Law School Outlines - Criminal Law

1 Criminal Law Note: Most cases don’t make it to trial, but the occasional trial is important because they set guidelines for plea negotiations. Two types of defenses: missing element (state has not proved an element of the crime beyond a reasonable doubt) and affirmative defense (defendant admits to crime, but has a justification). I. ELEMENTS OF JUST PUNISHMENT: DEFINING CRIM. CONDUCT A. Principles that function to limit the distribution of punishment: 1. Culpability: To safeguard conduct that is without fault from criminal condemnation. Punish people who deserve it. 2. Legality: To give fair warning of the nature of the conduct declared to constitute a defense. Due process, state has burden of proof beyond a reasonable doubt, etc. 3. Proportionality: To differentiate on reasonable grounds between serious and minor offenses. Does the level of punishment fit the crime? B. Elements of crime 1. conduct: Bodily movement or omission. 2. attendant circumstance: In order for the offense to occur, certain circumstances must be present when the actor performs the prohibited conduct and or causes the prohibited result. Examples include absences of consent in rape, or commission of a crime at night. 3. result: Crime defined in terms of a prohibited result. Homicide is an example. C. Elements for Establishing Culpability: Actus Reus and Mens Rea 1. Actus Reus-Culpable Conduct (conduct of the crime): the physical or external portion of the crime. Consists of (1) voluntary act (or a failure to perform a voluntary act that one has a legal duty to perform), (2) that causes (3) social harm. Note that speech can be sufficient conduct as well as possession, see MPC 2.01 (4). a. Voluntary act: a person is not guilty of a crime unless her conduct includes a voluntary act, i.e. a conscious exercise of the will. i. Act: Bodily movement, which involves physical but not necessarily visible behavior (could be muscular contraction). ii. Voluntary: Willed contraction of a muscle, i.e. movement following volition. 2 Martin v. State (1944): people cannot be criminally punished for acts they commit involuntarily. The statute presupposes a voluntary state. Note: Non-actions: Not a person’s action (Martin picked up and carried out by police). Caused actions: Forced movement (Police order Martin to go outside and he complies). The actor makes a conscious decision to act, but the act is not voluntary because it is an influenced decision. iii. To serve the purpose of deterrence, the act should be voluntary (to deter willful actors). b. Recognized Exceptions of Voluntary Actions (MPC 2.01) i. reflex or convulsion People v. Decina: Even though a reflex or a convulsion is an excuse, the actor in this instance cannot use this defense because he knowingly undertook the risk of driving while suffering from a disease that is characterized by frequent convulsions, etc. The actus reus was established when he began driving. ii. a bodily movement during unconsciousness or sleep People v. Newton (1970): Unconsciousness, when not self-induced (voluntary intoxication), is a complete defense to a criminal act. Note: Unconsciousness need not reach the physical dimensions commonly associated with it: it can exist where the subject physically acts in fact, but is not at the time conscious of acting. Mrs. Cogdon’s case illustrates that sleepwalking falls into the category of unconscious behavior; therefore, the act she committed in this state is not criminally punishable. iii. conduct during hypnosis or resulting from hypnotic suggestion iv. a bodily movement that otherwise is not a product of the effort or determination of the actor, either conscious or habitual c. Status v. Conduct: must be a conduct, violates 8th (cruel and unusual punishment) and 14th (due process) amendments to punish someone for being sick or being of a status 3 i. Robinson v. California (1962) Criminally punishing one for the status of having a disease/illness/addiction is unconstitutional and therefore, constitutes an infliction of cruel and unusual punishment. Punishing a status is problematic for 2 reasons: 1-punishing a condition where there is no act or conduct or 2-punishing an illness which is involuntary. ii. Powell v. Texas (1968) A person in a condition /status of being diseased (chronic alcoholic) can be criminally punishable for committing an illegal act that may have stemmed from his status (a compulsion symptomatic of the disease). In this case the person is convicted of an act and not just for the status of being a chronic alcoholic; therefore, the rule from Robinson cannot be used. Since there was conduct and he did act within free will, that his choice to drink may have been constrained but it still was a choice. Narrows Robinson’s holding: one may be punished for conduct even if it is a symptom of a status. d. Omissions: failures to act, but still considered conduct, i.e. failure to act in face of statutory duty or lack of action that causes a subsequent act. i.Common Law Approach a. Duty must be a legal duty, and not a mere moral obligation. Pope v. State (1979) Someone who fails to act and is not legally required to act cannot be held accountable on the basis that there may have been a moral obligation to act. Note that under misprision of felony, there must be active concealment to be actionable; nondisclosure is not actionable. b. Duty must be imposed by law or contract and the omission must be the direct cause of death or injury. When is there a legal duty to act? (Beardsley) 1. under a statute imposing a duty to care for another, e.g. hospitals and teachers 2. status relationship, e.g. parent 3. contractual duty to care, e.g. daycare 4. voluntarily assumed care for or secluded the victim from others in a manner which kept others from helping. c. Jones v. United States (1962) When evaluating the presence or absence of a legal duty to act, one must consider the Beardsley rule. 4 Note: Not requiring action under certain circumstances protects individual freedom, i.e. choosing whether or not to report a crime and to protect Good Samaritans. There are other penalties for failing to act that society inflicts on a person. It is not always needed to criminally punish. ii. MPC Approach 2.01 (3): Does not differ significantly from common law: Liability for the commission of an offense may not be based on an omission unaccompanied by an action unless: a-the omission falls within the law defining the offense, i.e. the law actually states that if you perform such an omission, you will be held liable. b-a duty to perform the omitted act is otherwise imposed by law. 2. Mens Rea: Literal meaning is evil mind; particular mental state provided for in the definition of the offense that must accompany the act that produces harm; moral blameworthiness. a. subjective standards: what is inside of a person’s head, this is difficult to determine so this is proved by inferences from objective standards, give the specific circumstances, a reasonable person would have been aware of the danger/risk. Recklessness requires this, an awareness of the risk, but the person chose to act anyway. b. objective standards: what a reasonable person would have been aware of. Negligence requires this; the actor should have known the risk. c. absolute/strict liability: a person is held accountable by virtue of conduct regardless of mens rea. d. Evolution of Mens Rea: i. Until 1500: all harms strict liability; no mens rea requirement. ii. 1500-1800: development of mens rea concept; law sought to punish bad people; mens rea means wickedness. iii. 1800’s: law sought to punish bad acts, not bad people; mens rea described as mental state with respect to specific act, i.e. must have a bad intention with respect to the conduct. 5 Regina v. Cunningham (1957) A mental state of malice exist for each element of the crime, while old rule required a general wickedness (D held liable for all consequences from a single wrongful act). 1-an actual intention to do the particular kind of harm that was in fact done or 2-recklessness as to whether such harm should occur or not. Regina v. Faulkner Collateral acts that occur while committing or concealing a felony creates criminal liability even if the collateral act is accidental; therefore, this demonstrates strict liability. See Cunningham rule. iv. 1962: MPC drafted; required that state prove mens rea with each element of the crime; actus reus and mens rea must occur simultaneously a. MPC: Every element of crime is either conduct, circumstance, or result. Must have some level of mens rea with respect to each conduct, circumstance, and result element. e. Model Penal Code Approach 2.02 (2) (Culpability levels replace CL notion of mens rea) i. purpose: Subjective test; Jury can infer based upon objective circumstances; Hardest to prove because highest standard (therefore, harshest penalties) a. conduct: conscious objective or desire to engage in conduct of that nature b. circumstance: awareness that it exists c. result: conscious object or desire to cause that result ii. knowledge: Subjective test; Jury can infer based upon objective circumstances a. conduct: aware of conduct b. circumstance: aware that it exists c. result: aware that it is practically certain that it will result iii. reckless: a. Conscious subjective awareness (for all) b. Decision to run the risk is a gross deviation from reasonable standard of conduct that a law abiding person would do (objective) in the actor’s situation (subjective) c. Risk is substantial and unjustifiable 6 d. Result? iv. negligently: a civil standard; objective; actor should have been aware of the risk, i.e. failure to perceive a risk v. Note: -For criminal system to be involved, crime should have a culpability level of at least recklessness. -If statute is silent regarding mens rea, state should at least prove recklessness. -If statute allows prosecution based upon negligence, then it is ok. -People cannot be punished for wishing-need a.r. and m.r. to be culpable. vi. MPC 2.02 (4): Prescribed Culpability Requirement applies to all material elements, i.e. must have mens rea with respect to each element. vii. Crimes defined by mens rea and not motive because question of motive does not legally change guilt or innocence. Instead, motive should be considered during sentencing to evaluate actor’s subjective perspective. viii. Specific Intent Crimes: requires that the action must be done with some specified further purpose; state must prove conscious objective/purpose to bring about a future circumstance or result; Another usage is to describe a crime that requires actual knowledge (i.e. subjective awareness) of some circumstances required by the crime to exist. ix. General Intent Crimes: requires awareness of conduct; sufficient to convict if actor did an intentional act; lower standard-lesser mental state than knowledge (negligence or recklessness suffice as to a required circumstance) ***MPC 2.02 eliminates this distinction by replacing it with the 4 part culpability hierarchy.*** x. Santillanes: The court holds that the New Mexico statute requires that “negligently” be interpreted to require a showing of criminal negligence instead of ordinary civil negligence. Civil negligence standard, as applied to the child abuse statute, improperly goes beyond its intended scope and criminalizes conduct that is not morally culpable (here, conduct was merely accidental). When a criminal 7 statute is silent about whether a mens rea element is required, presume criminal intent as an essential element of the crime. xi. Jewell: To act “knowingly” is not necessarily to act only with positive knowledge, but also to act with an awareness of the high probability of the existence of the fact in question (analysis adopted in MPC). Gov’t will complete burden of proof by proving that if D does not have actual awareness of the drug, his ignorance is a direct result of his having made a conscious purpose to disregard the presence of the drug, with a conscious purpose to avoid learning the truth. (D knew compartment existed and that it probably contained pot, but deliberately avoided positive knowledge of its presence to avoid responsibility. f. Mistake of Fact: i. At Common Law: Ignorance or mistake of circumstance element of a crime; not an affirmative defense, but a missing element defense because D never formed the requisite mens rea. State fails to prove the intent (mens rea) to convict. “By virtue of my mistake, I did not have to necessary mens rea to be convicted.” ii. Approaches to Mistake of Fact as a Good Defense: a. Bramwell (Prince): Honest and unreasonable belief is no defense if underlying conduct is immoral. b. Brett (Prince’ s dissent): Honest (subjective) and reasonable (objective) belief is a good defense. c. Hailsham (Morgan) : Honest mistake, even if unreasonable, is a defense. d. Cross (Morgan): [MAJORITY/COMMON LAW RULE]: Honest belief is a defense in specific intent crimes. Honest and reasonable belief is a defense in general intent crimes. iii. Note: MPC combines Mistake of Fact and Mistake of Law into one section MPC 2.04 (1). iv. Goal of punishing for MOF is to deterrence. v. MPC Culpability Structure: 8 a. Purpose/Knowledge: No reasonableness requirement; Subjective honest belief is sufficient to overcome mens rea. Note that specific intent often requires that D acted with p or k. b. Recklessness/Negligence: Mistaken belief must be honest and reasonable. Note that general intent often requires that D acted with r or n. vi. Regina v. Prince: Mistake of fact (even if honest and reasonable) should not be allowed as a defense when the committed act is inherently wrong (morally wrong to take unmarried young woman from her parents without their consent; if D had permission of parents or was mistaken about the parent’s consent, then it would not be an immoral act because he would not know he was committing a wrongful act). The dissent says that the belief must be honest and reasonable, i.e. do not care about morality. vii. White v. State: Court followed strict liability and did not require mens rea. Abandoning a wife is a wicked immoral act in itself. ***See MPC 213.6 (1) re: strict liability*** viii. Regina v. Morgan: An honest belief (subjective) is sufficient to raise a defense of mistake of fact. The state must prove that D intended to have nonconsensual sex where honest belief of the victim’s consent negatives such intent, irrespective of what is reasonable to believe. g. Mistake of Law: i. Types a. Mistake of Fact b. Type 1: Mistake of Law (civil legal provision); MPC 2.04 (1) Where the mistake lies in another area of law, has to do with a circumstance element of the crime. Honest belief can negate the mens rea in a specific intent crime no circumstance element in a general intent crime. 9 1. Regina v. Smith: Mistaken about rule governing an area of property law. D made improvements that became fixtures and ownership shifted to the landlord, yet D believed that he still owned the fixtures. In this case, D’s belief was honest and reasonable; therefore, a defense of mistake of law is permitted because he did not intend to destroy the property of another. Court rules for D, by taking a general intent statute and turning it into a specific intent statute; therefore, D must have mens rea in relation to each element. 2. White case: c. Type 2: Mistake of Law concerning the existence or meaning of the law. Under MPC 2.02 (9), no defense (common law maxim: ignorance is no excuse). Ignorance of the law. Mistaken as to the existence of crime. Never a good excuse unless the jurisdiction failed to publish it. 1. Woods: D was mistaken as to the existence of a law. d. Type 3: Mistake of Law based upon an official statement of law. D misinterprets the law. Ignorance is never a good defense, unless D relies on an official interpretation upon which he can reasonably rely. MPC 2.04 (3) requires a reasonable reliance; official statement of law later found to be erroneous. MPC 2.04 (3)(b) lists categories of decisions makers who have authority to give official statements of law; i.e. (1) statute, (2) judicial decision, (3) administrative order, (4) an official interpretation of the public officer or body charged by law with responsibility for the interpretation, administration or enforcement of the law defining the offense. 1. Marrero: D mistakenly relied upon his own erroneous interpretation of a statute. A defense was not permitted. 10 2. Albertini: D relied upon a court decision, only later found to be erroneous. A defense is permitted. ii. When is a mistake of fact/law applicable to general and specific intent crimes? a. General Intent: For MOF, an honest and reasonable belief is a defense. For MOL, there is no excuse (Common Law maxim, that ignorance of the law is no excuse, applies; see Wood). b. Specific Intent: For MOF and MOL, an honest belief is a defense. (Weiss and Smith for MOL). Note: Line between MOF and MOL is fuzzy. iii. MPC 2.04: Ignorance or Mistake Note: It is common for states to adopt MPC, but to change in small ways. This leads to arguments regarding legislative intent. Some argue that small changes represent a purposeful deviation, while others say it is a stylistic change still meant to follow the MPC. -(1): gets rid of MOF/MOL distinction Ignorance or mistake as to a matter of F or L is a defense if: -(1)(a): ignorance or mistake negatives the p, k, belief, r, or n required to establish a material element of the offense. -It is irrelevant to distinguish between general and specific intent crimes? (TYPE 1 MOL and MOF -(1)(b): the law provides that the state of mind established by such ignorance or mistake constitutes a defense. -(2): The defense is not available if D would be guilty of another offense had the situation been as he supposed. In such a case, the ignorance or mistake of D shall reduce the grade/degree of the offense of which he may be convicted to those of the offense of which he would be guilty had the situation been as he supposed.(Brett) 11 -(3): A belief that conduct does not constitute an offense is a defense when: -(3)(a): the statute or other enactment defining the offense is not known to the actor and has not been published or otherwise reasonably been made available prior to the conduct alleged or (TYPE 2 MOL) -(3)(b): he acts in reasonable reliance on an official statement of the law later determined to be invalid or erroneous contained in a judicial decision (Albertini), an administrative order or grant or permission, or an official interpretation by somebody responsible for the interpretation, administration, or enforcement of the law defining the offense. (TYPE 3 MOL) (Marrero, Cox, Hopkins) -(4): D must proved by a preponderance of evidence that he had the mistake of evidence that he had the mistake. g. Strict Liability: Does not require awareness of all of the factors constituting the crime (removes the requirement of mens rea; thereby focusing on actus reus). There is a low penalty/stigma, so that the state is willing to sacrifice having false convictions in order to create utilitarian stability. i. Morissete v. United States: Draws a distinction between crimes that are malum prohibitum (a statute that says the act is wrong; regulatory crimes) and malum in se (crime is morally wrong). If D’s crime had been a violation of a regulation, it could be held in strict liability. However, because D’s crime involved theft (malum in se) it required mens rea; therefore, not strict liability. Note: It is okay for the legislature to invoke strict liability for regulatory crimes because there is not a stigma attached to conviction. ii. State v. Baker: In order to escape strict liability for an involuntary violation of a criminal strict liability statute, a D must establish that his wrongful act was the result of an unforeseen occurrence or circumstance which was not caused by him and which he could not prevent. Her, the 12 court held that because D chose to use the cruise control, it was a voluntary act (even though it was defective). h. Vicarious Liability: When a person can be held criminally responsible for the unlawful acts of another. VL is SL without regard to mens rea; only must prove it is a voluntary act. i. State v. Guminga: Substantive due process claim that requires a balancing of public interests and personal liberty. The statute (making employer vicariously liable for employee’s actions) may serve public interest by providing deterrence. However, the private interests affected (i.e. liberty, damaged reputation) outweigh the public interests, especially when there are alternative means to reach the same end, i.e. deterrence (e.g. civil fines or license suspension.) Note: The majority view is represented in the dissent’s opinion. It states that public interest is more important; therefore, vicarious liability should be imposed in order to sufficiently deter, creating incentives for employers to impose stricter rules and supervise more closely. II.HOMICIDE A. History 1. Early Common Law (late 1400’s): Only one homicide offense: murder with a penalty of capital punishment. Note: One exception to mandatory death was made for the clergy; this reflected a clear class bias because clergy were of a higher social class, and could purchase their way out of the penalty. 2. 1496 to 1547: England passed statutes (Henry VII and VIII) creating a distinction b/w murder and manslaughter and eliminating exception for clergy. Differentiation was based on malice aforethought, which was defined as cool reflection, calm and deliberate decision-making, advanced planning. If had malice aforethought, then guilty of murder and received the mandatory death sentence. Idea behind this was that the worst killers were those who planned calmly in advance. 3. Over many years, this construction of malice aforethought collapsed into a term of deception. Malice aforethought came to mean: a. simple intention or purpose to cause death b. intent to cause serious bodily injury that in fact causes death c. extreme forms of recklessness (e.g. shooting a gun in a crowded bar) 13 ABANDONED and MALIGNANT HEART d. intent to commit a felony which causes death 4.Common Law 1700’s: Malice aforethought tended to mean purpose or intention to kill, even if only for the split second before the action. This led to jury nullification because the jury was finding people who committed intentional homicides innocent just to avoid issuing the harsh death sentence. 5. 1794: Pennsylvania enacted the first homicide statute in U.S (which was adopted virtually in every state). The statute created a distinction b/w first and second degree murder. First degree murder required premeditation and deliberation (malice aforethought) and carried with it the mandatory death penalty. This is the same distinction which was originally used to distinguish b/w murder and manslaughter. 6. MPC formulation (approx. 1960): Rejects premeditation, deliberation, malice aforethought. Defines distinctions between degrees of homicide using 4 part culpability scale: most serious murders committed purposely, and least serious committed negligently. 7. 1960’s – 1970’s: The Supreme Court in Furman struck down the automatic death penalty. The Supreme Court in Greg later reinstated the automatic death penalty, but added a careful jury instruction (weighing aggravating and mitigating circumstances). This led to a two-part trial where the jury must first decide guilt or innocence and then decide the appropriate punishment. This led to less influence of the death penalty on the determination of guilt. B. Common Law Approach vs. MPC Approach 1. Common Law Approach: California Penal Code a. Murder: Requires malice aforethought (i.e. deliberate intention and presence of a malignant heart) i. First degree: Requires willful, deliberate and premeditated conduct (e.g. poisoning, lying in wait, torture); Felony murder is still considered first degree; Punishable by death or life imprisonment. ii. Second degree: All other murders b. Manslaughter: Killings without malice i. Voluntary (heat of passion which disproves malice b/c the two are inconsistent) ii. Involuntary (that which is made in the commission of another unlawful act) iii. Vehicular (driving a car negligently) 14 c. The Premeditation-Deliberation Formula People v. Anderson (1968). -Three categories of evidence that are sufficient to sustain a finding of premeditation and deliberation: i. Planning activity ii. Motive from which jury could reasonably infer that D intended to kill victim (evidence of D’s relationship to victim). iii. Manner of killing (preconceived design): Is jury able to reasonably infer that the wounds are deliberately calculated to result in death? NOTE: This court will sustain verdicts of first degree murder when there is evidence of all three types, OR when there is strong evidence of #1 OR evidence of #2 combined with either #1 or #3. -In Anderson, b/c victim was stabbed several times, D was not acting calmly or coolly; instead, evidence of killing in a frenzy; therefore, NOT premeditated. -Here Court emphasized: pre-existing reflection; actual deliberation or forethought; careful thought; weighing of considerations; deliberate judgment or plan; preconceived design…D has evaluated alternatives and chosen a course of conduct. NOTE: Since Anderson, CA no longer treats the categories above as absolute tests; Instead, moving toward PA model. 2. MPC Approach: NY Penal Code: Distinguishes levels of homicide based on degrees of culpability; Rejects using premeditation and deliberation as basis for identifying murders that deserve the greatest punishment b/c it disagrees that those murders are any more blameworthy than those under impulse and provocation. a. Murder i. First degree: Applies to killing of a policeman or killing while in custody ii. Second degree: -Committed w/reckless knowledge and intent (purpose) to cause death, except where he acted under extreme emotional disturbance) -With a depraved indifference to human life, D engages in reckless conduct which creates a serious risk of death to another and death results. -Death caused during the commission of a felony. 15 b. Manslaughter i. First degree: Committed when he intends to cause serious injury, but instead causes death ii. Second degree: When a person recklessly causes the death of another. 3. Mixed Approach (Combination of CL and MPC): Pennsylvania -General Definition of Homicide: All unlawful killings (MPC approach: intentionally/purposely, knowingly, recklessly, or negligently) causing death. a. Murder i. First degree: intentional, i.e. willful, premeditated, deliberate (see CL approach); Punishment is death or life imprisonment. ii. Second degree: felony murder punishable by life imprisonment iii. Third degree: All other killings w/a max. of 20 yrs. Imprisonment b. Manslaughter i. Voluntary: Killing done by provocation or heat of passion or an imperfect self-defense (unjustified/unreasonable self-defense) ii. Involuntary: Reckless or negligent killing. c. The Premeditation-Deliberation Formula Commonwealth v. Carrol: Collapse of premeditation and deliberation into simple intention or purpose, so can be satisfied w/o a period of advanced planning. -D argues that crime should amount only to second degree murder b/c no premeditation, no advance planning, and action was impulsive/reflexive -However, based on D’s own statement after his arrest and his testimony at trial (both suggestive that he was terribly provoked by his allegedly nagging, belligerent and sadistic wife) it is clear that this was a willful, deliberate and premeditated murder in the first degree. -Reasoning: Society would be unprotected if the law permitted an irresistible impulse to excuse a murder or reduce it to second degree. C. Two types of defenses 1. Justification: There was necessity and it was reasonable. Therefore, it was not a wrongful act b/c any reasonable person would have had the same reaction. EX: Complete self-defense. 2. Excuse: D’s act was wrong, but shouldn’t be punished because there is some circumstance that prevents blameworthiness, e.g. insanity, duress, or infancy. D behaved unreasonably, but is not capable of exercising 16 reasonable control/conduct. There is something about D that makes him less morally culpable. D. Provocation/Extreme Emotional Disturbance: Partial defense b/c it removes the requirement of malice to reduce a charge of murder (which is defined by malice aforethought) down to manslaughter. Not a complete defense; only serves to mitigate murder to manslaughter. 1. Common Law: Heat of Passion a. Provocation and malice are inconsistent (cannot have both together) so that proof of one necessarily disproves the other. If there is malice, then there is no heat of passion, and vice versa. (Remember that malice aforethought distinguishes murder from manslaughter.) b. When D uses a provocation defense, he is admitting that the killing was done intentionally, so that if he loses on manslaughter, he will be found guilty of first-degree murder. c. Viewed as a question of fact so that juries are left to decide. d. Most jurisdictions follow (i.e. majority view) a traditional categorical approach, which allow only certain circumstances to support heat of passion claim (in order to provide uniformity): i. Extreme assault or battery on D ii. Mutual quarrel or combat iii. D’s illegal arrest iv. Injury or serious abuse to a close relative of D v. Sudden discovery of spouse’s adultery State v. Thornton: -The killing of a seducer/adulterer in the heat of passion constitutes voluntary manslaughter absent any evidence of actual malice because a reasonable person would react in the same way (CL principle). -While it is possible to argue that D engaged in planning activity (e.g. long period of observing the couple), if look at isolated conduct (as opposed to surrounding circumstances) it is obvious that the act of provocation (i.e. adultery) triggered D’s immediate response. e. Traditional Common Law Limits on Provocation Defense: i. Cannot be used when there has been adequate cooling time; CL requires that homicidal act must occur w/in the “throws” of the provocation 17 ii. Mere words (even if those words inform D of a provocative event that has taken place) are not sufficient provocation. State v. Shane -Court follows a bright-line (categorical) rule: Words alone informing another of infidelity do not constitute reasonable sufficient provocation to incite the use of deadly force. -D argues that there is an exception to this rule when words indicate sexual infidelity, and that such words are more inflammatory than an aggressive act. The Court rejects this arg. by challenging the archaic CL concept that b/c women are the property of their husbands, D is justified in the killing of his wife’s lover (adultery=highest invasion of property) Girouard v. State -D argues that provocation should not be limited to the categorical approach, and that any homicide that is criminal, but lacks malice (must be present for conviction of murder) is manslaughter. -Court adheres to categorical approach by finding that words alone are not enough for provocation. -Holding based on social necessity: domestic args. often escalate to furious fights, and cannot allow people to resolve such disputes by killing -Promotes deterrence and consistency f. Departures from the Categorical Approach i. Maher v. People (takes the minority approach): -Even though this fits into the traditional category of “mere words,” D’s evidence should have gone to the jury. Need to evaluate on a case-by-case basis. -Only time it wouldn’t go to the jury is if the judge finds that no reasonable jury could find that the evidence satisfies provocation. g. Model Penal Code Approach 210.3 (1)(b) i. Rejects CL provocation formula ii. Emotional or psychological infirmity that does not give rise to level of insanity iii. Burden remains on the state iv. Criminal homicide constitutes manslaughter: “Where D acted under the influence of extreme emotional disturbance 18 for which there is a reasonable explanation or excuse for the actor’s disturbance.” [Objective and Subjective-“The reasonableness of the excuse is determined from the viewpoint of a person in the actor’s situation under the circumstances as he believes them to be.” See MPC] v. The rationale supports the idea that people acting under extreme emotional disturbance are not as culpable and should not be punished for the highest level of homicide. vi. Fewer restrictions than the CL approach on the character of the extenuating circumstances that can qualify vii. Similar to CL in requiring that D’s response to the circumstances by reasonable (objective). vii. People v. Casassa: -D argues that the reasonableness of his excuse should be determined solely with reference to his own subjective viewpoint (MPC supports his argument). -However, the court rejects D’s arg and finds that D’s emotional reaction was so peculiar to him that it could not be considered reasonable so as to reduce the conviction to manslaughter. -When court inquired into the reasonableness of D’s disturbance, concluded that the murder was the result of malevolence rather than an understandable human response. -Court says that under the MPC, there is a 2-tiered test to determine if it can be used as a defense: (1) D must have acted under extreme emotional disturbance (subjective standard) and (2) There must have been reasonable excuse, the reasonableness of which is to be determined by the viewpoint of a person in D’s situation under the circumstances as D believed them to B (objective standard). -Shifts burden of proof onto D, but otherwise the same as the MPC E. Felony-Murder: The Basic Doctrine 1. Rationale of the Common Law Doctrine a. Strict Liability Concept: Does not require direct evidence of mens rea. Instead, allows the transfer of the mens rea for the felony to satisfy the mens rea requirement of the murder. Note: by transferring intent, P’s job is eased because he only has to prove 19 that D was committing a felony. He can then simply transfer the intent. b. People v. Stamp: -A felon is held strictly liable for all killings committed by him or an accomplice in the course of a felony, so long as the homicide is the direct causal result of the felony, regardless of whether the death was foreseeable or not. -“The robber takes his victim as he finds him:” The felony murder rule applies as long as a victim’s predisposing physical condition is not the only substantial factor bringing about his death. c. Under CL rule, if you commit any felony and that act results in death, it is considered murder. In constructive murder, malice aforethought exists in the intent to commit a felony that results in death. d. Deterrence rationale: Felony murder serves as a deterrence by holding felons who kill negligently or accidentally strictly responsible for killings they commit in the course of committing a felony (People v. Washington) e. Prosecution not required to prove malice aforethought. Irrebuttable presumption: Takes malice issue away from the jury. Instead, infer malice from the commission of a predicate felony (transfer mens rea). f. Against the CL felony murder doctrine: Utilitarian view is that felony murder punishes wrongdoers disproportionately to their wrong. 2. MPC Approach (210.2): Replaces the CL felony-murder doctrine a. Rule: If you cause death in the commission of a felony delineated by the code, the law presumes that you acted with extreme recklessness and indifference to the value of human life. b. “Such recklessness and indifference are presumed if the actor is engaged or is an accomplice in the commission of, or an attempt to commit, or flight after committing or attempting to commit robbery, rape or deviate sexual intercourse by force or threat of force, arson, burglary, kidnapping of felonious escape” MPC 210.2 (1) (b) 20 c. Replaces transferred intent concept (i.e. irrebuttable presumption) with a rebuttable presumption, where D can show that he took precautions and did not act with indifference to the value of human life. 3. Limitations on CL Rule of Strict Liability: a. Regina v. Serne (1887) i. This court narrows the common law rule by limiting felony murder to those felonies which are acts known to be dangerous to life and which are likely in themselves to cause death. ii. Malice aforethought definition is 2-fold: a. killing by an act done with an intent to commit a felony b. act done with knowledge that the act will probably cause death. iii. Not all felonies (as in CL), but only felonies dangerous to life. b. Statutory Reforms: Only one state adopted MPC approach; most states retained the Common Law rule with certain limitations: i. Enumeration of certain particularly dangerous felonies (i.e. arson, rape, robbery and burglary). This permits a first-degree felony-murder conviction. If nonenumerated felony, murder in the second degree. ii. Designation of particular felonies as the only ones on which a felony-murder conviction may be obtained. Other felonies serve only as possible basis of a manslaughter conviction. iii. The act is clearly dangerous to human life, i.e. the killing in the course of the felony is otherwise culpable (must meet recklessness level). iv. People v. Aaron: In order to convict of murder, it must be shown that D acted with intent to kill or to inflict great bodily harm or with a wanton and willful disregard of the likelihood that the natural tendency of his behavior is to cause death or great bodily harm. *************************************************************** First degree Murder: i. Requires premeditation and deliberation (mens rea) ii. If cannot prove p and d directly, may infer p and d if the felony is enumerated by statute. The state does not need to transfer intent. Second degree Murder: 21 i. Requires malice aforethought (mens rea): intent to kill or cause great bodily harm; extreme recklessness (malignant heart). ii. If felony is not enumerated, irrebuttable presumption of malice aforethought. Manslaughter: i. Does not require malice aforethought. **************************************************************** c. The Inherently Dangerous Felony Limitations: Takes away the least serious felonies as predicate for felony murder. i. People v. Phillips -Only felonies that are inherently dangerous to human life can support the application of the FM rule. -Court must look to elements of the felony (as defined in statute) in the abstract, as opposed to the particular facts of the case. (If you do not look to the elements in the abstract, every felony that caused a murder would be an inherently dangerous felony.) -In this case the felony was grand theft; court found that this felony in the abstract was not inherently dangerous to human life. ii. People v. Satchell -In determining whether a felony is inherently dangerous for the purposes of the felony murder rule, the court must assess the felony in the abstract, and avoid looking at the specific facts of the case, or any particular segment of D’s conduct. -Court found that possession of a concealed fire-arm by an ex-felon is not a felony inherently dangerous to human life. iii. Goodseal -In order to determine whether the felony is inherently dangerous to human life, the court must: i. examine the nature of the felony in the abstract ii. look at the circumstances of the felony’s commission d. Merger Doctrine Rationale: i. A felony murder instruction may not be given when it is based upon a felony which is an integral part of the homicide (i.e. assault). The felony and the homicide merge when the underlying felony comes so close to the crime of murder. The underlying felony must be independent of the homicide. 22 ii. Functionally all unlawful killings will be murder if assault can be viewed as a predicate felony (manslaughter would become an empty set because all killings involve assault). iii. In almost all cases FM doctrine is unnecessary because you could prosecute on a direct theory of murder (i.e. malignant and abandoned heart or extreme recklessness or disregard of value of human life). Because all of these alternative theories establish malice aforethought, it is not necessary to infer malice from the predicate felony. iv. Provocation and malice are inconsistent (Either D acted with malice or was provoked): If you reject the merger doctrine, you take away the defense of provocation because FM infers malice. Provocation cannot be a defense when malice is present; therefore, provocation cannot be a defense to a FM conviction. Ireland case (Cal. 1969) i. Initial merger case; first development of the merger doctrine. ii. Basic proposition: The felony-murder rule is inapplicable to felonies that are an integral part of and included in fact w/in the homicide. Wilson case (1969) i. Burglary is breaking and entering with the intent to commit a felony therein. ii. Here, Wilson committed a burglary with intent to commit an assault therein. iii. Because he had the specific intent to commit assault with a deadly weapon; the burglary merges with the homicide. iv. One these facts, the felonious purpose was the purpose to assault. People v. Burton (1971): Refinement of the Ireland rule i. If the felony was an integral part of and included in fact w/in the homicide, a further inquiry is required to determine if the homicide resulted from conduct for an independent felonious purpose (as opposed to a single course of conduct with a single purpose). ii. Armed robbery and homicide do not merge because the purpose of the conduct (armed robbery) was not the very 23 assault which resulted in death. The purpose of armed robbery is to acquire money or property and not to assault. The armed robbery was committed for an independent felonious purpose. Felony Child Abuse Cases i. Can commit felony child abuse in 1 of 2 ways: a. Direct assault: merges, b/c the assault is not independent. ***Cannot be the basis of felony murder*** b. Extreme neglect (acts of omission): Does not merge, because it is a separate and independent felonious purpose. ***Can be the basis of felony murder*** ii. People v. Smith (1984-CA) -Since child abuse in this case included direct assault, it was an integral part of and included in fact within the homicide, and therefore, the two merge. -The court distinguishes between direct assault and extreme neglect (Shockley case). See above. e. Causation Requirement: Killings not in furtherance of the felony i. Proximate Cause Theory: -Cut off liability at some point by breaking the causal chain. a. The result must have been a foreseeable consequence. b. There must have been a direct relationship b/w the act and the result. Commonwealth v. Almeida: -A police officer shot a fellow officer while attempting to apprehend robbers. The robber was properly convicted of felony murder because it was foreseeable that the police would arrive/deaths would result/etc… -It does not matter that the death was caused by someone other than D or an agent of D, since it was a foreseeable result. Commonwealth v. Redline: -D’s co-felon was killed by the victim of the crime. Should D be held responsible? -Almeida should not be applied; therefore, D should not be held liable. 24 -In order to convict for felony-murder (when a bad guy is killed), the killing must have been done by D or by an accomplice or by one acting in furtherance of the felonious undertaking. -However, the court refused to overrule Almeida and instead distinguished those facts from the facts of this case: In Almeida, the victim was an innocent party who was killed by a police officer, and the killing was excusable. In Redline, the deceased was a felon who was killed by the victim, and the killing was justifiable. -If a bad guy is killed by an innocent 3rd party in the course of a felony, then can’t charge under FM. When a good guy is killed by an innocent 3rd party, can charge under FM. ii. Agency Theory (Majority view): What is critical is who did the killing -Felony murder doctrine does not extend to a killing, although growing out of the commission of a felony, if directly attributable to someone other than the defendant or his accomplices. -Limits to deaths that were caused by D personally or by an agent of D. a. “But for”: If not for D’s act, it would not have happened. There must be a factual causation with respect to the death. State v. Canola: -Co-felon and victim killed. -This case held that D should not be convicted under FM for a killing of a co-felon if he was killed by one other than D or an agent of D. III. AFFIRMATIVE DEFENSES: EXCUSE AND JUSTIFICATION A. Excuse: D did something wrong, but withholding blame because D is not responsible/blameworthy in some way: 1. Variety of Excuses i. Involuntary Actions (Literally, no control over bodily movements) MPC 2.01-Missing element defense because there is no actus reus. 25 ii. Deficient but Reasonable: There is a literal power to choose, but the choice is so constrained that an ordinary law abiding citizen could not be expected to choose otherwise. a. Cognitive Deficiency: Defect of knowledge. (e.g. mistake of fact-missing element defense because no mens rea) b. Volitional Defciency: Defect of will (e.g. Duress: When a person commits a crime under such threats of physical injury that even a person of reasonable fortitude would have yielded to the threat. See MPC 2.09) iii. Status excuse: D is of a certain status (e.g. infancy or legal insanity) that makes her incapable of exercising reason. 2. Duress a. 2 Extreme Positions: i. Traditional Common Law Rule Elements -Objective test -The coercion must involve a threat of harm which is: a. Present, imminent, pending b. Of such a nature as to induce a well-grounded apprehension of death, or serious bodily harm (regardless of) if the act is not done c. “Well-grounded:” an objective standard, a man of ordinary courage would be unable to resist. -Note: Policy decision behind CL rule: (p. 898) The insistence under the CL on a danger of immediate force causing death or serious bodily injury may be ascribed to… judicial fears of perjury and fabrication on baseless defenses. ii. Pure Excuse Theory: “Flexible Rule” -Totally subjective standard: based on individual D’s situation, pure theoretical position (supported by academic commentators. -Would allow the jury to consider whether the accused actually lost his capacity to act in accordance with “his own desire, or motivation, or will,” under the pressure of real or imagined forces (i.e. threat does not need to be real). b. MPC 2.09 Approach: (Adopted by most jurisdictions) Duress shall be a defense to a crime other than murder if D engaged in conduct b/c he was coerced to do so by the use of, or threat to use, unlawful force against his person or a person of 26 another, which a person of reasonable firmness in his situation would have been unable to resist. (adopted by State v. Toscano) -MPC strikes a balance because person must have acted under a threat which a reasonable person (objective) in D’s situation (subjective) would have been unable to resist. -Takes away the requirement of imminence/immediacy and the requirement of death, serious bodily harm. These are now evidential, but not requisite. 3. Insanity a. Raised at different moments: i. time of crime’s commission ii. trial: because it is unconstitutional to try someone who is incompetent to stand trial. iii. execution: violation of 8th amendment to execute insame person. b. Rationale: i. Utilitarian: Insane people are not deterrable because they do not understand the nature of their act or that it was wrong. ii. Retributive: Insane people are not morally blameworthy. c. Traditional Common Law Rule: M’Naghten’s Case: Traditional Test of Legal Insanity (Still applied today in most jurisdictions) i. All presumed to be sane and to possess a sufficient degree of reason to be responsible for his crimes, until the contrary is proved. ii. At the time the act was committed the party accused was laboring under such a defect of reason from disease of the mind iii. As not to know the nature and quality of his act OR if he did know it, that he did not know that his act was wrong. a. Right/Wrong Test: At the time of doing the act, did D know the difference between right and wrong? b. Measured against wrong in the moral sense, not legal sense. c. Black and White test d. Criticisms of M’Naghten: Alternative Formulations 27 i. M’Naghten focused exclusively on cognitive impairments (i.e. Did D not know something by virtue of mental disease or defect). -But there are other kinds of impairments, i.e. volitional where person is unable to control conduct, even if there is an understanding of that conduct. a. 3rd prong added to M’Naghten test in many jurisdictions: irresistible impulse test, i.e. D completely deprived of choice or volition. -Unrealistic focus on cognition: Cognition axis intersects with mood and affect axis; mood and affect axis is ignored by M’Naghten. a. Focusing only on cognitive axis forced psychiatrists to answer questions of right and wrong, rather than allowing them to explain what D had. This role is too large and greatly influences the outcome of the case; while giving them greater reign than their training permits. b. Elimination of Right/Wrong Dichotomy: Durham Test: -Ended the professional perjury decried by psychiatrists. Allowed psych. to give their medical opinion instead of making legal conclusions. -Was D’s unlawful act the product of mental disease/defect? If so, complete defense. -Did not need to demonstrate irresistible impulse or that D did not know the difference between right and wrong. -Allows psychiatrists (status of D) and juries (moral/legal assessment regarding cause) to do what they do best. -Note: Test ultimately repudiated because it gave psychiatrists too much room to lecture the jury on what they “should find” and this usurped the jury’s function. e. MPC 4.01: Mental Disease or Defect Excluding Responsibility 28 i. 2 Prong Test: At time of criminal conduct as a result of mental disease/defect he lacks substantial capacity either to: -appreciate the criminality (wrongfulness) of his conduct -conform his conduct to the requirements of law (volitional prong) ii. Originally adopted in majority of jurisdictions, but after Hinckley many states withdrew adoption of MPC (went back to M’Naghten). iii. Differences between MPC and M’Naghten a. MPC is reworking of irresistible impulse test (does not need to be a sudden impulse) b. M’Naghten employs a simple cognitive concept, i.e. to “know”; MPC requires that D “appreciate,” meaning to know and to feel that knowledge c. M’Naghten is black and white; whereas MPC is incremental, i.e. each axis of a mental disease operates along a continuum (reflects influence of Durham) d. MPC adopts only one of M’Naghten’s prongs, and adds a volitional prong. The MPC eliminates the requirement that D know the physical nature of his act, b/c those who don’t know the physical nature of their act are inherently wrong and fall into the 2nd prong of M’Naghten. iv. Elimination of the Volitional Prong: United States v. Lyons -The court eliminates the volitional prong (i.e., a lack of capacity to conform conduct to the requirements of the law) of the insanity defense. -A person is not responsible for criminal conduct on the grounds of insanity ONLY IF at the time of that conduct, he is unable to appreciate the wrongfulness of his conduct as a result of a mental disease. Reasons for Eliminating the Volitional Prong: -Most psychotic persons who fail a volitional test (unable to control behavior) would also fail a cognitive test (unable to understand the wrongfulness of act). -Many psych. believe that they do not possess sufficient accurate scientific bases for measuring a person’s capacity for self-control. -Risk of fabrication: It is easy to fake lack of self-control. 29 -Psych. testimony about volition is confusing to jurors b/c they are confronted with a “battle of the experts” and are forced to decide who is most reliable. -Once D satisfies the burden of production, the burden of persuasion rests on the prosecution. Given the uncertainty of the expert testimony/medical knowledge, it is difficult for the prosecution to prove sanity beyond a reasonable doubt. This increased the likelihood of success of insanity plea. f. Federal system: enacted 18 USC 17(a) goes back to the black/white test of M’Naghten and takes the volitional prong out (Lyons) B. Justification: Self-Defense ***D made right decision even though act was unlawful*** 1. Defined by the necessity of the act: justification arises when necessity begins (and ends when necessity ends). 2. D made a reasonable and proper choice and an otherwise unlawful act is permissible and reasonable because D acted out of necessity. 3. Reflects the idea that the legislature would have written in that specific justification if they had thought of that specific scenario. If legislature was presented with the same situation, they would have made the same choice. 4. Generalizable: Everyone has the same claim to justification, and anyone in that position would get the same defense; whereas, an excuse is personal to the individual and involves an “abnormal” D. 5. Always based on an objective standard (reasonableness). 6. Rationale: Choice of Lesser Evil MPC 3.02 a. Something bad is going to happen regardless, but reasonable actor chooses the lesser of two competing evils. b. Involves competing social interests: Did D choose the lesser of the competing evils? 7. Common Law Self-Defense (United States v. Peterson) a. Necessity defines self-defense: The right of self-defense arises only when the necessity begins. b.Elements of Self-Defense i. There must be an actual or apparent threat 30 ii. The threat must be of deadly force or serious bodily injury iii. The threat must be unlawful (i.e. not by police officer) and immediate iv. Response was necessary to save himself from imminent peril of death or serious bodily harm v. Force used in self-defense must be proportional to threatened force vi. Beliefs must be honest and objectively reasonable in light of the surrounding circumstances 8. MPC Approach 3.04 (2)(b): Use of Force in Self-Protection a. Two Step Analysis (Graded series of partial defenses) i. D only need to show that he subjectively honestly believed that the use of deadly force was necessary to protect himself (MPC uses “believes,” which by itself requires only an honest belief) ii. If D’s belief was wrong (i.e. was honest but unreasonable), and was recklessly or negligently formed (i.e. unreasonably risky), he may be convicted of a lower crime that requires only a reckless or negligent criminal intent; MPC allows his honest belief to provide a partial defense; form of imperfect self-defense will probably lead to conviction of involuntary manslaughter (filtered through 3.09 (2)) 9. NY Penal Law 35.15 (Combination of MPC and common law: NY adopted a modified objective test) a. Emphasizes the importance of both the subjective and objective standards by inserting “reasonably” before “believes” i. Allows introduction of relevant factors than can be considered by the jury in determining objective reasonableness (examines circumstances facing D, e.g. physical attributes of all persons involved) (People v. Goetz) b. Complete defense or no defense at all: Either acted justified or unjustified (either/or statute); so if D had an honest, but mistaken belief that wasn’t reasonable, he had no defense at all. 10. Imminence a. Common Law: Imminence closely tied to concept of necessity (necessary to avoid a greater harm); when necessity dissipates, the imminence of the threat is no longer present. b. MPC 3.04: Proposes a relaxation of the imminence requirement by providing that it is sufficient if the actor reasonably believed that 31 the use of force was immediately necessary (allows the actor to reasonably explain how she believed that the use of such force was immediately necessary) c. Time-framing: Broadening or narrowing the lens by which to view the events; linking a long chain of events together or showing how they are separate and distinct in time changes the way the story is told and how imminence is viewed. d. BWS Cases i. State v. Kelly a. State’s theory: B/c she was the instigator/aggressor, she met the mens rea requirement for murder (malice aforethought; purpose to cause death). Here, history of beatings could function as motive evidence for intentional homicide. b. Holding: The expert testimony was relevant to D’s state of mind in order to show that she honestly believed that she was in imminent danger of death (subj. stand.). It would have also aided the jury in determining whether, under the circumstances, a reasonable person would have believed there was imminent danger to her life (obj. stand.). c. The expert testimony would have also cleared up some common myths associated with battered women (e.g. free to leave, but don’t b/c the beatings just aren’t that bad) d. Common characteristics of a battered woman regarding her inability to leave: -learned helplessness (i.e. learning not to escape when escape is possible; learn that you cannot control the situation so stop trying to escape) -fear of retaliation should she try to leave -belief in the omnipotence of her husband -hope that her husband will reform (cycle of violence: tension-building; acute battering; loving contrition and forgiveness) -shame and humiliation -low self-esteem -traditional beliefs of gender, family, home, etc. -protection of children -past experiences of abuse -lack of anywhere to go; lack of $$$ -social isolation 32 ii. Learned Helplessness: If D has learned helplessness (and therefore is supposed to be passive), isn’t it inconsistent that D killed her abuser? a. Elizabeth Schneider’s response to this paradox is that battered women develop insight into the abuser’s patterns of behavior, and therefore are in a better position to judge whether threat was imminent. They cannot control the abuser’s behavior; all they can do is watch for the signs. b. Criticism: Due to language of “learned helplessness,” makes the defense collapse into an excuse. iii. People v. Aris: Promotes a purely objective standard and holds that expert testimony about D’s state of mind is not relevant to the reasonableness of D’s self-defense. iv. Purely objective standard vs. purely subjective standard (Susan Estrich) a. A purely objective standard is unduly harsh b/c it ignores the characteristics that shape the defender’s perspective b. A purely subjective standard would give free rein to the short-tempered who see threats of harm where the rest of us would not. iv. State v. Norman (D, who was subject to repeated abuse by her husband, killed him while he was sleeping) a. Most jurisdictions allow no defense if D is the initial aggressor b. Under NC law, if D is the initial aggressor (w/o intent to kill or seriously injure) and decedent escalates the confrontation to a point where it reasonably appears to D to be necessary to kill to save herself from imminent death or great bodily harm, D is allowed a partial defense of imperfect self-defense c. Imminence: The lower court argued that husband’s passive state at the time of his death was a “momentary hiatus in a continuous reign of terror” and that D merely took advantage of her first opportunity to protect herself; when there is evidence of BWS, actual attack or threat of attack by husband at the moment the wife uses deadly force is not necessary d. No imminence: Supreme Court ruled that in the absence of an attack or threat of attack, D cannot sustain a self-defense justification. If don’t require this, would allow justification of murder on a purely subj. speculation that the decedent would probably present a threat of life in the future. 33 10. Defense of Another (People v. Young) a. Should D be regarded as “standing in his own shoes” or “in the shoes” of the person in whose defense he acted? b. Common Law: “other person’s shoes” doctrine -D is not justified when the person he is claiming he acted in defense of could not have claimed self-defense himself c. MPC 3.05 (and NY 35.15) -D should be responsible for what he reasonably believed the situation to be (D may use physical force upon another when he “reasonably believes” such to be necessary to defend himself or a third person) d. People v. Young (D believed a youth was being unlawfully assaulted by 2 men who turned out to be detectives in plain clothes making a lawful arrest. D intervened and unintentionally broke the leg of one of the detectives) i. Appellate Court relies on MPC and rejects “other person’s shoes” doctrine: D acted reasonably from the most commendable motives and w/o excessive force e. Although states are divided on the issue, most jurisdictions follow MPC/NY approach 11. Retreat: MPC 3.04 (b) (ii) (State v. Abbott) a. One has a duty to retreat when 3 conditions are met: i. ??? D intended to use deadly force ii. Knowledge of an opportunity to retreat iii. D can get away safely b. Duty to retreat is only applicable to use of deadly force and is based only on D’s use of deadly force, not the other person’s (although D’s use of deadly force is only permitted when the attacker is using deadly force) c. Jurisdictions that require retreat i. If you can retreat safely, then necessity is not present ii. Better to retreat than have the life of another be needlessly spent d. Jurisdictions that do not require retreat i. Notions of autonomy: One ought to have the right to stand one’s ground ii. Unrealistic to expect people to exercise reason in face of an “uplifted knife” e. No duty to retreat if attack took place on D’s property (D not required to retreat from his own home), unless D is the initial aggressor (At CL, no self-defense claim if D was the initial aggressor) 34 C. Merger of Excuse and Justification Defenses (People v. Unger) 1. One argument is that in prison-escape cases, the defenses of compulsion/duress (excuse) and necessity (justification) are unavailable as a matter of law. Instead, a limited necessity defense is available based on the Lovercamp test. For the defense to be submitted to the jury, must meet the following conditions: a. Prisoner is faced with a specific threat of death, forcible sexual attack, or substantial bodily injury in the immediate future. b. There is no time for a complaint to the authorities or there exists a history of futile complaints which make any result from such complaints illusory c. There is no time or opportunity to resort to the courts. d. There is no evidence of force or violence used towards prison personnel or other “innocent” persons in the escape. e. The prisoner immediately reports to the proper authorities when he has attained a position of safety from the immediate threat. 2. The court held that D was not entitled to compulsion defense b/c he was not deprived of his free will by the threat of imminent physical harm. Note: This is a very narrow reading of duress (threat must be so imminent that D was deprived of his ability to choose) 3. The court also held that the Lovercamp conditions may be considered by the jury, but that the failure to meet any one condition will not keep the defense from the jury. Criminal statutes…note cases, p. 865 IV. ATTEMPTS -D has an intention to commit a crime and engages in conduct that tends to effect the commission of such a crime (acts in furtherance), but fails to accomplish. -Inchoate Crime: crime without completion, some behavior + some mens rea, but actus reus is not complete. A step towards the commission of another crime, the step itself being serious enough to merit punishment. A. Types 1. Mistaken as to Circumstances: that are required (did complete conduct) 2. Causation is Cut: circumstances that were required did not come about (did complete conduct) 3. Failed to Complete All Conduct of Offense (King v. Barker) MUST PROVE ACTUS REUS AND MENS REA for all crimes -In 1 and 2 (actus reus complete), did D act with mens rea (specific intent) to bring about the crime? -In 3, look at mens rea and actus reus: was there sufficient conduct to go beyond mere preparation? 35 Why treat attempts as less serious crimes? -In Categories 1 and 2 this does not make sense because D did all the conduct necessary and something beyond D’s control occurred so that offense did not occur. This does not change D’s culpability level because he acted with the same mens rea. -In order to deter, treat attempts identically to the offense, the MPC says. (As opposed to punishing for the actual harm that occurred.) B. Reasoning: Culpability and proportionality arguments. Should punishment reflect what D tried to do or what he actually did? C. Relation to FMD: Should punishment reflect what D tried to do: 2 Ds produced different outcomes with same mens rea (both had mens rea only for felony? If Attempted Felony Murder were allowed, then all felons committed attempted felony murder (strict liability). D. Common Law Attempts: Previously punished as a misdemeanor. Now punished one grade less than the target offense. Culpability is based upon the harm done. Against this Approach: -Should punish crime and attempt the same because the act is the same and the intent is the same and completion of the act is simply a matter of luck -Indistinguishable regarding deterrence because both actus reus and mens rea are present regardless. For this Approach: -People tend to be angrier with people who actually completed the crime -Deterrence: CL approach will deter because it will encourage criminals to give up at the last minute. 1. Mens Rea: At Common Law, to be guilty of an attempt, D must have specific intent to complete the crime. a. People v. Kraft: (Road Rage case) Attempt is a specific intent crime; knowledge of the consequences or anything less than specific intent will not form and “attempt,” even if a lesser form of mens rea would complete the targeted offense. Note: Both CL and the majority of statutory formulations of attempt are in accord with Kraft. Probably could have convicted based upon MPC 2.12(2) reckless endangerment to cause death/serious bodily injury. This is a better claim. 2. Actus Reus: a. Last Proximate Act: Most difficult test. Did D complete all required conduct or take the last step? If not, D is not guilty of 36 attempt. D can only be guilty of attempt when the elements of the crime have been met, but the act itself failed to take place (Regina v. Eagleton). This approach was rejected in every jurisdiction because it let off too many criminals and made it too difficult to prosecute. b. Proximity Tests: How close did D come to completing the target offense? What conduct remained before the target offense would be complete? Focuses on what has not yet been done (how much remains to be done). (Shoof). i. Dangerous Proximity Test: D is guilty when he is dangerously near completing the target offense’s elements (People v. Rizzo). Factors include seriousness, likelihood, fear instilled in victim, and the amount of harm that would have occurred. (Commonwealth v. Peaslee: Arson Case: mere preparation is not enough). ii. Indispensible Element: Did D have control over the elements/instrumentalities necessary to complete the crime and was victim in sight? D must have control over indispensable feature of the criminal plan (Hope). i. Did D obtain control over all the elements to commit the crime? ii. Did D have the present capacity to commit the crime? c. Tests Focusing on what has been already done. Abandonment: Desire to preserve an opportunity for D to repent. Most CL jurisdictions do not allow abandonment as a defense, if CL tests for actus reus were met, because it is 1-so difficult to prove, 2-existence of belief that social harm has already been done because the crime was committed (actus reus + mens rea), regardless of repentance. Crime complete when D passed point of no return (passed mere preparation) and had required mens rea and cannot undo crime once these elements are satisfied. 3-it should only be considered in sentencing. This resulted in pressure on the CL courts to move the line between mere preparation and substantial step closer to the last step in order to give Ds more locus penitentae (opportunity to repent/change of heart) i. Probable Desistance: How probable was it that the D would abandon the attempt? Dissent in Shoof, says look at all things D completed and given this, how probable would it be that D would abandon? ii. Res Ipsa Loquitur/Equivocallity: Does the partial conduct speak for itself, unambiguously manifesting criminal intent? 37 3. Today: Courts are all over the place. It is likely that a jurisdiction may use several different tests. Cases tend to be decided based upon a case by case basis. C. MPC 5.01 (ALL attempts punished to the same degree as completed crime, except in capitol cases). Tries to hold people responsible for what they believed they were doing (intended to do). 1. “A person is guilty of an attempt to commit a crime if, acting with the kind of culpability otherwise required for the commission of the crime, he…” (1)(a): “purposely engages in conduct which would constitute the crime if the attendant circumstances were as he believes them to be.” -D has requisite purpose (specific intent), but misread the circumstances. -E.g.: Holding gun to a person’s head and pulling trigger and thinking the gun is loaded, but it is not. (1)(b): “when causing a particular result is an element of the crime, does or omits to do anything with the purpose of causing, or with the belief that it will cause such result without further conduct on his part.” -D did all necessary to complete the crime, but an external force interrupts to prevent the criminal result. -E.g.: Someone is about to shoot someone and a third party pushes his hand aside; Gun jammed; Police intervened. (1)(c): “purposely does or omits to do anything which, under the circumstances as he believes them to be is an act or omission constituting a substantial step in a course of conduct planned to culminate in his commission of the crime.” -D did NOT do all of the necessary conduct to complete crime, but did make a substantial step that is strongly corroborative of D’s criminal purpose. -First step is not enough, but last step is not required. 2. Abandonment: MPC permitted defense to take the pressure off the courts to move the substantial step line farther away last step. By moving test closer to middle of continuum, MPC (and CL minority) allows abandonment as a defense, but puts limits on it. The abandonment must occur under circumstances manifesting a voluntary and complete renunciation of the criminal purpose, not because of fear/apprehension/unsuccessfulness, but for positive reasons, see MPC 5.01(4). United States v. Jackson held that where a D makes a substantial step towards the commission of a crime and the only reason it is not carried out is because of the interference of external factors, a D can be convicted for an attempt. There is also a higher 38 standard of proof, requiring D to prove by a preponderance of the evidence. D. Distinctions between CL and MPC Approaches to Abandonment a. MPC shifts proximity test from what remains to be done to what already has been done. b. MPC does not require a finding that D probably would have abandoned (unlike probable desistence test). c. Differs from RIL in proving less of a hurdle for prosecutors because the acts must simply be corroborative or support (rather than prove) other evidence that such intent existed. d. MPC provides the option of abandonment as a complete defense.