Criminal Law Outline I. Intro a. Structure of Criminal System (1-22) i. Legislature defines something as a crime (or already exists by common law rules) and defines the elements of the crime (either court or legislature) ii. Commission of crime by D iii. Crime comes to police’s attention (50% of ii) iv. D is arrested (19% of iii) v. D is booked (starts criminal record, even if innocent) vi. Appearance before magistate- notice of rights and bail vii. If felony, preliminary hearing… is there probable cause to believe that D committed crime? (decided by judge) viii. Formal charging document- indictment by grand jury ix. Arraignment- D enters plea x. B/t iii and ix, 50% are dismissed b/c no probable cause xi. Trial (10% of remaining cases) or plea negotiation xii. Why do so few cases make it to trial? 1. system official’s discretion 2. efficient to plead some cases out 3. minimize burden on corrections system (decrease or eliminate need for punishment) xiii. note- when you have a technical defense and/or unsympathetic D, you want to waive right to jury trial b. Process of Proof (35-38) i. for facts to be introduced at trial, they must be probative (makes a fact more likely or less likely to be true), material (important legally to the D or P of case), and legal (not privileged material) ii. burden of proof 1. in re Winship (Sup. Ct. decision) a. facts necessary to est. every element of crime have to be proved by state beyond a reasonable doubt 2. Justice Harlan a. If you weight social costs and benefits of false positives (innocent convicted) and false negatives (guilty person acquitted), there are greater costs to false positives b. Therefore, you should have a very high burden of proof 3. has an element been proved beyond a reasonable doubt? Legal question 4. is an element a fact that proves the charge? Fact question c. Theories of law i. Legal positivists- law is passed by legislature and we are required to enforce it regardless of legitimacy ii. Natural law theorists- law gets its legitimacy because it is just and ethical and comports with what we beleive Elements of Criminal Conduct- must have prohibited conduct with intended mental state a. if missing just one element, you have a complete defense b. Actus Reus- conduct for criminal responsibility
II.
1
i. Positive conduct (173-182; 929-938) 1. Culpability- conduct has to be blameworthy or show fault a. MPC 2.01(1)- D can’t be guilty w/o conduct including voluntary act or omission to perform act that he is physically capable of b. MPC 2.01(2)- act is assumed to be voluntary, unless falls w/in category of involuntariness i. Ex- Reflux, convulsion, unsconscious, asleep, hypnosis, hypnotic suggestions, bodily movement that is not product of effort or determination of acto c. Martin v. State- officers found D at home and drunk, took him to public place and arrested for public intoxication; actus reas requires voluntary appearance in public place; no basis for crime d. People v. Newton- D claims he was unconscious when he fired shot b/c of injury to stomach; if he was unconscious when he shot, he has to be acquitted b/c no voluntary act e. Cogden- D kills daughter in her sleep; D was sleepwalking and had mental illness; ct- can’t find D guilty b/c no voluntary conduct f. If question of voluntary action, look for risk taking behavior i. People v. Decina- D can be guilty for negligent homicide when D has epileptic seizure while driving b/c he voluntarily drove car, engaging in neg. conduct ii. For crime to be criminally negligent, you look at probability of the risk and justification for running the risk g. Cannot punish someone for involuntarily having a disease (addiction counts) without committing an act i. Robinson v. CA- CA statute (illegal to be addicted to narcotics) is unconstitutional (can be convicted of using, but not being addicted w/o a voluntarily action) 1. Douglass (concur)- stigma of criminal; 8th Amend. violation 2. Harlan (concur)- absence of an act; punishment for thinking about committing act 3. White (dissent)- implication that you can’t punish for using drugs b/c involuntary effect of addiction ii. However, breaking a law because of addiction does satisfy mens rea (there was a voluntary act) 1. Powell v. Texas- D arrested for public intoxication; can’t use alcoholism as defense (no voluntary action) a. 1st drink is not involuntary b. Charge is drunk in public, not chronic alcoholic c. Slippery slope to allow compulsions as defense d. Treatment is longer than punishment e. Black (concur)- should be addressed by developing law f. White (concur)- alcoholic is like epileptic who takes risk of involuntary actions occurring
2
g. Fortas (dissent)- causal theory of excuse- no choice, no punishment iii. Distinction between status (no criminality) and conduct (criminal) 2. legality- act has to break a law (that was fairly warned of) to be criminal 3. proportionality- law has to match the level of punishment with the level of blame ii. Omissions (183-197)- failure to act 1. Statute imposes duty (spousal) a. Pope v. State- mother beat infant to death; D didn’t attempt to intervene or call 911; D can’t be held liable under child abuse statute b/c did not fit roles defined in statute (parent or adoptive parent; loco parentis- care of child) i. D may have had moral obligation but no legal obligation b. some states have made it illegal to fail to report a crime (Rhode Island after gang rape in MA)- duty to report and omission is illegal i. people tend not to intervene b/c of fear about own safety, legal liability, and misunderstanding situation c. there are laws about a duty to rescue such as child and elder abuse and Good Samaritan statutes i. Good Samaritan only apply if help can be given w/o harm to self 2. status relationship requires care (ie parent/child) a. Commonwealth v. Cardwell- D failed to protect daughter from stepfather’s sexual assault; D tried to argue duress and court said duress doesn’t take away duty; ct. upheld D’s conviction- had duty to protect, even if fearful of abuse as well (special duty to protect children) 3. one assumes contractual duty for care 4. one voluntarily assumes care to the exclusion of others to provide assistance a. People v. Oliver- D took victim home from bar where he OD on heroin; she assumed duty to act by taking victim away from others; guilty for involuntary manslaughter 5. if you create a peril (whether intentional or not) you have a duty to help those who might be harmed as a result 6. if it is unclear whether a duty was present or not, the case should be presented to a jury a. Jones v. US- D caring for gf’s son (unclear relationship) who dies while in D’s care w/o seeking medical attention; unclear whether 3 or 4 implies duty; case goes to jury c. Mens Rea- evil intention/mental state; D acted purposefully and was aware of conduct and desired to bring about result; each crime has a specific mental state required in the definition i. Common Law Approaches (203-207) 1. malicious, wanton, purpose- must have intent to commit crime or behave recklessly a. Regina v. Cunningham- D steals gas meter from house, which causes gas leak in house, killing neighbor; trial judge erred when instructing jury that malicious is the same as wicked… question should be did D know there was unlawful risk
3
2. if D commits a crime which causes additional crimes, the mens rea for the 2nd crime is transferred from the 1st crime a. Regina v. Faulkner- sailor stole rum and lit match which burned ship in process 3. if mens rea is not required by statute, it is implied by common law 4. MD has not adopted MPC so it follows CL 5. if no MPC and no mens rea in statute, look at legislative history and, if no clues there, presume recklessness ii. Model Penal Code (207-211)- D has to show a specific mental state with respect to each element of crime 1. pg. 1041 §2.02 2. referred to as culpability levels (not mens rea) 3. under §2.02, D has to commit requisite conduct elements and has to be done with a mental state defined by legislature with respect to those elements a. not all crimes have circumstance or result elements b. in rape, conduct is intercourse w/o consent i. §2.02 allows legislature to set law that D is not guilty of rape if D had conduct, but lacked mens rea of knowledge and was reckless instead ii. allows guilt where D should have known there was no consent 4. circumstance can influence culpability level (ex- speeding past school yard b/c bf is having heart attack in car….justified conduct despite risk) 5. four levels of culpability- punishment (and degree- felony, misdemeanor, violation) decreases as you move down in culpability Conduct Circumstance Result Conscious object/desire aware or believe that Desire Purpose/ Intention circumstances exist Aware Aware Practically certain Knowledge (often same as purposefully) Running a risk that is substantial Recklessness (key difference from and unjustified/involves a state of negligence is that D is awareness of the risk/gross aware of risk, but deviation from the actions of a law indifferent towards risk) abiding person in a similar situation Person should have been aware of Negligence (Key difference from substantial and unjustified risk that recklessness is that D is a gross deviation from action of should have known the law abiding person risk, but didn’t) 6. usually, no real difference b/t purpose and knowledge a. exception- husband leaves poison for fatally ill wife after her pleas, but praises she doesn’t use it (he has knowledge, but no purpose)
4
7. If D’s purpose is a condition of someone else’s behavior, that is still sufficient for purpose (§2.02(6)), but ct. should look at what the protected interest is a. Holloway v. US- D kills victim while stealing car; If D’s intention was to kill owner of car if, and only if, owner didn’t cooperate, that is still purpose i. Scalia- dissent- administrability argument- this interpretation is harder to administer which increases complexity and difficulties litigating; also, shouldn’t guess what Congress intended other than what their words actually say; conditional intent is not as certain as actual intent 8. purpose can also be presumed based on the natural consequences of their action a. US v. Neiswender- D told defense in other case that he could tamper with the jury; D claims his intent was to fraud defense, not to actually tamper w/jury; holding- jury can presume intent from probable consequences of D’s actions 9. knowledge- deliberate ignorance is the same as actual knowledge; awareness or intended circumstance are also the same a. US v. Jewell- D claims he didn’t know that other people put drugs in secret compartment in his car; holding- deliberate ignorance is knowledge (also, if there is high probability of knowledge, that is enough) i. Kennedy dissent- MPC features should have been required and, under that directions that deliberate ignorance is actual knowledge is error (need to know why D didn’t find out) 10. criminal vs. civil negligence- criminal neg. is gross deviation from the standard of reasonable care- taking a substantial, unjustifiable risk of causing the social harm and is accompanied by greater stigma 11. most states that have adopted MPC have added that a. purpose and knowledge require specific intent (mens rea is built into the def of some defense that require that D have some future purpose) b. negligence and recklessness require general intent (awareness of one’s conduct, but no future desire or purpose and no further consequences or results) 12. exceptions- no culpability required in strict liability situations and non-criminal offenses (§2.05) 13. negligence- must be specified by legislature 14. intention- conscious obj. for a result b/c D wants it to occur vs. motive- more indirect then intention (distinguishes bad people from bad acts) a. only look at immediate objective (as opposed to ultimate) 15. one level of culpability can be proved by a higher level (recklessness can be proved by knowledge) iii. Mistake of Fact (225-230; 351-354; 358-366)- defense that functions by showing that D couldn’t have required mental state (ie- no mens rea or level of culpability) 1. if D has mistake of fact that makes action a crime, it is judged by reasonable man standard a. 3 part test i. Was D’s belief unreasonable? If yes, hold him responsible.
5
ii. Look at factual panorama from actor’s perspective iii. Based on the facts as the actor reasonably believed them, was D’s action moral? 1. someone who knowingly takes a moral wrong opens self up that it may be in violation of a law 2. Exception- moral-wrong doctrine- one can make a reasonable mistake regarding an attendant circumstance and yet manifest a bad character or otherwise demonstrate moral culpability worth of punishment a. Regina v. Prince- D found guilty for taking 14 y/o from home based on reasonable belief that she was of legal age; holding- if mistake of fact is reasonable, but it was moral wrong to take 18 y/o girl from father i. Brett-dissent- defense of mistake of fact is implied in every case so if mistake negates mens rea than it is a defense b. White v. State- D left wife when pregnant in violation of statute (D didn’t know wife was pregnant); no excuse b/c immoral to leave wife when pregnant… use strict liability 3. consent- some jurisdictions: allow a reasonable and honest mistake of verbal consent is allowed (but many treat as strict liability- no defense) a. under common law, physical resistance is needed b. but, mistake of fact defenses will not be allowed w/o considering the reasonableness of such a defense i. Commonwealth v. Sherry- group of doctors rape nurse after party; D claims victim consented; physical struggle is not needed and it is negligent to continue sex b/c risk not having consent ii. Opinion in companion case- no means no and, w/o verbal consent, D assumes the risk and will be held strictly liable later iii. Later, MA law says that reasonable and honest mistake of fact is not a defense c. Mistake as to consent can’t be argued if D argues that he had consent and victim says no consent was given d. Eng. Court at one point- subjective and honest (even if unreasonable) mistake is good defense but the sheer unreasonableness of a belief can be used by jury to decide that belief was not reasonably held by D i. Regina v. Morgan- victim’s husband told soldiers to have sex w/victim even though she may resist b/c she wants it; Ds do this and are arrested for rape; here, Ds had the subjective mental state of believing they were w/o mens rea, then purposeful or knowing defense should be acceptable e. MPC- an honest mistake, even if unreasonable, negates the mens rea to an element, than proof of the mistake requires acquittal of crime i. However, if statute says that culpability level if recklessness, then honest belief that is unreasonable would be considered reckless and would not be a defense ii. Use the four hierarchy levels of culpability instead of CL concepts to determine honest/reasonable or honest/unreasonable (usually neg. and reckless)
6
iii. §2.02- state must prove culpability level of every element of the crime to convict iv. Mistake of age in statutory rape is never an element that can be denied by mistake of fact v. Reynolds v. State- Alaska has MPC; no longer have requirement of physical resistance but has more protection for D by allowing proof of honest and not reckless belief of consent is not enough for conviction (more protective than neg. standard) vi. If leg. says recklessness or neg. for consent, then honest and unreasonable mistake is not a defense vii. If leg. says knowledge or purpose for consent, then honest and unreasonable mistake is a defense viii. Leg. can also view rape as strict liability crime (but only if statute includes strict liability…otherwise, can’t be assumed) f. More willingness to allow reasonable mistake of fact defense in lower level crimes, such as larceny i. State v. Kelly- D honestly believed he had owner’s consent to remove break into houses and remove mantels, but houses actually belonged to “owner’s” estranged wife so he didn’t have consent; larceny has mens rea element of property being taken w/o knowledge of owner; D reasonably believed that he had owner’s consent; no conviction iv. Mistake of Law (255-263; 268-271) 1. if a statute is unclear and leads to a reasonable mistake as to the meaning of the law (and actions would not be criminal under interpretation of law) that can be a defense 2. however, if statute is not unclear and in need of being changed by legislature, no defense a. People v. Marrero- D had loaded pistol in club thinking it was legal, based on statute’s exemption of peace officers; however, D, as an employee of a fed. correctional facility was not covered under that law; holding- no defense b/c statute is not vague… D just didn’t know the proper definition of peace officer i. Dissent- when crimes were mostly mala ince (wrong in itself), this kind of logic worked b/c D should know if act was immoral; but, today, many crimes are mala prohibida (wrong b/c legislature has prohibited them) w/o any moral reasons so Ds could honestly be blameless, based on a reasonable understanding of the law, and still be punished 3. if it is a specific intent statute and D makes a mistake that negates the specific mens rea intent or purpose required in the statute, D cannot be found guilty a. Regina v. Smith- D is charged with unlawful destruction of property after removing improvements that he made to his rental property before leaving; court finds that statute is specific intent that D know it is the property of someone else, which D didn’t; defense works 4. MPC: tries to draw clearly distinction b/t mistakes of fact and law
7
a. §2.041- mistake of fact or law is a defense if it negates required culpability level b. §2.029- knowledge, recklessness or negligence as to whether action is illegal is not a defense, unless the MPC specifically allows it c. mistakes of laws according to MPC (not used in MD) i. Mistake as to circumstance element (§2.04(1))- D makes a mistake as to the presence of absence of circumstance and that negates culpability ii. Mistake as to another area of law- not criminal part of law, but made relevant because it is related to a criminal element (§2.04(1)) 1. for example, in Smith case, D’s honest mistake thinking that man was divorced negates mens rea of committing illicit sexual affair iii. mistake as to meaning of the law- (§2.02(9))- often confused with above iv. mistake as to what is required of law based on reasonable reliance that is later found to be erroneous (§2.04 (3)) 1. US v. Albertini- D engaged in protest on naval base; court of appeals found not illegal; D did it again; Supreme Court said it was illegal… D cannot be prosecuted for second time b/c he reasonably relied on official law as given by Court of Appeals, which was erroneous based on Supreme Court’s later finding a. Ex post facto laws are unconstitutional… can’t convict D for something ct. told him he could do 2. usually, we don’t hold people to be blameworthy unless they make a blameworthy choice 3. note, reliance has to be on official law, not legal professional a. Hopkins v. State- D knows there is statute about soliciting marriage performances, but asks st. attorney if he can have sign of reverend and notary public and she says yes; mistake is not a defense b/c D takes risk by relying on attorney that she may be wrong d. under MPC, mistake as to meaning of the law is not a defense i. what the criminal law requires of you d. Common law approach- Comparing General and Specific intent in relation to mistakes of laws and fact i. How to tell general from specific? Specific- requires purpose or knowledge; general is recklessness or negligence…. OR specific- mens rea requirement w/respect to future result or circumstance; general- crime only have mens rea requirement for conduct (courts will manipulate categories to get outcome that they want) 1. murder always treated as specific; manslaughter always treated as general General Intent Specific Intent
8
Mistake of Law
Mistake of Fact (except statutory rape)
No defense; under common law “ignorance of the law is no defense” Honest and reasonable mistake is a defense
Honest mistake is a good defense; overcomes the proof of specific mens rea Honest belief overcomes mens rea, regardless of reasonableness
III.
e. Strict Liability (235-241; 244-251)- crimes that don’t require mens rea i. Often rape cases (w/issues of consent) ii. If actor can avoid criminal responsibility by acting reasonably, no mens rea is needed 1. Don’t need mens rea in some regulatory crimes b/c there isn’t a choice b/t good and evil and punishment and stigma aren’t nearly as severe… D can use due care to avoid committing crime and legislature needs to protect people from new dangers in society iii. If statute doesn’t include mens rea, but it is implied b/c statute evolved from common law crime which does have mens rea, it can be a strict liability crime 1. Morissette v. US- D knowingly took govt property (old bomb casings) but he honestly believed they had been abandoned; no defense b/c, even though statute doesn’t require intent to steal property, it is implied b/c this crime evolved from the common law crime of larceny which does require mens rea iv. if strict liability would violate due process (either substantive- deprivation of liberty by state or procedural- D can’t present evidence to defend himself) and would lead to jail time, it isn’t allowed 1. State v. Guminga- Minn. Statute requiring incarceration for employee selling alcohol to minors violates due process b/c D’s employee doesn’t have intent to sell to minors; have to balance public and private interest; here, public interest can be satisfied with fines, loss of license, etc. so don’t need to incarcerate v. Strict liability applies if D made a choice that took away his control over situation 1. State v. Baker- D tries to defend against speeding b/c cruise control broken; court says no defense, b/c D made choice to rely on cruise control so mens rea (intent to speed) is not necessary to be convicted of speeding vi. Usually applies in regulatory crimes- injury is not as severe, duties mirror civil side, can use reasonable care to avoid committing regulatory crimes vii. Sault Ste. Marie- Canadian case where ct. summarizes for and against strict liability in regulatory crimes 1. Pros- deterrence (protection of public interests) and administration (lower costs if don’t need to prove mens rea, easier evidence, low stigma, low penalties) 2. Cons- unlikely to produce greater deterrence, little or no stigma may not be true, punishes people who don’t make free choice 3. there should be assumption of criminal responsibility, but D should be allowed to show that he exercised reasonable care to defeat presumption of strict liability 4. strict liability is unconstitutional in Canada if it leads to incarceration Homicide a. Introduction (387-396) i. Creates gradations of guiltiness 1. homicide
9
a. first degree- malice forethought- lying in wait, poisoning i. felony-murder ii. intent to cause death or serious bodily harm b. second degree- intention of killing- extreme reckless murder or reckless indifference to human life (intending to kill A and accidentally killing B) 2. Manslaughter a. Voluntary- committed in the heat of passion which negates malice aforethought ; provocation to commit killing (would be murder w/o provocation) b. Involuntary- recklessness or negligence; misdemeanor manslaughter c. vehicular ii. Purpose is to match offense to punishment iii. Role of death penalty in shaping criminal justice system 1. before 1496- 1 crime of homicide so if killing was unlawful, it was death penalty a. all early common law crimes were subject to death penalty b. clerical exception created bias so sometimes juries would refuse to convict b/c didn’t think person deserved to die 2. statutes developed manslaughter (no death penalty or malice aforethought) 3. US developments a. Same problems as UK w/ acquittal instead of death penalty b. Then, jury given discretion as to whether to recommend death penalty in murder cases c. MPC (1950’s and 60’s)- rejects planned killings as more blameworthy than impulsive killings i. Use 4 part culpability structure instead d. Furman- struck down death penalty b/c of jury discretion and Greg v. GAuphold death penalty b/c jury is to decide based on weighing factors 4. malice aforethought eliminated- can be convicted w/o either (still exists in some jurisdictions) a. today, interpreted as D acted with intent to cause serious bodily injury or death b. Premeditation-Deliberation Formula for Murder (395-404) i. Intent to cause death or serious bodily harm 1. Intent can be inferred from D’s conduct and surrounding circumstances a. Commonwealth v. Carroll- military husband shot crazy wife when going to bed; no defense of impulsivity to reduce degree of murder b. Premeditation and intent can be formed in seconds when D is pressing the trigger c. Also implies that impulsive killings can, at times, be as blameworthy as premeditated killings 2. other jurisdictions look at amount of time between decision to kill and actually killing for first degree murder (distinction b/t intent and premeditation) a. State v. Gunthrie- D has mental problems and stabs co-worker after taunting; D had intent to kill, but did not premeditate killing so it is second degree murder; criteria jury should consider in determining death penalty:
10
prior relationship or behavior with victim, “planning activity”, evidence regarding manner or nature of killing ii. Extreme reckless murder or reckless indifference to human life (intending to kill A and accidentally killing B) 1. Abandoned and malignant heart iii. Doctrine of transferred intent- if you mean to kill A and you actually kill B, you have intent to kill B (wouldn’t apply if you mean to kill what you think is a bear and it turns out to be a person—that is a defense of mistake of fact) c. Provocation i. Common Law (401-415) 1. allow these defenses b/c D is less blameworthy, less responsible, less deterable and victim is more blameworthy 2. usually provocation and heat of passion defenses are only allowed in predetermined circumstances such as false imprisonment, spouse having affair a. in some jurisdictions verbal provocation is allowed…others don’t allow it b/c kind of passion produced is not inconsistent with malice aforethought as other provocation and heat of passion situations are i. Girouard v. State- husband kills wife after angry and insulting argument; D tries verbal provocation defense but ct. denies b/c verbal provocation is not inconsistent with malice aforethought ii. Also, social policy does not supported accepting verbal provocation b/c it would be used all the time b. In some jurisdictions (including MD), finding out spouse having an affair is no longer a defense for reduction to manslaughter 3. provocation can only be based on first hand knowledge a. Maher v. People- husband shots man who friend said is having affair w/wife; evidence of what friend said is not material b/c it is not first hand knowledge and D can only use as defense if he had first hand knowledge of affair b. Also, no provocation if had time to cool off 4. provocation has to be reasonable (is this the kind of event that would cause an ordinarily reasonable person to loose control?) 5. provocation can be seen as a justification (wasn’t necessarily the wrong thing to do) and excuse (b/c of something wrong w/D or w/the circumstances, don’t attribute wrongful conduct to D) 6. death of innocent bystanders- cannot use provocation 7. defense can be withheld from jury if it is clear that D was not reasonably provoked 8. at common law, provocation is partly an excuse (wrongful conduct but is excused b/c of circumstances) and partly a justification (wasn’t the wrong thing in the circumstances) ii. MPC (415-424)- rejects cooling off period and common law defs 1. test- was D subjectively emotional disturbed? If yes, then was D’s emotional disturbance reasonable? (for a person in D’s circumstances) 2. once there is proof of provocation, the case has to go to jury to determine whether there was a reasonable explanation for the subjective provocation
11
a. People v. Casassa- D went on a few dates w/victim and, when she was no longer interested, killed her claiming he was under severe emotional distress; b/c D was subjectively emotional disturbed, case goes to jury to determine if emotional disturbance was reasonable 3. jury should only consider permanent characteristics of D and unusual circumstances (not idiosyncratic moral values such as extreme political views which lead to extreme reaction) a. Bedder v. DPP- D (teen) kills prostitute… include D’s impotence as characteristics for reasonable person (Eng.) b. DPP v. Camplin- take age into account c. §210.3- consider extreme grief 4. English moved from common law to have jury decide whether D was reasonably provoked (similar to MPC) d. Creation of Homicidal Risk (425-439) i. Possible legal responses to unlawful deaths caused by risky behavior 1. no liability- bringing death doesn’t provoke legal liability (not all accidental deaths are a tort or a crime) 2. civil liability- a tort, caused by negligence 3. manslaughter- tort liability and criminal liability 4. murder- most serious kind of homicide ii. reckless conduct- how severe was the risk? Can’t just be running an ordinary risk iii. however, D doesn’t have to know risk if ordinary, reasonable man would know danger 1. State v. Williams- parents didn’t realize son needed medical treatment (thought it was toothache) and were afraid son would be taken; son dies; parents can be held criminal responsible for inattention to risk iv. Commonwealth v. Welansky- D is manager of nightclub w/ locked doors; fire and people die b/c they can’t get out; D is responsible b/c he made decision to run risk of having doors locked and fire exits blocked which was reckless v. Differences b/t criminal (recklessness) and ordinary negligence 1. likelihood of risk 2. knowing factors that would cause reasonable man to know danger 3. gravity of harm is greater 4. why does criminal require more risk than ordinary? a. Behavior is incompatible with proper regard for human life b. Risk taking behavior shows indifference towards consequences and danger of taking human life c. Different aims of system vi. Risk taking behavior that shows indifference to consequences and potential danger to human life is underpinning for criminal responsibility under neg. (State v. Barnett) e. Felony-Murder i. Basic Doctrine (448-459) 1. common law- if person dies as a result of conducting, attempting or escaping from a felony, D may be held responsible for death as murder, regardless of D’s intent towards victim
12
a. Regina v. Serne- D set own house and shop on fire which resulted in D’s son death; court is urged to hold D responsible for murder even though he didn’t intend for anyone to die because he caused it b. Some states limit the subset of crimes where D can be held for felonymurder (such as inherently dangerous felonies) 2. D takes his victim as he finds him and is responsible for death, even if it is unforeseeable, if his crime was a cause of death a. People v. Stamp- D robbed victim (an obese, unhealthy, man) who died of heart attack from shock of robbery; D is responsible for murder since it resulted from his commission of a felony (even if there were other factors which D couldn’t have known); EXCEPTION- “thin skull victim” 3. mens rea tranfers from committing the first felony a. D cannot offer evidence to deny that he acted with malice aforethought 4. MPC- if death is caused during commission of enumerated felony, then you have a rebuttable presumption of reckless endangerment a. Gives D chance to offer defense to murder (such as trying to avoid injury) b. Makes murder a question in fact for jury c. Only adopted in a few states 5. misdemeanor manslaughter- similar to felony-murder, except during commission of misdemeanor; no limit of types of crimes that qualify; no application to regulatory crimes, but must be proximate cause 6. some states have eliminated felony-murder and others have limited it by not allowing a showing of malice aforethought (required for first degree murder) through the commission of the felony a. requires showing of extreme recklessness, depraved heart, purposeful killing, intent to cause serious bodily injury to get conviction of first degree murder for murder during felony (adopted in People v. Aaron- MI) b. another option- avoid cruel and unusual punishment by requiring judicial review of sentence in light of D’s culpability (People v. Dillon- CA) 7. not felony-murder if a police officer kills 8. if you can’t prove malice aforethought, prove extreme recklessness or intend to cause serious bodily harm that results in death ii. Inherently Dangerous Felonies (459-466)- attempt to limit and narrow doctrine 1. if felony isn’t listed as an inherently dangerous one that qualifies for first degree murder, it doesn’t transfer that it can be treated as second degree murder just because it is inherently dangerous to human life a. People v. Phillips- P tried to use above theory in prosecuting D for murder resulting from grand theft medical fraud (telling parents not to operate on child w/cancer b/c he could treat); court rejects P’s argument b/c hard to administer and trying to narrow felony-murder, not expand 2. underlying felony is factual matter in case and should go to jury to decide if facts of case made crime more dangerous a. People v. Stewart- D went on crack binge and failed to feed baby in violation of felony (child neglect); no intentional homicide, extreme recklessness; child neglect is not an inherently dangerous felony, but jury can use in support of circumstances make it an inherently dangerous
13
IV.
felony and support for felony-murder (dif. from Phillips which said not to use facts of the case) iii. Causation (471-482) 1. agency theory- killing can be done in concert by D’s accomplices with common design or plan a. act of killing must be done by D or D’s accomplices 2. Felony must be proximate cause and but for cause of death a. King v. Commonwealth- D and accomplice crash plane that is transporting marijuana and accomplice dies in plane crash; no felony murder b/c transporting drugs did not cause plane crash which caused death i. Exceptions: victim is fragile or felony makes death foreseeable b. is the person killed in particular circumstances foreseeable? c. act of killing can be by anyone if it is foreseeable 3. killing must be in furtherance of felony (if one co-D is provoked, other Ds aren’t liable) 4. vicarious liability- if, while committing a felony, actions are provocative enough to get victims to respond with equal force, Ds are liable for any resulting murders… must have: a. D’s co-felons could be responsible for murder b/c they showed callous indifference to human life b. D’s have to be part of common plan and actus reas to commit felony has to occur c. Sometimes court will “borrow” one D’s mens rea for a co-D’s mens rea (only if horizontal borrowing, not vertical- ie- D1 meant to kill V but D2 ended up doing killing) d. Almeida- police officer shot by other officers during gun battle w/ felons; D held responsible b/c of proximate cause and vicarious liability e. Redline- co-felon killed; no vicarious liability b/c, in Almeida, it was excuse (wrong act in killing) but here it is justifiable to kill co-felon so we won’t hold D responsible f. Shield cases- malice is express when Ds place victim in position to be killed or where they face significant likelihood of death i. Taylor v. Superior Court- D drove getaway car for 2 co-felons who were trying to rob victims; one victim shot and killed a co-felon; other co-felon had threatened other victim to make him fear for life; b/c victim was provoked to shot, D can be held liable for cofelons death… no felony-murder, but so reckless it constitutes depraved heart murder Excuse- type of affirmative defense a. Introduction (842-885) i. Wrongful conduct, but doesn’t require punishment ii. Unique to individual actor who is exempt from responsibility b/c of something about him or circumstances that make it unfair or not sensible to assign responsibility and punishment (SUBJECTIVE) iii. Disability in capacity to know or choice and person has to have chance to know or choose to be morally responsible
14
iv. Subcategories of excuse 1. D’s wrongful conduct was involuntary (body was carried, had a seizure, etc) a. Missing element defense- no actus reas w/o voluntariness b. Martin 2. D’s wrong is produced by constrained choices a. Cognitive deficiencies (mistake of fact) or duress (situational pressures such as threats to D or D’s family ) 3. D’s wrong is undertaken b/c D’s status prevents D from making a rational choice a. Infants, legally insane b. Duress (845-850) i. Common law- requires an obj reasonableness showing that person would have been unable to resist the threat and threat must be immediate and imminent 1. can’t use deadly force and claim common law duress ii. Pure theoretical excuse- all excuses involve commission of wrongful conduct but, in situations where D is regarded as not responsible because of unique circumstances for D 1. purely subjective iii. Middle ground- duress is a defense to murder if the 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 the person of another, which a person of reasonable firmness in his situation would have been unable to resist 1. State v. Toscano- D convicted of obtaining money by false pretenses; D claims duress (other party made threats that of what would happen to D if he didn’t do it); can’t use under CL b/c not immediate and imminent but can use MPC which ct. adopts w/ physical factors to be considered iv. MPC- 3 different provisions 1. §2.09- modified obj. standard- threat and other outside factors imposed by another actor (D can’t qualify under §3.02, but should be excused b/c of coercion) (excuse defense) a. limits are given evidentiary weight but are not dispositive in themselves b. immediacy is not required but is a question of fact that gets weight c. question of duress goes to jury d. standard is person in D’s situation e. D may have choose greater evil, but it is understandable 2. §3.02- lesser of 2 evils choice a. Choice of evils can be provided by person or another agent (CL only allowed human to present threat) b. Person made reasonable choice in lesser of evils c. Justification defense d. Ex- self-defense 3. §2.01- missing element of actus reas defense…involuntary conduct c. Mental Disorder (illness or disability) and Legal Insanity (legal, moral concept) (875-879)disability has to be gross and verifiable i. Common Law (879-885) 1. look at D at time act was committed, not at time of trial a. time of trial is different standard- can D understand and participate in own defense; if not, can’t be tried at this time
15
b. civil commitments- if D is mentally ill and dangerous to self or others with a lower standard of proof than criminal trial c. cannot execute someone who is mentally ill 2. M’Naghten- Eng. Case, used extensively in US before MPC and after Hinkley a. Facts- D arrested for death of victim (secretary to prime minister); D believed PM and govt were persecuted and following him and wished to kill him; D acquitted and resulted in huge public outcry b. Test: what was state of mind at time crime was committed? If not sane, then have to show disease, disorder or disturbance of the mind i. Disease, disorder or disturbance has to cause D to not know dif. b/t right and wrong or not know the nature or quality of his act 1. disease must be gross and verifiable (not just stupidity) ii. Examples- D strangles wife thinking he is squeezing a lemon or D knows he is squeezing the throat of a woman but thinks she has been taken over by devil and will kill everyone if he doesn’t kill her (“God told me to” cases) c. Burden of proof is on D to prove insanity 3. reason to allow insanity defense is that person is not morally culpable 4. after acquittal for mental illness a. some states have guilty but mentally ill verdicts (not very popular) b. civil court can mandate that D go to mental hospital (could be automatic or discretionary) i. focus is then mental status at that time (occasionally, jurisdictions will look at time of crime) ii. time of commitment may be subject to review iii. usually Ds are committed much longer than they would have been incarcerated, therefore, bad lawyering to encourage D to plead insanity 5. M’Naghten is modified by adding irresistible impulse prong in attempt to make old test updated ii. MPC (885-890) 1. test a. must be able to appreciate consequences (instead of just know them) i. ex- not just know it is Tues, but know you have to go to class b/c it is Tuesday b. ask expert if “D lacked substantial capacity?” (instead of on-off switch) i. this allows for grey areas as to D’s knowledge of right from wrong c. has volitional impairment, but not irresistible impulse i. loss of control could be long standing and gradual d. combine the first two prongs of the M’Naghten test i. “Did the person lack substantial capacity to appreciate the criminality or wrongfulness of conduct?” ii. It no longer matters whether D knew the physical nature of his conduct e. Test adopted in Blake v. US- D robbed bank; no question; D suffered from mental disorders; only issue is was he insane at time of crime; court adopts
16
V.
MPC test, which says he was insane (M’Naghten test would have said he wasn’t) iii. Volitional Impairment (890-896)- court moves away from MPC after Hinkley case 1. volitional impairment- D lacks substantial capacity to conform conduct to requirements of the law; requirement of MPC 2. rejected b/c medical knowledge has changed since MPC… there is no way to determine whether D can control conduct or not 3. problems with relying on medical experts- risk of fabrication, moral mistakes, jury confusion 4. w/ rejection of this element, court assumes that all people act as matter of free will 5. today, most courts have updated M’Naghten test w/APA 6. US v. Lyons- D charged with securing drugs; D’s defense- addicted to painkillers which resulted in brain damage so he was insane under MPC; court rejects defense, despite earlier cases which allowed brain damage from addiction as a physical defect a. Majority- if the number of people who aren’t insane but are acquitted is very low, then the cost isn’t bad b. Dissent- insanity is a defense claim so it should be subjective b/c it turns on what is in D’s head and whether that makes him blameworthy (also, judges shouldn’t cave to public outcry) Justification- type of affirmative defense; conduct was not wrong in circumstances (what D did was reasonable and was appropriate) and is available to anyone in those circumstances a. Self Defense (749-766; 785-792) i. Necessity claim—similar to choice of evils (I chose lesser of two evils- violence in self defense) 1. once necessity ends, justification ends ii. elements under common law 1. person is faced with threat of death or serious bodily injury to self or another 2. threat is immediate and unlawful 3. use of force is proportional to threatened force 4. assessment for need to use force has to be honest and reasonable and degree of force must be reasonable iii. elements under MPC 1. Did D believe that it was necessary to use unlawful force? (honest and subjective) §3.04(2) 2. Even if D honestly and subjectively believed it was necessary, was the belief formed unreasonably (recklessly or negligently)? §3.09 a. if belief isn’t reasonable, then possibly criminal liability under a crime that requires mens rea of recklessness or negligence iv. MPC (con’t)- D is jusitifed in using otherwise unlawful force to respond to what he reasonably believes to be unlawful and ups the ante to deadly force when D fears that he is facing deadly bodily injury or sexual assault or kidnapping 1. deadly force- force D undertakes with purpose or knowledge of substantial risk for serious bodily harm 2. usually only use deadly force when deadly force is threatened (criticized by feminists- women are smaller and weaker than men)
17
v. People v. Goetz- D shoots youths on subway trying to rob him and continues to shoot after threat ended; pleads self-defense; court says question of degree of force being necessary to prevent crime is based on objective reasonableness (belief doesn’t have to be correct…just reasonable); case goes to trial 1. psychology issues- once fight or flight is engaged, unreasonable to expect D to immediately calm down (grounds for excuse?) vi. Some states have dealt with honest but unreasonable self defense by treating it as voluntary manslaughter (no malice) or involuntary manslaughter (reckless or negligent use of self-defense…MD does this) vii. Under common law, belief doesn’t have to be correct (just reasonable) but under MPC, belief has to be that force is immediately necessary to protect self from force from other person on that occasion viii. Battered women’s syndrome 1. State v. Kelly- wife stabs husband with scissors after public fight and years of abuse; dispute as to whether there was an immediate threat; D presents expert testimony: a. Characteristics of women subjected to repeated patterns of abuse (learned helplessness, more relevant for excuse than justification) b. Pattern or cycle of violence (shows accuracy of D’s perceptions of danger) c. Why people subject to this kind of repeated abuse rarely leave d. Ct. says testimony should be presented to jury b/c most people think the understand spousal abuse but there are specific issues of whether D felt like she could leave and the reasonableness of her fear e. Jury still has to use objective standard (may not be appropriate according to expert) f. Issue: did D reasonably believe she was in immediate danger? ix. Kelly and Goetz- Kelly used violence against husband, who she had expertise about level and type of harm whereas Goetz used violence against strangers based on generalizations and stereotypes x. Duty to other people- if D uses deadly self defense against attacker and accidentally injures another person, it is allowed if force is reasonable (under MPC, only applies if belief about need to use force isn’t negligent or reckless) 1. People v. Adams- D shots attacker and bullet passes through into another person; D didn’t have time to contemplate duty to assailant vs. other people 2. however, would be different if D had used shotgun which was almost certain that it would cause death or injury to other people; then D should be charged with lesser crime instead of justifying this crime (that would be reckless or neg.) xi. duty to retreat- if D intends to use or knows he is going to use deadly force, he has a duty to attempt to retreat if he is aware of opportunity to retreat safely (no necessity for self defense if D can safely leave situation) 1. exception- if D is on his own land, then no duty to retreat 2. State v. Abbott- neighbors get in fight in shared driveway where D attacks with a hatchet; issue is whether D was on own land (no duty to retreat) or communal land (duty to retreat) and who was initial aggressor (if you start fight, no claim of self defense- exception in some jurisdictions where, if you start fight w/ nondeadly force and are countered w/ deadly force, you can use deadly force as SD)
18
VI.
3. rejected in some Midwestern and Western jurisdictions (greater evil is harm to evil of turning and running) but many are moving towards duty to retreat now b. Necessity vs. Excuse (809-813; 852-855) i. Necessity and duress can function in the same way 1. People v. Unger- D escapes from prison after being threatened and attacked a. Could claim choice of evils (excuse) or fear of great bodily harm or death so acting in self defense (justification) b. Some courts have allowed a defense of duress but this court will only allow defense of necessity b/c D was not completely overwhelmed as required for duress c. Test for necessity (from People v. Lovercamp)- in Lovercamp, must meet all requirements; here, ct. says not every condition needs to be met i. Prisoner is faced with specific threat of death, forcible sexual attack, or substantial bodily injury ii. No time for complain to the authorities or there is a history of futile complaints iii. No time or opportunity to resort to the courts iv. No evidence of force or violence used towards prison personnel or other innocent persons in escape v. Prisoner immediately reports to the proper authorities when he is in a safe position away from immediate danger ii. Under MPC, D can claim both duress (§2.09) and choice of evils (§3.02) if D chose the lesser of evils and did not create emergency himself 1. choice of evils- available regardless of whether peril is produced by another agent or by nature 2. duress- only available when source of coercion is human Liability for Attempts a. Introduction (554-556) i. Inchoate crimes- culpability for solicitation, aiding and abetting, conspiracy ii. Different legal interest being protected in attempts than in commission iii. Usually punishment is less for attempt than commission (unless under MPC) iv. 3 types of failure to have actual commission of the crime 1. mistake by D as to surrounding circumstances in which he acted- engaged in conduct with mens rea but misunderstood a circumstance a. ex- D shots a dead body thinking it is alive and intending to kill it 2. interruptions in the realm of causation- D completes all conduct required for crime and has right mens rea but isn’t subject to conviction b/c something intervened that prevented result from occurring a. example- attempted murder but gun jammed 3. failure on D’s part to complete all of required conduct for the crime- focus on actus reas and whether D committed enough conduct to move beyond point of preparation and be liable for attempt v. think about what actus reas and mens rea are for conviction of attempted crime vi. MPC- §5.05- attempt is treated as commission unless it is a first degree felony which is treated as a second degree felony b. Attempt- Mens Rea (556-564)
19
i. Must have purpose to accomplish target crime ii. Higher mens rea than for attempted offense b/c 1. to attempt something is to have a purpose to accomplish it 2. D is a worse person when he has purpose to bring forth a result than when D does it accidentally 3. purposeful attempts are more likely to be successful than similar conducts undertaken with awareness or recklessness iii. must have specific intent of committing crime 1. specific intent- purpose as defined by MPC or intent to complete targeted offense iv. if mens rea is negligence, recklessness, or strict liability, then D can be convicted on attempts liability even w/o higher level of mens rea with respect to circumstance elements v. MPC- acting with the kind of mens rea otherwise required for the targeted offense, D acts purposefully and it would have been a crime if the circumstances had been as D believed them to be vi. Smallwood v. State- D knew he was HIV+ and raped several women; can’t charge attempted murder b/c magnitude of risk is not as high as other offenses and D didn’t have intent to murder c. Attempt- Actus Reus (564-572) i. Old rule was last proximate act test- D has to commit last proximate act for offense (had to do everything required and crime failed to occur for some other reason) 1. requires D having control over all indispensable element necessary for commission of the crime 2. rejected in most jurisdictions b/c it prevents punishing people who are dangerous and have done sufficient conduct that, were they permitted, they would have committed targeted offenses 3. Indispensable element test- did D have control of all indispensable elements for commission of crime? ii. equivicality test- how far did D already come and does actus reas support the targeted offense? 1. focus is on what D has already done, not what he has left to do 2. also called res ipsa loquitor test- slightly more demanding…whatever D has done (partial conduct completed) is so unambiguous that only conclusion that jury could draw is that D intended to complete the crime 3. MPC- substantial step 4. People v. Rizzo- D intended to rob people after withdrawing from bank but withdraw never occurred and D didn’t get close to committing crime; under new test, D went beyond mere preparation so there is actus reas to support attempt iii. another possible test- jury must be satisfied beyond reasonable doubt that D intended to engage in actus reas of crime and jury must be permitted to find a guilty verdict for attempts if there is evidence from which they can infer that D intended to commit it at the time of the crime 1. McQuirter v. State- black man charged with attempt to rape white woman; test is announced (outlier case…most courts require more) 2. different from equivicality test a. D doesn’t have to do as much conduct necessary to complete crime
20
VII.
b. D’s only possible purpose doesn’t have to be commission of crime iv. Attempted murder can be mitigated to attempted manslaughter if provocation v. Abandonment 1. under common law- no defense of renunciation or abandonment (once actus reas and mens rea are present, no “unguilting” yourself) 2. MPC- actus reas is a substantial step towards completion of crime a. Substantial step- conduct which strongly supports D’s intended purpose b. Has list of actions that may be substantial step c. Substantial step must be more than mere preparation d. MPC allows voluntary abandonment of attempt i. If not voluntary, can still be charged with attempt Theft Offenses- defined by legally protected interest a. Means of Acquisition (951-953) i. Larceny- taking property against the claim of right or ownership of owner w/o owner’s consent ii. Robbery- taking against will of owner of property w/ force or threat of force iii. Misappropriation- taking something that is in your possession, but only temporarily in your control iv. Embezzlement- wrongful conversion of someone else’s property in circumstances in which D had temporary possession and other legal rights over property (usually financial situations) v. Extortion- physical force or threat of force is used to get owner’s consent (preventing conviction for larceny) b. Tresspassory Takings (953-961) i. For larceny, items must be in owner’s control when D takes them 1. Commonwealth v. Tluchak- husband and wife sell farm (including some personal property), when buyers move in, items are missing; can’t find guilt of larceny b/c items were in D’s possession when they were taken a. D could be charged with other crimes (such as misappropriation, unlawful conversion) but not larceny ii. you have to actually move the object away from the control of the owner OR assume control over the object (modern development) 1. ex- hiding clothes in bag while shopping but never leave store; you have assumed control illegally w/o taking items from owner iii. taking of item has to be w/o owner’s consent 1. Topolewski v. State- set up w/ man supposed to put meat on deck for D to collect; company instructs deck worker to put meat out and allow D to take it; can’t charge b/c, although meat was removed from possession, it was done w/owner’s consent a. Rex v. Egginton- owner of house tells servant to help thieves find property; consent defeats larceny 2. ex- when you valet park your car, it isn’t larceny b/c you gave consent for valet to have car iv. some areas have proposed moving away from strict common law rule and focus on criminal’s mental state (did D unlawfully intend to take or defraud?)
21
VIII. Liability within the Corporate Framework- type of group criminality- individuals engage in criminal conduct and group engages in criminal conduct a. Liability of the Corporate Entity (644-658) i. Reasons to hold company for employee’s act 1. only real way to deter humans is to punish company (often too difficult to identify individual actor) 2. individual is often motivated by others in organization or corporate structure 3. individual is usually acting to benefit company so, if company receives benefits, they should have to bear consequences as well 4. NY Central and Hudson River Railroad v. US- D (corp) charged w/ agent’s unlawful agreement to rebate; explains reasons why corp should be held responsible ii. Reason not to hold company responsible- really punishes stockholders who don’t have any fault (they don’t ratify management to break law) which violates due process iii. Requirements to hold company liable 1. crime committed by employee or agent 2. crime has to be within scope of employee or agent’s employment 3. crime has to be intended to benefit corp. 4. US v. Hilton Hotels Corp.- D (corp) charged for purchasing agent’s refusal to do business with vendors unless they agreed to contribute to association to promote conventions, which violates the Sherman Act (anti-trust) iv. Defining who is an employee or agent of company: look at whether D’s actions were in scope of responsibility and power (not title) 1. Commonwealth v. Beneficial Finance Co.- 2 agents working for D’s subsidiaries bribed govt officials; found that agents were closely enough related to company to hold company responsible v. No defense for corp. if agent or employee was acting against specific instructions or corp. policy 1. US v. Hilton Hotels Corp.- D had company policies and had given instructions to employee not to do such a thing… no defense vi. MPC approach- §2.07 1. allows defense of company policy and instructions not to engage is such an action 2. if Hilton Hotels case had been in MPC jurisdiction, they could have used this defense b. Liability of Corporate Agents (658-668) i. Mens rea required unless it is a regulatory crime 1. Constructive knowledge- permissible as basis for liability because, like omissions, employer has legal duty to obtain knowledge so D is held responsible for knowing whether he did or didn’t a. Gordon v. US- D(partner)’s employees were selling sewing machines on credit terms that are illegal; majority holds that D can be held responsible b/c he had duty to know what employees were doing, whether he actually did or not i. Dissent- this constructive knowledge should only be used when you are trying to establish what the corporation knew (as
22
precedents did) b/c the idea of “corporation’s knowledge” is a legal fiction anyway ii. Actus reas required, but can be in the form of omission on the part of individual w/responsibility to the company 1. US v. Park- food chain and D is pres.; D charged b/c food is infested w/rodents and several letters were sent to D letting him know about it; D delegated clean up to employees; holding- D can be charged b/c he has duty to seek out a remedy and ensure that violations won’t occur again and D failed to do this; D’s failure creates actus reas a. Dissent- this is a negligence analysis “take reasonable steps to foresee harm” and jury was not instructed as such
23