Criminal Law Outline December 2001 Introduction to Class 1. US Criminal Law was inherited from English CL; in the 1950‟s the Model Penal Code was created to adress inconsistencies in the law-some states have completely adopted it 2. Two types of defenses: (1) missing element-state has not proved an element of the crime beyond a reasonable doubt, good defense because prosecution has the burden of proof of the elements of the crime; and (2) affirmative defense-defendant admits to crime, but has a justification (conduct wasn‟t wrong, its objectively reasonable, e.g. self defense, necessity) or excuse (conduct was wrong but D is not morally responsible agent, evaluated subjectively e.g. duress, insanity), defendant has the burden on these defenses 3. Note: Most cases don‟t make it to trial, but the occasional trial is important because they set guidelines for plea negotiations. 4. 3 Principles Which Limit Punishment (goals of statutory drafting) a. Culpability: To safeguard conduct that is without fault from criminal condemnation. Punish people who deserve it, i.e. capture the right group of people (does it sort out those at fault from those who aren‟t) b. Legality: To give fair warning of the nature of the conduct declared to constitute an offense i.e. give everyone notice of what‟s permissible; Due process-state has burden of proof beyond a reasonable doubt, etc. c. Proportionality: To differentiate among offenses based on the level of severity. Does the level of punishment fit the crime? 5. Elements of crime a. Conduct: Bodily movement/action or omission. b. 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 crime at night for B&E c. Result: Crime defined in terms of a prohibited result. Homicide is an example.
I. Elements of Criminal Conduct: Actus Reus and Mens Rea A. Actus Reus-culpable conduct of the crime, the physical or external portion of the crime; consists of
a voluntary act or omission (failure to perform a voluntary act that one has a legal duty to perform) that causes social harm MPC 2.01: a person is not guilty of an offense unless his liability is based on conduct which includes a voluntary act or the omission to perform an act which he is physically capable 1. Positive Conduct a. Presumption of Voluntary Act-conscious exercise of the will, actus reus presupposes D chose to do whatever, definitions: -Act: all bodily movement, whether voluntary or involuntary -Voluntary: willful contraction of a muscle, movements are presumed to be voluntary (1) No liability for involuntary acts or non-actions (a) Martin v State (AL 1944): D convicted of drunkeness in public, cops brought him into public, people cannot be criminally punished for acts they commit involuntarily, statute presupposes a voluntary state (b) 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. (c) Reasoning: To serve the purpose of deterrence, the act should be voluntary (to deter willful actors) (2) Speech and Possession can be sufficient conduct-see MPC 2.01 pg 1041
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b. Recognized Exceptions of Voluntary Acts (MPC 2.01): MPC creates a presumption of voluntariness unless you can bring yourself into one of the finite exceptions, its not voluntary if bodily movement is during: (1) Reflex/Convulsion (a) Decina: D has seizure while driving and kills 4 people; even though a reflex or a convulsion negates voluntary conduct, 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 (analogous to drinking + driving), actus reus established when he undertook to drive (neg.) (2) Unconsciousness/Sleep/Sleep Walking (a) People v. Newton (CA 1970): D‟s expert claims that he could have been unconscious still shot gun and fled the scene, unconsciousness when not self-induced (voluntary intoxication) is a complete defense to a criminal act (b) Mrs. Cogden: sleepwalking kills her daughter, no actus reus (voluntary conduct) since she acted while asleep (1). 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. (c) Fair (1879): D was waken up by another, draws weapon and kills owner of hotel, Sleep did not negate voluntary act because he knew of his dangerous propensity for violence while asleep (3) Hypnosis/Result of Hypnotic Suggestion (4) Not Product of the Effort or Determination of the actor, either conscious or habitual (a) see Martin (5) Conclusion: Tendency to find alternative voluntary conduct when the ordinary actus reus falls into one of the 4 exceptional categories (Ds had knowledge of something that‟s basis of blame-Ds were reckless/negligent) th c. Status v. Conduct: there must be some conduct/action for liability, violates 8 (cruel th and unusual punishment) and 14 (due process) amendments to punish someone soley for being sick/ill or being “of a status” rule: can‟t punish a status, but can punish conduct derived from the status (1) Robinson v. California (1962): D convicted under statute that allowed conviction for “use” or “addiction”, no evidence of use so went after addiction which is a status Holding: Criminally punishing one for the status of having a disease/illness/addiction is unconstitutional and constitutes an infliction of cruel and unusual punishment (unjust infliction of criminal stigma) 2 Major Readings (a) *Can‟t punish condition/status when there is no act/bodily conduct (b) Can‟t punish illness/disease which is an involuntary act (D can‟t change it)-this reading is later denied (2) Powell v. Texas (1968) D is a chronic alcoholic, committed crime while drunk Holding: Person in a condition/status of being diseased can be criminally punished for committing an illegal act that may have stemmed from his status. In this case the person is convicted for 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, court says 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
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(a) court did not question the involuntariness of the disease--otherwise this defense would eat up all of criminal law, Ds would always come up with some determinist cause to preclude voluntariness 2. 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. a. Common Law Approach (1) Rule: Duty must be a Legal Duty, Not a mere Moral Obligation, and it must be the direct cause of death or injury. (a) Pope v. State (MD 1979)-D takes in young mother with child, mother goes into frenzy and harms child, P claims D committed child abuse by failing to act in any way to prevent or alleviate it; D did not have correct status-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 (1). side issue: misprision of felony-there must be active concealment to be actionable, nondisclosure is not actionable; misprision has long been disfavored (2) Categories of Legal Duty: Peolple v Beardsley distinguishes between legal and moral duty, ony crim. liability these situations 1-Statutory Duty e.g. hospitals and teachers 2-Certain Status Relationship, e.g. parent 3-Contractual Duty e.g. daycare 4-Voluntarily assumed care and so secluded the victim from others in a manner that kept others from helping 5-One who culpably places another in peril has duty to assist imperiled person (Jones v. State 1942: D raped 12 yr old, child fell or jumped into creek and drowned, D intentionally abstained from rescuing her despite nd any risk to himself, convicted of 2 degree murder) (a) Jones v. United States (1962)-Courts Must Instruct on necessity of finding legal duty of care and when evaluating the presence or absence of a legal duty, one must consider the Beardsley rule (3) Legal Duty may not be limited by potential danger to D (a) Cardwell (1986)-mother did not take adequate reasonable steps to protect her daughter from stepfather‟s abuse despite his violent tendencies, women‟s obligation to child takes precedence (4) Reasoning-Not requiring action under certain circumstances protects our valued individual freedoms, i.e. choosing whether or not to report a crime and to protect acts of Good Samaritans (Pope), there are other penalties for failing to act that society inflicts on a person so its not always necessary to criminally punish, there are also line drawing problems in determining omissions b. MPC Approach: Section 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: (1) the omission is expressly made sufficient by the law defining the offense, i.e. the law actually states that if you perform such an omission, you will be held liable. (2) a duty to perform the omitted act is otherwise imposed by law. B. 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. Continuum [Negligence] [Intent, Purpose, Knowledge] where is Recklessness? Objective---------------------------------------------------------------------------------Subjective shades of grey more in tort law than crim more in criminal law bar is set the same bar moves, gain just outcome in
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uniform, certain, predictable. individual case. what a reasonable person would what was in the defendant‟s mind have known, thought, intended -want to know about D‟s these things -don‟t have access to this characteristics bring you -offer evidence, draw inferences -who is reasonable person to middle of subjective mental states of continuum from objective evidence (what normal D would intend) reckless-disregard of forseen risk, fuzzy concept 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. Objective Standards: what a reasonable person would have been aware of. Negligence requires this; the actor should have known the risk. Absolute/Strict Liability: a person is held accountable by virtue of conduct regardless of mens rea, disfavored in criminal law, rare subest MPC 2.05
1. Common Law Evolution of Mens Rea:
a. Until 1500: all harms strict liability; no mens rea requirement, no distinction between criminal and civil law b. 1500-1800: development of mens rea concept; law sought to punish bad people; mens rea means wickedness, show actor causes injury and that he is a bad person (general ill will) c. 1800‟s: law sought to punish bad intention, not bad character; mens rea described as mental state with respect to specific act, i.e. must have a bad intention with respect to the conduct (1) Crimes require intent or reckless, not SL for all results of bad acts (a) Regina v. Faulkner (1877)-D wanted to steal rum, sets fire to ship and found guilty of arson, TC holds that intention to ship is irrelevant-commit felony and accidentally cause other harm than you are responsible, App reverses and says that there must be purpose (intention) or recklesness (aware it could happen-disregard the risk) (b) Regina v. Cunningham (1957)-D rips gas meter off wall to steal money, found guilty for poisoning in-laws next door, statute requires „malice‟ which TC says means „wicked‟ (unlawful-held liable for all consequences from a single wrongful act), App rules that „malice‟ meant [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 d. CL terms are confusing and obscurerecklessness and criminal intent, “variety, disparity and confusion” of judicial defintions of the elusive mental element 2. Model Penal Code Approach 1962: Section 2.02 (pg 1041) a. No longer is there a coincidence of actus reus and mens rea; Prove mens rea with each element of the crime”a person is not guilty of a crime unless he acted purposely, knowingly, recklessly or negligently with respect to each material element of the offense” (1) Material elements of crimes-building blocks available to Leg., must have some level of mens rea with respect to each element (a) Conduct (breaking window) (b) Circumstance (b+e of dwelling at night) (c) Result b. Culpability levels replace CL ambiguous terms I. Purpose: Subjective test; Jury can infer based upon objective circumstances; Hardest to prove because highest standard (therefore, harshest penalties)
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conduct: conscious objective or desire to engage in conduct of that nature circumstance: aware of the existence or he believes or hopes that they exist result: conscious object or desire to cause that result II. Knowledge: Subjective test; Jury can infer based upon objective circumstances conduct: aware of conduct of that nature (high probability) circumstance: aware of existence (high probability) result: aware that it is practically certain that conduct will cause such a result III. Reckless-conscious risk creation, was running risk a violation of law, more culpable than negligence because of awareness for all elements a. Subjective awareness of the risk (less than practically certain) and consciously disregards a risk b. Risk is substantial and unjustifiable c. Decision to run risk was gross deviation from standard of conduct that a law abiding person would observe (objective) -jury determines this d. in the actor‟s situation (build in subjective characteristics) IV. Negligence (not a civil standard, objective) for all elements a. Should have been aware of a risk b. Risk is substantial and unjustifiable c. Failure to perceive risk was gross deviation from standard of care that a reasonable person would observe (since actor didn‟t see the risk) d. in the actor‟s situation c. Notes on MPC Approach (1) Hierarchy of culpability: proof of a higher level of culpability satisfies requirement of a lower level of culpability for an element, 2.02 (5) (2) Presumed minimum: If no mens reas is prescribed by law, any of the three except negligence is ok i.e at least recklessness, negligence standard must be made explicitly, 2.02 (3) (3) Drafting convention: if statute prescribed one mens reas for the offense, this mens rea shall apply to all the elements, 2.02 (4) (4) Wishing: People cannot be punished for wishing-need a.r. and m.r. to be culpable (5) Distinction between purpose and knowledge-desperate husband example, wants her to live (no desire for death) but leaves out poison for her (practically certain of the result) (6) Motive: Legally irrelevant-crimes defined by mens rea and not motive because question of motive does not legally change guilt or innocence; Exception-motive should be considered during sentencing to evaluate actor‟s subjective perspective (7) Recklessness & Awareness: D must be aware of the risk and that its substantial and that its unjustified-all three (up to the individual jurisdiction to modify baseline standards) d. Negligence is not civil standard, MPC is tougher (1) Santillanes (1993)-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 statute is silent about whether a mens rea element is required, presume criminal intent as an essential element of the crime (2) What‟s the difference between definitions?
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-both have reasonable person standard -MPC: substantial and unjustifiable risk, Tort: unreasonable risk -MPC is more subjective („in actor‟s situation‟) than classic Tort definition (ORPP is objective) e. Specific and General Intent Crimes (so incoherent that MPC disregards it entirely, at CL mean different things at almost the same time) 2 Common Meanings: (1) Specific Intent: 1-action must be done with some specified further purpose in mind/specific result e.g. assault with intent to kill 2-actual knowledge (subjective awareness) of some particular fact or circumstance required by the crime to exist e.g. bigamy-knew wife was still alive (2) General Intent: 1-mere awareness of one‟s conduct i.e. you knew what you did 2-negligent or reckless with respect to the circumstance e.g. bigamyreckless as to whether wife was alive (3) MPC 2.02 eliminates this distinction by replacing it with the 4 part culpability hierarchy, MD still uses it (4) All attempt crimes require specific intent at common law because they demand an intent (either purposeful or knowing conduct) to commit the underlying crime; once the attempt is completed, the actual crime can be a general intent crime and satisfied by recklessness (foreseeable) (a) Neiswender (1979)-conviction for attempt to obstruct justice, D claims that the “endeavor” required specific intent as to the consequences, court upheld the conviction stating that he was aware the results were “reasonably foreseeable” to occur as a by-product of his conduct, adopts reckless standard since he was aware of foreseeable risk (along way from purpose that statute seems to require), Cunningham revisited-not nd guilty of 2 bad result unless acted reckless f. Conditional v. Unconditional Purpose/Intention: (1) Majority opinion: statute can include conditional intent (a) Holloway (1999)-statute requires “carjacking with the intent to cause death or serious bodily harm”; requires only that the government prove a conditional intent-kill if necessary (e.g. victim fails to cooperate) rather than unconditional intent-intent to kill regardless; D can not negate an intent by requiring victim to comply with a condition that D had no right to impose (2) Justice Scalia dissents and feels that the natural meaning of the word intent does not connote a purpose subject to any conditions, intents are not subject to conditions in normal usage (e.g. guy buys drugs and tell his wife not to worry if they run out of money – he can always resell it. Is he guilty of possession with intent to distribute?) (c) Model Penal Code Section 2.02 (6): When a particular purpose is an element of an offense, the element is established although such purpose is conditional, unless the condition negatives the harm or evil sought to be prevented by the law defining the offense g. Willful Blindness: To act “knowingly” does not always require positive knowledge, it can include cases where the defendant makes a conscious purpose to avoid learning the truth, deliberate ignorance and positive knowledge are equally culpable (1) Model Penal Code Section 2.02 (7): When knowledge of the existence of a particular fact is an element of an offense (circumstance element) such knowledge is established if a person is aware of a high probability of its existence (moral equivalent of subjective knowledge), unless he actually believes that it does not exist.
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(2) Jewell (1976)-D claims that he did not know that the marijuana was in the secret compartment, claims P had to prove knowingly possessed, court upheld conviction since D made conscious effort not to know what was in the secret compartment in the car; his ignorance was solely and entirely a result of a conscious purpose to disregard the nature of that which was in the vehicle (i.e. avoid learning the truth) (Jewell Rule). (3) Alternative: Reckless with regard to the circumstance element because he has subjective awareness of risk (secret compartment) and sometimes marijuana is in it (aware of risk, but only put it in ½ or 1/5 of the time is not enough for high probability, is enough for recklessness) 3. Mistake of Fact: D asserts ignorance/mistake of circumstance element of a crime which is relevant to guilt because its an element of the crime (e.g. rape: consent-I was mistaken in believing there was consent) -not an affirmative defense, but a missing element defense because D never formed the requisite mens rea, has the effect of negating the requisite mens rea in either specific or general intent crimes (but not SL crimes which have no mens rea requirement) a. Common Law: there are 3 positions (1) No Defense At All-even if the belief is both reasonable and honest; commit the bad/wrongful act (immoral), than strictly liable (e.g. statutory rape) (a) Bramwell in Prince (1875)-D convicted of taking unmarried 16 yr old girl from the possession of her parents even though he honestly and reasonably believed she was over 18 as she had told him that, court does not read mens rea into the statute so mistake could negate it, Bottom line: D did immoral act of removing a young girlpunish, mistake as to consent (this is what really trying to protect) may have been a defense (b) White (1933)-abandoning wife is a wicked immoral act in itself, if its immoral doesn‟t matter if the mistake was honest and reasonable, court followed strict liability and did not require mens rea (c) Explanation-Two sets of rules: conduct rules-general community wide rules on how to act (don‟t take young girls from parents), decisional rulesactual elements of statutes for when to prosecute (nab the guy if she is under 18) (d) Criticisms of this approach -breaking common morality does not put you on notice to investigate pertinent circumstances -assume that there is a clear community ethic -law does not try to enforce all morality (Pope) (2) Common Rule: Defense for Honest & Reasonable, honest mistake of fact without reasonableness=recklessness. (a) Brett Dissent in Prince-no conviction w/o mens rea, belief both honest and reasonable negates mens rea (if she was over 18 there would have been no crime), if mistake was reckless than will permit conviction (b) Sherry (1982)-doctors guilty of raping nurse, Ds plead honest mistake of fact in that they thought they had her consent, conviction was upheld since mistake of fact must be both honest and reasonable, Ds did not ask for a reasonable instruction and “no” means “no” rule denies existence of reasonable mistake in this case, no US courts have recognized only honest mistake by itself (c) Limitation: Can‟t claim one thing (its consentual) and then claim that there was a reasonable mistake as to it (never proposed a misunderstaning as to consent), either jury finds rape or no rape; Tyson (1993) (d) Consent is referenced to women‟s p.o.v.-man honestly experiences seduction, woman honestly experiences rape, both are subjectively right
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(3) Few: Honest Mistake (whether reasonable or unreasonable) is a Defense, reasonableness has evidentiary value but is not required, issue is whether you honestly believed it or not (a) Morgan (1976)-air force Ds honestly believe that objection was just sign of being kinky, but as evidentiary matter royal air force officers wouldn‟t reasonably believe she would consent to sex with them all (b) Law is more comfortable in allowing honest mistake alone in non-r ape cases such as larceny, Kelly (1985) b. Model Penal Code: combines Mistake of Fact & Mistake of Law (1) Section 2.04 (1) (a) both MOF and Type 1 MOL treated the same, get rid of CL distinction; also specific intent and general intent dropped by the 4 culpability levels (b) General Rule: does the mistake negate the mens rea required in the element of the crime? (b) Purpose/Knowledge required by the circumstance element: no reasonableness requirement; genuine, good faith, honest belief is sufficient to overcome subjective awareness of these mental states [Note that specific intent often requires that D acted with purpose or knowledge] (b) Recklessness/Negligence required by the circumstance element: mistaken belief must be honest and reasonable to overcome the mens rea, since need to negative subjective awareness of risk and deviation from law abiding p or rp [Note that general intent often requires that D acted with recklessness or negligence] (2) Section 2.02 (9)-Type 2 MOL, CL maxim „Ignorance of the law is no excuse‟ i.e. D doesn‟t need to know the law; “neither knowledge nor recklessness nor negligence as to whether conduct constitutes an offense or as to the existence, meaning, or application of the law determining the elements of an offense is an element of such offense” (3) Section 2.04 (3)-Type 3 MOL, official reliance afterward determined to be erroneous 4. Mistake of Law -defense asserting that D did not understand the criminal consequences of certain conduct, 3 Types of Mistake of Law: a. Type 1: Mistake as to some non-criminal provision made relevant to the crime (e.g. domestic relations, property); (1) MPC: falls under 2.04 (1), defense if mistake negative mens rea of element (2) CL: give MOL defense when honest mistake would negate the mens rea of circumstance element of specific intent crime (no circumstance element in a general intent crime) (a) Regina v. Smith (1974)-mistake of law as to property ownership, D removes improvements he made to his apartment and violated Criminal Damage act, improvements made to rental property become part of that property owned by the landlord, non-criminal property law made an element of the crime, mens rea of intent applied to conduct and circumstance also, therefore his honest mistake defeated the mens rea of the circumstance element of specific intent crime (damaging property belonging to another) (b) State v. Woods (VT 1935)-D has mistake of law as to divorce‟s legality, violates Blanket Act for being found in bed with another‟s spouse, made relevant as a circumstance element since Blanket Act requires someone who‟s married (not criminal) examples from this case: -this case is type 1 MOL -if didn‟t know that he was married-mistake of fact
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-if misread blanket act-type 2 MOL -if told by attorney general there is no liability-type 3 MOL b. Type 2: Mistake about what criminal provision under which you are prosecuted itself says (1) MPC: falls under 2.09 (2), No defense because its not an element of the crime so mistake does not negative it (2) CL: Ignorance of the Law is NO Excuse (a) Reasoning-ultilitarian: encourage people not to learn the law, may be unfair in certain circumstances i.e. reasonable and honest mistake (b) People v. Marrero (NY 1987)-correctional officer in federal prison convicted for carrying an unlicensed gun, thought that he was exempt from statute since he thought was a peace officer under the ambiguous language of criminal procedure law, claim that even if he was not innocent that his mistake was honest and reasonable, court re-adopts CL maxim c. Type 3: Reliance on official interpretation of the law afterward determined to be erroneous (1) MPC: falls under 2.04 (3), limited defense based on a reasonable belief on the part of D that conduct is not an offense when: (a) statute is not known to D and has not been published/otherwise been made reasonably available (b) he acts upon reasonable reliance on law, afterward determined to be invalid/erroneous, in: 1. statute or other enactment 2. judicial decision/opinion/judgement 3. administrative order or grant of permission 4. 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 (c) reliance on judicial decision: US v. Albertini (App. 1987)-D is demonstrator on nay base, App. reverses his conviction, relies on App. ruling to commit more demonstrations and is arrested again, SC st nd overturns App. on the 1 conviction, then prosecuted on 2 arrest, Gov‟t claims all one piece of litigation so D should have waited for SC ruling before proceding, D claims to have acted with Albertini I holding of App., court rules that D did have MOL defense based on reasonable reliance on App. decision for that specific window of time (1). reasoning: this is an ex post facto-esque ruling, have to have fair warning, otherwise it would be entrapment (2) CL: Advice of counsel (even if given by a public official e.g. State‟s Attorney) furnishes no defense in a criminal action (a) Hopkins v. State (MD 1950)-D in town close to border that had no waiting period for marriage, D violates statute about not erecting sign soliciting performance of marriage, states attorney said that behavior was permissible, state affirms conviction and doesn‟t grant type 3 MOL, SA did not mislead D but only advised him as to the law, D knew it was close and was aware of the statute but he took the risk anyway 5. 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). These are public welfare crimes and there is a low penalty/stigma, so that the state is willing to sacrifice having false convictions in order to create utilitarian stability. These crimes are generally considered “malum prohibitum”, which means they are wrong because they are prohibited (most other crimes are malum in se, meaning they are bad within themselves). a. Examples of SL cases (1) United States v Balint-in which conviction of defendant was upheld when he violated the Narcotic act by selling derivatives of opium without the required order
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form – court weighed the injustice of subjecting innocent sellers to a penalty against the evil of exposing innocent purchasers and stated that “he who shall do them shall do them at his own peril and will not be heard to plead in defense good faith or ignorance”. (2) United States v Dotterweich-in which the defendant was convicted of shipping adultered drugs in interstate commerce in violation of FDA act. The statute required no mens rea and again the court balanced the protection of consumers over the individuals who may violate the act. b. Mala In Se crimes Require Mens Rea even if not explicitly stated since it was required at CL, Mala Prohibita (Regulatory Crimes) may not require mens rea (1) Morissete (1952): D convicted of “knowingly converting” government property which did not require criminal intent because the statute did not state any, court 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 and only small penalties c. Vicarious Liability: When a person can be held criminally responsible for the unlawful acts of another, SL under VL is generally upheld except when imprisonment is part of punishment (1) Exception-Guminga-Owner vicariously criminally liable for waitress selling alcohol to minor, court rules that criminal liability for conduct of an employee based on employer/employee relationship violated due process, statute may serve public interest by providing deterrence but 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. 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. d. No Actus Reus Defense for SL Crimes (1) State v. Baker (1977)-cruise control get stuck and violated speeding ordinance, D doesn‟t claim no mens rea but no voluntary conduct at all, court narrowly distinguishes it from other cases-decision to drive and engage the cruise control was voluntary, can drive the car w/o cruise control, minor crime but still criminal liability e. Overview of Strict Liability-Regina v. City of Sault Ste Marie (1978) (1) arguments for SL -increase level of care beyond civil negligence standard -solves administrability problems in sorting guilty from innocent -sanctions and stigma are relatively low (2) arguments against SL -not fair to convict where D didn‟t make a bad, conscious choice -isn‟t necessarily true that level of care will increase (3) Alternative (not SL of full mens rea)-prima facie offense cane be challenged by D by preponderance of evidence that he used reasonable care
II. HOMICIDE (Specific Intent Crime): when a person causes the death of another person or persons.
Criminal homicide involves a culpable perpetrator who engages in morally blameworthy conduct: intentional killings, drunk driving killings, killings provoked by passion, and reckless killings are but a few examples. A. Introduction 2 kinds of questions: 1. Culpability-sorting guilty from the innocent
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2. Grading/Proportionality-have all committed homicide, which are more blameworthy/dangerous and which are less serious Hierarchy of Homicide for grading/punishment
Elements of murder are:
-Unlawful (unexcused or unjustified) -Killing of -Another human being -With malice aforethought [also can be transferred intent-want A, get B-makes no difference] Types of CL Murder-with malice aforethought* (defined as encompassing these 4 things) 1. Intent to Kill (purpose) 2. Intent to Cause Serious Bodily Injury (resulting in death) 3. Reckless Indifference to life-“abandoned and malignant heart” (so grossly reckless it‟s the equivalent of purpose, shooting a gun in a crowded bar) 4. Felony Murder-SL for murder during felony, the mens rea for the lower offense substitutes for the mens rea of the greater offense (homicide) Types of CL Manslaughter-without malice aforethought* 1. Voluntary-intent to kill but motivation is heat of passion/adequate provocation 2. Involuntary-causing of death during a misdemeanor or reckless/negligent in commission of a lawful act *Malice Aforethought-defining feature murder in CL systems, a term of art, used to distinguish manslaughter from murder, trad. used to mean calm and deliberate forethought or planning and a long time period, now doesn‟t require planning and can be formed a split second before hand CL is Mechanical View-for Homicide, either have Malice Aforethought (Murder) or Reasonable Provocation (Voluntary Manslaughter) B. History of Homicide 1. Early Common Law (late 1400‟s): Only one homicide offense: murder with a penalty of capital punishment, applied to all unlawful killings 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 between murder and manslaughter and eliminating exception for clergy. Distinctiion was based on malice aforethought, which was defined as cool reflection/calm and deliberate planning and required a significant time period. 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 e.g. highway killer lying in wait 3. in practice, this didn‟t sort effectively and there was jury nullification to avoid mandatory death sentence, killings that were the most serious did not meet the original definition of mal. af. st 4. 1794: PA adopts 1 homicide statute, created a distinction between 1st and 2nd degree murder. First degree murder required premeditation and deliberation (malice aforethought e.g. poisoning) and carried with it the mandatory death penalty. This is the same distinction which was nd originally used to distinguish b/w murder and manslaughter. 2 degree was less serious murder. st st 5. 1838: 1 jury discretion statute-1 degree murder is death eligible, jury decides whether to impose it 6. MPC formulation (approx. 1950): 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. 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. C. Common Law Approach vs. MPC Approach: There are 3 American schemes for homicide 1. Mix of CL and MPC: PA Statute is an example.
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a. Defined: A person is guilty of criminal homicide if he intentionally, knowingly, recklessly or negligently causes the death of another human being. [all 4 MPC mens rea elements] b. Classification: Criminal homicide shall be classified as murder, voluntary manslaughter, or involuntary manslaughter. (1) Murder in the First Degree: when the homicide is committed by an intentional killing (punishable by death or life imprisonment). (2) Murder in the Second Degree: when the homicide is committed while D was engaged as a principal or an accomplice in the perpetration of a felony (punishable by life imprisonment). rd st (3) Murder of the 3 Degree: All other kinds of murder (it is a felony of the 1 degree, punishable by a maximum of 20 years), this is now the catchall definition: “intentional killing”-killing by means of poison, lying in wait, or any other willful, deliberate, and premeditated killing (4)(a) Voluntary Manslaughter: A person who kills without lawful justification if at the time of the killing he is actually under a sudden and intense passion resulting from serious provocation by: (a)The individual killed; or (b) Another whom the actor endeavors to kill, but he negligently or accidentally causes the death of the individual killed. (4)(b) Unreasonable Belief Killing Justifiable: a person who intentionally or knowingly kills an individual commits voluntary manslaughter if at the time of the killing he believes the circumstances to be such that, if they existed, would justify the killing under Chapter 5 of this title, but his belief is unreasonable. (5) Involuntary Manslaughter: when as a direct result of the doing of an unlawful act in a reckless or grossly negligent manner, or the doing of a lawful act in a reckless or grossly negligent manner, he causes the death of another person st (misdemeanor of the 1 degree with a 5-year maximum imprisonment). 2. Almost pure MPC: NY is an example: a. Homicide Defined: conduct that causes the death of a person under circumstances constituting murder, manslaughter in the first degree, manslaughter in the second degree, or criminally negligent homicide. b. Classifications: nd (1) Manslaughter in the 2 degree: when (a) He recklessly causes the death of another person or (b) He intentionally causes or aids another person to commit suicide. st (2) Manslaughter in the 1 degree: when (a) With intent to cause serious physical injury to another person, he rd causes the death of such person or of a 3 person; or (b) With intent to cause death of another person, he causes the death of rd such person or 3 person under circumstances that do not constitute murder b/c he acts under the influence of extreme emotional disturbance, as defined in 125.25. nd (3) Murder in the 2 degree: when (a) With intent to cause the death of another he causes the death of such rd person or 3 person except that in any prosecution under this subsection, it is an affirmative defense that: (1). D acted under extreme emotional disturbance for which there was a reasonable explanation or excuse, from the viewpoint of a person in D‟s situation under the circumstances as D believed them to be, (2). or when D‟s conduct consisted of causing or aiding, without the use of duress or deception, another to commit suicide. (b) Under circumstances evincing a depraved indifference to human life, he recklessly engages in conduct which creates a grave risk of death to another person, and thereby causes the death of another person, or
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(c) Acting either alone or with one or more persons, he commits or st attempts to commit robbery, burglary, kidnapping, arson, rape in the 1 degree, sodomy in the first degree, sexual abuse in the first degree, aggravated sexual abuse, escape in the first degree, or escape in the second degree, and in the course of and in the furtherance of such crime or immediate flight there from, he or another participant causes the death of a person other than one of the participants, with affirmative defenses (a) when Did not commit the homicidal act or in any way solicit, request, command, or aid commission of and (b) was not armed with a deadly weapon and (c) had no reasonably ground to believe that any other participant was armed with such a weapon, and (d) had no reasonable ground to believe that any other participant intended to engage in conduct likely to result in death or serious bodily injury. st nd (4) Murder in the 1 degree: those intentional killings that would be 2 -degree st murder are raised to 1 degree murder in special circumstances, such as when the victim is a police officer or when the crime is committed while D is either in custody under a life sentence or is at large after having escaped from such custody. 3. Pure Common Law: CA is an example: a. Murder Defined: the unlawful killing of a human being, or a fetus, with malice aforethought. b. Malice defined: Express and Implied Malice Express-deliberate intention to kill/harm Implied-abandoned and malignant heart, reckless indifference c. Degrees of Murder: (1) First degree murder: all murder which is perpetrated by means of a destructive devise or explosive, knowing use of ammunition designed primarily to penetrate metal or armor, poison, lying in wait, torture, or by any other kind of willful, deliberate, and premeditated killing, or which is committed in the perpetration of attempt to perpetrate arson, rape, robbery, burglary, mayhem, kidnapping, train wrecking, or any act punishable under sections 286, 288, 288a or 289. nd nd (2) 2 degree: All other kinds of murder are murder in the 2 degree, catchall for murder w/ mal. af. To prove the killing was “deliberate and premeditated”, it shall not be necessary to prove the D maturely and meaningfully reflected upon the gravity of his or her act. State v. Andrews. (3) Manslaughter: the unlawful killing of a human being without malice. There are 3 kinds: (a) Voluntary: upon a sudden quarrel or heat of passion. (b) Involuntary: in the commission of an unlawful act, not amounting to a felony or in the commission of a lawful act which might produce death, in an unlawful manner, or w/o due caution and circumspection (c) Vehicular st nd D. Premeditation-Deliberation Formula-Dividing Line Between 1 and 2 Degree Murder at Common Law -Conflicting Approaches 1. “No Time is Too Short”Premeditation-Deliberation collapsed into Intent/Purpose and can be Formed in Split Second (without advanced planning) a. Commonwealth v Carroll (PA)-D whose wife had bossed him around for years and argued with him all night calling him names and saying things shot her fatally, claimed that he did not premeditate as evidenced by the lack of a plan to get rid of her body and an expert testified that he probably wouldn‟t have done it if he had had to load the gun, D also claims a good man can‟t premeditate a murder in this short time, Court holds that
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even with a history of a good moral character the premeditation could be met in an instant (doesn‟t matter how long) and inferred with the act of picking up the gun and shooting his wife in the head. result: juries have blank check to decide if its really bad or sort of bad 2. Alternative/Traditional-There must be some amount of reflection/calculation/design and some period of time a. State v. Guthrie (WV)-D stabbed a coworker in the neck after some joking around (D had history of many psychiatric problems including panic attacks which he claimed to st have during this event) and killed him, convicted of 1 degree murder but appeals citing st nd that instructions that collapse 1 and 2 degree murder since premed/delib is equated with intent to kill it can be formed in an instant, Court found that by eliminating time and st nd planning requirement for premeditation the line between 1 and 2 degree murder was blurred and therefore the jury instructions and conviction were in error, there must be some evidence that D considered and weighed his decision to kill and some time passage st to establish premeditation and deliberation under 1 degree murder result: claiming that cool, calm killers are more culpable and law should capture this b. 3 categories of evidence that are sufficient to sustain a finding of traditional premeditation and deliberation (1) Planning activity-D‟s prior behavior which might indicate design to take life (2) Relationship between V&D(motive)-might indicate motive to kill (3) Manner of Killing (preconceived design)-indicate a deliberate intention to kill according to a preconceived design 3. What murder is worse? a. Anderson (CA)-no premed/delib, wild hacks up victim, (since Anderson CA no longer treats the categories above as absolute tests; Instead, moving toward PA model) b. Forrest (NC)-cool, calm killing of terminally ill father E. Provocation (MPC: Extreme Emotional Disturbance)-Dividing Line Between Murder and Manslaughter Partial defense-mitigates murder to manslaughter, i.e. intentional killing would be murder but because of reasonable provocation its voluntary manslaughter-intentional killing undertaken with circumstances that reasonably provoked D note: malice and provocation are opposite sides of the same coin-has to be either malicious or provoked goal: determine how they sort killing as either malicious or provoked and who gets to decide-judge or jury? 1. Common Law Provocation-2 Approaches for Sufficient Provocation a. Categorical Approach of Reasonable Provocation (1) fixed, objective categories (based on what would provoke ordinary reasonable person) -Extreme assault or battery on D -Mutual quarrel or combat -D‟s illegal arrest -Injury or serious abuse to a close relative of D -Sudden discovery of spouse‟s adultery (2) Judge decides as a matter of law and screens out cases that don‟t fall within objective categories, shifts workload from jury to judge, jury just fine tunes (3) Prov. act must in D‟s presence and must not be adequate cooling off period (4) Girouard v. State (1991)-D convicted of intentionally killing wife who he claims provoked him with taunts and insults, D claims that the categories should be broadened to include speech, Court rules that words can‟t be adequate provocation because they don‟t fit CL categories, may have been psych. prov. but court is interested in what provokes reasonable man, don‟t allow speech because goal is to deter escalation of fights to violence b. Unique To Each Case Approach of Reasonable Provocation-Jury decides what reasonable person would do and how long a reasonable cooling off time would be, caseby-case approach (non-categorical) (1) Jurors have a much greater role in making individualized decision (each case is different), lower threshold to get to them
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-jurors are more likely to have passion provoking experiences -juries represent a diversity of the community (2) take into account ordinary person of reasonable mind in D‟s subjective reality and individual situattion (3) Judge has screens it if it is so clear as to admit no reasonable doubt (4) Maher v. People (1862)-D‟s wife may have been having an affair, evidence not allowed, D belived wife and victim had sex ½ hour before shooting but didn‟t actually see it, D‟s evidence should have gone to the jury since need to evaluate on a case-by-case basis (non-categorical), 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. c. Is Provocation a Partial Excuse or Partial Justification? (1) Excuse: D‟s act was wrong, but shouldn‟t be punished because there is some circumstance that prevents blameworthiness (trad. insanity, duress, or infancy). D behaved unreasonably, but is not capable of exercising reasonable control/conduct. There is something about D that makes him less morally culpable. In this case, would say Ds lost control for reasonable reasons and are acting on impulse so worng is not completely attributed to them, reduced moral agency of D (2) 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 (trad. self-defense). In this case, would say focus on the bad or immoral victim who deserved what they got, reduced moral agency of V 2. Model Penal Code Provocation 210.3 (1)(b) (1) Test for when criminal homicide constitutes manslaughter: D acted under the influence of extreme emotional disturbance for which there is a reasonable explanation or excuse -really 2 requirements 1. Did D really act under Extreme Emotional Disturbance?-wholly subjective prong, gets it to the jury 2. Is Extreme Emotional Disturbance reasonable given the circumstances and situation?-but reasonableness of the disturbance from the peculiarity of D‟s circumstances as he perceived them i.e. was disturbance reasonable to him (reasonableness through the eyes of D); really pretty far down toward subjective also (2) Application: this is really an unstructured, discretionary call by the jury, st whatever they say is OK, has to be „clearly erroneous‟ to overturn, once 1 prong nd is satisfied let whatever they decide on the 2 stand (3) Difference from CL: (a) provocation does not have to be immediately present, mental trauma can simmer in subconscious and later come to bear (b) no external provoking is needed, can all be internal emotions (State v. Elliot) (c) most cases will go to the jury since subjective emotional disturbance is the test, up to them to decide (People v. Walker) (4) People v. Casassa (1980)-couple dating, woman dumps the guy and he begins to act weird, when she turns down his gifts he stabs her, D claims to be provoked by her decision not to pursue their relationship and her entertaining of other men, D‟s witness testifies to his “extreme emotional disturbance”, P claims no external provocation, D argues for purely subjective test of whether EED was reasonable, court rejects D‟s argument, it affirms TC 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 -Court says that under the MPC, there is a 2-tiered test to determine if it can be used as a defense:
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F. Felony-Murder: malice aforethought has evolved to include intent to kill, intent to cause serious bodily injury, reckless indifference and felony murder 1. The Basic Doctrine a. Classic Rule: killing of another during a felony; mens rea for commission of predicate felony in which death occurs provides the malice aforethought for murder b. Strict Liability Concept: Does not require prosecution prove malice aforethought (intent). Instead, allows the transfer of the mens rea for the predicate felony to satisfy the mens rea requirement of the murder. By transferring culpability, P‟s job is eased because he only has to prove that D was committing a felony. He can then simply transfer the intent. (1) Rationale: Deterrence holding felons who kill negligently or accidentally strictly responsible for killings they commit in the course of committing a felony (2) Problem: it is very subject to chance-actors may have behaved similarly, but one was unlucky, Utilitarian view is that felony murder punishes wrongdoers disproportionately to their wrong, e. Causation in Felony Murder: Must show causal relationship/link for felony murder-how attenuated will you let it be? (1) Forseeability is not required; FM est. if homicide is the direct result of the felony regardless of whether the death was foreseeable or not (a) Stamp-“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 (2) Forseeability is required (b) King v. Commonwealth-drug smugglers‟ plane crashes, surviving D held liable for felony murder, drug smuggling was but for cause of the death but not the proximate cause, crash was not a foreseeable result that the plane‟s cargo was contraband (3) Bottom line: due to uncomfortability with FM, use beafed up causation claims to cut it off, can‟t make them prove malice but must show causal relationship f. Narrowed Rule: Murder if death during „felony that is known to be dangerous‟ (1) Regina v. Serne (1887)-D insures property and son, was broke, fire breaks out and his 2 sons are killed, instructs on felony murder (killing of another with intent to commit a felony), court holds that the common law rule is too harshborrowing mens rea from predicate felony to stand in for mal. af. makes sense for arson but not pickpocketing, court narrows the rule and makes it similar to reckless indifference, jury comes back not guilty-uncomfortable with SL nature of felony murder g. Types of Felony Murder st (1) 1 Degree FM-Statutory FM-cause death during the commission of enumerated dangerous felonies e.g. kidnapping, arson, rape, armed robbery, mayhem, burglary then this mal. af. & premed. delib. nd (2) 2 Degree FM-Common Law FM-catchall for killings during non-enumerated felonies that are inherently dangerous 2. MPC Approach (210.2): Replaces the CL felony-murder doctrine, goes to extreme recklessnes a. Rule: If you cause death in the commission of a felony enumerated by the code, the law presumes that you acted with extreme recklessness and indifference to the value of human life. (1) essentially, perpetrate enumerated felony and cause a death=rebuttable presumption of extreme recklessness (2) D can provide evidence to counter the presumption (e.g. didn‟t think that CoDs were armed) b. Ameliorates harsh effects of FM: (1) enumerated felonies only-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)
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(2) requires felony, causation, and reckless in the commission of felony (3) non-capital offense (4) 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. Misdemeanor-Manslaughter a. Parallels Felony-Murder (1) Death through criminal negligence-failure to ascertain reasonable risk (2) Death during unlawful act that‟s not a felony-same kind of SL, no mens rea with respect to the killing, just causal relationship (a) same sort of discomforts-have mens rea for misdemeanor, but found guilty of manslaughter (which is a felony) b. Variety of limits (1) proximate cause-death must be foreseeable(could also show negligence then) (2) only crimes mala in se (3) inherently dangerous midemeanor requirement 4. Limitations of SL based on Type of Murder: a. Michigan Approach: abandons the felony murder rule, P has to directly prove malice aforethought for murder, but if can P do this and the murder occurred during another st st felony than its automatically 1 degree murder (this is another way to sort between 1 and nd 2 degree murder, statutory language provides susbstitute for premeditation/deliberation) People v. Aaron (MI 1980) (1) thus, can‟t presume that D had mal. af. simply cause they committed a felony where someone died, have to show intent to kill, intent to cause injury, or reckless indifference to life for murder (2) whether it occurred during felony goes to the grade of murder nd b. “Inherently Dangerous Felonies” Limitations: felonies allowable for CL FM (2 degree FM) are limited to those „inherently dangerous‟ (brings it more in line with the st enumerated felonied for 1 degree FM), how do you determine „inherently dangerous‟? (1) Abstract Test: dangerousness determined objectively (not specific circumstances), can the crime be committed without endangering human life? if it can, then its not inherently dangerous (a) Reasons for Abstract Test -skeptical of FM, limit it narrowly as possible for its purpose of deterring killings during felonies -administrability (too hard to judge on case-by-case basis) -stick with legislative definition -*Laziness, if commission is really that specifically dangerous, go after reckless indifference, in Philips they didn‟t need SL of FM as they eventually got a conviction for express malice (intent to kill or intent to seriously injure) (b) Theft is not inherently dangerous under abstract test nd (1) People v Phillips (CA)-D chiropractor was convicted of 2 st degree murder due to CA having two types of felony murder: 1 degree which is defined by certain enumerated felonies in statute nd and 2 degree which is those non-enumerated that are commonlaw. He committed “medical” grand theft by offering to cure girl with cancer by treatment to build her immune system over traditional treatment. The court held that he could not be nd convicted of 2 degree felony murder since grand theft could be committed without causing the death, therefore it wasn‟t an inherently dangerous underlying felony (c) Ex-felon possessing gun is not inherently dangerous under abstract (1) People v. Satchell (CA)-give FM narrowest possible application consistent with its purpose of deterring those engaged in felony from killing, non-felon similarly armed is not
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inherently dangerous, felony conviction could be for non-violent offense (d) False imprisonment is not inherently dangerous under abstract test (1) People v. Henderson (CA)-statute lumps „violence, menace, fraud, or deceit‟ together, not all of them are life threatening and Legislature does not have concern as to violence/non-violence of the act (2) Specific Test: is it inherently dangerous given particular facts and circumstances of its commission, question seems to answer its self-death is caused then almost definitely inherently dangerous (a) Policy Call-how blameworthy is this D (b) People v Stewart (RI)-D mother of a two-month old infant on a crackbinge forgot to provide food or drink to the infant who dies, D was convicted of a felony “wrongfully permitting a child to be a habitual nd sufferer” and charged with 2 degree felony murder, court denies CA abstract approach, trier of fact considers the facts of the particular case to see if its inherently dangerous in the manner in which its committed 5. Causation Requirement a. Agency Theory: Focus on the Killer (1) Rule-Only D or an D‟s agent (accomplice/co-felon) can cause the actual death for FM, agent must act in concert or in furtherance of common purpose, (2) State v. Canola (NJ)-D and 3 Co-Ds rob jewelry store, co-felon and owner kill st each other, indicted for 2 counts of 1 degree FM, only murder of Co-D is at issue, SC rejects surplusage argument based on “ensues” in the statute as requiring proximate cause theory, moral proportionality and fairness demand agenct theory, like CA trying to restrict FM (3) In addition to agents act furthering the purpose, acts must be foreseeable/anticipated-Heinlein: rape victim slaps Co-D who stabbed and killed her, 2 co-ds not liable for FM since the killing was outside the common purpose b. Proximate Cause Theory: Focus on the Victim (1) Rule-FM for any killing, no matter by whose hand, that is foreseeable (legal causation), was it the kind of death that was foreseeable (2) 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 (3) Commonwealth v. Redline-Co-D killed by victim, retained PC approach when cop is killed but held otherwise that killing must be done by D/accomplice/confederate (a) reasoning: killing of Co-D is justifiable (reasonable) from p.o.v. of victim, then D inherits that justification-reasonable for one, reasonable for all; killing of cop is only excusable for the other cop who caused death, D does not inherit that defense c. Limited Proximate Cause Theory: liable for all reasonably foreseeable deaths under PC approach; exception-if co-felon dies then its justified and no FM, Sullivan concurring in Canola d. Shield Case Taylor v. State: D holds innocent in front of him to escape and is killed by cops, under agency theory-No FM, but D is convicted under theory of „express malice‟ G. Vicarious Liability for Murder (not directly related to FM) 1. There is an Alternative Way to show implied malice: the degree of provocation may be evidence of D‟s extreme recklessness, language + brandishing gun is enough provocation for a finding of reckless indifference 2. Result (looking for a way to indict D) a. D stands in the shoes of Co-Ds (VL) b. Co-Ds sufficient provocation of the victims is grounds for extreme recklessness (implied malice from provocation)
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3. Taylor v. State (CA)-Co-Ds rob liquor store, were hostile/intent/apprehensive, owner shoots cod who dies, D is the getaway car driver, charged with murder, because the decedent was killed by the owner and CA has agency theory no FM, basis of murder charge is vicarious liability (D is held liable for the killing by the owner)
III. AFFIRMATIVE DEFENSES: EXCUSE AND JUSTIFICATION-as distinguished from missing
element defenses
A. Excuse: D did something wrong, but withholding blame because D is not responsible/blameworthy in
some way, it would be unfair/not useful to punish D, by definition not reasonable so look at the unique person or circumstances-specific subjective mental states 1. Excuse Typology-3 Main Kinds a. Involuntary Actions: Literally, no control over bodily movements, Martin had an excuse, MPC 2.01-really missing element defense because there is no actus reus. b. Constrained/Nonexistent Choice: 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, punish free choice and its not there so not deterrable (1) Cognitive Deficiency: lack of knowledge, really mistake of fact (e.g. shooting game when its really a human, chose to shoot given erroneous circumstances) (2) Volitional Defciency (Duress): Defect of will short of total loss c. Irresponsible Action: status based defenses that makes her incapable of exercising reason. (1) Infancy-child doesn‟t have rational ability to make morally relevant choices subject to criminal blame (2) Insanity 2. Duress-threat that is unresistible and compels one to commit an unlawful act a. Common Law Rule (Purely Objective Test of Reasonableness)-The coercion must involve a threat of harm which: (1) Rule: is of present, imminent, and impending death or serious bodily injury (a) must be immediate-otherwise have duty to escape, not so constrained of a choice, can call the police (2) Rule: and must induce a “fear as a man of ordinary fortitude and courage might justly yield to” (a) masculine standard (3) Reasoning: judicial fears of perjury and fabrication of baseless defenses. b. Subjective Alternative Rule (1) Rule: 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 (a) did this D feel overwhelmed and really have no choice? (b) i.e. threat does not need to be real (2) Totally subjective standard: based on individual D‟s situation, pure theoretical position (supported by academic commentators), fairness arguments-appropriate level of sanctions c. MPC 2.09-Middle Ground (1) Rule: Threat which “a person of reasonable firmness in his (D‟s) situation would have been unable to resist” (a) brings in a lot of subjective factors-stark tangible factors that differentiate actors e.g. size, strength, age, health; not matters temperament (2) Duress defense only if threat is product of unlawful human conduct, not natural event (see examples below) (3) MPC won‟t adopt purely subjective because don‟t want to vary legal norms with individual‟s capacity to meet the standard they prescribe
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(4) 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. (5)Takes away the requirement of imminence/immediacy and the requirement of death, serious bodily harm. These are now evidential, but not requisite. (6) State v. Toscano (NJ)-D writes false medical forms, claims he did it under duress-Co-D sounded vicious and menacing, quality of work slipped, moved, applied for gun permit, court adopts MPC approach, reverses-was basis for the defense to go to the jury d. Duress affect on murder charges (1) CL, no defense (2) NJ murder-manslaughter (3) MPC, complete defense e. Relationship among MPC sections (1) 2.01 (1)-voluntariness of action, 4 exceptions negate actus reus (2) 2.09 (4)-duress(excuse) (3) 3.02-necessity/choice of evils (justification) -sometimes can fit both 2.09 and 3.02 (4) example 1: 2 drunks on road, robber has gun to head of D, will kill D if he doesn‟t drive straight over them -not justified under 3.02 - 2 people v 1 -will be excused under 2.09 - jury could find D acted as a person of r easonable firmness in his situation (5) example 2: 2 drunks on road, D‟s breaks inoperative, can run off side of road or can save his life by running them over -not justified under 3.02 -not excused under 2.09 even if rp would not have done otherwise Why?-if actor is excused in #2 then there is no one to punish, if actor is excused in #1 then can still prosecute the robber holding the gun 3. Insanity a. Arrises at different moments in the system: (1) Stand Trial: D must be competent to stand trial (const. right to fair trial) can D participate in his own defense and does he understand the proceedings against him? some forms make it so tough for D to understand/participate that due process rights would be violated, still could be pretty sick and allowed to stand trial, most allow for forceable medication to stand trial (2) Time of crime‟s commission: was his functioning such that he had an excuse at the time of crime th (3) Execution: violation of 8 amendment to execute insane person, but didn‟t define insanity-Ford v. Wainwright (1986) (a) Rationale: (1). protect dignity of society (2). protects rights of condemned to prepare for death (3). protect rights of D to make arguments on his own behalf (b) Penry (1989)-can execute a mentally retarded prisoner having a mental age of 7, based on evolving standards of deciency b. Trad. Common Law Rule-M’Naghten’s Test of Legal Insanity (test still dominates CL in many US jurisdictions) (1) Baseline presumption of sanity-distinct burden of production on D (ball in D‟s court) (2) At the time of the commission of act, by defect of reason/disease of mind (a) D did not know the nature of what he was doing (e.g. squeezing neck, think it‟s a lemon) OR (b) D did know the nature, but he did not know that his act was wrong (e.g. squeezing neck is not wrong because its Hitler)
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(1). wrongfulness in terms of conventional morality, not mistake of law (everyone is presumed to know the law) (3) Condition must be one of disease/disorder/defect-excludes general subjective standard e.g excitability, passion, stupidity, obtuseness, lack of self control, impulsiveness (3) Black and White, Absolute Test (doesn‟t reflect reality-experts don‟t make yes or no determination) (4) Rationales for Insanity Defense (King v. Porter 1933) (a) Deterrence theory is inapplicable-insane are not rational, can‟t do CBA, won‟t be swayed by costs of crime (b) Only blameworthy if they have free choice, bu isanity constrains the choice (5) Notes (a) D prefer guilty verdict to civil commitment?-no outside limit on how long they can hold D, very few pursue this defense and only a few get it, really do informal hospital time equivalent of what criminal sentence would be, commitment can be abused (b) States employ different burden of proof for civil commitment once D is acquitted criminally (c) need translation between helping profession vocab and legal vocabdecide moral/legal fault based on clinical determinations which don‟t clearly set out insane or not insane, in reality invade province of jury by telling them what they want to hear (6) Revised CL Absolute Test: Davis derived from M’Naghten (a) Incapable of distinguishing between right and wrong (not aware that its wrong) OR (b) (*Irresistible impulse prong added)-knows nature & knows wrong, but power of will/power of mind so completely destroyed that actions are beyond his control (1). based on other, previously unknown aspects of mental illness, this isn‟t enough to save the absolute test by itself c. Alternative-Durham Test (NH,DC): Defense when criminal conduct was the product of mental disease or defect (1) additional language merely confuses the jury (2) experts come in and dump knowledge (3) jury is then asked the question (3) Result: Didn‟t work-overreaching of psychiatrists d. Model Penal Code Approach (Blake v. US 1969 pg. 886): ask the experts about the degree of impairment and let the jury decide if D is substantially impaired (1) 2 Prong Test: At time of criminal conduct as a result of mental disease/defect D lacks substantial capacity either to… (a) [Cognitive Prong] appreciate the criminality (wrongfulness) of his conduct (b) [Volitional Prong] conform his conduct to the requirements of law (2) Wholesale change away from M‟Naghten in 60s/70s, after Hinckley many states withdrew adoption of MPC (went back to M‟Naghten) (3) Differences between MPC and M’Naghten (a) M‟Naghten is black and white; MPC acknowledges degrees of impairment (lacks substantial capacity), i.e. each axis of a mental disease operates along a continuum (b) M‟Naghten employs a simple cognitive concept, i.e. did not “know” nature or “know” wrong; MPC requires that D “appreciate” the criminalitymeaning to know (cognitive effect) and to feel (emotional effect), mixed cognitive/affective impairment
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(c) MPC retains irresistible impulse, but does not need to be sudden-can slowly loose control (d) MPC combines M‟Naghten‟s prongs (and adds volitional prong), both are included in not appreciating the wrongfulness, by definition if D did not know nature of what they were doing they did not know the wrongfulness (4) Elimination of the Volitional Prong (lack of capacity to conform conduct to the requirements of the law), Keeps Only Cognitive Prong (a) Going on all over the US in the late 80s, due to dissatisfaction with results, Hinckley, and burden on P to disprove insanity once its raised (b) United States v. Lyons (1984)-D has drug conviction, he had become addicted to pain killers-ongoing use affected mental processes [note: addiction isn‟t a defense in criminal law to lack of voluntariness], D claims that testimony should have been allowed as to phys. and psych. brain effects, court rules that evidence of brain damage should have been allowed-he could put on evidence that damage impaired his ability to appreciate the wrongfulness (cognitive prong), but could not go to inability to conform conduct to the law (volitional prong) which no longer is law (c) Reasons For Elimination: (1). Risk of Fabrication: lack scientific tools to measure a person‟s capacity for self-control or measure impairment of it, hard to determine whether its an irresistible impulse or an impulse not resisted, exception-purely self destructive recurring acts (2) Risk of Jury Confusion: they are confronted with a “battle of the experts” and are forced to decide who is most reliable. (3) 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) . (4) Moral Mistakes: 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. (d) Dissent in Lyons would keep both prongs-volitionally impaired Ds don‟t have a choice, so they are not deserving of punishment (1). Skew inevitable errors toward acquitting guilty D faking it (2). Small # of cases to begin with, no battle of experts (3). Excuse theory-look at D‟s subjective state of mind and draw a conclusion (e) Changes that happen (1). Switch burden of proof to D (civil standard) (2). Automatic civil commitment (3). New Verdict-“guilty but mentally ill” (4). Some Abolish the Defense (f) Results (1). MPC is substantial minority rule (pre-Hinckley ½ of states and all but 1 US App had it) (2). Return to M‟Naghten (3). Federal System enacted 18 USC 17(a)-goes back to the black/white test of M‟Naghten and takes the volitional prong out (a). “severe” mental disease (b). “unable” to appreciate (4). Have found no significant differences pre and post Hinckley or despite how the jury is instructed
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B. Justification Defenses: D is responsible but conduct was not wrong or was at least reasonable, making an objective evaluation of the reasonableness of the choice D made, clear/distinct/separate concept from excuse to start out with
1. Self-Defense
a. Commom Law Rule (US v. Peterson, 1973 pg. 750) (1) Self DefenseNecessityJustification: Justification for Self-Defense is based on Necessity-can use unlawful force only to the extent that its necessary to prevent greater injury (a) Proportionality required-force used must be proportional to threat (b) Right of self-defense arises when the necessity begins and ends when the necessity ends (2) Self-Defense to Kill or Maim (D must believe that he was in imminent peril of death or serious bodily injury, and that his respsonse was necessary to save himself) (a) perceive threat, actual or apparent, of death/serious bodily injury (b) threat must be unlawful (i.e. not cop trying to restrain you for resisting arrest) (c) threat must be immediate (d) perception must be both subjectively honest and objectively reasonable, even if belief was mistaken as long as its honest (genuinely held) and reasonable then it was a good defense b. MPC Approach 3.04 (2)(b): Use of Force in Self-Protection -2 Step Analysis (Graded series of partial defenses) (1) Pure Subjective-He believed (genuinely) that the use of deadly force was necessary to protect himself (MPC uses “believes,” which by itself requires only an honest belief-that‟s sufficient as a defense despite idiosyncracies or wackiness) (2) But 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; this reinstates reasonableness test c. NY Penal Law 35.15 (Similar to MPC, but its an either/or test-all or nothing, not 2 steps), a person may not use deadly force unless… (1) He reasonably believes that such other person is using/about to use deadly force or he reasonably believes that ushc other person is committing/attempting to commit kidnapping, rape, sodomy, or robbery i.e really read as „whether D‟s conduct was that of a reasonable man in D‟s situation‟ (a) NY pulled out reasonably from step 2 of MPC and inserted in in step 1, this is where CL history comes back-Legislature wanted to retain CL requirement of objectivity by inserting „reasonably‟ (3) Determination of reasonableness must be based on „circumstances‟ or „situation‟ facing D (subjective factors) which includes: -D‟s relevant prior knowledge of the assailant -physical movements/attributes of the parties -any prior experiences which D had which could provide reasonable basis for his belief of threat (a) back to continuum-wouldn‟t permit evidence of D‟s attitude about young black men (b) delegtion from Leg. to D to rewrite the law so D‟s judgement must be genuine and reasonable, essentially D who shoots gun at person (prohibited) is permitted an exception from Leg. to re-balance competing evils which Leg. could not have forseen (c) allow the jury to consider circumstance/situation factors that we would feel comfortable with Leg. using
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(5) People v. Goetz (NY 1986)-D shot 4 youths on subway, they asked D for $5 th but did not display a weapon, D shoots and hits 3, then walks up to 4 and shoots him, had been mugged before and has used gun to ward off other robbers, had fear of being maimed, stated that he wanted to kill them all, fired most destructive shot after he no longer feared for safety, defintion of „he reasonably believes‟ was at issue, P claims that it refers to „reasonable man in D‟s situation‟, D claims that it should be read as „beliefs and reactions were reasonable to him‟ (D really believed it), indictment reinstated under P‟s charge, eventually aquitted on attempted murder charges d. Honest but Unreasonable Belief-how do we handle it? (1) Majority-No Defense: its all or nothing, is it reasonable or no (fight over this)thonesty/genuineness doesn‟t matter, essentially unfairly saying that genuine believer=contract killer since both acted intentionally and unreasonably (2) Minority (MD)-Mitigates to Voluntary Manslaughter, essentially honest but unreasonable=provocation rd (3) 3 View (MPC, not influential)-Mitigates to Involuntary Manslaughter, see MPC approach: justification is subjective-genuine belief is sufficient defense to murder, but if formed reck. or neg. then guilty of lesser crime (still subject to criminal homicide) e. Limbic System Defense: Really an Excuse! (1) Doesn‟t even make sense to talk about reasonableness-can‟t just turn of limbic system (2) Wrong, but not responsible-limibic system is in control once threat is perceived as imminent (really excusing the conduct-do we trust volitional defenses) f. Syndrome Testimony in Self-Defense Cases: to what extent is expert testimony admissible to honesty and reasonableness of D‟s belief? (1) Honest Belief (Subjective): Testimony is admissible-goes to things that the jury doesn‟t understand about the syndrome and clears it up (a) D genuinely feared for her life in that situation (b) exlains why she did not leave (c) explains why D‟s testimony may be inconsistent (in police report may not have mentioned fear of death or details of relationship, characteristis of syndrome is suppression or forgetting) (d) explains D‟s flat affect/emotional state (2) Reasonable Belief (Objective): Expert may NOT testify about this-this is the ultimate for the jury to decide and its not beyond the ability of the jury to determine this (a) Jury can understand this-they either accept or reject the explanation, may find that D did not have a reasonable belief even if its honest (3) D As Expert on the matter: expert is allowed to testify to D‟s particular ability to predict/sharper acuity of the likely extent of violence in any one attack on her, this does go to reasonableness (4) Standard-is a reasonable person, not a reasonable battered woman; how far along the continuum is “reasonable person in D‟s situation and circumstance”doesn‟t collapse to completely subjective (reasonable to her) (a) if too subjective, really talking about an excuse (saying D is sick, is learned helplessness really an excuse ?) (b) keep ojectiveness to say what D did was not wrong (4) State v. Kelly (NJ 1984)-stormy marriage, beatings occur over 7 year period, most attacks in the home, instant attck occurs in public, victim became upset and attacked D, they separate, V then comes back at D, D stabs hims with pair of scissors, D claims self defense, convicted-expert testimony of Battered Woman Syndrome was not admitted, NJ Law: requires D reasonably believe that deadly force is necessary to protect against death or serious bodily harm, court rules that
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the testimony could go to the honesty of her belief (subjective aspect) but that expert may not testify to the reasonableness of her belief (5) Characteristics of Battered Woman Syndrome: man beats woman, phys. or psych. damage, 3 part cycle, go through 2 cycles and she doesn‟t leave, why don‟t they 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 g. Retreat Doctrine MPC 3.04 (2)(b)(ii:) One has a duty to retreat when: (1) D intends to use deadly force (force which actor uses with the purpose of causing or which he know to create a substantial risk of causing death or serious bodily harms), D‟s duty to retreat depend on whether deadly force is directed at D (2) Only when D knows that he can avoid the necessity of using such force with complete safety by retreating (3) “Castle” Exception: don‟t have to retreat from your own home even if attacker is co-occupant (a) minority-do have to retreat from co-occupant (4) Reasons For and Against (a) Autonomy Theory-greater value is avoiding cowardice (b) Justification Theory-if you can avoid the greater evil (personal injury), then it better to flee (5) State v. Abbott (NJ 1961)-dispute over common driveway, neighbor‟s son and D have argumentfist fightmother and father come at D with knife and hatchet, all 3 neighbors hurt, D convicted as to injuring the son, D could have intentionally used the weapons or injury resulted from the struggle, court keeps retreat doctrine (a) 3 ways could have negated D‟s self defense claim -excessive force, not proportional given apprehension -duty to retreat when he left his own driveway and began fist fight, if D did retreat and V pursued then switch roles -D was initial aggressor (unclear in Abbott) 2. Necessity (vs. Excuse Defenses) a. Balancing of Choice of Evils Defense (pg. 811) (1) D w/o blame in occasioning/developing the situation (2) Conduct was necessary to avoid injury greater than the injury which might reasonably result from his own conduct b. Court allows limited necessity defense for prison escapees: (1) People v. Unger (IL 1977)-D is inmate, threatened by other inmates, had been sexually assaulted, he was little and bad fighter, didn‟t report threats because of fear of retribution, escaped from prison to save his life, claims he would have come back once he got help, convicted-should reasons for escaping, either excuse (duress/compulsion) or justification (necessity) be considered?, P claims should be no defense at all for escapees, court recognizes limited defense of necessity (asking was D‟s choice reasonable?), D is entitled to submit defense to jury
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(2) For duress defense, court wanted evidence of gun to head to constitute adequate loss of capacity to choose; this is a very narrow reading of duress (threat must be so imminent that D was deprived of his ability to choose) (2) Lovercamp-5 conditions for Escape Necessity -Prisoner is faced with a specific threat of death, forcible sexual attack, or substantial bodily injury in the immediate future. -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 -There is no time or opportunity to resort to the courts. -There is no evidence of force or violence used towards prison personnel or other “innocent” persons in the escape. -The prisoner immediately reports to the proper authorities when he has attained a position of safety from the immediate threat. (3) Factors are to determine whether D balanced the competing evils reasonably (4) Existence of each is not necessary, these are relevant factors for the jury to consider in assessing necessity defense claims (c) Interaction Between Justification & Excuse: Helicopter prison escape case (US v. Lopez 1987), escapee claims defenses of necessity and duress-how does this affect the pilot? (1) Justification Defense is Borrowable: Necessity-if escapee was reasonable in escaping, then its also reasonable for the pilot (objective) (2) Excuse Defense is Not Borrowable: Duress-if escapee can‟t make a choice, maybe the pilot still could make a choice
IV. ATTEMPTS
Inchoate crimes-require mens rea and actus reus but crime is not completed harm, but still should protect against A. Level of Punishment 1. CL-reduced factor of punishment, e.g ½ of completed offense a. one has invoked greater public indignation, feels right to punish completed more 2. MPC-punish at the same level identical to completed offense a. same conduct, same intentionfactor of chancedifferent outcomes but are equally blameworthry b. discounts the significance of harm alone B. Attempts Involve Failures, focus on MR or AR 1. MR-mistake/failure as to circumstances (e.g. its Sunday, bank is closed) 2. MR-interruption of causation-act does not produce result (e.g points gun but barrel is off) 3. AR-not all the conduct completed (e.g. unhooks water heater, but does not carry it away) C. Mens Rea: 1. Rule-Attempts require highest culpability level: Specific Intent (CL, this is really same as purpose under the MPC) or Purpose (MPC, purpose as to conduct, purpose or knowledge as to result element-D desired result or knew bring result that‟s enough) a. People v. Kraft (1985)-D shoots at elderly couple in passing car, attempted murder?no, not sufficient evidence of purpose even if he knew that it was likely b. why specific intent?-don‟t attempt unless its your purpose, one who intends is more morally responsible, more confident that they are really dangerous 2. Can Infer Specific Intent-point gun at point blank range and kill, can infer the specific intent from the conduct & circumstances, must be a high probability of result occurring (State v. Raines, MD 1992) a. Can‟t infer specific intent to kill from D who commits rape while having AIDs w/o other evidence such as D‟s statements (Smallwood v. State, MD 1996) st D. Actus Reus-how much conduct is required for an attempt? 1 step is not sufficient, but last step is not required, its somewhere in between 1. Proximity Tests (CL-Majority): ask how much remains to be done? a. indispensable elements-D have everything that he needs for the crime
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b. dangerous proximity-how serious of a crime, how much apprehension has D caused, how much harm is there if act is completed c. looking at how much is left then incentive is to require D to get really close (1) CL did not recognize defense of renunciation, once legally commit it can‟t legally undo it, so must preserve some space for D to abandon it 2. Res Ipsa Tests (MPC): does the existing conduct speak for itself? est. the mens rea, then its enough a. substantial step-conduct that corroborates the existence of mens rea, e.g. casing, planning, enlisting others b. MPC holds them liable earlier, less is required , can attempt it then renunciate it (requires a voluntary change of heart) so pressure is off the courts
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