker here e Self defense is available only to those free from fault cannot be aggressor Reasonable Belief Requirement modeled after MPC but added reasonable FACTS two of four youths approached D on subway and stated give me five dollars Neither of the youths displayed weapons D responded by standing up pulling out his gun and firing four shots in rapid succession D claims self defense ISSUEiwhat is NY s reasonable requirement The grand jurors had been instructed that D s conduct must be assessed as compared to a reasonable man in his situation RULE Statute requires that the actor reasonably believe that another person either is using or about to use deadly force or is committing or attempting to commit a felony Does not mean that D s background and characteristics have to be ignored it may consider 1 knowledge D had about the person threatening him 37 2 physical attributes of everyone including the D ii any prior experiences D had which could provide a reasonable basis for a belief that another person s intentions were to injure or rob him or that the use of deadly force was necessary under the circumstances d HOLDING The drafters of the NY penal code decided not to use the subjective MPC approach when they added the reasonableness requirement The D must have had a reasonable beliefthat he was oin to be hurt If Geotz had killed or injured an innocent third party what defense should have been available to him If bullet goes through guy he is shooting at he should be alright the question is what happens in the nebulous zone of potential gross negligence or recklessness If we look at MPC 304 to 3097you basically have the equivalent of transferred intent defense if you were justified in your actions if there is any sense of doubt that you were negligent or reckless in the amount of force you used then perhaps reckless endangerment negligent homicide manslaughter i w Objective Subjective or Mixed Standard FACT S Decedent was suspected of molesting children in neighborhood Decedent was drunk and invited into house of D stepped behind D and when D turned around and was startled D shot the decedent RULE Both an objective and subjective test the justification of self defense is to be evaluated in light of ALL the facts and circumstances known to the D including those known substantially before the killing HOLDING Court reversed conviction stressing the fact that D was a smaller woman and decedent was a large drunk man WA court has since said that juries should look at what reasonably prudent people would do knowing all that D knows and seesithus incorporating both objective and subjective inquiries How individualized should the inquiry be Problem is that if you start to allow a consideration of gender you seem to approach a problem of equal protection of the law because you are in essence giving women a higher presumption that they are allowed to use deadly force in response to aggression Considering race and clothing is also a concern Unreasonable belief Imperfect Self Defense Claims Common Law 7 The traditional common law rule is that if any element necessary to prove selfdefense is lacking the defense is wholly unavailable to a defendant Some states now recognize a socalled quotimperfectquot or quotincompletequot defense of selfdefense to murder which results in conviction for the lesser offense of either voluntary or involuntary manslaughter For example a defendant who fails to satisfy the quotreasonablenessquot component although his belief was genuine might be able to assert an quotimperfectquot or quotincompletequot claim of selfdefense mitigating his crime to manslaughter Model Penal Code The Model Penal Code likewise recognizes an imperfect defense where the defendant asserts a justification defense evaluated in terms of the defendant s subjective belief in the necessit of using the force or other material circumstances However justification defenses are subject to section which provides that when the defendant is reckless or negligent in regard to the facts relating to the justifiability of his conduct the justi cation defense is unavailable to him in a prosecution for an offense for which recklessness or negligence suf ces to establish culpability a FACTS D claimed she killed boyfriend in defense of her unborn children b RULE A non viable fetus could constitute an other A person is justi ed in using force to protect another if th at 3d party would be justi ed in using force in self defense 38 The defense makes no distinction between strangers and relatives with regard to its application c Didn t use self defenseibc even if not the initial aggressor never allowed to escalate d HOLDINGiunborn children were protected as others even though nonviable b c state statute protected embryos as well as fetuses in assault context e Abortion Clinic Activistsicannot raise defense of others b c abortions are lawful Reasonable MistakesiTwo Approaches i Alter Egoiold viewicreates strict liability for Samaritansibasically if the person giving aid was mistaken then he is liable bc the victim did not have the right to defend himself and thus he was not justified in defending either ii Reasonable BeliefiMODERN VIEWeven if not justified if a reasonable person would have saw the situation and thought that defense was justified then alrigth majority view MPC RULE MPC and Kurriuses word person and not others ll38 defines person narrow to exclude fetuses Kurr would likely come out the other way as no defense would be available Defense of others subject to retreat rules 1 he uses no more force to protect the thirdparty than he would be entitled to use in selfprotection based on the circumstances as he believes them to be 2 under the circumstances as he believes them to be the third party would be justified in using such force in selfdefense and 3 he believes that intervention is necessary for the third party s protection Retreat Rules 7 l the intervenor is only required to retreat before using force in protection of a third party if he knows that such retreat will assure the third party s complete safety 2 the intervenor must attempt to secure the third party s retreat if the third party herself would be required to retreat if the defendant knows that the third party can reach complete safety by retreating Defense of Property FACT S D was convicted of assault with a deadly weapon when a trap gun mounted in his garage discharged a bullet and hit a teenager in the face D contended that the teen was a burglar and he was lawfully raised the defense of others theory RULE Where a character and manner of the burglary do not reasonably create a fear of great bodily harm there is no cause for exaction of human life or for the use of deadly force HOLDING spring guns are excessive force and deadly force was NOT warranted under the circumstances Deadly force cannot be used solely for the protection of property Case hinged on the fact D was not present no deliberation with a spring gun From Peterson the castle exception does not apply the exception that you can use deadly force to protect your home bc he said to defend his property not his castle Common Law 7 A person in possession of real or personal property is justified in using nondeadly force against a wouldbe dispossessor if he reasonably believes that such force is necessary to prevent imminent and unlawful dispossession of the property Under no circumstances may a person use deadly force to prevent dispossession MPCia person may use nondeadly force upon another person to prevent or terminate an entry or other trespass upon land or to prevent the carrying away of personal property if he believes that three conditions exist 1 the other person s interference with the property is unlawful 2 the intrusion affects property in the defendant s possession or in the possession of someone else for whom he acts and 3 nondeadly force is immediately necessary 39 MPC goes beyond the common law in permitting deadly force to protect any type of property in limited circumstances where the defendant believes that l the other person is attempting to commit arson burglary robbery or felonious theft or property destruction 2 such force is immediately necessary to prevent commission of the offense AND EITHER 3 the other person previously used or threatened to use deadly force against him or another person in his presence OR 4 use of nondeadly force to prevent commission of the offense would expose him or another innocent person to substantial danger of serious bodily injury v w A quot I a quot broader than self defense imminence ofthreat is NOT required and one can shoot at intruder to prevent entry into home 7 Assuming honest belief deadly force can be used to repel person who appears to enter to commit a violent felonyino need for someone s life to be in jeopardy 8 No necessity requirementiso deadly force can be used even when nonlethal force would suffice 9 necessity could be required in certainjxs 10 FL Rule deadly force is allowed to prevent uninvited entry into home if reasonable and factual ground exists to believe that unless so used a felony would be committed inside 11 MPC does NOT authorize deadly force merely to prevent unwanted entry into home Must be fear of enumerated felony and no alternative feasible means Model Penal Code 7 A person may use deadly force upon an intruder if he believes that l the intruder is seeking to dispossess him ofthe dwelling 2 the intruder has no claim of right to possession of the dwelling and 3 such force is immediately necessary to prevent dispossession MPC is broader than the common law in that the right to use deadly force is not predicated on the defendant s right to safe and private habitation but rather is founded on his right to possession of the dwelling On the other hand this provision does not authorize deadly force merely to prevent an unlawful entry into the home as the common law originally permitted look in paper from JRiCommon law reasonable MPC not only does he reasonably believe that he is choosing lesser harm but he me actually be choosing lesser harm 12 If necessity is shownishows there is no actus reus worthy of condemning 13 Generally speaking quotnecessityquot is a residual justifrcation defense although it shares some characteristics with excuse defenses as well It is a defense of last resort as it legitimizes technically illegal conduct that common sense principles of justice andor utilitarian concerns suggest is justifrable but which is not specifically J J J by any other 39 J justifrcation defense 14 NECESSITY AND INTENTIONAL KILLINGS a Common Law traditionally necessity defense not available Dudley and Stephens b MPC does NOT rule out the necessity defense in intentional homicide cases One may NOT sacri ce one life to save another the Code requires the choice of the lesser of two evils not merely the equal of two evils and all lives are presumed to be equal But if a life can be sacri ced to save two or more lives the Code would allow the defense 15 Necessity Choice of Evils FACT S D s truck became bogged down in a marshy area off a highway After unsuccessfully attempting to free the truck and after waiting hours for assistance D took a front end loader and a dump truck from a highway dept where it was parked Nelson wanted a subjective test court used objective RULE There are three essential elements to the defense 40 l The act charged must have been done to prevent a significant evil in terms of what was reasonably foreseeable at the time to D 2 There must have been no adequate alternative 3 The harm caused must have not been disproportionate to the harm avoided Reasonableness is guiding light in necessity defense HOLDING Here the greater harm was potential damage to D s truck and the court found no justification for the appropriation of sophisticated and expensive equipment There were also other lawful alternatives Court said no dire need so really not that big of a deal whether the obj ectivesubjective controversy MPC and Necessity 302 Conduct that the actor believes to be necessary to avoid a harm or evil to himself or to another is justifiable provided that a the harm or evil sought to be avoided by such conduct is greater then that sought to be prevented by the law defining the offense charged and b neither the Code nor other law defining the offense provides exceptions or defenses dealing with the specific situation involved and c a legislative purpose to excuse the justification claimed does not otherwise plainly appear 2 When the actor was reckless or negligent in bringing about the situation requiring a choice of harms or evils or in appraising the necessity for his conduct the justi cation afforded by this Section is unavailable in a prosecution for any offense for which reckless or negligence as the case may be suf ces to establish culpability Situation where you negligently started fire in the woods So you purposely burn down house to prevent spread of fire to other houses in Tallahassee The necessity defense would work as to the second fire but you would still be on the hook for the initial negligent fire The Code s principle of necessity is subject to a number of limitations 1 The actor must actually believe that his conduct is necessary to avoid an evil 2 The necessity must arise from an attempt by the actor to avoid an evil or harm that is greater than the evil or harm sought to be avoided by the law defining the offense charged a An equal of lesser harm will not suiTice 3 The balancing of the evils is not committed to the private judgment of the actor it is an issue for determination at the trial a Objective weighing of harms b In Nelson court balanced the evils as a matter of law ct says the matter shouldn t have even been given to the jury 4 under Subsections lb and lc the general choice of evils defense cannot succeed if the issue of competing values has been previously foreclosed by a deliberate legislative choice unless what legislature decided is unconstitutional a ex Someone may claim their trespass against property where abortions are being formed is necessary to save fetuses 5 And the limit imposed under subsection 2 eating person justi cation 01 excuse Argument for Justi cationimore lives were saved than lost 41 ii Argument for excuseikind of like battered women s syndrome Judy Norman 7we don t want people to be able to get away with that behavior BUT something about the situation which makes you think that the actor should not be liable b Twinsieither doctors would separate and A would survive or both A and B would die Court said it was alright to allow doctors to separate and allow B to die d Did twins overrule Dudley and Stephens or are they distinguishableiquestion 7 Why do we excuse wrongdoers i KadishiBentham s theoryiwe need excuses for the nondeterrable bc otherwise punishment is useless evil 1 Kadish saysiproblem with that claimiis that it does not address the risk that someone wil make a false claim of being nondeterable falsenegatives like someone faking insanity So by punishing everyone we reduce the problem of lying about such non deterability Bentham would rel that we would swee in too man innocent nondeterrable l Causation Theory Should not blame persons for conduct caused by factors outside one s control therefore excuse is warranted when D has a mental illness or acts on a coercive threat 2 Character Theory let excuses be recognized when bad character cannot be inferred from the offender s wrongful conduct Criticims There are staggering obstacles in the way of our making character judgments The theory does not explain why we do punish people of good character who commit outofcharacter offenses Causal theorists argue that the character theory assumes that people are responsible for their characteriand thus may be blamed for their bad characteribut this may not be the case 3 Free ChoicePersonhood theory of excuse a person may properly be blamed for her conduct if but only if she had the capacity and fair opportunity to function in a uniquely human way ie freely to choose whether to violate the morallegal norms of society Free choice exists if at the time of the wrongful conduct the actor has the substantial capacity and fair opportunity to 1 Understand the facts relating to her conduct 2 Appreciate that her conduct violates society s mores and 3 Conform her conduct to the dictates of the law 42 iii DURESS l Duress and Choice of Evilsimay operate at same time if COE is shown then nothing to excuse Common Lawirlhere are three elements of the duress defense 1 An immediate threat of death or serious bodily injury Requires that there be some evidence that the threat of injury was present immediate or impending A veiled threat of future unspeci ed harm will not satisfy this requirement 2 A wellgrounded fear that the threat will be carried out and 3 No reasonable opportunity to escape the threatened harm Defendant must show that he had no reasonable opportunity to escape The opportunity to escape must be reasonable MPC 2097Pers0n 0f Reasonable Firmness it is affirmative defense that D engaged in his conduct because he was coerced to do so by the use of or a threat to use unlawful force against his person or the person of another that a Qerson of reasonable firmness in his situation would have been unable to resist 2 Defense is unavailable if D recklessly placed himself in a situation in which it was probable that he would be subjected to duress ie joining a gang Defense is also unavailable if he was negligent in placing himself in such a situation whenever negligence suf ces to establish culpability for the offense charged Overall it is an objective standard but some subjectivization is permitted FACT S D was told that his family would be killed if he did not swallow cocaine balloons and take them into US D lived in Columbia and feared that the police were vastly corrupted D was convicted of possession with intent to distribute D raises a duress defense RULE laid out 3 elements Duress requires 1 Immediate threat of death or great bodily harm 2 Reasonable Basis 3 Avoidance HOLDING D s conviction reversedisaid jury may be able to find all elements What theory Character no indication that he was person of bad character causationiwere we putting him in situation that he could not control If ROL in your jX were causation prosecutor would argue that he could have still gone to authorities different than free choice bc it looks at whether or not he actually had control here not supposed to have the moral overlay duress negates requisite mens rea necessity shows there is no actus reus worthy of condemning not quite rightimens rea deals with desires not motives Markel cautions against saying duress always negates mens rea If person is aware of what he is doing then analytically speaking the mens rea element is present If killing is done in duress the fear under which he acted may be viewed as negating the normal attribution of premeditation or deliberation required of some murders May be enough to reduce the killing from lst to 2quotd degree murder 9 w 2 Necessity V Duressi When talking about Duress duress has to do with the mental state of the defendant But that is not the same as the mens rea of the D Necessity b c it is understood as a justification and does not require you to look in the mind of the D bc there was nothing bad that happened goes to the actus reusidon t have to get into the mens rea aspect 43 FACT S D escaped prison claiming death threats and repeated rape caused him to escape He claimed necessity and duress RULE Duress generally requires an impending imminent threat of great bodily harm together with a demand that a person perform the speci c criminal act for which he is eventually charged Example of what would be necessity as opposed to duress duress do something for us or we ll kill you Unger took criminal action to et awa from them rather than to do what the wanted him to do r39r v 1 3 M J l u quot quoti39 Iiu T39 L i quot uv39 39 HTquotlquot 39 quot quot r in m 39C iV39 C quot 13 i l39 HOLDING Court nds a necessity defense instead of a duress defense The relevant consideration should be whether the D chose the lesser of two evils in which case the defense of necessitv would applv or whether he was unable to exercise free choice at all in which even t duress compulsion could be the appropriate defense The D was NOT deprived of his free will by the threat of imminent harm 9MPCiboth lesser evils and duress might be available to Unger under the MPC and under the Illinois law only the lesser of two evils Why is the duress defense not applicable In CatentoPachon the drug mule was threatened with the suffering of his family so the law he was violating is the law that he was told to break by the person issuing the threat This is not the case here the law he is breaking is escape he is not being forced by compulsion to escape but is instead choosing the lesser of2 evils Prison escape is an outlier to the normal duress framework It is important to keep these defenses distinct look at threat and see if law broken is part of the source of the threat The major distinction between the two defenses is that the source of the coercive power in cases of compulsion is from human beings whereas in situations of necessity the pressure on the defendant arises from the forces of nature Also the defense of compulsion generally requires an impending imminent threat of great bodily harm together with a demand that the person perform the speci c criminal act for which he is eventually charged U 39 Duress as a defense to murder FACT S D cla1med duress since he would have been beaten if he failed to commit the murder RULE COMMON LAW When the D commits murder under duress the resulting harm the death of an innocent person is at least as great as the threatened harm The death of D Duress is NOT a defense to murder If one is not guilty of an underlying felony due to duress he cannot be convicted of felony murder courts are split on this HOLDING strictest Duress is NOT a defense to murder NOR does it reduce murder to manslaughter by the courts the legislature can make such an amendment if it chooses Person should meet w his own demise rather than kill an innocent DISSENT Kennard SITUATED BETWEEN COMMON LAW AND MPC Kennardisaid should be defense as long as not a CAPITAL murder this approach addresses majority s fear about gang violenceibc gang violence at least in CA are typically capital murders MPC 0n Murder and Duress does NOT preclude duress as a defense for murder Duress is a defense to all crimes MPC 209 Duress is an af rmative defense to unlawful conduct by the defendant if 1 he was compelled to commit the offense by the use or threatened use of unlawful force by the coercer upon his or another person and 2 a person of reasonable rmness in his situation would have been unable to resist the coercion MPC 209l The defense is unavailable if the defendant recklessly placed himself in a situation in which it was 44 probable that he would be subjected to coercion If he negligently placed himself in such a situation however the defense is available to him for all offenses except those for which negligence suf ces to establish culpability MPC 2092 majority seems to be held on a policy argumentiKennard seems to be more statutorily correct Ambiguity should be construed against the drafter so against the gov t Relati0nship bt duress and mens rea Markel cautions against saying duress always negates mens rea Anderson does not present a situation where duress negates mens rea if killing is done in duress the fear under which he acted may be viewed as negating the normal attribution of premeditation or deliberation required of some murders It may be enough to reduce a killing from lst to 2quotd degree murder Common law duress is no defense to homicide What is the nature of the explanation Better to resist a person threatening you than engage in the certain action of killing an innocent person What is advantageous about the MPC approach allowing duress as a defense for murder A person that kills out of fear is seemingly less culpable than a person that kills out of anger gtIn the common law context wo the excuse of duress for murder the implication would be that you could be prosecuted for a murder charge for a crime motivated by fear which would be punished more severely than a crime out of passion If you are in a MPC jurisdiction and a person of reasonable firmness would not have killed what should the person be charged with As the defense lawyer you would argue extreme emotional disturbance because the person was in fear of bodily harm a FACTS D was convicted of first degree murder robbery and burglary D claims that due to wine and drug consumption he was unable to form the speci c intent to steal and murder the victim This was a felony murder charged and D contends that he did not have the speci c intent to commit the underlying felony b RULE majority does not negative mens rea for general intent crimes While voluntary intoxication does not exonerate 0r excuse criminal conduct it is relevant to the mens rea 0f the actor for the crime charged Where a particular purpose motive or intent is a necessary element to constitute the particular kind or degree of crime it is proper to consider the mental condition of the accused If produced by VI to the point that D lacked the mental capacity to entertain the requisite purpose motive or intent such incapacity may constitute a valid defense c HOLDING The court relies on the legislature s use of specific intent and that the state has to prove each element The court reversed the sentence and ordered new trial d DISSENT Focuses on the fact that D places himself in the situation where has not control over his actions says it would empower people to get drunk and then commit e Aftermathiafter this case came out the PA legislature came out and adopted ruleievidence of voluntary intoxication can mitigate murder to a lesser murder charge Can mitigate within the degree of the crime charged but could not move charge entirely out of the class 1st to 2quotd degree murder but not murder to manslaughter 45 How can someone lack a speci c intent to rape and yet be liable for a crime where only a general intent is applicable At common law very few crimes actually require this elemental analysis There wasn t this notion that there had to be speci c intent for many crimes f MPC 2081 intoxication of the actor is not a defense unless it negatives an element of the offense 2 when recklessness establishes an element of the offense if the actor due to self intoxication is unaware of the risk of which he would have been aware had he been sober such unawareness is immaterial a Early Period of Common Lawiboozing NEVER a defense and CANNOT be used to contest mens rea either b Middle Period 19th CenturyiVI could be used to contest mens rea where speci c intent of crime was involved but not a defense against general intent crimes rape assault second degree murder Graves c Today trend is like Tarver Graves dissentivery narrow use of VI to contest specific intent Defense not available if D purposely becomes intoxicated in order to establish defense iv INVOLUNTARY INTOXICATION MUCH easier to litigate than voluntary intoxication bc serves as a defense for all types of things 2 Kinds of Involunta Intoxication a is intoxication induced by reason of duress or coercion b oxicant to which the actor does not know he is susceptible c 7 39 1ntoxication results from an innocent mistake b the D about the character of the substance taken d v z 39er r 39 n W 31 When D 1s intoxicated due to the ingestion of a medically prescribed drug How does involuntary intoxication exculpate 1 An involuntarily intoxicated individual is entitled to acquittal if as a result of the condition he does not form the mens red for the offense a Because the actor s intoxication was contracted in the a nonculpable manner he should also be acquitted of any general intent 2 A person whose involuntary intoxication renders the individual temporarily insane is entitled to acquittal of any offense v INSANITY 1 Competency to Stand TrialiRequires person who can a who has suiTicient ability to consult w her lawyer w a reasonable degree of rational under standing AND b has a rational as well as factual understanding of the proceedings against her 2 Competency issue of competency can be raised at ANY time during proceeding 46 3 If D is found to be incompetent to stand trial he is invariably committed generally to a state mental institution This con nement can many times be for a longer period of time than the maximum sentence that he would have received 5 Burden of Proof at Trial Insanity is an af rmative defense and therefore the legislature may constitutionally require the D to persuade the fact nder that she was insane at the time of the crime Today a majority of states and Congress place the burden of persuasion regarding sanity on the D Why do we Excuse the insane 1 Society has recognized over the years that none of the three asserted purposes of the criminal lawi rehabilitation deterrence and retributioniare satis ed when the truly irresponsible are punished 2 Those who are substantially unable to restrain their conduct are by de nition undeterrable and their punishment is no example to others those who are insane cannot be rationally expected to weigh the consequences of their conduct 3 Although an understandable emotion a need for retribution can never be permitted in a civilized society to degenerate into a sadistic form of revenge desire for retribution that wreaks vengeance upon the incompetent 5 Once found to be insane a Insanity acquittees often have to go to custody for treatment some states do not have automatic procedural dispositions but let court decide b Civil commitment to institution is allowed only if person is both presently mentally ill and dangerous to himself State must prove this by at least clear and convincing evidence tv 4 1 mi mum LL v l conforms to principals of criminal justice and community values while comporting w the realities of scienti c understanding 2 Standard must be phrased to make fully available to the jury psychiatric information such as medical science yet be comprehensible to experts lawyers and jury alike 3 Must preserve to the trier of facts judge or jury its full authority to render a nal decision 7 Tests for Insanit a s v Requires that it be clearly proven that at time of committing the act the D was under such a defect of reason that he did not know the nature and quality of the act he was doing OR if he DID know he did not know what he was doing was wrong CRITICISMS 1 Test emphasizes knowledge of right and wrong as the single element of personality as the sole symptom or manifestation of mental illness 2 Does not recognize volitional or emotional impairments Views cognitive element as the singular cause of conduct 3 FOCUSES ONLY ON TOTAL COGNITIVE INCAPACITY This compels psychiatrists to testify in terms of unrealistic concepts having no medical meaning 4 Calls for moral or ethical judgment from experts this restricts expert testimony thereby depriving the jury of the true picture of D s mental state 47 7SUPPLEMENTS M NAUGHTEN RULE Though a person abstracth knows a given act is wrong he is bv insane impulse driven to commit the act 1 It is sufficient if the insane delusion so subverts his will as to destroy his free agency by rendering him powerless to resist by reason of the duress 0f the disease 2 Exiif someone knows something is wrong but he is driven by insane impulse b c of a mental condition the law must excuse him 3 COURTS INQUIRE INTO BOTH COGNITIVE AND VOLITIONAL COMPONENTS CRITICISMS l Considered in terms of complete destruction of the governing power of the mind 2 Produces misleading notion that a crime impulsively committed must have been perpetrated in a sudden and explosive fit 3 Excludes the numerous instances of crimes committed after excessive brooding and melancholy by one who is unable to resist sustained psychic compulsion or to make a real attempt to control his conduct excuses D if his unlawful act is product of mental disease or defect encompassed all cases meeting either the M Naughten or irresistible impulse standards 1 This focuses both on volitional and cognitive 2 One objective of this ruleito give psychiatrists testifying as expert witnesses to give a broader range of information to the jury than they could under the M Naughten test Problemsiresulted in expert witnesses usurpation of jury function turned ultimate issue of fact over to experts If expert ip ops on definition of insanity would seem to imply that a person s ability to invoke the insanity defense would be based on the definition of medical ailments as constituting insanity 4 No courts really use this E at the time of the commission of the acts constituting the offense the D as a result of a severe mental disease or defect was unable to appreciate the nature and quality of the wrongfnlness 0f the acts Mental disease or defect does not otherwise constitute a defense How different from M Nanghton Requires a severe mental disease or defect and that the actor was unable to appreciate the nature How different from MPC Is exclusively cognitive based this approach requires a total impairment MPC is sliding scale gives more wiggle room because it says lack a substantial capacity to appreciate whereas the federal rule merely says unable to appreciate relieves liability under two circumstances Broadened version of M Naughten and irresistible impulse Show either of these and get insanity defense 48 l COGNITIVE PRONG D as a result of mental disease or defect lacked substantial cagacg39 gto appreciate criminalng wrongtnlnessl some jxs will use criminality and some use wrongfulness of conduct 2 VOLITIONAL PRONG D due to mental disease or defect lacked substantial cagacgj39 3 to conform his conduct to law s requirements gtAppreciating wrongfulness may be taken to mean appreciating that the community regards the behavior as wrong A primary purpose of the MPC drafters use of the term appreciate rather thanM Naghten s know is to more satisfactorily enable mental health experts to testify regarding a deeper sense of cognition while still providing the jury with wiggle room in its determination gtSubstantial means a capacity of some appreciable magnitude when measured by the standard of humanity in general as opposed to the reduction of capacity to the vagrant and trivial dimension characteristic of the most severe af ictions of the mind gtDoesn t have to be an impulseieven acts that are product of brooding and deliberation may qualify 3 VOLITIONAL AS WELL AS COGNITIVE IMPAIRMENTS MUST BE CONSIDERED BY JURY Wrongfulness V Criminality IssueiDoes wrong criminal a History of MPC indicates wrongfulness was offered as a choice so that any legislature if it wishes could introduce a moral issue into the test for insanity b State says that societal morality is the test ofwrongfulness D says it should be b39ective based c Thus a D would be entitled to prevail if as a result of his mental disease or defect he sincerely believes that society would approve of his conduct if it shared his understanding of the circumstances d f Justifications for abolishing the insanity defense Creates risk of Type II errors too many people who are actually guilty would escape punishment If we are going to give someone a privilege with a mental disorder why not give those people with rotten social backgrounds a defense as well like growing up in bad area bad home etc N 49 vi DIMINISHED CAPACITY DOCTRINE N MPC JXs SPLIT ON ALLOWANCE H l lll39lquot39 b Some do not allow diminished capacity for ANYTHINGiand just rely on mental insanity alone Wilcox 2 Diminished capacity doctrineiallows a D to introduce evidence of mental abnormality at trial to EITHER a Mens Rea Negate the mental element of the crime charged thereby exonerating the D of that charge 1 Dominant approach in the US 2 Failure of proof defense bc not necessary mens rea element so not an excuse defense 3 ExampleiD was charged with murder on intent to kill theory and D says I did not commit the crime charged bc I did not possess the requisite mens rea 4 Example thought the house was his and was not he was mentally ill No requisite mens rea b Partial Responsibility Lesser form of legal insanity D claims as a result of mental abnormality he is not fully responsible for crime proven against him D is less culpable and should be convicted of a lesser crime or at least punished less severely All legally sane Ds will not be equally rational or equally in possession of selfcontrol at the time of the prohibited act 2 ExampleiD says I m not insane fully but I had diminished capacity and thus I should be charged with a lesser crime or receive a lighter sentence 3 Differs from mental insanity just by matter of degree 4 ExampleiMPC jxicharged with murder and claim of partial responsibility b c of diminished capacity and thus charged with manslaughter bc of extreme emotional disturbance so receives a lighter sentence 2 MPC and Diminished Capacity a MPC 402 permits evidence of mental abnormality Evidence that D suffered from a mental disease or defect is admissible whenever it is relevant to prove that the D did or did not have a state of mind which is an element of the offense b Allows Diminished Capacity for ALL relevant elements of the crime c Allows Diminished capacity for BOTH mens rea AND partial responsibility variants l Exampleiextreme emotional disturbance for which there was a reasonable basisimitigates murder to manslaughter Non MPC jurisdictions are split some allow dim capacity to speci c intent elements only some don t allow it at all 50 INCHOATE CRIMES Includes Attempt Solicitation and Conspiracy A ATTEMPT There is still something that has to happen in order for the crime to succeed Present 3 kinds of problems 1 Problems for cops if you don t wait enough you might simply be arresting someone for innocent behavior If you wait too long the murder rape etc might have materialized 2 Problem for enforcement why should inchoate crimes that don t resolve in harm because of mere fortuity chance or effective law enforcement be punished less There is still same mens rea culpability etc 3 Problem for judiciary face challenges of implementing the vague language of legislatures i Rule of Mergeriapplies hereiD cannot be convicted of both completed offense and attempt Less severeiall jxs treat attempts as lesser included offense of the completed crime D can be convicted of attempt based on evidence of a completed crime Primary function to provide a basis for law enforcement officers to intervene before an individual can commit a completed offense Robbins MPC Section 5 addresses ATTEMPT SOLICITATION and CONSPIRACY These offenses have in common the fact that they deal w conduct that is designed to culminate in the commission of a substantive offense but has failed in the discrete case to do so or has not yet achieved its culmination bc there is something that the actor or another still must do gtGeneral deterrence is at most a minor function to be served in these inchoate crimes Functions of Penal Law Served gtA firm legal basis is needed for the intervention of the agencies of law enforcement to prevent the consummation of a crime when a D is seriously dedicated to it gtNeed to create proper safeguards upon which the danger of individuals disposed toward crime may be assessed and dealt with gtWhen an actor s failure to commit an offense is due to fortuity ie the bullet misses exculpation on that ground would involve inequality that would shock the common sense of justice Types of Attempts INCOMPLETE the actor does some of the acts she sets out to do but then desists or is prevented from continuing by an extraneous factor e g the intervention of the police officer COMPLE T E the actor does ever act planned but is unsuccessful in producing the intended result eg she shoots and misses the intended victim 51 How do we justify punishing attempts UTILITARIANipeople would be affected by fear of getting run down RETRIBUTIVIST VIEWS some focus on the HARM and some focus on the INTENT 39 a gw links thejustification for punishment and thejustification for punishment to the culpable causing of a prohibited harm gtSeems to indicate impunity for incomplete attempters on the ground that they have not yet caused the prohibited harm DOES NOT REALLY YIELD A JUSTIFICATION FOR PUNISHING INCOMPLETE ATTEMPTS gtALSO FOLLOWS FROM THIS VIEW THAT COMPLETED ATTEMPTS SHOULD BE PUNISHED LESS SEVERELY quot y w 3 39 starts w the proposition that the technique ofthe criminal law is to impose on individuals in society various duties of selfrestrain in order to provide a basic security of person property amenity and so on TRYING TO EXCLUDE MORAL LUCK gtPerson who voluntarily casts off burden of selfrestrain deserves punishment in that he or she has used unfair means to gain an advantage over lawabiding citizens gtEmphasis in criminal liability should be upon what D was trying to do intended to do and believed he was doing rather than upon the actual consequences of his conduct individuals should be held criminally liable for what they intended to do and not ally did or did not occur individuals should be judged on the basis of what they believed they were doing not on the bas1s of actual facts and circumstances which were not known to them at the time gtOnce D has reached a sufficient stage in acting w the settled purpose of committing a substantive offence criminal liability is individually deserved and socially fair PUNISHMENT MUST BE AIMED AT THOSE WHO HAVE SHOWN A DISPOSITION TO CAUSE PROHIBITED HARMS Complete attempter has unambiguously shown his willingness to try to bring about a proscribed consequence The fact that the result failed to follow does not reduce the dangerousness of this individual to any sufficient extent Objectivism and Subjectivism a 1 critical feature is that the offense be objectively discernible at the time that it occurs The assumption is that a neutral thirdparty observer could recognize that activity as criminal even if he had no special knowledge about the offender s intention The actor s mental state does not arise as a legal issue unless and until the wrongfulness of her conduct is demonstrated by her actions 1 2 39 39 the act of execution is important so far as it verifies the firmness ofthe intent but has no independent significance Focuses on the actor s intentions rather than on extemalities Any act that verifies the person s commitment to carry out her criminal plan is sufficient to justify the criminal sanction 52 ATTEMPT AND MENS REA MD was convicted of attempted murder D argued w girlfriend spilled gas on her and then she caught re gtCOMMON LAW Attempt is a speci c attempt crime Intent encompassed both knowledge and purpose at common law Court in this case is in Illinois which sasy only purpose counts a Exampleiif X is blindfolded and says he is going to try to shoot the clock but then shoots John who is right beside the clock he is not guilty of attempted murder bc he did not have the speci c intent to kill John b BUT some jxs treat knowledge that a death is virtually certain to occur as suf cient intent gtmn criminal attempt is a speci c intent crime this court held that an individual may be convicted of the crime of attempted voluntary manslaughter since the substantive offense is an intentional homicide done in the sudden heat of passion caused by adequate provocation Unintentional homicide may not form the basis for a conviction for attempt gtBecause a conviction for felony murder requires no speci c intent to kill it follows that because a criminal attempt is a speci c intent crime attempted felony murder is not a crime gtCriminal attempts involve two intents gin common law parlance 1 Actor must intentionally commit the act that constitutes the actus reus of an attempt 2 The actor quite arguably committed that act w the speci c intention of committing the completed offense g n 39 u imam 9139 if an actor pointed a gun at someone and accidentally pulled the trigger of th gun ie the rst intent is missing it would likely follow that the actor did not intend to kill another second intent Typically it is the second intention the intent to cause the completed offense that becomes the key mens rea issue gtMPC 501 To analyze an attempt issue under subsection 1 it is necessary to ask and answer one or two questions 1 Does the case involve a complete or incomplete attempt 2 If the case involves a complete attempt is the target offense a result crime or a conduct crime 1 A person is guilty of an attempt to commit a crime if acting w the kind of culpability otherwise required for commission of the crime he a purposely engages in conduct that would constitute the crime if the attendant circumstances were as he believes them to be or b when causing a particular result is an element of the crime does or omits to do anything with the purpose of causing or with the belief that it will cause such result without further conduct on his pa1t or 53 Subsection 1a and 1b pertain to completed attempts Speci cally subsection 1a should be considered when the target offense of the completed attempt involves conduct subsection 1b applies to results c purposely does or omits to do anything which under the circumstances as he believes them to be is an act or omission constituting a substantial step in a course of conduct planned to culminate in his commission of the crime read in conjunction w subsection 2 If the prosecution involves an incomplete attempt subsection 1c is used However this subsection must be read in conjunction w subsection 2 which elaborates on the meaning of substantial step ATTEMPT AND ACTUS REUsidistinction between mere preparation and attempt fl 1 crime or directly tendin the consu mation 392 v the overt act required for an attempt must be proximate to the completed ime or must amount to the c ommencement of r 11 a test given impetus by Justice Holmesithe greater the offense and the nearer the act to the crime the stronger is the case for calling the act an attempt You look at the gravity of the offense attempt standard becomes easier to satisfy the more dangerous the outcome of the act is Indispensable element test a variation of the proximity tests which emphasizes any indispensable aspect of the criminal endeavor over which the actor has not yet acquired control prerson has no control over something that is indispensable to the criminal endeavor it seems evident that the attempt has not materialized yet Probable desistance test the conduct constitutes an attempt if in the ordinary and natural course of events without interruption from an outside source it will result in the crime intended Abnormal step approach an attempt is a step toward a crime which goes beyond the point where the normal citizen would think better of his conduct and desist Normal citizen doesn t engage in committing crimes so it is difficult to apply 391 h t l 4 an attempt is committed when the actor s conduct unequivocally manifests an intent to commit a crime u H MW 39 an act or omission constituting a substantial step in a course of conduct planned culminate the D s commission of the crimeidoes not take much to satisfy gtF0cused on what the D HAS done rather than what the D has left to do was going to bomb the building but had to do one more thing Indictment did not include a solicitation if it had Peaslee would likely have had a complete attempt gtWas incomplete attempt gtD argued that he had not taken enough evidence of present intent to commit a crime to be in attempt territory 54 gtDangerous Proximity Test used in this caseithe more serious the crime the less proximate one needs to be for the conduct to be an attempt The closer one is to success the more likely the activity is deemed an attempt gtHeld A mere collection and preparation of materials in a room for the purpose of setting re to them unaccompanied by any present intent to set the re would be too remote M driving around looking for the guy that they were planning on robbing cops arrested them before they ever even found the guy gtUsed Dangerous Proximity Test gtHolding not guilty of attempted robbery Guy they were attempting to rob wasn t thereicourt noted that the less severe the crime the less likely it should be considered an attempt MD had chat room talk with V someone D believed to be a 12 year old boy with whom he wished to have sex V is actually an undercover cop D mailed ticket and money for travel to V and arranged a taxi drive to bring V to D s house V arrested D for attempted 1er and lascivious act on a child under 16 when D approached the taxi Held guilty of attempt NOTE crimes like sex crimes are much easier to prove attempt for than robbery and bank fraud NOTE we also consider how close to the accomplishment of the crime the D is M Equivocality Res Ipsa Loquitor Test Had threatened to kill him earlier Then walked into eld with a gun Charged with attempted murder gtHoldingiusing equivocality testiif there is more than one reasonably possible answer then the accused had not yet done enough Not guilty of attempted murder gtthe quality of being equivocal questionable that must be lacking before the act becomes one which may be said to be a commencement of the commission of the crime or an overt act or before any fragment of the crime itself has been committed so long as the equivocal quality remains no one can say with certainty what the intent of the D is 12 year old girls were at the teacher s cup but did NOT put the poison in They argued that it should be treated like Dupoy it would be harder to be convicted of attempted murder under Dupoy than MPC MPC uses substantial step gtHOLDING court af rmed attempt bc they thought Dupoy was bad policy result modeled MPC approach MLast Step Approach dealt with doctor doing illegal abortions Court said not guilty of attempted murder bc he had not gone far enough he was arrested right before he performed gtBasically says that there has to be maybe only one or two small steps left to take place here picking up instrument and going over to the woman Very narrow construction of the overt act that is corroborative of an intent to commit an offense l Th1s form lation sh1fts the emphasis from what remains to be done tow hat the actor has already done The fact that further major steps must be taken before the crime can be completed does not preclude a nding that the steps already undertaken are substantial N No nding is required as to whether the actor would probably have desisted prior to completing the crime 55 3 The requirement of proving a substantial step generally will prove less of a hurdle for the prosecution than the res ipsa loquitur approach Firmness of criminal purpose is intended to be shown by requiring a substantial step while problems of proof are dealt w by the requirement of corroboration PUNISHING PRE ATTEMPT CONDUCT gtGenerally preattempt conduct is not 39 to be punishable Generally a threat has to be communicated to its intended victim sexual stories sent by email and posted about another student COMMON LAW ABANDONMENT of criminal purpose a convicted of attempted prison breach He was going to escape he had packed a bag but stopped gtHolding he had opportunity to abandon the attempt voluntarily and thus exonerated himself gtLast step if last step is usedieffort of abandonment negates the attempt so no attempt at all gtInternal remorseful approachiworried about shaming family really seems to be evidence of voluntary ceasing the act gtDeterrent effect of criminal law he got scared of consequences gtMPC substantial stepiif this is usedithen the substantial step was putting the clothes in the bag cutting wire etc The only thing left to do was to make the jump and get out of the holding area Voluntarv V 39 39 v L J 1 voluntaryidid it on his own McCloskey was intemalvoluntary bc he did not want to embarrass his family any more than he already had 2 involuntaryeXtemaliexampleiafraid of the consequences Should abandonment apply for complete attempts Such as robber returning jewels MPC RENUNCIATION like common law abandonment every similarimost importanticomplete and voluntary gtGenerally MPC approach is more lenient in permitting someone to renounce their attempted conduct enunciation is a defense if D abandoned his efforts to commit the crime or otherwise prevented its commission under circumstances manifesting a complete and voluntary renunciation of his criminal purpose DOES NOT WORK FOR CONDUCT CRIMES gtSuch defense does NOT affect liability of accomplice who did not join in the abandonment gtNOT voluntaryiif motivated in whole or in part by facts that increase chance of arrest or difficulty of crime gtNOT complete renunciationiif motivated by a decision to postpone the crime or to transfer the criminal effort to another but similar objective or victim 55 SOLICITATION i Involves the asking enticing inducing or counseling of another to commit a crime Solicitor conceives the criminal idea and furthers its commission via another person by suggesting to inducing or manipulating that person ii N0 overt act requiredias soon as the D makes his request or proposal the crime is complete 56