Theories of Punishment: 1) Model Penal Code authors considered prison a last resort. Lock people up only when there is no other alternative. Two factors discussed by MPC 7.01 with regards to sentencing: i) Nature of crime (will imprisonment meet one or more of the following three goals: specific deterrence, rehabilitation, general deterrence)? ii) Nature, character and history of offender (see section for specifics). (1) These two factors are only brought up in the sentencing stage, not the liability stage. 2) Utilitarian Justification for Punishment: Forward-looking. Punishes certain people in order to produce a net social benefit. a) Punishment intended to prevent the specific offender from committing future crimes: i) Specific deterrence: Deter specific defendant form committing similar crimes in the future. (1) As defendant/prisoner gets older, likelihood of recidivism is less and less. (2) Three strikes you’re out laws (when murdering a man gets you less time than robbing a deli for the third time). ii) Incapacitation: Makes it impossible for the specific defendant to engage in criminal activity during the period of imprisonment. (consideration in MPC 7.01). iii) Treatment/ Rehabilitation: Punishment in the form of restraint/imprisonment allows authorities to attempt to rehabilitate the offender. (consideration in MPC 7.01). b) Punishment intended to prevent society as a whole from committing the offense: i) General deterrence: Punishment of others warns potential criminals of the consequences of their actions. (1) BUT: General deterrence may only work on people with something to loose. (2) BUT: What deters more? The probability of punishment or the severity of the punishment (goes back to death penalty)? (a) Probability of punishment. If people feel it is unlikely they will get caught, they are less likely to worry about the severity of improbable punishment. (3) Other effects of General deterrence: (a) Moralizing effect/Condemnation: Apart from fear of punishment, people abstain from criminal conduct because of their unwillingness to engage in morally reprehensible behavior. (b) Social solidarity: Social order requires widespread consensus that criminal behavior is wrong and that subjecting offenders to punishment maintains this consensus. Otherwise the “social solidarity” encouraged by criminal punishment will dissolve and people will regard themselves as free to violate other criminal laws. 3) Retribution: punishment as a consequence for committing the crime, blameworthiness, backward looking. a) Theory looks backwards and does not worry about future accomplishments. If someone commits a crime, they deserve punishment. Just desserts. i) Does not depend on the victims or victims’ families satisfying an urge for revenge. This theory would punish even if the victim or family of victim did not seek the punishment of the offender. b) Retribution states that the criminal must be punished for moral culpability. c) Theory of retribution allows society to separate the mercy killers from the hitmen through the evaluation of blameworthiness. i) Retribution comes heavily into play in causation: someone’s dead and someone has to pay. (Think about drag race cases, where driver of car that did not hit and kill innocents still convicted of murder).
ii) Retribution drives death penalty (though so does general deterrence).
Costs v. Benefits
1) Benefits of punishment: Turn on the extent to which the social interest justifying criminalization will be furthered. Those social interests are: a) Prevention b) Retribution 2) Costs of punishment: The obvious and direct costs of criminalization are costs of law enforcement, prosecution, prison etc. There are also costs that impact those that commit the crime: they may be stigmatized in a way to produce long-term disability. a) Incident costs: Enforcement of criminal sanctions can also involve incidental costs, such as improper searches and seizures. b) Impact of society: Criminalization of a widespread activity may tend to bring law into disrespect among a significant portion of population. What is a crime? An act or omission, done with the requisite mental state, that causes social harm. Actus Reus Why do we require an ACT to assign criminal liability? I. Without an act, liability may depend on a defendant’s thoughts, hopes or intentions. a. Why this is a bad idea: Rarely do people act on their thoughts and it is not easy to “get inside someone’s head”. II. Can a person be held criminally liable for his “status” (Ex. Status as a drug user in Robinson v. CA)? a. No. This is unconstitutional (8th Amendment: cruel and unusual punishment) because it punishes people for their intentions. b. This does not mean, however, that acts arising out of this status cannot be the basis for criminal liability (Ex. Drug addict robs a deli to feed his habit). What constitutes an ACT? I. Narrowest definition of an act: (conscious) Conscious volitional muscular contraction. a. According to MPC 2.02(2)(a-c) the following are not acts: i. Reflexes, convulsions, movements during sleep, under hypnosis or movements made while unconscious. b. Exceptions: i. Unconsciousness is not a valid defense if the defendant caused his own unconsciousness (Ex. The defendant got drunk killed someone while intoxicated). II. Timing of the ACT: a. When do we look for an act in determining criminal liability? Only at the moment that the act causes a social harm? i. Not necessarily. As a matter of public policy, we “run the tape back” to see if there is an act that led to the social harm before the act that actually resulted in the social harm.
b. Therefore, a person may incur criminal liability by engaging in a course of conduct knowing he will become unconscious and do harm. (Ex. An epileptic driving and causing an accident because of a seizure). i. Under this rule, liability is not imposed for the act committed while unconscious (the accident) but rather for the earlier act committed while fully conscious (getting in the car knowing a seizure is a possibility). When is inaction a crime? An Omission: I. There is NO general duty to rescue in the US, i.e. no requirement to act. a. Therefore, the general rule is that a person is not criminally liable for an omission. When is a person criminally liable for failing to act? When the defendant has a legal duty to act. MPC 2.01(3) I. The omission is expressly made sufficient (to be an act) by the law defining the offense OR: a. Examples of crimes based on omission to perform statutory duty: i. Convicted sex offenders must register. ii. Failure to report income taxes. iii. Failure to meet with your parole officer. iv. Failure to renew your vehicle registration. v. Failure to adequately care for your child. II. A duty to perform the omitted act is otherwise imposed by law (duty to perform is implied by law in the following ways): a. Relationships: i. Status: parent/child, husband/wife ii. Contractual: babysitters, childcare, lifeguards (BUT in contracts not involving the safety of others, courts may be unwilling to impose criminal liability in the face of breach). iii. Certain relationships may require one person to prevent criminal conduct by the other (WI parental liability statute). b. Creation of risk: i. Ignoring duty that arises from this creation. 1. A pushes B into pool. A has duty to rescue B. (This is a very clear example, but often the legal duty is less clear). c. Voluntarily offer to help and seclusion of victim: i. A sees B drowning. Tells other spectators “not to worry”, that he will save B. A swims out to save B, and then A decides NOT to save B. 1. What if there are sharks? A’s duty is to do what is reasonable. Other prerequisites: I. What knowledge is necessary for criminal liability? a. An omission will render the defendant criminally liable only if she has knowledge of the facts creating the duty. i. Why? A person doesn’t have a fair opportunity to perform her duty unless and until she is at least aware of the circumstances prompting duty. b. Does the defendant have to know of the law creating the duty to perform?
i. Not necessarily, ignorance of the law is not an excuse! BUT if the statute making the omission a crime has a “willful” (CL) or “purposeful” mens rea requirement, the ignorance may negate a material element of the crime. 1. BUT not requiring that a person have knowledge of the facts/law that create the duty perform may violate due process. II. The defendant had to have the possibility to act, i.e. the act was something she avoided. a. Inconvenience will not excuse a failure to perform a duty, though extreme danger to self will. The defendant is held to a reasonable standard of care. b. A defendant, even if physically incapable of performing herself, cannot escape liability if it was reasonably possible to obtain the help of others (Pope). Should we have a duty to perform? I. Side One: We should have a generalized duty to rescue. a. To not rescue is morally repugnant. b. Utilitarian purposes: does this lack of duty lead to disillusionment with and disrespect of the criminal justice system? c. Social cohesion. d. “Impersonal” justice system. II. Side Two: We should not have a generalized duty to rescue. a. An “observer” is not more morally culpable than the person who committed the act. Moral difference between the person who acted and those that did not. b. American culture: freedom, autonomy, and individualism. Issue of coercion. c. Practically: If we all have a duty to rescue, how many criminals do with have in a given situation? d. Good Samaritans: They can make things worse. i. A picks up B who is lying injured on the ground and takes B to the hospital. In B’s case the WORST thing A could do was pick B up. e. Possibility of criminal liability will force people to stay as far away as possible from a rescue situation. f. State and federal prosecutors will be A LOT busier. How do acts commissions and omissions fit together? I. Act is the starting point in criminal liability. a. An act is a volitional movement. Not all movements are volitional, and therefore not all movements are acts. i. BUT the volitional act may not be at the time of the social harm. b. Generally, omissions do not count as the basis for criminal liability. They are the exceptions. i. Generally, bodily movements are not omissions. 1. BUT some bodily acts are omissions, i.e. a doctor “pulling the plug”. What is the modern trend? I. Recognition of new duties to perform and the expansion of past duties (Ex. MA statute to requiring bystander to interfere in rape). BUT the law does not impose criminal liability for an omission simply because the defendant had a moral obligation to act. How do the courts determine the requisite mental state?
Mens Rea I. Why have a requisite mental state? a. Issue of retribution: Gives a scale of culpability for the same result (i.e. the difference between a defendant who knowingly kills someone and a defendant that negligently kills someone). Allows society to punish those most culpable, or blameworthy. b. Public Policy: The scale of culpability separates those defendants most dangerous to society from those less dangerous to society. II. Common Law: Mens Rea as a measure of intent. a. General Intent (can be inferred) i. Intent to do the act that caused the social harm (this is not necessarily the intent to break the law). Voluntary action is enough to prove intent. 1. Example: Trespass as opposed to Burglary (because there is not proof that the defendant intended to commit a felony). 2. Example: Bigamy that only requires the spouse marries a second time. ii. Compared to MPC: recklessness or negligence. b. Specific Intent (must be proven) i. Intent to do something beyond the actus reus of a criminal offense. 1. Example: Burglary requires the intent to commit a felony beyond breaking into a dwelling. 2. Example: Bigamy that requires the spouse knew his spouse was still alive. ii. Compared to MPC: purposely and knowingly. c. Criminal Negligence i. The defendant may be convicted for an act done with a “gross” lack of care. Examples: involuntary manslaughter and criminal nuisance. ii. This is a higher standard of negligence than that required by a civil court. d. General and specific intent are often applied to entire crimes, i.e. larceny is a specific intent crime and bigamy is a general intent crime. Unlike the MPC, these terms are not applied to each material element of the crime. e. Willfully, deliberately, wickedly, maliciously…all words that in common law have not concrete definition. The MPC tried to create a uniformity that the use of these words did not. f. Malice: Regina v. Cunningham (to act maliciously does not mean that the defendant acted with the purpose of injuring his mother-in-law, it means that he only acted wickedly (app. overturned conviction however)). III. Mens Rea according to MPC 2.02: a. Hierarchy of mental states in evaluating culpability. i. Intent is at issue, NOT motive. 1. Level of Intentionality: a. Purposely i. Actor acts with purpose to bring about result. b. Knowingly i. Actor is (practically) certain that the prohibited act will follow from his actions. c. Recklessly
i. Involves conscious risk creation. Resembles acting knowingly in that a state of awareness is involved, but the awareness is of risk, that is of probability less than substantial certainty. ii. Risk must be substantial and unjustifiable. How substantial and how justifiable are questions for the jury. d. Negligently i. Does not involve a state of awareness unlike other three. ii. A person acts negligently when he inadvertently creates a substantial and unjustifiable risk he should have been aware of. b. If the difference between purposely and knowingly is a little fuzzy… i. Soldier goes AWOL. Offense: desertion with intent to avoid hazardous duty. Court set aside guilty plea because, though soldier knew absence would preclude him from hazardous duty, this was not the reason he left. c. Levels of culpability can be different at each objective element of crime (this is different than the common law notions of general and specific intent that apply to entire crimes). i. Result 1. Examples of result: a. Rape = nonconsensual sexual intercourse b. Statutory rape = sex with a minor ii. Conduct 1. Examples of conduct: a. Rape = sexual intercourse (mens rea required: purposely had sex). b. Statutory rape = sexual intercourse (purposely). iii. Attendant Circumstances 1. Examples of attendant circumstances: a. Rape = lack of consent ((possible) mens rea required: reckless disregard for lack of consent). b. Statutory Rape = age of party (irrelevant, strict liability offense). c. d. (old) Common Law Burglary (breaking into home at night with intent to commit crime) = building is home, act is at night d. A level of culpability can apply to all material elements of the crime if the law defining the offense does not distinguish among the material elements of the offense (Ex. Practice exam and “homicide equals criminal homicide when it is done negligently”). MPC 2.02(4). Role of Legislatures: legislatures often do not explain the requisite level of culpability in the statute. I. Why? a. Doing so allows more judicial discretion and deference to the courts to apply judicial discretion on a case by case basis. b. Doing so is a matter of politics, allowing different groups to establish a statute through compromise (the give and take). c. Doing so lessens the burden of the prosecution. d. It’s a lot of work to create new legislation.
e. Under the MPC, unless specifically provided otherwise, a showing of at least recklessness is required as to all elements of the offense (see strict liability and the default when no mens rea is included in statute). IV. Motive: a. In general, motive is irrelevant to criminal liability. (Though relevant to sentencing). b. Exceptions: i. Specific intent crimes, in the sense that the reason for the action is relevant to as to whether or not the crime was committed (burglary – entering a dwelling with the intent (or motive) to commit a felony). ii. Hate crimes – where motive to commit violence against a certain group of people means harsher punishment. What if the mens rea is conditional? I. “If you don’t give me your purse, I’ll kill you.” Intent to kill is conditional on whether or not the victim gives the defendant her purse. II. MPC 2.02(6): “When a particular purpose is an element of an offense, the element is established although such purpose is conditional…” a. In purse example, defendant purposely kills if the victim does not give him her purse. What if the defendant caused harm, but not the harm he intended? I. Ordinarily, a defendant must have intended the actual harm done. However, if the defendant intends to harm one person or item of property and does greatly similar harm to another person or item, he will be treated as if he intended that resultant harm. a. Example: A purposely shot B, B dodges bullet and A hits C. C dies. A “purposely” shot C. Is ignorance of fact or of the law an excuse? Mistake of Fact and Mistake of Law according to MPC 2.04: I. Historically, there was a huge gap between mistake of fact and mistake of law, but the MPC 2.04 starts to bring them together. a. Relevance of mistake of fact or of law is determined by the requisite level of culpability. b. Mistake of fact or of law can undermine prosecution if it negates the required level of culpability, i.e. mens rea. i. Ex. If the mens rea is knowingly and the person is ignorant to a material fact, this ignorance negates the required mens rea, the “knowingly” (knowingly stole government property). Mistake of Fact on its own: I. What is it? Ignorance of a material fact of the crime. a. Examples: i. Practice exam: The defendant claimed mistake of fact because he thought she was playing the “rescue game,” not drowning. (Apply MPC: Does this mistake negate the mens rea of the negligent homicide statute)? 1. No. Mens rea was “negligence,” he should’ve known to check on child when she is swimming alone in a pool, there is an unjustifiable and substantial risk here.
ii. Statutory rape: The defendant thought she was over 16 (KEEP IN MIND: statutory rape is a strict liability crime, and therefore, this cannot be a defense). II. Common Law: a. Requirement of reasonableness: Traditionally, a mistake of fact must be reasonable. i. Many courts, however, have not required a showing of reasonableness where the mistake is offered to negate the existence of a specific intent required for guilt. ii. The requirement of reasonableness has generally been accepted without critical analysis. b. Morality and Legality of Conduct: The defendant must show that his conduct would have been legally permissible and/or morally defensible had the facts been as he believed. i. This limitation has been criticized as imposing strict liability for serious offenses. It is doubtful whether the early decisions imposing this limitation would be followed today. (Ex: Regina v. Prince, the defendant’s conduct of taking a girl out of her parents’ possession is “wrong”, and therefore, even if the facts were as he believed, he would still be acting immorally. It follows that he is guilty of statutory rape despite his mistake). III. MPC a. Reasonableness: i. MPC 2.04(1)(a): The mistake of fact need not to reasonable as long as it negates “purpose, knowledge, belief, recklessness or negligence required to establish a material element of the offense.” b. Morality and legality of conduct: i. MPC 2.04(2): The defense of ignorance or mistake is not available if the defendant would still have been guilty of a criminal offense (not a question of morality) had the facts been as he believed. ii. Also, a defendant may be held liable for an offense no more serious than he would have been guilty of had the facts been as he believed them to be. MPC. § 2.04(2). 1. Example: Heroin = higher punishment, cocaine = lesser punishment. If defendant is carrying heroine, thinking it is cocaine, he does not have a mistake of fact defense in that he is acquitted, but he will not be charged with carrying heroin. Mistake of Law on its own: I. What is it? In general, issues concerning the defendant’s ignorance or mistake of law arise in two different contexts: a. Because of ignorance or mistake, the defendant lacked the mental state required for a conviction OR b. The defendant had the requisite mental state but was mistaken about the applicable law and consequently believed his conduct was not prohibited by the criminal law. I. Sometimes a distinction between two types of claims by defendants: 1. Some defendants claim they were passively ignorant regarding certain matters of law. 2. Some defendants claim not passive ignorance, but rather that they addressed the matter and reached an affirmative but mistaken conclusion. II. Common Law:
a. “Ignorance of law is no excuse” is the starting point. This is outdated because: I. Not all laws in today’s society are morally intuitive. II. Society is more mobile and it is unrealistic for someone to know the law in every place they visit or move to compared to times when people stayed in the same spot. b. Reasonableness: mistake must be objectively reasonable… I. BUT SC: Indicated that limiting defendants to reasonable mistakes (whether law or facts) may violate 6th amendment right to have jury to determine guilt or innocence. II. US v. Cheeks: “A mistaken belief in the law need not be a reasonable one to negate the willfulness requirement of a statute if that belief is an honest one.” 1. Cheeks’ mistake was not that he didn’t know evading taxes was illegal, but that he mistakenly interpreted the provision defining taxable income. Sometimes called the “different law mistake.” 2. Whether or not a mistake is honest is up to the jury. 3. BUT an honest mistake that a law is unconstitutional is not a reasonable defense (this is obviously not a mistake of law, but an honest belief that the law you know about should not apply to you because it infringes on your rights). c. SC in Lambert: “Where a person did not know of the duty to register and where there was no proof of the probability of such knowledge, he may not be convicted consistently with Due Process. Were it otherwise, the evil would be as great as it is when the law is written in print to fine to read or in a language foreign to the community.” No mention of mens rea, strict liability offense. III. MPC 2.04(3) adds a dimension to mistake of law about (a) notice (law was not published or made reasonably available) and (b) reliance (reliance upon an official statement of law later determined to be invalid or erroneous). a. What is an “official statement”? I. (i) statute or other enactment II. (ii) court opinion III. (iii) administrative order or grant of permission IV. (iv) an official interpretation of the public officer or body charge by the law with responsibility for the interpretation, administration or enforcement of the law defining the offense 1. Under MPC 2.04(3)(B)(iv) - who can a party rely on? a. Not an attorney or a law professor, but someone who actually makes the law. b. This element adds an occasion where ignorance of the law is an excuse, but it will not open up the floodgates so that people can rely on just anyone to interpret law. c. According to MPC 2.04(4), the burden is on the defendant to prove defense under (3). d. Related cases: Marrero (question is whether or not he thought he was a peace officer covered by the NY statute – the court ruled he could not rely on his own misinterpretation of the statute). Cheek (failure (omission) to file income tax return due to belief that he did not have to pay taxes and that his wages did not constitute income). e. The crimes result not from passive ignorance, but rather an affirmative, but mistaken, decision, that conduct is not illegal.
f. SC: violates due process to convict a defendant for conduct that governmental representatives had earlier in their official capacity stated was lawful (entrapment by estoppel). g. As compared to Germany: “…in which the court…reasoned that blameworthiness, guilt should not be attached.” Mistake of law a complete defense… What about mistake of fact/law with strict liability crimes? I. Under the MPC, mistake of fact/law is only a defense if it negates the required mens rea. Strict liability crimes, such as statutory rape do not have mens rea requirements, so there is no mistake of law/fact defense for strict liability crimes BUT see Lambert. What about the “cultural” defense? I. The courts go back and forth. When is mens rea irrelevant? Strict Liability I. No mens rea required – mental state is irrelevant. a. Strict liability may apply to a statute as a whole or to its elements. b. Many statutes are silent on strict liability but the starting point, or default, is a mens rea requirement. i. The default is NOT to assume strict liability just because a statute is quiet on specific mens rea required. II. How does a court determine if strict liability is required when the statute is silent on mens rea? a. The purpose of the legislature may infer strict liability. b. The punishment for violations of offenses can influence a court in deciding whether or not strict liability applies to a statute that is silent on strict liability. III. Strict liability and the MPC a. As provided by MPC 2.05, strict liability should only be applied to violations that require minimum punishments and offenses that are public welfare offenses. i. Malum in se (inherently criminal) v. malum prohibitum (criminal because it is prohibited). Strict liability should only apply to malum prohibitum crimes, because the actor did not do something morally wrong. b. MPC 2.05 – tries to limit the extent to which strict liability is used by differentiating between a violation and a crime. i. Violations as defined by MPC 1.04(5) 1. A category of offenses that are not crimes and do not involved prison time or probation. 2. For example: Speeding, jaywalking, littering, health code violations, mislabeling of prescription drugs, public urination. 3. There is no mens rea requirement in these violations. 4. There is an issue of public welfare but the violations are minor. 5. Keep in mind, many of these are offenses that start out as violations and over time can become a crime (repeatedly speeding). c. What it boils down to: According to the MPC, strict liability should only apply to violations, offenses that do not incur jail time or probation, and that are punishable in the interest of public welfare. d. The drafters are not thrilled about strict liability.
i. Drafters to the court: Don’t infer strict liability unless the statute makes it really clear. Keep the inference narrow, and limit the application of strict liability to violations. Influence the legislature to include a mens rea requirement. ii. Drafters to the legislatures: Be clear on applications of strict liability. e. Strict liability crimes: i. Statutory rape, felony murder. f. Policy Considerations: i. Considerations favoring: 1. If the prosecution was required to prove mens rea in all cases, convictions would be so difficult to obtain or the courts would be overburdened with the added requirement to prove mens rea. 2. Dispensing with the mental element for certain crimes will not in fact risk the conviction of many persons who are not morally blameworthy. Why? Strict liability is generally imposed in situations where those at risk of being charged are operating in a heavily regulated area (ex. firearm sales) and therefore either will have the mens rea that would be required or would have had it if they used reasonable caution. ii. Considerations against: 1. It opens the door for convictions of persons who, because of their ignorance have not in fact done anything sufficiently “wrong” to justify criminal sanctions. 2. How can you deter potential criminals when mens rea is required? 3. Requisite mens rea is easily proved in most cases. g. Constitutional limitations: There is a question whether mens re can be constitutionally eliminated. Those subjected to conviction under strict liability statutes are arguably denied due process. IV. Is there ever a defense for a strict liability crime? a. Yes, argue that there was no act! (Ex. Speeding while under hypnosis). How do the courts determine if the act caused the social harm? Causation What is the starting point? Actus reus – the act/omission that caused the social harm. I. Causation is a search largely about retribution, i.e. who does society want to hold responsible? II. The steps: a. “But for” clause, i.e. but for the act, would the result have occurred? i. Negligence of the victim or of 3rd party does not automatically negate “but for” (though it may negate proximate causation). ii. Speeding up an inevitable result does not negate “but for” – mercy killing, though speeding up the inevitable death, does not negate “but for” the defendant’s actions the victim died. iii. “But for” cannot be read too literally, however. But for my parents meeting, I would not have attended today’s review session. b. Proximate/(legal) cause (tougher question). i. Some courts have narrow view, some more liberal (like that required by civil court).
ii. Generally, proximate cause is established when the result is a natural and probable consequence of the defendant’s act and there are no voluntary and intervening actions that supercede the defendant’s actions and break the causal chain. 1. Superceding actions: An additional act or occurrence that breaks the causal chain, i.e. supercedes the defendant’s actions as the legal cause (usually a human action). 2. Intervening actions: An act that is set in motion after the defendant’s act. Therefore, a preexisting condition cannot be a superseding factor to break the causal chain. a. Stephenson (Woman is kidnapped and tortured. She swallows mercury pills, refuses medical attention and later dies. Her kidnapper is not liable because her taking the pills is not a natural consequence of his actions (it is superceding). b. Campbell (Two guys were drinking. Campbell hated the V because the c. V slept with his wife. Campbell encourages V to kill himself and gives him the gun. V kills himself. Campbell not guilty of murder – the V pulled the trigger, this is the voluntary, intervening, action that supercedes Campbell’s actions). c. Forseeability: The result must be foreseeable by the defendant. i. What is the “it” that must be foreseeable? This can vary. For example, in Arzon, the “it” is not the firefighter’s death, but the imminent danger in starting a fire. ii. Foreseeability does not mean probability. iii. Often comes down to participating in dangerous behavior. III. But then we come to the tension: a. Foreseeability on the one hand and the subsequent human action that breaks the causal chain on the other. i. If an intervening voluntary act breaks the causal chain, there is no proximate cause. 1. An intervening voluntary act assumes free will, choice and voluntary action on the part of the intervening actor. 2. What if the death is foreseeable but the defendant doesn’t “pull the trigger”? Think Dr. K and his suicide machine. Deaths were completely foreseeable, but the patient ultimately injected the poison. IV. MPC 2.03 and Causation a. MPC provides that the defendant causes a result unless the manner in which it occurred is too remote or accidental to have a just bearing on the defendant’s liability. i. Takes into account “but for” and proximate cause. ii. MPC §2.03(3): Recklessly or negligently causing a result may lead to liability if the result was probable within the risk the actor knew, or should have known, of. iii. MPC §2.03(3)(b): If an event is too remote from the actor’s act, the actor is not criminally liable. How remote a result is, is a question for the jury entirely. 1. Often, policy motivates the decisions of the jury in evaluating intervening voluntary acts or foreseeability. V. Alternative test for “foreseeability”: a. Result not “highly extraordinary” in light of the circumstances – the defendant should be regarded as having caused the result unless the unanticipated way in which the result occurred was “highly extraordinary in light of the circumstances.” People v. Acosta
VI. Causation and assisted suicide a. MPC 210.5: causing or aiding suicide. i. This differentiates between criminal homicide and 2nd degree felony of assisting suicide. ii. 210.5(1): force, duress or deception grounds for criminal homicide. b. Other considerations: (Campbell and Basnaw were drinking; Campbell was mad at Basnaw for sleeping with Campbell’s wife. Campbell encouraged Basnaw to commit suicide and gave Basnaw his gun. Basnaw killed himself. Is Campbell guilty of murder? Campbell was not convicted of murder because he did not cause Basnaw’s death, i.e. he did not pull the trigger). i. There is also a mens rea issue in this case, i.e. Campbell only had a hope that Basnaw would die, but not an intention to kill him. c. Did Dr. K cause his patients’ death? i. Hard line to draw: Dr. K did not “pull the trigger”. The final act is the intervening act, taking Dr. K out of the picture. 1. We have the “but for” clause satisfied, but not the proximate cause. Murder What constitutes Criminal Homicide? I. Start with the definition: Killing of one person by another person where there is no excuse (insanity) or justification (self defense). What is the grading process? I. Intentional killing: murder and manslaughter. II. Unintentional killing: manslaughter and involuntary manslaughter. What is the role premeditation as a basis for murder and the question of retribution, i.e. who is more morally culpable? I. Malice Aforethought: Today, really a term of art, but historically came to mean a deliberate, premeditated intent to kill formed some time beforehand, and that no killing “on a sudden”, even w/o provocation or on slight provocation was murder. In effect, the law regarded unlawful killings as being of only two kinds: a. Killing with malice aforethought b. Killing on a sudden quarrel. c. Pg. 387-89. d. Malice Aforethought today: i. Intent to kill (murder) ii. Intent to inflict great bodily harm (murder/manslaughter) iii. Intent to commit a felony (felony murder/manslaughter) OR iv. Awareness of high risk of death (extreme recklessness murder or recklessness manslaughter) v. COMMENT: The MPC takes these different “definitions” of malice aforethought and separates them into murder, manslaughter and involuntary manslaughter. II. Two ways to look at premeditation: a. Any time to think about killing someone, no matter how short constitutes premeditation. b. There is a planning process, the development of motive, and a manner and a plan.
i. Should premeditation matter? 1. Mercy killing is the big exception. Do we want to hold mercy killers as culpable as those who intend to kill “with an evil heart”? III. The MPC ignores premeditation entirely. Premeditation is not an appropriate way to measure offense. (210.2). a. The language uses “knowingly” or “purposely” or “recklessly” to define murder. b. If the MPC brings in premeditation, we equate mercy killing with the most heinous crimes, and we make the mercy killer more culpable than the person who kills his cheating wife in the “heat of passion”. IV. Benefits of requiring premeditation: a. Deterrence: It’s easier to deter people from murder that is premeditated. Time to think about the consequences of the actions. i. Retribution pulls the other way. We don’t want the mercy killer to be more culpable than the angered husband of an adulterous wife. V. What makes a crime heinous? a. The Manson killings: One victim was pregnant, gory manner in which it was done (writing in blood). b. Motivation of killer, i.e. hate crimes and the dehumanization that accompanies classifying a person not as an individual, but sole as a member of a group. c. Absence of motivation to kill specific victim (DC sniper case). d. Ultimately it is a question of social policy and the desire to apply the worst punishments to the worst crimes. i. It’s not just about the victim, but the effects of the murder(s) on others. What role does provocation play? I. Provocation and mitigation from murder to manslaughter – NOT A QUESTION OF GUILT OR INNOCENCE. a. Common law and statutes make mitigation very common. i. Provocation comes from the victim and the killing must be done in the “heat of passion” (meaning there can be no “cooling off” period). ii. Words are not enough to provoke. 1. BUT infidelity, serious physical injury, mutual quarrel or combat, or illegal arrest are sufficient grounds for provocation. iii. Role of the third person, i.e. did the defendant see the provoking act? iv. Role of the objective standard: 1. Question of whether or not it was reasonable to loose control, but NOT a question of whether or not it was reasonable to kill someone. II. The MPC (210.3) and provocation: a. Differs from common law approach in that it doesn’t use the word provocation directly. It does take seriously the mindset of the defendant: extreme emotional disturbance as a result of external or internal factors. i. Time is neutral. ii. Role of the objective standard: 1. Is this emotional disturbance reasonable? b. Why did the MPC keep provocation? Why should provocation be a mitigating factor? i. Battered woman syndrome is the best reason.
ii. Deterrence: it’s difficult to deter crimes of passion, regardless of strict sentencing. 1. If that’s the case, what is the point of heavier sentences? Because retribution pulls the other way. iii. Culpability: do we want to punish the insane and the abused wife to the same extent as a person who purposely, knowingly or recklessly kills another without provocation? No. 1. Leave the statute open to the evolution of psychology. c. With the MPC approach, there is a combination of objective and subjective notions. The jury puts itself in the shoes of the actor, thinks like the actor, and then decides if it was reasonable for the person to have the emotional response he did. d. Public Policy consideration: Does the MPC’s approach help to de-genderize the notion of provocation? (Men killing adulterous wives). What if the killing is unintentional? STILL NOT A QUESTION OF GUILT OR INNOCENCE – MITIGATION! III. Murder v. Manslaughter v. Involuntary manslaughter a. The involuntary manslaughter cases we looked at were omissions cases. i. Involuntary manslaughter will almost always have criminal negligence standard, i.e. a reasonable person “should’ve known” situations. ii. What is reasonable? What level of objectivity and subjectivity do you take into consideration (for example, whether or not the defendants are Native Americans)? b. Unintended killings that lead to conviction of murder under the MPC: i. No intent to kill but reckless disregard for life that was so extreme and involves such a high probability of death, the act is done with indifference to human life. This level of recklessness is adequate for a conviction of murder. 1. The MPC has two levels of recklessness: I. Extreme recklessness with an indifference to human life (murder). II. “Regular” recklessness (manslaughter). Felony Murder: Strict liability with regards to death: I. Purest case is death as an accident where there is no murder but for the felony murder rule, i.e. Bank robbery hypothetical. a. Strict liability with regards to death. Once the mens rea of the felony is established, there is no mens rea requirement for the resultant death. II. The MPC 210.2 and Felony Murder a. A different approach than common law. Does not use the term “felony murder” and there is no strict liability. i. It sets up a presumption: If the killing takes place during one of the enumerated felonies, then there is a presumption of the higher level of recklessness (remember, extreme recklessness can lead to conviction of murder). 1. The defendant can try to disprove this presumption of extreme recklessness, but the burden of proof is on the defendant (sort of, burden of proof is almost always on the prosecution in criminal liability cases). ii. So what is a “presumption”?
1. Look at the definition of presumption under MPC 1.12(5): Facts that give rise to the presumption and the issue of the presumed fact must be submitted to the jury. 2. How does this help the prosecutor? Though she must prove mens rea beyond a reasonable doubt, she is helped out with the presumption under 210.2 because the burden to prove the presumption is wrong is on the defense. iii. Remember: felony murder does not allow any defense, it is a strict liability standard with regards to death under the common law.
What about the death penalty? III. Public policy issues: a. Retribution: humanity and what is the appropriate punishment? b. Role of our mistake: Do we risk punishing people that have no moral culpability? c. Deterrence issue not as prevalent because there is less evidence of deterrence (people are more deterred by probability of punishment as opposed to severity of punishment). d. Constitution: i. Furman v. Georgia: Is there a way to institute the DP w/o cruel and unusual punishment? Death penalty itself is not unconstitutional but the death penalty in this case was unconstitutional because it was arbitrary. The court held that in order to minimize the risk that the death penalty would be imposed on a capriciously selected group of offenders, the decision to impose it had to be guided by standards. This way, the sentencing authority would focus on the particularized circumstances of the crime and the defendant. The court did not set forth its reasoning clearly, however, and as a result, cases went two ways: I. mandatory sentencing to avoid arbitrary nature struck down in Furman i. SC struck this precedent down, ruling that there must be individualization (see Woodson v. NC). II. Guided discretion: Here are the aggravating and mitigation factors jury – you decide. 2. What it boils down to: Can we strike a balance between individualizing each case and establishing some degree of consistency? 3. Today: bifurcated process involving two “trials” I. Conviction of murder AND II. Deliberation on death penalty (2nd part often brings in info excluded from 1st part). e. Gregg v. Georgia: Held that DP was not invariably unconstitutional. “It is an extreme sanction, suitable to the most extreme of crimes.” Held that Georgia’s approach to the DP satisfied the Furman decision. i. Georgia narrowed the class of murderers subject to DP by specifying 10 statutory aggravating circumstances, one of which had to be found beyond a reasonable doubt by a jury. The jury is authorized to consider other aggravating or mitigating circumstances. Jury is not required to find a mitigating circumstance to recommend mercy, but it must find a statutory aggravation to recommend DP. f. Woodson v. North Carolina – mandatory DP held in violation of 8th Amendment.
g. McKlesky v. Kemp: Racial discrimination in death penalty; court says that the statistical study fails to (1) demonstrate that the individual was discriminated against by the jury in his case or (2) show that the state of Georgia imposed the death penalty for the purpose of discriminating based on race. It may have had that effect, but that is not the issue addressed by the equal protection clause. i. How does a defendant try to prove racial prejudice with regards to sentence: 1. Try to challenge the statute (very difficult). 2. Prove racial discrimination of jury (try to figure out what happened in the jury room, also very difficult). ii. What it boils down to from McCleskey: Risk of discrimination is not enough. The defendant must show purposeful discrimination. This is very difficult. Rape What is the starting point? I. Consent: non-consent is required, without non-consent there is no criminal liability. a. Begs the crucial question: what constitutes consent? b. Mistake of Fact defense and RAPE: revolves around the question: What if the defendant makes a mistake of fact about consent? i. The main question to ask: Does the mistake of fact relate to the attendant circumstances of the rape, i.e. does the fact that the Alzheimer’s patient mistook the victim for his wife negate the mens rea requirement of rape? No, you cannot have non-consensual sex with your wife either. ii. If the mistake of fact does relate to consent, what are the defenses? It depends: 1. In England, an honest mistake of fact is a defense. 2. In US common law: strict liability, or honest mistake or honest and reasonable mistake of fact may be a defense. II. Force: a. Historically, force is required and resistance was often proof of force. i. Force was limited to physical force. b. Modern: Some jurisdictions look beyond physical force and incorporate mental “force” (guardian threatening sex or back to the detention center, Minarich). c. What about coercion (related to “mental force”) and the policy implications of criminalizing coercion: i. Break-up scenario: A tells B (both freshmen at college) that he is going to break up with her if they don’t have sex. B doesn’t want to have sex, but decides to anyway to save the relationship. How different is this threat than the situation in Minarich? Should we prosecute A for using “psychological” force? ii. Are A’s options simply better: without a boyfriend v. back to a detention center. iii. Different relationships are involved: Minarich is a guardian, but the freshmen at college are equal; there are different issues of power. iv. Different dependencies are involved: the plaintiff in Minarich has an “either or” situation, but the college freshman do not. v. What it boils down to: Is there any way to draw the line when we accept non-physical force as force in a rape? III. Resistance
a. Historically, women were expected to resist in the utmost, unless they were threatened with great bodily harm or death. b. Modern: resistance is still proof of both force and non-consent, though women are not expected to resist in the utmost. IV. The problems with history and with today: a. Corroboration of victim’s testimony: some states require that the rape victim’s testimony be corroborated, on the rationale that a charge of rape is easy to make and difficult to disprove. b. Requirement of resistance “to the utmost”: some courts traditionally applied a rigorous requirement that the victim have resisted the defendant’s efforts will all her powers. But such resistance need not be established where the evidence shows it would have been futile or was prevented by threats of the defendant. c. Effect of victim’s promiscuity: The modern trend, however, is to limit the use of such evidence, at least to those situations in which it is shown to have some direct and meaningful relationship to the consent issue. i. Modern Rape Shield Laws Plus ca change: the more things change, the more they stay the same. I. The purpose of the rape reform in the 70’s? a. One purpose was to focus the court’s attention not on the behavior of the victim, but on the conduct of the defendant. i. Rise of Rape Shield laws to protect the privacy of the victim. ii. An attempt to get away from the elements of force and resistance. iii. Push for a negligence standard with regards to consent. II. In practice, everything seems to go back to the victim’s consent. It is hard to get to consent without evaluating resistance and force. III. Modern Trend – “Sex Neutral” Offense of Sexual Assault – a number of jurisdictions have replaced rape with a new offense – sexual assault or criminal sexual conduct – that is designed to be sexually neutral. a. Proposed Model Statue for Sexual Offenses – this statute is much more up to date than the MPC and should be referred to in its place on the exam. Page 364 in the case book. i. Section 201: Sexual Assault 1. (a) an actor is guilty of sexual assault, a felony of the second degree, if he uses physical force or a threat of physical force to compel another person to submit to an act of sexual penetration. 2. (b) an actor is guilty of sexual assault, a felony of the second degree, if he commits an act of sexual penetration with another person, when he knows that the victim is less than 13 years old. 3. (c) an actor is guilty of aggravated sexual assault, a felony of the first degree, if he violates subsection (a) of this section while using a weapon or if he violates subsection (a) of this section and causes serious bodily harm to the victim. ii. Section 202: Sexual abuse b. Victim can be of either sex – under these circumstances, the offense need not involve a female victim but rather covers nonconsensual sexual behavior on victims of either sex. c. The offense expands to cover conduct other than the vaginal penetration of the victim necessary for the traditional crime of rape. Thus, these statutes cover nonconsensual oral or anal intrusion or intimate touching of any kind.
d. Sexual autonomy heavily influenced the drafters of proposed additions: both parties should have sexual autonomy and both parties should be part of consent process. e. Heavy emphasis on grading, i.e. rape seems too strong a statement to make and too much a stigma for more minor sexual assaults. The proposal allows for far more gradations than just sexual assault and sexual abuse. Mens Rea and Rape I. Should we apply strict liability as soon as non-consent is proven, meaning that if she didn’t consent, there is no mistake of fact defense? a. If strict liability is applied to consent, clear definition of consent is needed. II. The major question is whether the defendant must be aware that the act is being performed against the will of woman. a. Essentially this poses the question whether the accused must be aware of the lack of consent or whether negligence will suffice – i.e., is it sufficient that a reasonable person in the defendant’s position should have been aware of the substantial and unjustifiable risk that the victim was not consenting? (Reckless v. negligence). i. Some courts hold that the mistaken belief that victim consented must be reasonable: Several courts have held that defendant’s mistaken belief that the victim consented to the sexual activity will prevent conviction only if both (i) the defendant honestly and in good faith had such a belief; and (ii) the facts were such that mistake was objectively reasonable. 1. Requirement of equivocal conduct by victim: Several leading mistake cases hold that no issue of mistake of fact is raised for jury consideration unless the facts tend to show equivocal conduct by the victim that could have led the defendant to reasonably believe the victim consented. What is the “Marital Exception”? I. Historically, wives could not be raped by their husbands, assuming the couple was living together. Attempt What constitutes attempt? I. According to MPC and Common law, it is a crime to attempt the commission of any felony or misdemeanor. a. MPC §5.01 approach: Attempt, like most crimes, requires proof of certain conduct, i.e. “a sufficient step” towards the attempted crime and the requisite intent. Does the substantial step corroborate the defendant’s actions in his attempt? II. The actus reus of the target crime is not quite achieved (but is instead the substantial step), but the intent (mens rea) to commit the crime is there. III. Greater level of intent and culpability sometimes needed to prove attempt. Why? a. The basic principal that law does not punish for bad thoughts still applies. Attempt comes dangerously close to punishing for mere intent, and therefore the requirements for attempt should be defined so as to provide reasonable assurance that those convicted are persons who would commit the target crime if left alone. IV. Two ways the target crime is not achieved: a. Complete attempt: Person has done everything he can do (person shoots and misses). b. Incomplete attempt: Person doesn’t do everything he can do.
What are the elements of Attempt? Mens Rea I. MPC approach: a. Similar to common law, generally requiring that the defendant purposely take substantial steps in the completion of the crime (steps that corroborate this intent). II. Common Law Approach: a. Attempt is a specific intent crime (generally accepted) though there are exceptions of attempted manslaughter, for example. i. A man is provokes and swings a hatchet, missing his victim. The provocation, under common law may mitigate the offense from murder to manslaughter, yet the man has the requisite intent to kill to qualify for an attempt. III. Why is a higher level of mens rea required? There is an uncertainty of the social harm that would result if the crime was committed. Actus Reus What is mere preparation on the one hand and what is an attempt itself? There is a policy trade-off with regards to this question. If we move to soon, we risk the conviction of people working in innocent ways and/or we risk the possibility of disallowing people to abandon criminal activities. On the other hand, if we intervene too late, we risk great social harm. IV. MPC Approach: A substantial step in committing the target crime that is strongly corroborative of intent to commit crime: a. MPC 5.01(1)(a): i. If the attendant circumstances had been what the D thought they were (even if he is wrong) the D would have committed a crime. This is an attempt. (No legal or factual impossibility defense). b. MPC 5.01(1)(b) i. Did he believe it would cause the “result”, i.e. the death? Did he act with the purpose to cause the result, i.e. the death? (Hitman shoots a pillow in a bed 5 times and leaves, believing he has killed the target). c. MPC 5.01(1)(c): i. Purposely does something that he believes is a substantial step in committing the crime that is strongly corroborative of intent to commit target crime (Hitman breaks into the dwelling of his target in order to kill his target). d. MPC 5.01(2): I. The substantial step must be a strong corroboration of the defendant’s criminal purpose. II. List of potentially sufficient acts that are not to be held insufficient as a matter of law. Thus, if the prosecution proves such conduct, it is entitled to go to the jury on the question of whether the defendant progressed far enough toward commission of the crime. They include: a. Lying in wait, searching for or following, contemplated victim; b. Enticing or seeking to entice the contemplated victim of the crime to go to the place where the crime is to be committed; c. Reconnoitering the place where the crime is to be committed;
d. Unlawfully entering a structure, vehicle, or enclosure in which the crime is to be committed; e. Possessing materials to be employed in the commission of the crime if those materials are specially designed for the unlawful use or serve no lawful purpose of the defendant; f. Possessing, collecting, or fabricating materials to be used in the commission of the crime at or near the place at which the crime is to be committed, where this no lawful purpose of the defendant; and g. Soliciting an innocent agent to engage in conduct constituting the crime and a willingness to commit the crime. V. Common Law (all tests focus on what is left to be done): a. Last Act: the defendant took the last step which he was able to take along the road of his criminal intent. (Generally rejected). b. Dangerous proximity test: some courts have suggested that the defendant’s conduct must be dangerously proximate to the intended crime. (Conviction of attempted sexual battery of Internet chat man reversed, even though intent to pick up a 12 year-old was clear). c. “Probable desistance” test: a few courts have found an attempt only where the act is such that in the ordinary course of events it would lead to completion of the crime in absence of interference. d. “Equivocally” or “res ipsa loquitur”: a variation of the attempt criteria provides that an act amounts to attempt only if the act – when considered alone – firmly shows the actor’s intent to commit the crime. i. Defendant’s action must speak for itself, considered without other evidence that may demonstrate criminal intent. ii. WI statute: “An attempt tot commit a crime requires that he actor have intent to perform acts and attain a result which, if accomplished, would constitute such a crime and that he does acts toward the commission of the crime which demonstrate unequivocally, under all the circumstances that he formed the intent to commit the crime…” What are the Defenses to attempt? I. What is an impossibility defense? (Not always clear which one applies, often argue both). a. “True” legal impossibility: a person mistakenly believes that it is a crime to do what he sets out to do. i. Common law defense because such a person has not demonstrated a willingness to do things actually prohibited by the law, and thus has not shown actual dangerousness. b. Factual impossibility: sometimes a defendant has set out to do something (or to cause a particular result) that would, if accomplished, constitute a crime, but because of factors of which he is unaware, there is no chance he will succeed in doing these things or causing the results. i. This is rejected as a defense because the defendant’s actions demonstrate his dangerousness and culpability. II. MPC approach: No impossibility defense, but tension with principle of legality. a. Tension with principle of legality: i. MPC1.01(1)(c) states that a person cannot be punished as a criminal for something that is not punishable by our criminal laws. (Principle of legality).
ii. The principle of legality is a narrower subset of the legal impossibility defense. The legal impossibility defense encompasses the principle of legality. iii. Issue: retention of legality v. bar of impossibility defense. I. She thinks she is smuggling in French lace, but she’s really smuggling in English lace. a. Legal Impossibility can be a defense because it is not illegal to smuggle English lace. b. Principle of Legality does not cover this scenario because there is a statute against smuggling. If there was no statute against smuggling, but she thought there was, she would have a defense. b. MPC 5.01(4): Allows for renunciation (not respected by common law): i. The defense of renunciation assumes that there has been an attempt. ii. Conditions on renunciation: has to be voluntary in a very subjective sense (the defendant really didn’t want to commit this crime) and the renunciation must be complete in the sense that it’s permanent. iii. This is an affirmative defense: burden of proof on defendant. iv. Stopping because you see a cop IS NOT voluntary. How can a defendant mitigate the charge of Attempt? I. Mitigation of the grade of the charge is a judge power: a. MPC 5.05(2): Is the behavior so unlikely to cause harm? Consideration of whether or not the person is dangerous. What are the punishments for attempt? I. Common law: Usually less than that for the complete crime (in CA, maximum of half the sentence). II. MPC 5.05(1): authorizes same penalty as target crime (except for 1st degree felonies and capital crimes). For what kind of crimes is there no attempt? I. Crimes requiring non-intentional result: If a crime requires a result and a mental state less than “intent” regarding that result (i.e. negligence), most courts hold that there is no crime of attempted commission of that offense. a. This is because the mens rea requirement of attempt would automatically increase the requirement for the target crime above what was intended. What about attempt of a strict liability offense (target crime that does not require mens rea)? I. Sometimes held that proof of intent is necessary to convict for an attempt to commit a strict liability crime (i.e. statutory rape). Must be proven that the D acted with an intent to bring about the proscribed result. I committed a crime. How can I get off? Are you Justified… I. What is the starting point? a. The justification question only arises when the prosecutor has proven all elements of a crime beyond reasonable doubt. b. Then, the defendant comes up with an affirmative “justification” defense.
i. Must be raised by defendant. ii. Defendant has the burden of proof BUT not beyond a reasonable doubt like the prosecution: preponderance of the evidence. c. What does it mean if the jury decides acquittal? The conduct was justified in this case. d. Imperfect v. perfect justification (think 3.09): imperfect justification does not lead to an acquittal but mitigates crime, i.e. from murder to manslaughter. Important distinction: There are two types of defenses in common law, affirmative defenses (yes, but) and defenses that undermine the prosecution (mistake of law/fact). II. I see two evils (residual part of Justification): a. Common Law: i. Is there imminent danger of that harm, i.e. is it necessary? ii. Is Evil#1 a sufficient means to avoid the greater harm? iii. Harm involved in committing evil #1 is less than that involved in committing #2. b. MPC 3.02(1)(a): “Greater” harm threatened: The defendant must have committed the crime for the purpose of avoiding a greater harm or evil to himself or someone else. In principle, all that should be required is that the defendant reasonably believed the threatened harm is greater than that involved in the crime AND c. MPC 3.02(1)(b): The code nor other law defining the offense provides exceptions or defenses involved in the specific situation AND d. MPC 3.02(1)(c): A legislative purpose to exclude the justification claimed does not otherwise plainly appear. e. BUT 3.02(2): similar to 3.09 (if the defendant believed as he did recklessly or negligently, he can be held liable for crimes with reckless or negligent mens rea requirements). III. Escaping from prison a. Prisoners who are captured after escape argue that escape was necessary to avoid greater evils that awaited them in prison (such as sexual assault). Generally, these claims have been rejected on the ground that there were other, non-criminal options available, such as reporting the danger to authorities. i. BUT Duty to surrender: many courts have indicated a necessity defense is available to the escapee if, once the immediate threat of harm was over, the defendant promptly reported to authorities. b. The Lovercamp test – Elements that serve as a guideline. i. Prisoner faced with specific threat of death, sexual attack ii. No time for complaint to authorities or history of futile complaints iii. No time or opportunity to resort to courts iv. No evidence of violence towards prison personnel or other “innocent” persons in escape v. Immediately report back to proper authorities after immediacy has disappeared. I shot the sheriff, because the Sheriff was going to kill me. I. Killing someone in Self Defense: c. Deadly force is the critical question. Is deadly force justified?
d. Is deadly force justified if the other person is not using deadly force? i. Pre-MPC/Common Law: Deadly force used to prevent imminent and illegal use of deadly force. ii. MPC 3.04(1)(b): Increases justifications for use of deadly force: threat of death, serious bodily injury, kidnapping, rape. e. Is deadly force justified if the threat is not imminent? i. Pre-MPC/Common Law: Deadly force used to prevent imminent and illegal use of deadly force. ii. BWS: A way to establish imminence and credibility for a battered wife trying to predict imminence, i.e. a husband is “about to use deadly force”. iii. MPC 3.04(1): Instead of imminence, uses language “immediately necessary on the present occasion.” 1. Presumably this allows use of self defense a little earlier than imminence. f. Must be a reasonable belief that the threat is imminent and deadly force was necessary: i. MPC: 1. All provisions look subjective (what did the actor think)? BUT this subjectivity is cross-referenced with MPC 3.09. 2. MPC 3.09: “mistake provision” that says yes, you believed it was necessary, but you were wrong, and if you were reckless or negligent in being wrong, you can still be convicted of crimes requiring recklessness or negligence (negligent homicide). 3. What it boils down to for subjective v. objective in the choice to use deadly force: There is overlay, meaning that a defendant will not be convicted of the highest grade offense, but still convicted. ii. Common Law: 1. Belief that deadly force is necessary and/or threat is imminent must be reasonable (objective standard). a. It would follow that the defendant’s actions in response to the believed imminent and unlawful threat be reasonable as well, though all states do not extend the reasonableness requirement to the defendant’s actions. Is this what happened in Goetz? 2. Look at pg. 753: NY statute in Goetz case. g. Is deadly force justified if the defendant can safely retreat? i. Common Law: split between whether or retreat is required. 1. Minority: Required 2. Majority: Not a strict requirement (though ability to retreat can enter into determination of reasonableness). ii. MPC 3.04(2)(b)(ii): Limited retreat requirement. If the defendant knows (not thinks) that there is a way to retreat safely, the defendant must retreat before using deadly force (unless in his home). If there is any doubt as to the defendant’s safety, the defendant can use deadly force. h. Is deadly force justified for the aggressor? i. Common Law: aggressor looses self defense defense if he is the aggressor AT ALL (push someone, they pull out a gun, you do not have the right to kill that person because you pushed them first).
ii. MPC 3.04(2)(b)(i): If you are the aggressor you loose privilege of self defense, BUT only if you use deadly force, i.e. if you push someone (you are the aggressor) and that person pulls out a gun and you in response use deadly force to stop his attack, you still have it the self defense defense. Battered Woman Syndrome – A special case with regards to use of deadly force in self defense: I. Major problems with defense: a. Imminence of the threatened harm: the defendant usually attacked the victim after a particular episode of abuse ended. Consequently, any harm she may have feared from the victim arguably was not “imminent” as required by common law self-defense. b. Deadly force not necessary: the absence of any physical barrier to the defendant leaving the relationship suggests options were sufficiently available as to make her use of deadly force objectively unreasonable. c. Public Policy: does it make it too easy to kill your husband? II. Responses a. Expert testimony: effects of abuse lead to conclusion that leaving the relationship or otherwise preventing further abuse is not an available option, thus further violence is inevitable. b. The court does not hear expert testimony to displace the “reasonable” person standard”. For battered wives, there is not a “reasonable battered wife” standard. Instead, BWS exists to support credibility of BW as best person to know of imminent danger. III. Elimination of requirement of imminent harm: a. Some say that the law should no longer impose a requirement that the defendant have reasonably perceived the threatened harm as imminent. Rather, all of the relevant policy concerns would be satisfied if the law required only that the defendant reasonably perceive the use of deadly force in self-defense to be necessary. He stole my bicycle! II. Defense of Property i. Common Law and MPC: No trap guns. Mechanical devices have no discretion when defending property. i. Deadly force in defense of property is only justified if the defendant fears threat of deadly harm or using force other than deadly would put the defendant at risk of serious bodily harm. (MPC 3.06(3)(d)). Sure he was 13, unarmed and stole $10, but he was trying to get away! I. How far can Law Enforcement go? a. Common Law: any level of force is justified to apprehend. Why? Historically, there were a lot of death penalty crimes. b. MPC 3.07(2)(b): Apprehension of a subject and use of DEADLY FORCE. i. Follows the modern view permitting the use of deadly force only when the crime for which the arrest is being made is a felony, the officer is an officer, the there is not risk to innocents, AND the crime for which the victim is being arrested involved the use or threatened use of deadly force, OR if there was a substantial risk that the subject would cause death serious bodily injury if the arrest were delayed. c. MPC 3.07(1): Resisting arrest and the use of FORCE:
i. Use of force is justifiable if the officer believes the force is immediately necessary (BUT 3.07(2), the actor must make know the purpose of the arrest). d. Constitution and the 4th Amendment: i. Imposes limit on use of deadly force in situations where there is no indication of a threat of serious harm to the police officer or to anyone else. There must be some kind of threat to respond to in order to justify deadly force. e. Distinguish between apprehending a criminal and resisting arrest: i. Law enforcement may have right to use force (including deadly force) in his own defense when suspect is resisting arrest. However, the issue here is one of self-defense and should be carefully distinguished from the right to use force to make an arrest.