I. Intro:
a. Criminal law uses crude tools to differentiate degrees of badness
b. Identifying characteristics of criminal law
i. state brings the action
ii. life and liberty at stake
iii. stigma: the greater the stigma the higher the mens rea required
(culpable mind)
iv. purpose is to honor the law
c. We focus on the elements of crime
d. How this course differs from other law courses
i. half truths, unclear law, inconsistent
II. Regina v Dudley and Stephens (boat cannibals)
a. H: To preserve your own life you may not kill an innocent person who
does not threaten your own life.
i. cannibalism has never been illegal
ii. Special verdict: jury found facts, but made no conclusion
b. Argument types
i. a fortrori: if X is true then by god Y must be true because it is like
X only more so.
1. ex. if you can’t steal for hunger you certainly can’t kill for
it
ii. legal authority:
iii. morality: relation of crim law to morality
iv. slippery slope
v. Role of judges: “decide the law to the best of their ability”
1. ... save mercy for the sovereign: pervasive view?
III. Purposes of punishment
a. Significance of punishment
i. where the state and the individual confront each other in the most
dramatic way
ii. (def of the state): that community that holds a monopoly over the
legitimate use of force within a given territory: Authority =
legitimate power. [Max Weber]
b. How we punish
i. Stoning, burning, execution, fines, banishment... founding of
Australia [movie: rabbit proof fence]
ii. Prison as punishment: modern concept: begun by the puritans
c. Theories or justification of punishment: 3 R’s and a D
i. Past oriented:
1. Retribution: the notion that you punish because someone
committed a crime and did so with a culpable mind
ii. Future oriented
1. Deterrence:
a. specific
b. general
2. Restraint: incapacitation
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3. Rehabilitation: transformation of the criminal in such a way
that he or she will commit no crimes upon release.
d. Retribution Theories:
i. backward looking in time,
ii. an end unto itself
iii. NOT ABOUT VENGEANCE (simple view)
iv. Sophisticated view: Durkheim
1. Criticism: retribution is merely mystical
2. we need to respond or the community will lose faith in
government:
a. it does fulfill a utilitarian function, but only if done
for non utilitarian reasons.
e. Deterrence: (romantic outlaws beloved prisoners: by Prof: people who
liked prison)
i. specific v general
ii. conflict with retribution
f. Restraint
g. Rehabilitation
i. introduced in 19th century
ii. association between penitentiary and Christianity
iii. tension w/ in concept: some prisoners only rehabilitated when in
prison
IV. Essential elements of a crime
a. actus reaus
b. mens rea
c. concurrence : Mens Rea must be simultaneous with actus reaus
d. harmful result and causation
V. Actus Reaus
i. Definition
1. either a voluntary physical act: (including speech but not
thoughts) OR
2. failure to act under circumstances imposing a legal duty to
act.
ii. Voluntary act: a conscious exercise of the will. (can’t deter
involuntary acts)
1. Involuntary acts: not the product of D’s determination: ex.
you were pushed
2. Reflexive of convulsive acts
3. acts done while unconscious or asleep, unless D knew that
this was likely to happen
VI. Case law
a. Martin V State: Voluntary act required (drunk and taken from home by
police, charged with being drunk in the street)
i. presumed to be in the statute: comes from the common law
ii. Constitution requires notice: Due Process
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1. so all criminal laws are statutes, but they are still deeply
connected with the common law.
b. People V. Newton: (shot in stomach, then shot cop while “unconscious”)
i. neither general or specific deterrence work on voluntary acts
ii. sense of personal security might be lost... if you could be sued for
involuntary acts
c. p. 178: Cogdon: Dreams: No actus reaus (vol. act) or mens rea (culpable
mind) if sleep walking
i. not every act leading up to a crime need be voluntary if you knew
it was likely to happen.
VII. Culpable omissions: NOT A QUESTION OF VOLUNTARY
i. General Rule: not liable for omissions (most states do not have
good Samaritan laws.)
ii. 4 Exceptions
1. Statute: ex. driving law
2. special relationship: relative, maybe roommate
3. K duty: ER /EE, captain / crew
4. Vol. assumption of care: precludes others from giving aid
5. creation of peril
a. intentional: liable: intentionally set house on fire.
b. accidental: (ex. fire accidental, but you chose not to
call the fire dept. )
i. courts split on liability
VIII. Mens Rea (the culpable mind): Common law v MPC approach (know both)
a. Common law Approach
i. Regina V. Cunningham: (ripped off gas meter while stealing $, and
gas hurt neighbor):
1. Intent or recklessness required: SUBJECTIVE: personal
awareness
ii. Regina v Faulkner: (rum caught fire)
1. must have culpable mind for the crime you’re charged
with: (criminal intent does not apply to all possible
outcomes)
a. outcome must be intended or foreseeable
2. Mala in se: an act evil unto itself (natural law)
3. Malum prohibitum: criminal because of legislation (ex.
speeding)
b. MPC approach (25 ½ states use): ACTUS REAUS
i. ACTUS REAUS: requires
1. voluntary act or failure to act when action is physically
possible
2. Involuntary acts:
a. reflex or convulsion
b. movements when asleep on unconscious
c. conduct under hypnosis
d. bodily movement caused by external forces
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3. Liability: for omission only when
a. statute expressly makes failure to act a crime
b. civil law requires the D to perform the action
4. To be guilty of possession the possessor must have:
a. knowingly procured or received the thing
possessed, OR
b. been aware of his control for long enough to have
been able to terminate the possession
ii. Intent:
1. Subjective
a. Specific intent: usually no difference in the result
of the case, but treason and Accomplice cases
require purpose
i. purpose
ii. knowledge: High % chance
b. recklessness: conscious risk creation
2. Objective
a. negligence: should have known: unjustifiable and
unreasonable.
b. rarely applied in criminal cases
c. Burglary: (Memorize)
i. an unlawful entry
ii. into a dwelling
iii. at night
iv. with intent to commit a felony therein
Set 2
I. State v Jewel (car w/ secret marijuana)
a. Disagrees with MPC: liable if ignorance solely and entirely the result of a
conscious purpose to avoid the truth
b. dissent:
i. must be aware of probability of presence
ii. D should get of if he honestly believed it wasn’t there
II. Regina v Prince (taking daughter from a father.. mistake about age)
a. D: requires mens rea for age.. P no.. its mala in se
b. no rule.. just recognize this is the way they argue
III. Mistake
a. Review
i. R v. Prince: D claimed intend applied to both: (1) property of
another, and (2) intent to destroy. P claimed it only applied to (2)
intent to destroy.
ii. R v. Morgan mistake need not be reasonable (objective) just honest
(subjective: knowingly): Parliament lowered the standard to
reckless (conscious risk creation)..
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1. Standard varies in the US... reasonableness often creeps in
as proof of honest belief.
2. strange ruling.. Judge wrong, but no miscarriage of justice
so D still guilty.. (non reversible error)
b. Traditional approach to mistake
i. mistake of fact excuses,
ii. mistake of law does not
c. Problems with traditional approach (often unclear and arbitrary)
i. x hunts coyotes but mistakenly kills a wolf
ii. Against law to kill wolves in S. Dakota but not in N Dakota
1. mistaken about which state you are in
iii. Against the law to kill wolves, but you don’t know the law
iv. Ranger tells you the law was repealed
d. Sophisticated analytical approach
i. mistake of fact
1. (regina v prince) mens rea applied only to other elements
2. (Regina v morgan) mistake not honest or real (rape wife)
ii. mistake as to a matter of civil law that has become incorporated
into a criminal statute (S v. wood, r. v D. Smith, Morissette)
iii. mistake as to the existence or meaning of a criminal statute
1. traditional approach sort of works here
2. LAMBERT IS AN exception (felons must register)
iv. (bad advice) mistake as to a law that would justify something that
would otherwise be criminal (US v. Baker) (minister advertised)
IV. State v Woods: (Nevada divorce, not honored.. guilty of adultery)
a. mistake of law ruling. honest mistake defense disallowed
V. Regina v. Smith: (tenant removing improvements)
a. Sophisticated approach: not guilty: mistake of a matter of civil law
applied to criminal statutes
b. Traditional approach: mistake of the law is no excuse
c. Honest / Reasonable belief standard: court applied honest.
VI. US v International minerals
a. “knowingly” ships hazardous materials.
i. D: must know its against the law
ii. P: no you just have to know its acid
b. “should have known”: well regulated
VII. Lambert v Ca: (felons must register w/ county)
a. Due process violation:
b. Contrast with International minerals
i. Not a highly regulated area
ii. local not national law
iii. both require affirmative action
iv. neither is mala in se
v. no reason to know
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set 3
Mistake of Law
I. Mistake of law:
a. Private counsel: no state other than NJ allows reliance on private counsel
b. more states allow reliance on public officials in the area
II. Arguments for and against crimes of OMISSION
a. FOR PUNISHMENT
i. shield for D
ii. criminal law severs an educational purpose (we see other people
convicted and are expected to learn)
iii. Legality: the law must be (1) certain (written) and (2) knowable
(not written in a foreign language.
b. AGAINST
i. harsh
ii. do we want to stigmatize people with no intent?
iii. non feasance:
1. mens rea: works well w/ commission,
a. mind tends to be on the action done
2. OMISSION: you don’t think about not doing something,
no mens rea.
III. Approaches to Mistake of law
a. Traditional: {inconsistent, unjust}
i. mistake of fact: excusable
ii. mistake of law: is no excuse
b. MPC Approach: 2.04 (is it any clearer? circular reasoning..)
i. Ignorance or mistake of FACT or LAW is a defense if it negatives
the mens rea required by the crime.
ii. 2.04 (3) b: interpretation of the law by an official charged with
interpretation shall be a defense.
c. Sophisticated analytical [no legal status] just theory
i. four types of excuses
1. mistake of fact
2. mistake as to a matter of civil law that has been
incorporated into a criminal prohibition
3. mistake as to the very existence or meaning of a criminal
law (not an excuse)
4. mistake as to a matter of law that would justify what would
otherwise be a crime.
d. synthesis: which leads to the most predictable, consistent, just results?
i. NEED for FLEXIBILITY: its impossible to make a perfect rule
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Intl. Mineral (transporting Lambert (felons must register) Hopkins Cox
chem) UPHELD UN CONSTITUTIONAL
should have known no reason to know no reason to
know
feasance (more reason to emphasized.. non feasance.. less
know) reason to know
GOV interest large Due process
GOV interest small
STRICT LIABILITY
I. Morissette v US: (took shell casings from military lands.) STRICT
LAIBILITY
a. almost all criminal law is state law
b. felony is as bad a word as you could give to anything.
c. even if the statute contains no mans rea language, the court may still
require mens rea.
d. General rule: the more heinous the offense the harder to convict.
e. Individualism in the US creates a presumption that both a BAD act (actus
reaus), and a guilty mind (mens rea) are required, eastern society is more
open to the notion of community wrongs.
i. there is no bright line distinction
f. PUBLIC WELFARE OFFENSES (intent not required) REGULATORY
OFFENSES
i. General characteristics (not binding)
1. not MALA IN SE
2. related to industrial revolution
3. used where intent is not cost effective to prove.
ii. REQUIREMENTS
1. no stigma
2. penalty low
3. not a common law crime (or legislature must explicitly
change the common law presumption of mens rea)
g. NORMAL CRIMES
i. punishment higher
ii. stigma requires due process
II. State v. Baker: (cruise control stuck)
a. you can’t be held strictly liable if your act was not VOLUNTARY
b. you may have defenses even if you have the mens rea
c. ex. involuntary intoxication, vs. vol. intoxication (fewer excuses)
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Proportionality
I. 8th amendment (traditional interpretation.. its changed recently) Cruel and
unusual punishment is not allowed:
a. Supreme: justices split:
i. 2 justices: there is no proportionality requirement /
ii. 4 justices: it must be extremely (grossly) disproportionate.
II. TEST: so disproportionate that it shocks the conscience and offends
fundamental notions of human dignity.
a. Disproportionate OR (may bring law into disrepute)
b. Absolutely barbaric
i. ex. lingering death, loss of citizenship,
III. Relationship to purposes of punishment : imprisonment is more desirable
than death or other absolute punishments b/c imprisonment it easier to match
to the crime.
a. retribution: very closely connected with justice. concerned with past
action and moral dissert. (punishment must fit the crime)
b. rehabilitation
c. deterrence: “i’d as soon be hanged for a sheep as a goat” if several crimes
of varying severity all have the same punishment then criminals may be
inclined to chose the more heinous crime.
d. restraint
IV. STATE TEST: In Re Lynch: (most states have a similar test)
a. Unconstitutionality
i. consider the MAX possible sentence for constitutionality
ii. Unconstitutional if: so disproportionate that it shocks the
conscience and offends fundamental notions of human dignity
b. TEST: (to check for “shocks conscience”) FACTORS
i. AGGRAVATED CIRCUMSTANCES
1. danger of the act
2. violence of the act
3. other aggravating factors
ii. SAME JD: equivalence of punishments for other crimes
iii. OTHER JD: equivalence of punishments for the same crime
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Legality
I. INTRO
a. Principle that the criminal law must be certain & knowable (and readable)
b. Murder is the unlawful killing of a human being w/ malice aforethought
i. common law definition everywhere (memorize)
II. Legality (keeler and shaw and opposite ends of the spectrum)
a. DPP v Shaw: (ladies directory: conspiracy to corrupt public morals)
i. English ct. created common law crime (rare now)
ii. court didn’t care about notice
iii. Calvinist: negative approach to human nature.
iv. no fear of separation of powers
v. “decision foreseeable”
vi. court should be able to fill in the gaps left by the legislature
b. Keeler: American court found that a FETUS was not a HUMAN BEING
within the meaning of the criminal law statute and so unenforceable:
i. deference to SEPARATION OF POWERS and NOTICE
ii. Duncan: notice is not about actual notice but about ones theoretical
ability to check. (NO EX POST FACTO LAWS)
iii. LEGISLATURE: changed it later anyway.
c. Papachristou: (vagrancy crimes.. standing around)
i. Void for vagueness: a reasonable person could not know when he
was breaking the law.
1. allows abuse of discretion
ii. “inchoate” offenses: preemptive measure: (vagrancy, conspiracy,
attempt / solicitation)
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HOMICIDE
I. Levels
a. Murder
b. vol. Manslaughter
c. Involuntary manslaughter
II. Common law murder:
a. Def: unlawful killing of another human being with malice aforethought
b. MALICE AFORE THOUGHT: can be proven in 1 of 4 ways
i. ***degrees were not part of the common law system, added so the
jury could convict of murder without requiring death.
ii. intent to kill / murder
1. premeditated / deliberate 1st degree
2. not premeditated and deliberate 2nd degree
a. Carol Approach: “no time needed” 2nd degree
leaves almost nothing this category.
b. Anderson: leaves more room for this category
i. PREMEDITATION: requirement would be
meaningless if all it ment was intent to kill.
ii. GO with plain meaning of language
iii. TEST:
1. PLANNING: prior to actual killing
2. MOTIVE:
3. MANNER of Killing: demonstrating
action designed to kill “preconceived
design”. (ex. lots of little wounds
might not prove, but shooting at head
would)
iv. Must have
1. really strong PLANNING OR
2. MOTIVE and PLANNING or
3. Motive and Manner or
4. all 3.
v. Carol: would be guilty under this test (had
MOTIVE (bad wife) and MANNER(shot in
head)
iii. intent to do serious bodily injury 2nd degree
1. MPC folds into criminal negligence or depraved heart.
iv. depraved heart murder (reckless ness without intent) 2nd degree
v. felony murder: (abolished every where but the US, Michigan court
recently abolished)
1. MPC folds it into depraved heart.
a. list of felonies raise a presumption of “rescless
indifference to human life”
2. mens rea for some lesser felony, and then accidentally kill
someone while committing the crime.
3. 1st or 2nd degree depending on the type of lesser crime.
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c. Carroll: (D shot wife, after a fight b/c he “felt an impulse to shoot her”
i. Court: “pre-meditation requires no time”
ii. Doctors: “should not be given the final word on intent’
1. everyone has impulses: slippery slope.. law would have no
power Exaggeration
III. MPC MURDER:
a. No degrees
b. Pre meditation: is not necessarily more heinous. Ex. old man who kills his
wife because she is in pain. (MPC REMOVED and replaced with
aggrivating and mitigaing factors)
c. Aggravating / Mitigating factors
i. IF DEATH IMPOSED must have at least 1 with no mitigating
factor.
ii. Aggravating:
1. by convict under sentence
2. previous murder / violent felony
3. ADD MORE p 1079
iii. Mitigating:
1. no prior criminal history
2. extreme mental / emotional distress
3. victim participated / consented
4. D believed it was morally justified
5. D was an Accomplice with a minor role
6. D acted under duress
7. ability to know right and wrong impaired
8. youth of D
d. Common law homicide
i. Common law def: unlawful killing of a HUMANBEING with
malice aforethought
ii. TYPES OF MURDER
1. intent to kill
2. intent to do serious bodily harm
3. depraved heart
4. felony murder
e. Approaches to murder requirements
i. MPC did away with
1. degrees
2. premeditation: not a good proxy for heinousness...
a. ex. mercy killings,
b. murder with no thought may be more dangerous
ii. Common law
1. Split:
a. Carol: “no time required for a wicked mind to form
intent”
b. Anderson:
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i. FORMULA (would help anderson but not
carol)
1. manner
2. motive
3. planning
IV. Heat of Passion {voluntary manslaughter} (mitigates
murder)
a. in most jurisdictions voluntary manslaughter is an intentional homicide
committed under extenuating circumstances that mitigate but do not
excuse or justify the crime
b. Elements required
i. the elements for murder
ii. the provocation formula (provocation to what? CAMPLIN...
murder or a response? the average person never murders)
1. a reasonable person would have been provoked
2. the defendant was actually provoked
a. ex found spouse in bed
3. a reasonable person would not have cooled off in the time
that elapsed
a. ex. knew spouse was in bed and drove over there...
on the line.
b. REKINDLING: (COURTS SPLIT) cooled off after
rape, but then made fun of... and killed rapist.
4. the defendant in fact did not cool off
c. Reasonable provocation standards: WHO IS THE REASONABLE
PERSON.. D or anyone? PROVOKED TO WHAT?
i. common law:
1. limited / enumerated circumstances: (otherwise the excuse
can’t go to the jury)
a. extreme assault or battery even w/ out touching
b. painful blow: unless started it
c. mutual combat
d. illegal arrest (must know its illegal)
e. defense of family
f. sudden discovery of adultery
i. MODERN TREND:
1. spouses treated equally
2. don’t have to actually see
3. OLD: used to be ok to kill an
adulteress
g. mere words never sufficient
i. SPLIT liberal JD’s: “Jury, not judge can
determine this”
ii. Common law reasonableness
1. Maher v people: (Michigan, 1862)
a. “men of fair average mind and disposition”
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b. UNLESS; “defendant has been shown to have some
particular weakness not arising from wickedness of
heart or cruelness of disposition
2. Camplin: 1978 House of lords
a. person with the accused’s characteristics AND
b. would have been provoked to TAKE THE ACTION
THAT THE ACCUSED TOOK.
iii. MPC: § 210.3 (b)
1. criminal homicide is reduced to manslaughter when
a. homicide committed under influence of
i. extreme mental or emotional disturbance
ii. with a reasonable explanation or excuse
1. reasonable person in the
a. actor’s situation and
b. circumstances... AS HE
BELIEVES THEM TO BE
iv. MPC vs. common law: Hypo “chimp researcher’s work challenged
and she kills” “monkeys are stupid creatures... incapable of
talking”
1. common law
a. strict: mere words are never enough
b. broad: let the jury decide
2. MPC:
a. let the jury decide
d. Arguments
i. In favor of more objective standard
1. excusing abnormal behavior encourages it
2. the very factors that call for mitigation under the
provocation formula are the ones that make use fearful of
the individual.
ii. in favor of a more subjective standard
1. all people are not the same and holding them to the same
standard would be unfair
2. we naturally perceive people as less culpable when we can
imagine ourselves doing what they did.
e. Heat of passion doesn’t have to be rage:
i. jealousy, fear / terror, desperation
Heat of passion mitigates murder.
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Involuntary manslaughter
I. An unintentional homicide (under certain circumstances)
II. Two types
a. unlawful act doctrine... or misdemeanor manslaughter.. an act not
amounting to a felony that results in death.
i. ex. ex. accidentally ran a stop sign.. and kill someone... guilty
ii. WON’T STUDY: ABOLISHED IN MOST STATES
b. Criminal negligence (common law approaches)
i. simple tort negligence (MINORITY)
1. just like torts.. conduct creates A RISK
ii. gross negligence (MAJORITY)
1. TRADITIONAL : GROSS NEGLIGENCE: D’s conduct
just creates a HIGH RISK
2. MODERN: RECKLESS: D must be AWARE of the
HIGH RISK.
3. Examples of Involuntary manslaughter
a. TRADITIONAL VIEW
i. physician kept a patient wrapped in kerosene
soaked rags
ii. night club owner provided no fire escape
(court applied criminal negligence standard)
iii. mother allowed lover to beat child... didn’t
have to know child would die.
b. MODERN VIEW
i. D must actually be aware of the risk.
iii. INHERENTLY Dangerous instrumentality :
1. most states only require simple negligence when D was
using an inherently dangerous instrument.
2. in most states a car is not an inherently dangerous
instrument.
c. Criminal negligence (MPC APPROACH)
i. does away with distinction between
1. voluntary / involuntary AND
2. heat of passion
ii. reorganizes.. but the rules are the same..
iii. CRIMINAL HOMICIDE = Manslaughter (2nd degree) WHEN
1. RECKLESS (Criminal negligence... of the majority kind) at
common law
2. HEAT OF PASSION
iv.
III. POLICY: Holding people liable for negligence as involuntary manslaughter
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a. Legitimate purpose of punishment?
i. NO mens rea
ii. if they are unreasonable can they be deterred?
b. who is the reasonable person (Subj or Obj)?
i. cultural standards vary
1. ex. Navaho Indians.. are they unreasonable when they
don’t take a baby to the doctor?
IV. Williams:
a. Simple negligence + Proximate cause
b. a reasonable person would have known child needed care, and would have
noticed in time to save the kid.
Over view of Homicide (Contrast depraved heart with involuntary MS)
I. Common law murder
a. Intent to Kill
b. Intent to commit serious bodily injury
c. Depraved heart murder (NOT INTENTIONAL)
d. felony murder (NOT INTENTIONAL)
II. Voluntary Manslaughter
a. elements of murder + provocation formula (4 parts)
III. Involuntary Manslaughter
a. criminal negligence (UNINTENTIONAL)
b. Misdemeanor Manslaughter (UNINTENTIONAL)
Depraved Heart Murder
I. ELEMENTS: UNINTENTIONAL homicide resulting from:
a. conduct creates an UNJUSTIFIABLE risk of death or serious bodily
injury
i. ex. not a hospital run...
b. the RISK is EXTREMELY HIGH
i. (difference of degree) Invol MS might just say HIGH.
c. A REASONABLE PERSON would have been aware of (a) and (b)
d. SPLIT (D’s awareness)
i. Some JD: reasonable person standard is enough.
ii. D must be aware of UNJUSTIFIABLE and EXTREME risk
1. INFERRING or ASSUMING AWARENESS: Some courts
that do require awareness are willing to infer it.. from the
D’s actions
a. only really becomes an issue with odd cases like
drunk driving or other cases where awareness can’t
be assumed.
II. MPC puts depraved heart murder under FELONY MURDER
a. FELONY MURDER DEF:
i. (traditional) murder committed with an abandoned and malignant
heart:
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ii. (MPC): reckless indifference to human life..
iii. rare case: used this def to get D off: D took victim to hospital..
and this proved that his heart was not abandoned and malignant.
III. Depraved heart VS. Criminal negligence: examples of each (HOW do you
differentiate? very similar.. one of degree.. no bright line)
a. the difference is one of degree
b. Depraved heart MURDER: (tends to be BAD ACTION)... NO intent to
kill but action seems more bad.
i. shooting a moving car
ii. throwing a beer glass at a woman carrying a lighted oil lamp
iii. Russian roulette
c. Criminal Negligence Involuntary MANSLAUGHTER: (tends to be BAD
OMISSION)
i. wrapping patient in kerosene soaked rags
ii. mother left child with abusive lover
iii. night club owner failed to provide proper fire escapes
iv. parents failed to take sick baby to the doctor.
IV. Voluntary Intoxication (big issue to her)
a. Can it negative mens rea
i. Common law: Split: some states.. no it was a voluntary choice...
1. Specific vc. General intent
a. SPECIFIC INTENT crimes: require PURPOSE or
KNOWLEDGE.
i. ex. unlawful entry into a dwelling at night
w/ intent to commit a felony there in.
ii. if you’re drunk you can’t form the specific
intent for the crime.
b. GENERAL INTENT crimes: require mere
RECKLESSNESS OR NEGLIGENCE.
i. ex. Depraved Heart murder.
ii. if drunk you can still be guilty
c. Many states have repealed this exception
ii. MPC: where the crime requires reckless awareness of risk
VOLUNTARY INTOXICATION is no defense to a reckless
crime.
1. MPC USES FRAME OF REFERENCE OF D> usually this
helps D, but in this case it hurts him.
b. Examples
i. Drunken drinking alone is usually not enough for depraved heart
murder
1. drunk driving + extremely risky driving= depraved heart.
a. states split over awareness of risk requirement
b. VOLUNTARY INTOXICATION IS usually NOT
A DEFENSE BECAUSE DEPRAVED HEART
DOES NOT REQUIRE INTENT... what about
states that require awareness of the risk?
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V. Involuntary intoxication
a. Negatives
i. Actus reaus AND
ii. MENS REA
b. EXAMPLE
i. Clear: D forced to drink
ii. On the line: you take medication.. and a reasonable person would
know this is will
Felony Murder (precludes capacity and provocation defenses)
I. Its one of the four types of murder
a. intent to kill
b. intent to do serious bodily harm
c. depraved heart (NO INTENT)
d. felony murder (NO INTENT)
II. Definition:
a. an unlawful killing that occurs in the commission or attempted
(furtherance of) commission of a felony. not necessarily caused by felon
or by felony.
III. Purposes
a. deter accidental killings
b. make it easier to convict on murder
i. MALICE NOT required
ii. expands liability to cases where intent or recklessness can’t be
proven.
1. Precludes use of the provocation formula
2. precludes use of diminished capacity (intoxication..)
c. fix the degree of murder
IV. Arguments against (its a DISFAVORED DOCTRINE) (BIG ISSUE)
a. departure from basic principles of criminal law (mens rea)
b. leads to non proportional punishment
i. EX. stamp quiet robbery.. victim happens to have a heart attack..
1. whether D committed robbery or murder is merely a
function of his luck...
c. Can you really deter accidental killings?
V. MPC approach
a. Might need more info: {definition of murder: §210.2 definition of
rebuttable presumption: §1.12 (5)}... but probably not
b. Eliminated felony murder as a separate type of murder
i. but brings it back as a REBUTTABLE PRESUMPTION on the
issue of MENS REA needed for DEPRAVED HEART MURDER
ii. if person engaged in a felony and a death occurs:
1. MUST go to jury on issue of whether exhibited
a. extreme indifference to value of human life
b. jury MAY find that the FELONY was sufficient
evidence that D had MENS REA for DEPRAVED
HEART murder.
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VI. Limitations on the felony murder doctrine:
a. why needed: felonies used to be really bad and all required death as
punishment, now many felonies are NOT DANGEROUS TO LIFE. (ex..
tax fraud) and the punishment is often much lower.
i. courts find it absurd that you could be guilty of murder if your IRS
agent tripped and died while examining your claim.. so they have
worked to limit the felony murder doctrine.
VII. Limits placed on felony murder
a. Limit to named felonies
b. Limit crimes to crimes that were felonies at common law.
i. rape, sodomy, burglary, arson, mayhem, larceny OR
ii. malum in se felonies OR
c. dangerous to life (split courts)
i. determined in the ABSTRACT (not particular facts of crime)
1. people v. phillips: ex. eye cancer.. doctor committed
“grand theft..” not inherently dangerous felony.
2. people v. satchel: concealed weapon by felon not always
dangerous.
ii. OR PARTICULAR facts:
d. Narrow construction of TIME PERIOD FELONY IS IN PROGRESS
e. Mala in se felonies
f. Proximate Cause vs. Agency (Courts split)
i. PROXIMATE CAUSATION: (harsh on D)
1. RULE: liable for any death proximately related to actions
of FELONS (accomplices) regardless of who actually did
the killing.
a. ex foreseeable to for firemen to be killed in an
arson’s blaze but not on the ride home.
b. force used unlikely to cause death..
ii. AGENCY THEORY :
1. WHO DOES THE KILLING
a. RULE: no one can be guilty of homicide unless the
act was ACTUALLY or CONSTRICTIVELY his
i. can only be liable for acts of accomplices,
1. Accomplice = persons furthering the
purpose of the felon as an agent.
ii. not liable for acts of victims
b. EXCEPTION: Shield doctrine
i. if you use someone as a shield, and a
innocent party shoots them while trying to
stop you than you’re liable for the victim’s
act.
2. WHO IS KILLED:
a. limit is based on who is killed (LIABLE FOR ANY
INNOCENT DEATH)
i. no one liable for death of felon
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1. he assumed the risk
ii. Doesn’t matter who shoots
3. VICARIOUS LIABILITY (Taylor) ???
a. robbery not always dangerous..
b. behavior must be PROVOCATIVE OF A
DEADLY RESPONSE
i. conscious disregard for human life: =
depraved heart murder.
c. RULE: if you chose to be an accomplice and your
accomplices chose to provoke murder through
RISK CREATION (conscious in most JD) then you
are also guilty of depraved heart murder.
g. TAX HYPO: commit tax fraud and agent happens to die while auditing
i. Ways to limit the application of the disfavored doctrine.
1. not on list of felonies
2. not in the furtherance of the crime (or during the crime.. if
strictly defined)..
3. not inherently dangerous
4. not mala in se.
h. MERGER DOCTRINE.
i. RULE: predicate felony must have an “independent felonious
purpose”.
1. a felony is precluded by the merger doctrine if it and the
murder were part of a single purpose.
ii. Idea: almost all murder cases involve assault, so if we allow
felony assault to work for felony murder then INTENT will NOT
BE REQUIRED for almost any murder.
iii. (ireland) ASSAULT: “assault with a deadly weapon is an integral
part of the homicide”
iv. (berton): ARMED ROBBERY is an “independent felonious
purpose”
v. (wilson): FELONY BURGLARY:
1. “unlawful entry into a dwelling at night with the intent to
commit a FELONY there in.”
2. What if the felony intended is Assault? (Courts split)
a. (miller) ALLOWED: attack in a dwelling is more
dangerous.. family, trapped, people likely to help
b. (smith) NOT ALLOWED: too closely related.
vi. CHILD ABUSE: (problem: may help bad people and hurt good
ones..)
1. (smith) BEATING: merges with assault
2. (shockley) LONG TERM.. dehydration / malnutrition..
does not merge.
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Felony Murder (continued)
I. Felony murder under: Agency Theory (Taylor): WHO DOES THE
KILLING: F can be liable for killings by co F only if they were actually done
by the co F
a. Get away Car driver, friends in store crazy... co F shot by victim
II. Vicarious Liability: WHO PROVOKED THE KILLING
a. ACCOMPLICE liability: people who act together in furtherance of a
crime can be VICARIOUSLY liable for the other’s actions.
b. Quiet vs. Aggressive robbery:
i. a quiet accomplice who is shot by a victim may not have provoked
the response and so the D may not be liable.
ii. an aggressive accomplice may provoke a lethal response through
CONSCIOUS RISK CREATION which is depraved heart murder
1. accomplice who wasn’t aggressive may then be liable
vicariously for his partner’s depraved heart murder
c. WHO IS KILLED:
i. TAYLOR: D can be liable even if the accomplice provokes his
own death.
ii. ANTICK: D can not be liable if the accomplices provoked his
own death.. accomplice could not be guilty of his own murder so
neither can D.
d. FURTHERANCE: in Antick the accomplice was running away while the
D had surrendered. you might also argue that at that point the accomplice
was no longer acting in the furtherance of the crime he and D planned
together.
Death Penalty
I. many laws used to impose the death penalty.. judges, juries perceived as too
harsh... and developed fictions to help mitigate the punishment imposed.
a. The Neck Verse:
i. Clergy in England were exempt from murder. In reaction against
the death penalty, courts defined clergy as any one who could read.
The reading test was always the same verse: Psalm 51, and so
illiterate people would just memorize the verse.
b. Current events: laws are still dynamic and unusual.
II. 8th amendment: No cruel and unusual punishment
a. originally applied only to fed. 14th amendment (makes 8th apply to states)
III. Furman v. GA: 5 – 4 vote
a. Majority split:
i. 3: PROCEDURE: arbitrary and capricious. practice so unfair and
unevenly applied... getting death penalty is “like being struck by
lightning”
1. PROCEDURE MUST NOT CREATE A SUBSTANTIAL
RISK OF ARBITRARY AND CAPRICIOUS
INFLICTION OF DEATH PENALTY
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a. can any procedure guarantee this? some say no.
ii. 2: ABSOLUTELY BAD: not a question of process. barbaric and
not in keeping with civilized society.
IV. Gregg v GA:
a. ABSOLUTELY BAD? (inherently bad)
i. “cruel and UNUSUAL” word unusual invites investigation of what
everyone else is doing.
1. evolving standard
2. still in keeping with society’s values
ii. still proportional
iii. serves a purpose of punishment. “retribution is legitimate.. so is
vengeance”
b. PROCEDURE? (TENSION BETWEEN THE REQUIREMENTS.. CAN
THEY BE COMPATIBLE?)
i. SYSTEMATIC: (rule based) procedure must be systematic and
orderly
1. bifurcated procedures
a. guilt
b. sentence
2. guidelines for jury (aggravating and mitigating
circumstances).. ok to require aggravating before death can
be imposed..
3. Automatic appeal
ii. MANDATORY: (must allow discretion) death can NEVER be
absolutely required.
1. Particularized consideration:
a. Respect for individual dignity requires the
flexibility to consider the particular facts.
2. Can’t be arbitrary and capricious.
3. can’t limit mitigation to a mandatory set of factors.
c. APPLICATION TO CO FELONS
i. INMAN: no death penalty if you didn’t commit the murder or
intend the murder
ii. TAYLOR: allowed where: Sons helped father out of jail and
GAVE HIM WEAPONS.. when they knew he was violent and
crazy.. father killed a family while boys were in gas station.. death
sentence allowed for boys.
1. CONFLICT WITH INMAN?
a. P: could argue that they intended the murder.. but
b. D: but they didn’t actually do it and the proof of
intent is weak...
i. felony murder disfavored.
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Attempt
I. Introduction
a. Definition: an act that although done with the intention of committing a
crime, for one reason or another falls short. general categories:
i. Failed attempt: failed on your own
ii. truncated attempt: stopped on your own.. locus penetiatie..
iii. stopped by third party
b. Common law vs. MPC
i. Common law: lesser punishment
ii. MPC: punishes the same
1. except in cases where the penalty would be death
c. substantive crimes of attempt..
i. they make it a crime to do the things that are generally attempt.. so
attempted burglary is attempt to attempt
ii. burglary
iii. loitering
d. Merger: you can not be guilty of both the actual crime and attempt
because it merges unlike conspiracy.
II. Intent (Mens Rea) and Actus reaus (bad acts)
a. Intent: an inchoate crime.
i. SPECIFIC INTENT ALWAYS required: intent to complete the
crime: PURPOSE AND KNOWLEDGE
1. Knowledge of the risk is not enough
2. Smallwood: AIDS: specific intent might be inferred but
the court refuses to.
ii. Even required for strict liability crimes: Mohan:
iii. Why? attempt is dominated by the mental element.
b. Mens rea is inherently ambiguous in attempt courts have struggled with it.
III. Actus Reaus: when in time is the ACTUS REAUS made out?
a. Mere preparation.........................actual complete attempt.
b. Proximity / last step: SPLIT:
i. SPLIT
1. D must take the last step possible OR
2. Dangerous proximity to success
ii. Focus
1. not on what D has done but on what remains to be done...
time and place of intended crime become important
iii. Argument for: an act should not be punished except to prevent
some harm which is likely to follow that act... narrowness serves
justice.
1. deterrence is the function
iv. Argument Against: neutralizing dangerous individuals not
deterring dangerous acts should be the purpose of the law....
proximity too narrow and not enough convictions
c. Locus Penetatie / Probable Desistance: time to repent: the outcomes are
very similar to the last step test.
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1. crime is made out when it becomes very clear that the D
will not desist.
a. Criticism: artificial: no way to know when the
average person would desist
d. Equivocally: or Res Ipsa Loquitor test: objective acts must prove crime
i. a criminal attempt should bear criminal attempt on its face
ii. requires unequivocal behavior: such that the jury can tell what he
would next commit the crime. :. don’t punish thoughts alone
iii. Criticisms:
1. restricts the value of confessions in attempt cases
2. could bar conviction that wasn’t obvious without the
confession... even with confession this test would let him
off if it wasn’t obvious from the facts.
e. MPC Approach
i. an act or omission constitution a substantial step in a course of
conduct planned to culminate in the actor’s commission of the
crime.
1. conduct must also be strongly corroraboriative of purpose
ii. Broadens the scope of liability.. restrains dangerous persons not
just dangerous acts.
1. emphasis on what the actor has done, not on what remains
to be done
2. liability requires some firmness of criminal purpose be
shown
3. conduct may be assessed in light of defendant’s statements
(by contrast with equivocality test)
iii. Adopted by many states
IV. Special problems
a. Attempt crimes which are already attempt or anticipatory in variety
i. burglary
ii. assault: mc quirter
1. courts split over whether you can be guilty of attempt to
attempt.. especially silly when the crime you’re attempting
is a substantive crime of attempt..
a. some courts frown on this b/c its pushing the time
for guilt further and further back towards mere
preparation.
iii. abortion
b. Solicitation
i. last act of solicitation or very early stage of the completed crime?
ii. Common law requirements
1. Split: (solicitation as that attempt for the crime attempted..
many states have simplified by just making solicitation a
crime).... all would agree its very full proof of solicitation..
but the proof of attempt is a bit low.
a. solicitation alone is enough
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i. focus on solicitor’s acts
b. solicitation w/ out an act moving towards the crime
is not enough
i. focus on hitman not on solicitor
ii. if the hitman doesn’t intent to kill some JD
would say the solicitor can’t be guilty.
2. Group Crime: theory split
a. less dangerous b/c more than one person can say no
b. more dangerous b/c criminals are cooperating
Defenses to Attempt
I. Abandonment
c. Common law: not allowed b/c its so hard to make out attempt
i. once the elements of attempt are present, you are guilty even if you
change your mind later.
d. MPC: its easy to make out attempt but defense allowed
i. VOLUNTARY COMPLETE ABANDONMENT
1. Voluntary: no outside force made you
2. Complete: you didn’t just go commit it somewhere else
e. Affirmative defense
i. most JD use impossibility as an affirmative defense that excuses
the crime after it is fully made out.
ii. D must make a Prima facie case of abandonment, and then JD’s
split on the burden placed on the prosecution.
II. Impossibility of success
f. Contrast with mistake
i. mistake is the buzz word used for completed offenses,
impossibility is the buss word used for attempt..
g. Traditional approach: the inverse of the Mistake doctrine for completed
crimes
i. Factual impossibility does NOT excuse
ii. Legal Impossibility does excuse
iii. Too ambiguous to be of any real use.
h. MPC Approach: goes by the attendant circumstances as D understood
them... here it tends to work against D.
i. eliminates impossibility as a defense
ii. EXCEPTIONS
1. Intrinsic impossibility: ex voodoo
a. left to the court’s discretion
2. True Legal Impossibility: what you tried to do wasn’t in
illegal
iii. Objections to MPC approach
1. Impossibility defense requires close scrutiny of mens rea
2. exact language of statutes give criminals a windfall. (jaffe..
trying to buy.. “stolen” property
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i. MPC application
i. Think its English but its actually French:
1. no intent so excused
ii. thinks its french, and its English
1. not excused b/c has the intent
iii. thinks its legal to import french but its illegal
1. no intent, but not excused b/c of overriding concern of
legality.. what constitutes the law must remain constant and
external
iv. thinks its illegal to import french lace but there’s no such crime
1. True legal impossibility.
Attempt: Constrast of MPC and Common Law
Common Law MPC
Mens Rea specific intent Purpose only
Knowledge & Purpose
(even if SL crime)
(some fed cts disagree)
Actus Reaus Attempt distinguised from Substantial Step Strongly
“mere perperation”.. Corroraborative of criminal
proximity, probable intent
desistance, or equivocality
test
Abandonment NOT ALLOWED, crime COMPLETE and
(affirmative defense) harder to prove.. and VOLUNTARY
already made out Abandoment... easier to
convict so offers defense
Impossibility defense Law excuses, Fact does not Abolished with 2
not useful exceptions
(1)Intrinsic impossibility
(2) true legal impossibility
Punishment Traditionally attempt given same as punishment for
much lower punishment... target,
today.. its a reduction of the except: in death penalty or
main crime life in prison cases
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Conspiracy
I. relation to attempt and complexity
a. Accomplice / conspiracy relationship: both are group crimes
b. Attempt / Conspiracy: both are inchoate crimes
II. Elements of Conspiracy
a. Mens rea: Specific intent: Purpose and knowledge
i. Ambiguity:
1. Purpose to agree
2. purpose to actually have crime occur
b. Actus reus:
i. At common law agreement alone was enough,
1. very low threshold... a nod would suffice
ii. Modern common law: more is usually required
III. Collateral Consequences of Invoking Conspiracy: DISFAVORED Doctrine
a. Vagueness
b. Venue
c. Hearsay: hearsay is allowed when made during and in furtherance of the
conspiracy
i. Krulevitch: how long does the conspiracy last.. should it always be
assumed that every conspiracy has a collateral purpose of
concealment? ... NO.
1. what if they intentionally cons
d. Joint Trial: makes the implication of guilt easier (birds of a feather)
e. Chameleon Like:
f. Enhanced Punishment:
i. at common law conspiracy does not merge
ii. MPC merges it.
IV. Liability for conspiracy
a. Common law: the Pinkerton Doctrine: “conspirators are liable for the
substantive crimes of their co conspirators so long as”
i. the conspiracy is still ongoing
ii. the actions are in furtherance of the conspiracy, and
iii. reasonably foreseeable.
V. Abandonment as a defense to Conspiracy
a. Common law
i. Not allowed as a D to conspiracy: (once its made out you’re guilty)
ii. Allowed as a defense to substantive crimes made after withdrawal
1. Requires an affirmative act of withdrawal:
b. Modern Law: allows abandonment as a defense to conspiracy and the
substantive crime
i. D to Conspiracy: allowed but standard is very high
1. D must take action that prevents the crime planned by the
conspiracy.
ii. D to Substantive crime
1. D must inform conspirators or call the police.
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VI. Actus Reaus requirements for conspiracy
a. the BAD ACT is merely agreement and it can be inferred... no substantive
crime required
i. “alverez noded his head and for this he will go to jail.”
VII. Mens rea: the intent required for conspiracy
a. Courts Split LAURIA
i. Harsh Courts: knowledge alone is enough in any case
ii. Modern Trend: KNOWING SUPPLIER PROBLEM: if you sell
goods or services that you know will be used for a crime are you
guilty of conspiracy?
1. Felonies (henious crimes): only knowledge is required:
a. Policy: we should be slow to impose a duty to act
(culpable omission) but in cases of really bad
crimes its ok to impose that duty
b. you can be liable for
2. Misdemeanors: Require Specific Intent: (Knowledge and
Purpose.. intent to further the object of the conspiracy)
a. Knowledge: actual knowledge of crime required
b. Intent to further the crime: How it can be proven
i. Direct evidence: ex. supplier helped the
criminals commit their crime.
ii. Indirect Evidence: STAKE IN THE
VENTURE
1. HIGH PRICE: Supplier sold goods
for a price far above MKT value
2. EXTREME VOLUME: Supplier
sold quantities that had no legitimate
purpose
3. NO LEGAL USE / High % of
supplier’s volume is used for illegal
activity:
c. Policy: the burden imposed by requiring suppliers
not to sell to people they believe will use the goods
to commit misdemeanors is greater than the benefits
it brings... would have a chilling effect on society.
VIII. Scope of Conspiracy: who is included
a. Wheels: better for D: just a spoke, used the same dealer/ broker, but not
part of the other crimes and only liable for a small conspiracy.
b. Chains: worse for D: part of a big chain and liable for all crimes
c. NOT ON TEST
IX. Special Purpose of conspiracy law
a. prevention: inchoate crimes
b. group criminality: group acts are more dangerous, but sometimes
conspiracy law is too much for small crimes, benefits to prosecution
X. Elements of Conspiracy
a. Actus reaus
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i. Common law: : Just agreement
ii. modern law: Agreement, + an overt act
b. Mens Rea: Knowledge vs. Intent (unclear)
c. MPC: purpose and knowledge
XI. MPC looks at mind of D: who did he intent to agree with.
Accomplice Liability (aka “Complicity”)
I. Conspiracy and Accomplice liability are heavily mental crimes with little
physical action, so courts require more mental proof.
II. Ways of categorizing the parties to a crime: ONLY APPLIES TO FELONIES
a. Common law
i. Principal in the 1st degree: actually engages in the act of omission
which causes the result, or acts through an innocent or incompetent
party.
ii. Principal in the 2nd degree:
1. aids by act or omission
2. Present
a. actually
b. constructively: helping while elsewhere.. ex playing
loud music in another room to cover the sounds of
the crime.
iii. Accessory before the fact: AIDS / Protects with prior agreement
and intent to help.
iv. Accessory after the fact:
1. AIDS while knowing about the crime
2. with the intent to help avoid capture
b. Modern categorization
i. Accomplices: P2 and accessory before the fact
1. punished the same as the principal in the first degree
ii. Accessory after the fact
1. still a separate category why?
c. Inconsistent Verdicts: (missing something here?)
i. Traditionally not allowed
ii. Modern / MPC: you can be guilty if an A/Before the fact, P1 or P2,
but not if A/After the fact... (requires that the principle criminal
first be convicted)
d. Intent:
i. Intent to assist in the commission of the crime
ii. Knowledge: Split--> knowing supplier problem
1. similar to LAURIA factors.
III. Elements of accomplice liability
a. Without agreement: one is liable as an accomplice for the crime of
another if She/he
i. gave assistance or encouragement, or failed to perform a legal duty
to prevent the crime
ii. with the intent to promote or facilitate commission of the crime
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1. note: courts are split as to whether some lesser mental state
such as knowledge will suffice.
b. With Agreement: if you’re present you’re liable even if you don’t act.
IV. Special Problems:
a. Issues involving mens rea
i. purposely or knowingly
1. Early decisions
2. Today: Peoni, gladstone
3. Compromise view
ii. Suppose D intends the actions but merely risks the result
1. can you have an accessory to misdemeanor manslaughter or
felony murder?
2. Not liable for unauthorized acts: Regina v anderson and
morris
b. Issues involving the actus reaus
i. accomplice liability based on omissions
ii. unsuccessful attempts to aid
1. variation on tally
c. The relationship between the liability of the parties
i. inconsistent verdict problem
1. otherllo and Iago
2. regina v. Cogan
Accomplice liability
I. Wilson: (helped friend in burglary and then called police.. set up 4 revenge)
a. Trial: you can’t get out of it just by saying so afterwards
b. Appeal ct: Larceny requires “intent to permanently deprive”
i. no mens rea to deprive permanently
II. Mens rea: Better academic view:
a. 2 separate intents:
i. intent to aid
ii. intent that the crime should be completed
III. 4 Variations on Hicks: Hicks: actus reaus and mens rea, very important (take
your hat off and die like a man):
a. Hicks hears R is going to kill his old enemy C and so goes along to enjoy
i. No act or intent to further the crime and no legal duty to prevent
b. “ “ + words of encouragement
i. Actus reaus: (satisfied by the words)
ii. Mens rea: debatable
1. did he actually intent to help?, or was he just afraid.
c. “ “ + mentally decides to help if necessary
i. Actus reaus: none, unless there was a prior agreement
ii. Mens rea: yes,
d. “ “ + Promise to help + mental intent to help
i. Actus reaus: yes (agreement)
1. some JD require an overt act.
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ii. Mens rea yes
IV. Gladstone (“i don’t have any drugs but I’ll draw a map to where you can get
some.. no contact with supplier... charged with aiding and abetting the sale of
marijuana.)
a. Necessary nexus: need a link between the sale and the D’s actions... would
be enough for a link between D and Purchase..
i. not the main reason
b. Purpose: Mens rea for accomplice liability requires that D embrace the
purpose of the venture and wish for the crime to succeed. (doesn’t have to
benefit D but it helps when trying to prove)
i. the main reason D got off
V. Tally: (judge stopped the telegraph message that might have warned the
victim)-> accomplice in murder
a. Does not have to be a but for cause of the crime
i. enough if they destroy one little chance for the victim to escape
b. No pre-concert requirement: its enough that he contributed to the death.
i. Pre-concert is only required for liability if he doesn’t actually act.
VI. Actus reaus: Ineffectual attempts to AID
a. BEFORE MPC: not criminal at common law prior to MPC
b. AFTER MPC: criminal if had PURPOSE to AID
VII. Contrast between conspiracy and accomplice liability
a. Accomplice Liability Requires
i. Intent to Aid
ii. Intent for crime to occur
b. Conspiracy Requires
i. Agreement
ii. Some JD require an overt act
Self Defense and Defense of Another
I. Elements: (US. v. Peterson) self defense begins and ends with necessity
a. For the use of deadly force: (subj. and obj)
i. defender must perceive a threat of the use of deadly force against
herself (peril of death or serious bodily harm including rape).
ii. must perceive threat as unlawful
iii. must perceive threat as imminent
1. right now (majority) vs. inevitable (very few)
iv. Defender’s beliefs must be reasonable (mere words can be enough)
b. “Imperfect” Self Defense:
i. Definition: Killing another in an honest but unreasonable
apprehension of the need to kill to save one’s own life, or using
more force than is reasonably necessary
ii. Punishment:
1. All or nothing vs. Mitigation
2. At common law it was often an all or nothing deal... guilty
or not guilty
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3. Many jurisdictions now mitigate unreasonable responses so
D is only guilty of manslaughter
c. Defense of another: two approaches
i. “standing in one’s own shoes”
ii. Standing “in the shoes” of the person in whose defense he acted
1. right to defend another is coextensive with the other’s right
to defend himself
II. Self defense : Issues
a. How objective should the reasonable person standard be?
i. Civil rights perspectives:
1. Goetz: “reasonable to him”(from his perspective)
subjectified the objective component.
ii. Feminist Perspectives
1. Wanrow: Reasonable “man” standard might bias jury
against a woman who is 5’4 and not very strong.
iii. MPC Approach
b. Immediacy
i. How immediate must the danger be?
ii. Is it the danger or the need for defense that should be immediate
1. Case of the prisoner who was threatened with being made a
bitch
a. State v. Schroeder:
i. Majority: danger must be immediate
ii. Dissent: this the only time he could kill him
2. Battered women, abused children killing parents, parents
burning crack houses
a. Jankey: Child abused for 14 years, and waited to
kill father. Self defense denied b/c not immediate
b. Kelley:
i. Expert testimony requirements
1. admissible / relevant
2. ideas too complex for jury to just
understand w/ out help
3. must be a true expert
4. actually a field with state of the art
knowledge
5. Expert usually can’t speak directly to
the question before the jury (can’t
give the answer, but can give
supporting facts.)
ii. Battered wife syndrome: Phases. cyclical
iii. may help subjectify the reasonable person st.
3. MPC approach
c. Limitations on the right to self defense
i. Common law Retreat: honor vs. value of human life
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1. Abbott: (majority approach) “value of human life”
a. Before using deadly force D must retreat if
i. he KNEW (subjective) that he could retreat
with COMPLETE SAFETY.
ii. Most JD require retreat or at least consider
when assessing necessity
b. The duty to retreat kicks in the moment you decide
to use deadly force.
c. No duty to reatreat when on your own property.
2. Minority: “don’t tread on me”: no duty to retreat.
ii. MPC: if you know you could do so in complete safety you must
retreat, surrender, or comply with their demand.
iii. Initial aggressor
1. If P is trying to leave you may not use deadly force merely
to protect property.. if you provoke the continued fight
even if you were the initial victim, then you may be liable.
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