1 CrimLaw Outline-Duncan Sp05-Justification for Punishment & Actus Reus Monday, January 17, 2005 12:17 PM A. Purposes of punishment: 3 R’s and a D i. Backward looking: 1. Retribution: Punish someone simply because they are guilty. If a person has a culpable mind and does a culpable act, then they are guilty and you punish them. Focuses on the past, because its emphasis is on the wrongful act. i. Forward looking 1. Rehabilitation: 2. Restraint: incapacitation 3. Deterrence: • Special deterrence-to keep individuals from committing a crime • General deterrence-to keep society from committing same crime B. Essential elements of a Crime a. Actus reus b. Mens rea i. Concurrence : Mens Rea must be simultaneous with actus reus c. Harmful result and causation C. Actus Reus i. Voluntary Act: i. A movement of the human body that is, in some minimal sense the, willed or directed by the actor. • A vol. act an also be the result of habit or even inadvertence as long as the individual could have behaved differently (check w/Duncan) ii. No punishment for involuntary acts: • Those acts over which the individual had no conscious control. • Those acts that are not the product of the actor's determination. • Reflective Acts • Acts performed while sleep or asleep. • Unless D knew he might fall asleep or become unconscious. ii. Culpable Omission (failure to act): i. General rule: Failure to act is not legally culpable. ii. However, a Breach of Legal Duty may arise in 7 situations: 2 The Exceptions to general rule: Can't claim that he didn’t know that there was a law requiring action; mistake of the law is no excuse. 1. statute imposes duty to care for another-good Samaritan law 2. special relationship (parent/child, employer/ee) 3. contractual duty 4. voluntary assumption of care • Once you begin an act to render aid, any omission is culpable. • Exception is when your own life would be at risk 5. duty to control the conduct of others-ie children misbehaving, chauffer 6. duty of the landowner 7. duty based upon the creation of the peril: • Hypo: 2 Homeless people knocked over a candle in a building, then left to play video games in a store. Firefighters die. Courts are split b/w accidentally creation of the peril and whether that creates a legal duty. iii. MPC Definition of Actus Reus 1. A person must have performed a voluntary act or failed to perform an act of which he is physically capable. 2. Non-punishable Involuntary acts: i. reflex or convulsion ii. movements when asleep or unconscious iii. conduct under hypnosis iv. bodily movement caused by external forces 3. Culpable Omission a. only when statute makes it criminal or civil law requires action iv. Possession 1. Common law: (Jewel) : liable for possession if a. Liable if ignorance was solely and entirely the result of a conscious purpose to avoid the truth. o Dissent: • (1) must be aware of probability of presence, and • (2) should get off if honestly believed not there. 2. MPC: liable for possession if: a. knowingly procured OR b. been aware of his control for long enough to have been able to terminate the possession. Mens Rea Tuesday, April 12, 2005 3 8:18 PM I. Mens Rea a. Common Law Definition: • Requires Intent or recklessness: • A criminal intent – is a guilty or wrongful purpose; be careful with definition of intent b/c for some crime negligence is sufficient. • Term of Art: The defense will try to negative the mens rea.. • Main types of intent: (verify this with Duncan) • General intent – All that must be shown is that the defendant desired to commit the act, that was the actus reus. o Maybe be proved by simply showing that the prohibited result was caused by a voluntary act of D. o Proof of general intent – intent is inferred by the results of that occur. o Wanton or reckless conduct – type of conduct which consists of the intentional failure to take responsible care when confronting a known risk. • Malice -where defendant is subjectively cognizant of the likely harmful results of his actions, yet inexcusably carries out these potentially harmful acts. • May also be found when D acts recklessly or wanton disregard for the consequences of his actions. • Malice does NOT require ill will toward the person injured; does NOT mean wicked, different than layman’s term • Stick to the mental states to define what is malice • Specific Intent – usually associated with “knowledge /purpose” • When the defendant not only desired to do the act, but must have desired something further. "with some specified further purpose in mind.” • Burglary is often a specific intent crime because of proof of further objective to commit a felony therein. • Also, assault at attempt to kill requires that a person commit a battery upon another with the specific further purpose of killing that person 4 • 2nd common theme of specific intent is knowledge – that defendant has actual knowledge of some particular fact or circumstance • ex: bigamy. D knows has more than one wife. • Criminal negligence – iD’s conduct creates a HIGH RISK of harm to others. • The lack of due care required for criminal liability is greater than that required for tort liability. • But See: State v. Williams i. Issue: • If D has Criminal intent for one act; does it apply to all outcomes even with no awareness? • NO: (see Faulkner-man caught boat on fire while trying to steal some rum). • Regina v. Faulkner (1877) – defendant tries to steal rum from bottom of boat; in the process he lit a match to see and set rum afire and burnt down ship. • Defendant is not guilty of arson because he did not intend to commit arson (there was no mens rea for the arson). • Mens rea is necessary for every element of the crime. • Exception is the Felony-Murder Doctrine in America. • To be convicted of a crime, the D must have knowledge of the probable result. • To be convicted of a crime, the person must have a mens rea of that particular crime. • Regina v. Cunningham (1957) – defendant ripped gas meter off wall to steal money and nearly asphyxiated his mother-in-law. • No mens rea for harm done to mother-in-law. • Court said that the defendant needed to either intend to do the particular harm injury or be reckless (foresees the harm but proceeds anyway). • RULE – if there are two independent crimes, need mens rea for both crimes; But could argue it is consistent b/c every crime has some elements that don’t have mens rea but the crime as a whole has mens rea. • Dissent: J.Barry states that if the court can establish the mens rea for the lesser crime, it can assume mens rea for the greater crime. (arguing point, not the law) 5 • Terms that can help with the argument: If can show that the crime is mala in se then maybe less requirement to establish mens rea for the greater crime. • Mala in se: crime whose act or omission are wrong from their very nature • Malum Prohibutum: crimes that wrong merely because they are prohibited by statute b. Model Penal Code Definition: • One of these levels of culpability must be proved with respect to each "material element" of the offense which may involve. Levels of Mens Rea: 1. Intent or Purpose: • The defendant be aware of hope or believe that an attendant circumstance is true and that he also has a conscious objective to achieve the desired result. 2. Knowledge: • Knowledge is when an actor is aware that his conduct is of the required acts/nature. • At common law/intent & knowledge are together. • When the d knows of the result, although one he does not consciously seek to cause is practically certain to occur. • Equates willfully with knowingly. • Willful Blindness-A person acts knowingly w/respect to a material element if he is aware of a high probability of its existence. 3. Recklessness: "Conscious Risk Creation" • When an actor makes a conscious risk creation. The risk must also be unjustifiable. Have to look into the head of the defendant. ---------------------------4. Negligence: • Does not involve a state of awareness. When a person inadvertently creates a substantial and unjustifiable risk of which he ought to be aware. Lack of reasonable care. For negligence you are not looking at the criminal mind of the defendant but of a reasonable person. ---------------------------5. Strict liability: 6 • Material Element: All elements of the crime.-except those that relate exclusively to statues of limitation etc. • Those characteristics of the actor's behavior that when combined with the appropriate level of culpability, will constitute the offense: used for both mens rea and actus reus 1. The conduct. (nature of the forbidden conduct): • The physical behavior of the defendant. (driving a car or shooting a gun) 2. The attendant circumstances: • An objective fact or condition that exists in the real world when the defendant engages in conduct. • Burglary req. the entering to be done at night 3. The result of the conduct: • The consequence or outcome caused by the defendant's conduct. (death of a person by pointing gun & pulling trigger) • MPC approach is based on the view that clear analysis requires that the issue of what kind of culpability is required to establish the commission of an offense be dealt w/separately w/respect to each material element of the crime. • Must include the defense as a material element of a crime Common Law of Burglary: (memorize) o An unlawful entry o Into a dwelling o At night o With intent to commit a felony therein. Each of these four elements must be proved beyond a reasonable doubt. • MPC would like for every state legislature to match up and tell us how each of the four levels of culpability would apply to: The nature of the forbidden conduct Attendant circumstances and Result of conduct. Proportionality & Legality Wednesday, April 13, 2005 4:39 PM A. Proportionality i. Does the punishment fit the crime? 2 prongs to determine if something is Cruel and Unusual Punishment 7 1. Proportionality: If the punishment is grossly disproportionate to the crime committed. • 3 part test: 1. empirical investigation of other states to investigate ‘unusual’ 2. compare punishment of other crimes within state 3. Examine nature of offense with regard to degree of danger to society • Aggravating Circumstances ii. Purposes of punishment Incremental punishments favored 1. Retribution: justice oriented: punishment must fit the crime 2. Deterrence: proportionality increases the effectiveness of punishment. “I’d as soon be hanged for stealing a sheep as for a goat” B. Legality: i. Idea: Before a person can be convicted of an act, it must be legislatively prohibited. Criminal law must be CERTAIN and KNOWN . ii. General rule: No New common law crimes: courts may modify old ones but creation is left to the legislature. 1. Separation of powers, Notice and due process require.. 2. courts used to want to “fill in the gaps” iii. Actual vs. theoretical notice: courts are generally more concerned with theoretical notice than actual notice... you should at least have to opportunity to check... must be readable, knowable, and accessible. iv. Vagueness: the law must be clear enough that a reasonable person could know when he is breaking the law. 1. vague laws may allow abuse of discretion 2. “inchoate” crimes are particularly problematic area for legality. May have a vagueness argument with attempt & conspiracy Mistake Tuesday, April 12, 2005 9:29 PM I. Mistake: Rule: Mistake of fact excuses, Mistake of law does not. A. Common Law: Four Types of Mistakes 8 Students should be able to argue both sides and know that it doesn't work that well. Almost anything can be re-packaged as a mistake of law and fact. a. Mistake of Fact-Excuses an Act 1. An honest belief that the actions taken are legal. Argument against is to try to construe as a mistake of law. Regina v. Morgan: Defendants are saying that they made a mistake and that they honestly believed the wife consented via the statements of the husband. An honest belief, even if unreasonable, is sufficient to negate the mens rea. Court holds here that the belief does not have to be reasonable; just has to be honest. But, Court upheld conviction anyhow, because it said that there was no way for the jury to find that the defendant's had an honest belief, so upheld the conviction. (still good law). • One defense of this holding, is that reasonableness still plays a role when you are assessing if the belief was honest. b. Mistake of Law: Is No excuse. 2. Ignorant of the Law-A person who does not know that an act is criminal. • Mistake as to the very meaning or existence of a criminal prohibition U.S. v. Minerals: Gov. argues that knowingly applies to knowing what they were shipping (they should have known about the statue). Court holds that the respondent should have known that some regulations were in effect and reverse the dismissal and convict. • Argument For Rule: • Knowledge of the law is not required. Just knowledge of doing of the facts of the situation. • If there is an action (shipping on US highways) • If D had reason to know (highly regulated industry) • If there is a large gov. interest (acid very dangerous) • Argument Against Rule: • Conviction would violate Due Process to convict someone who wasn't aware of the law • A passive omission; not a active act. • no proof of the probability that the D knew of the law Lambert v. California Woman in violation of ordinance requiring that she register if a felon; was not aware of law; acquitted because she was not aware. 9 3. Mistake of the Law-A person who knows that there is generally a law pertaining to his area of actions but believes that the law does not cover his particular actions • Mistake as to law that justifies what would otherwise be a criminal act • Usually when given bad advice from a lawyer, advisor etc. Barker-shakedown case • Arguments for Rule: • cannot be excused from punishment on the theory that he misconstrued or misapplied the law. • Argument Against Rule: • An unclear statue • Violation of Due Process 4. Elements of Civil Law Incorporated into a Criminal Prohibition • Argument for Rule: • Ignorance of the law is no excuse. State v. Wood-couple thought they were divorced • Argument Against Rule: • Could also be a mistake of fact. • Assert that the intent element (mens rea) applies to an element of the crime. (If the law requires intent; and the person didn't know than you can't convict them) State v. David (Smith) • State argued that mens rea only applied to damage to property and causing damage. And as long as the defendant caused the damage, he was guilty regardless of if he intended to cause damage to another person's property. (strict liability) • Court overturns conviction, stating that the mens rea requirement does apply to the element of another's property and that the trial court gave incorrect jury instructions. • D established reasonable reliance. Because there was a believable but not necessarily correct, legal theory for which their reliance could be based. Illustration of Traditional Approach: (Wolves are illegal to kill) • Woman thinks she is killing a coyote, but actually kills a wolf. She made a mistake, what type of mistake is this? She would allege a mistake of fact, and this should exonerate her. 10 • Woman unknowingly wanders into the border of Wyoming, where it is illegal to kill wolves. And she is charged. She argues that she thought it was legalwhhic is a mistake of law or fact, hard to tell. B. MPC • Modern Approach-under the MPC. o Has removed the fact/law distinguish. o A mistake of law or fact will serve to exculpate the defendant if it negative the mens rea for the crime. o Doesn't matter if it is fact or law, just does this mistake negative the mens rea. Problem is that statues are not clear as to what the mens rea for the crime. C. Mens rea Abandoned-Strict Liability Two Common Law Approaches: 1. Traditional Common Law Crime: • The court will read a mens rea requirement even when a statute is silent. o Crimes like Murder, robbery, rape. 2. Public Welfare Crimes • The court will not read a mens rea requirement. Could be strict liability. o Crimes like health and safety crimes. o Crime generally has no stigma and a minimal penalty. • Defenses: Even though mens rea isn’t a defense. you could still argue not voluntary... sick, car broke. etc. • In general it is hard to predict the outcome but there are themes: • courts tend to be lenient in nonfeasance • courts tend to be harsh on sex crimes • public policy sometimes interferes Murder Tuesday, April 12, 2005 11:24 PM I. Common Law Homicide: A. Murder B. Voluntary Manslaughter-Heat of Passion C. Involuntary Manslaughter 11 Three distinct crimes w/different penalties -----------------------------------------------------------------------------------A. Murder: • Definition: The unlawful killing of another human being with malice aforethought • If someone makes out all the elements of the provocation formula then by definition there is no malice and forethought. • Malice Aforethought can be proven in 4 ways: 1. Intent to Kill: (1st or 2nd depending on Premeditation (see below) requires specific intent 2. Intent to do Serious Bodily Harm: MPC folds into Criminal Negligence or Depraved Heart. Usually 2nd degree 3. Depraved Heart Murder: (recklessness without intent) 2nd 4. Felony Murder: 1st degree murder when committed in the perpetration or attempt to perpetrate any arson, rape, robbery or burglary. But not all felony murder is 1st degree can be 2nd degree. --------------------------------------------------------------------------------------1. Intent to Kill: Legislative Grading i. The Premeditation-Deliberation Formula Mens Rea-Specific Intent to Kill a. Common law • 1st degree – premeditated and deliberate • 2nd degree – not deliberate and premeditated • See p. 396 for PA statute of 1794 • Tests at Common law (contrast) i. CAROL Argument: • 1st degree murder – can be found in Ds words or conduct or attendant circumstances along with all reasonable inferences . • Murder may be inferred from the intentional use of a deadly weapon on the vital part of the body. • Not many acts left under intent to kill that isn’t premeditated after Carrol. Premeditation is formed when the specific intent to kill is formed. ii. ANDERSON Argument: • Ordinary dictionary meaning of premeditation & deliberate 12 • For 1st murder intent to kill must be formed upon a pre-existing reflection. • 1 st. degree proper only if D killed as a result of careful thought and weighing of considerations. • A deliberate judgment or plan, preconceived design; rejects rash impulse 1st degree conviction. • Types of evidence to indicate premeditation and deliberation: 1. Planning: Evidence of planning 2. Motive: Evidence of motive that goes with the other evidence to indicate pre existing reflection and inference of killing as opposed to mere unconsidered or rash impulse. 3. MANNER of Killing: Evidence of the manner of killing that is so particular that D must have had a preconceived design about how it would happen, which can be inferred from the other 2 categories • Court will charge 1st degree if there is at least strong evidence or 1 or 2. 4. Strong Planning alone can be enough, but the other two must be had in combination to prove premeditation. b. MPC: Can be convicted of murder if D causes the death of another human being: 1. Purposefully 2. Knowingly; or 3. Recklessly-showing an extreme indifference to the value of human life. • Remember a subjective recklessness and must have extreme indifference; else just reckless and a manslaughter charge. • No premeditation or degrees • Policy: planning is not a good proxy for heinousness.. ex mercy killings, or people who kill without thought. • Aggravating and Mitigating Factors replace degrees: • If death imposed must have one Aggravating with no mitigating. i. Aggravating: D is a convict under sentence, previously murdered, D knowingly created a risk of death to many persons, D committed two murders at the same time, murder committed in preventing a lawful arrest, for financial gain. 13 ii. Mitigating: no history of criminal activity, D under mental distress, consent of victim, D believed morally justified, Accomplice with minor role, D acted under duress, knowledge of right and wrong impaired, youth of D 2. Intent to Do Serious Bodily Harm 3. Felony Murder: NO INTENT TO MURDER REQUIRED • Predicate felony –The basic felony that must be proved in felony murder rule • Felony murder doctrine doesn’t do away totally with mens rea – need intent to commit the predicate felony (arson, rape, burglary). • Purpose: to deter those engaged in felonies from killing negligently or accidentally. • Defense cannot use provocation formula, diminished capacity cannot be used. a. Traditional Common law Felonies 1. rape, sodomy, burglary, arson, mayhem, larceny, dismemberment. a. Common law a. Definition: When an unlawful killing occurs in the commission or attempted commission of a felony, the malice aforethought shall be assumed and need not be proved. b. Disfavored doctrine: should we even have it? i. Arguments for 1. Deter accidental killings 2. Convict: make it easier to convict on murder (malice not required) 3. Degree of murder fixed. ii. Arguments against 1. Mens Rea: Departure from basic principles of criminal law 2. Not Proportional: leads to non proportional punishment: ex. if you’re liable for all deaths.. its a function of luck whether some one happens to die of a heart attack. 3. No Deterrence: can you really deter accidental killings? c. Limitations on Felony murder: 1. Must Be an Inherently Dangerous Felony • Felony murder limited to inherently dangerous felonies. Not just any felony. 14 • Courts look at the felony in the abstract. Do not look at the specific facts of the case. • People v. Phillips: Chiropractor convinced parents that he could cure their daughter’s cancer and the girl died. He was found guilty of theft and the Court found that the felony murder doctrine did not apply to the defendant in this case. Court said the felony must be inherently dangerous in the abstract. The Court rejected the theory that to determine if a felony is inherently dangerous you base it on the particular facts. • People v. Satchell: the defendant was convicted of murder under the felony murder doctrine with the predicate felony being possession of a firearm by a convicted felon which was made a felony by statute. The court held that a felon possessing a firearm is not inherently dangerous in the abstract (a felon may be in jail for mail fraud for instance); Court did not look at the particulars of the case. 2. Merger Doctrine: Felony murder may not properly be given when it is based upon a felony which is an integral part of the homicide. • must have an independent felonious purpose • Felony murder theory barred if underlying felony was the same as murder. • otherwise intent would almost never be required b/c assault is usually a felony. • ASSAULT: with a deadly weapon is an integral part (no felony murder) • ARMED ROBBERY: is independent • BURGLARY: unlawful entry into a dwelling at night with the intent to commit a FELONY therein • With intent to Assault COURTS SPLIT • ALLOWED: attack on a dwelling is more dangerous. • DISALLOWED: too closely related. • CHILD ABUSE: • BEATING: MERGES • Long term NEGLECT: Does not merge 3. Killings-Not-in Furtherance of the Felony: Killings committed by someone other than felon. (victim, police) Question is, an the felon be charged with murder. 15 • CO Felon Liability: competing theories: Proximate Cause vs. Agency vs. Vicarious liability: i. Proximate cause: liable for all deaths proximately related to action regardless of victim or actor. • But the killing must be in furtherance of the crime. ii. Agency: Person committing homicide must be the felon or an agent/accomplice of the felon or else the felon will not be liable. o WHO KILLS: only liable for kills by agents (not liable for kills by victims) • EXCEPTION: shield doctrine.. if a victim is used as a shield then liable regardless of who shoots. o WHO IS KILLED: Not liable for death of co-felon. Liable only for any innocent deaths. • Argue that it is Not in the furtherance of the crime; opposite to the Felony Murder Doctrine; purpose not 2 protect deaths of felon. iii. Vicarious liability [Not Felony Murder]: WHO PROVOKED • Def: A d is vicariously liable for any killing attributable to the intentional acts of his associates; that are committed with conscious disregard for life and likely to result in death. • Q is whether the conduct of a defendant or his accomplices was sufficiently provocative of lethal resistance to support a finding of implied malice. o D May be liable for depraved heart murder: (conscious risk creation by accomplices) o ex: Quiet vs. Aggressive Robbery: • CONTRAST WITH AGENCY: Agency is more limited in scope. 16 • Doesn’t allow depraved heart liability.. • WHO IS KILLED: SPLIT o TAYLOR: liable even if accomplice provokes his own death. o ANTICK: accomplice can’t be liable for provoking his own death so neither can D. 4. Duration of the Felony: • The felony murder doctrine applies when a D is attempting a crime or escaping from the scene. Courts often say that the felony has come to rest after defendant has found a safe haven. 5. REBUTTABLE PRESUMPTION: felony murder creates a rebuttable presumption on the issue of mens rea (extreme indifference to human life) for depraved heart under MPC. i. question must go to jury. and they MAY find a felony sufficient evidence but do not have to. b. MPC: Eliminated Felony murder a. DEPRAVED HEART: (extreme indifference to human life) folds into depraved heart Voluntary Manslaughter Tuesday, April 12, 2005 11:24 PM A. Heat of Passion: (voluntary manslaughter) Courts use the povocation formula to mitigate down from murder to voluntary manslaughter. a. Often described as an unlawful homocide w/o malice and aforethought. A killing done on a sudden in the heat of passion after adequate provocation. Common Law a. Most JD: Intentional homicide committed under mitigating circumstances that do not completely excuse the murder. treated as voluntary manslaughter. (lesser crime) 17 b. Elements Required: Provocation formula (plus Murder) i. A Reasonable person would have been provoked 1. to what? do reasonable people murder? a. Some JD limit what actions qualify as reas. provocation. (see C ) ii. D actually provoked. -subjective iii. Reasonable person would not have cooled off-objective 1. Rekindling: courts split: is it possible to “cool off” and then be rekindled? iv. D did not cool off. -subjective • Very important to make out all fours parts of formula to mitigate to voluntary manslaughter. • In most jurisdictions, voluntary manslaughter is an intentional homicide committed under extenuating circumstances (provocation formula) that mitigate, but do not excuse or justify the crime. c. Reasonable Provocation: (CONTRAST w/MPC below) i. Some JD limit to a set list of circumstances 1. extreme assault or battery even w/out touching 2. painful blow (unless D started it) 3. mutual combat 4. illegal arrest (must know it is) 5. defense of family 6. sudden discovery of adultery a. Modern trend: i. spouses treated equally (old used to favor husband) ii. don’t have to see 7. Mere words: SPLIT a. Liberal JD: “jury should decide” b. Strict JD: mere words do not mitigate down to voluntary manslaughter. (Girourard) ii. Reasonable person standard: SPLIT 1. MAHER: An objective reasonable person standard. "A person of fair mind and disposition" 2. iii. Provocation to what? 1. MAHER: Just have to show that D was provoked; unless he has a peculiar mind. 18 2. Some JD might state that he must have been provoked to a level to take the specific actions that he did. d. Cooling Off Doctrine: too long a time between provocation and murder will work against a finding of provocation. i. White Bear case – son killed mom's rapist from 2o yrs previously. D killed him hours after finding out; court held that evid. insufficient to warrant for vol. manslaguhter; no instant incitement. e. Rekindling Doctrine: When the wait in killing serves to aggravate and NOT cool off. By waiting, get more anxious and angry. i. Many modern courts don’t allow rekindling doctrine to expand the provocation doctrine. It is a thought to expand the provocation doctrine. ii. People v. Berry-man waited 20hrs to kill his wife; court said time served to rekindle incitement. MPC: Heat of Passion a. Criminal homicide is reduced to manslaughter when D Kills: i. Under extreme mental or emotional disturbance 1. grief 2. traumatic injury 3. reaction to dru ii. With a reasonable explanation or excuse reasonable person: in the D’s situation as D believes it to be Look at the "reasonableness of the action given the subjective belief of the D. • Has subjectified reasonableness; although they still have an objective component. b. Objective vs. Subjective Standard for provocation a. For Objective: i. excusing the behavior encourages it, ii. the factors that mitigate are the qualities we fear most in a criminal. b. For Subjective: i. not all people are the same, so fairness requires a flexible standard. ii. people seem less culpable when we can imagine ourselves doing what they did. Involuntary Manslaughter Wednesday, April 20, 2005 2:13 PM I. Involuntary Manslaughter (not as bad as depraved heart murder) 19 Def: An unintentional killing based on conduct (most states require reckless) creating an unjustifiably risk of harm. I. Criminal Negligence (contrast with depraved heart) A. Common law: Most states require criminal negligence to meet invol. manslaughter. Although a few will allow simple tort negligence. Standard: JD’s split 1. Simple tort negligence: (small minority) a. OBJECTIVE: reasonable person would know that their conduct created A RISK b. Proximate cause also applies.. WILLIAMS: Navaho Indian case. i. would reasonable person have known in time? c. Using an inherently dangerous instrument. 2. Gross Negligence: (split again) a. Traditional: OBJECTIVE: D’s conduct creates a HIGH RISK b. Modern: SUBJECTIVE: D must actually be aware of the risk. = recklessness: conscious risk creation 3. EXCEPTION (to the JD divisions above): Inherently dangerous instrumentalities: most JD require only OBJECTIVE SIMPLE NEGLIGENCE (not gross.. risk not high risk) when D uses a dangerous instrument. a. cars do not count. B. MPC: CRIMINAL NEGLIGENCE i. No distinction between Vol. and Involuntary. MS. 1. heat of passion, Vol. MS and Involuntary MS together under criminal negligence. ii. Rule D is Reckless: A conscious risk creation of harm to others. SUBJECTIVE OR Heat of Passion: (same as common law formula) a. Policy: Should Negligence = Vol. Manslaughter? i. Purpose of punishment: 1. No mens rea (problem for Retribution) 2. If D is unreasonable can he be deterred? 20 ii. Reasonable person standard: 1. Subjective or Objective ? 2. Should it vary by culture? II. Depraved Heart Murder (Involuntary Manslaughter under MPC) a. Common Law: a. Traditional definition: murder committed with an abandoned and malignant heart. Conduct that creates an unjustifiable risk of death or serious bodily injury. i. Contrast with MPC def: “reckless indifference to human life: • in a rare case D got off b/c helping his victim afterwards proved his heart wasn’t “abandoned and malignant’. b. Rule Elements: i. Unintentional homicide resulting from conduct that creates an UNJUSTIFIABLE, EXTREMELY HIGH RISK of death or serious bodily injury 1. Unjustifiable: D didn’t have an excuse. (emergency) 2. EXTREMELY HIGH RISK: contrast with MS.. just says HIGH ii. OBJECTIVE ELEMENT: a reasonable person would have realized this. iii. SUBJECTIVE ELEMENT: (SPLIT) what D actually knew 1. Majority: don't look at subjective; only objective 2. Minority: D must be aware of the RISK and that it is UNJUSTIFIABLE. a. even these courts often use circumstantial evidence in a way that looks objective when proving. b. most important in cases like drunk driving. c. Depraved heart (Murder) vs. Criminal Negligence (Invol. Manslaughter): No clear line because its only a difference of degree. a. Depraved heart ... EXTREMELY HIGH risk of death • Tends to be bad action: (extremely high risk) o shooting at a moving car o throwing a beer glass at a woman with an oil lamp o Russian roulette b. Criminal Negligence. HIGH RISK of death. • Tends to be omission (high risk) o letting patient be wrapped in kerosene o mother left child with abusive lover o parents failed to take baby to doctor. 21 c. The difference between depraved heart murder and criminal negligence: • ***Note that criminal negligence and depraved heart murder are very similar because they are unintentional AND recklessness*** • Degree of the risk more than DHM • Degree of the badness more than DHM • Nonfeasance is usually only criminal negligence. • Duncan says this is a pretty fuzzy distinction but allows some leeway in order to do justice in a particular case. Commonwealth v. Malone: Russian roulette between a 17 and 13-year-old; the 13-year-old agreed to play and was killed by the bullet. Defendant argued he had no expectation that that the gun would go off and no intention to harm him. Court ruled it was gross recklessness and said you don’t need intent to kill if it is that reckless. Malice aforethought may be made out merely by showing recklessness. Court found him guilty of 2nd degree murder b. MPC Approach-No Depraved Heart Murder a. Definition: Reckless indifference to human life, where there is an extreme probability of death to another. i. SUBJECTIVE AWARENESS REQUIRED ii. Punishment is Involuntary Manslaughter c. Intoxication: Can it negative mens rea a. Voluntary: i. Common Law: SPLIT 1. Some states: Voluntary Intoxication does not negative the mens rea. (No Defense/Excuse) a. GENERAL INTENT CRIMES: Merely require Recklessness or negligence as evidence of intent. i. ex. depraved heart murder ii. can still be guilty if intoxicated. -iii. U.S. v. Fleming: Defendant led police on a dangerous high-speed car chase in which another driver was killed; the defendant was very intoxicated. The court held that malice aforethought may be established by reckless and wanton conduct where the defendant was aware of such risk of injury or death; voluntary intoxication is irrelevant as to whether the defendant understood the risk. The court that because driving was so reckless they uphold murder conviction. Not just simply of being drunk. So guilty of DHM. 22 2. Others Jurisdictions: It can Negative the Mens Rea-Not guilty a. SPECIFIC INTENT Crimes: require Intent in the form of PURPOSE and KNOWLEDGE. And you can't form intent when drunk. i. ex.. Burglary: unlawful entry into a dwelling at night with the intent to commit a felony therein. (can’t form intent if you’re drunk) ii. MPC: 1. Voluntary Intoxication is a. a defense to intentional crimes. o Can't form intent b. No defense to reckless crimes. • MPC uses frame of reference of D, and usually it helps D, but in this case it hurts him. b. Involuntary Intoxication i. Negatives: Actus and Mens rea. 1. Ex. forced to drink, or if you take medication and reasonably don’t know it will make you intoxicated. Death Penalty Thursday, April 28, 2005 5:49 PM Cruel & Unusual Punishment Overview: 1. Death Penalty i. Furman v. George 1972-(DP Unconst) • Court Held: Imposition of the death penalty held cruel and unusual in 3 cases under 8th and 14th Amendment. Against capricious, 23 arbitrary selection of the people to be executed. In response state legislatures are passing laws to remove arbitrary element from death penalty. • Two groups of Justices: 1. Marshall & Brennan feel that on its face, death penalty is unconstitutional. 2. Concurring judges, looked at the practice of death penalty…objection is narrower than other two punishment. ii. Gregg v. Georgia 1976-(DP Constit) • Facts: Defendant convicted of armed robbery and two counts of murder. • Issue: Whether the death penalty is unconstitutional in all circumstances? (under 8th & 14th Amendment) • Second Issue: Whether Georgia's legislation is itself unconstitutional. • Holding: 1. Court looks at the evolving standard of decency-looking at state laws. (encouraged by the word unusual in the constitution). Here, shows that states still want the death penalty. Court also does look at framers intent; where capitol punishment was used, and that it was ok. The court in Furman assumed the standard was evolving against a standard of capitol punishment… 2. Proportionality: The punishment can not also be excessive. No wanton infliction of pain. It may not be disproportionate w/the crime. 3. Purpose of Death Penalty: i. Retribution-to prevent the seed of anarchy will be sewn if the state does not have capital punishment. (Duncan thinks it looks a little like vengeance-not good) ii. Deterrence-Inconclusive on if it has this effect. Defers to the state legislature. (which are immediately responsible to the people) A form of judicial restraintseparratio of powers. 4. Georgia's Statue: Ok, because has i. Automatic appeal ii. Bifurcated procedure-separate sentencing from adjudicating phase iii. Guidelines for the jury (aggravating & mitigating circumstances) iii. Death Sentence and Teenagers Roper v. Simmons -SC took the international view impact, in that only U.S. and Somalia place teenagers to death. 24 • Minors don't have the mental capability to understand the weight of the conviction. Juvenile has the right to obtain a full understanding of his own self. iv. Mandatory Death Sentences • Woodson-court held that the mandatory death sentence for any first degree murder violates the 8th amendment. Found that there is not enough individualized or particularized considerations. (state trying to get around the arbitrary and capricious standard in Furman) v. Death Penalty & Incarcerated Person: • Shuman: Killed a fellow prisoner while serving a life/without sentence, gets a mandatory death penalty. Need consideration of the circumstances of the current killing. Court said that just because someone is serving a sentence of life/without doesn't tell anything about the current killing. Not enough information. vi. Death Penalty and Rape Coker v. Georgia 1977 • SC holds that he DP is grossly disproportionate and excessive punishment for the crime of rape. Rape does not compare w/murder. • vii. Death Penalty and Felony Murder: Enmund v. Florida 1982 • D was convicted under the felony murder doctrine, get murder one and death penalty. • SC says he cannot be put to death. 8th amendment prohibits the death penalty for defendant who does not himself kill, attempt to kill, or intend that a killing take place. Tison v. Arizona 1987 • Are they overturning Edmund? Seems like they are sub silencio. They don't admit to overruling it, but it seems that they are. Attempt Tuesday, April 12, 2005 11:24 PM A. Attempt • Definition: an act done with the intention of committing a crime that does not succeed. 25 • Substantive crimes of attempt: burglary, loitering, etc.. • Merger: can’t be guilty of both attempt and the actual crime B. Common law Harder to prove, but limited chance of defenses. i. Mens Rea (Intent): SPECIFIC INTENT IS ALWAYS REQUIRED 1. Purpose and Knowledge: both required even for strict liability target crimes Mohan This is b/c the mental element is so important to the crime and so ambiguous ii. Actus reus: An issue of determining when on the spectrum, the actus reus is actually made out. Essentially: When is it mere preparation vs. last act? C. Actus Reus Test: Last step possible: o D must have taken the very last step which he was able to take along the road of his criminal attempt. He must have done all that he intended and was able to do. (no longer really followed) 1. Proximity test: Dangerous Proximity to Success Dangerous proximity to success: Rizzo o Focus on what remains to be done-• Look at what the D did not do. (not what has been done) • Drawing the line between remote acts and those which are proximate and near to the consummation. • The acts must come or advance very near to the accomplishment of the intended crime. • Is there a strong likelihood for completion if not for the interference. o Problem: How can police prevent crimes if you have to wait so long until the defendant commits lots of steps for the crime? • Persons who object view it as too narrow. 2. Probable Desistance: Actus reus is met when it is clear that the D would desist from committing the crime. i. Criticized as artificial-no real way of knowing when a person would desist ii. outcomes often similar to proximity test. 3. Equivocality (Ambiguous; raising doubts): When the defendant's conduct unequivocally manifest his criminal intent. • If the conduct could be indicative of a criminal intent or a non-criminal intent it is insufficient. The actions cannot be ambiguous or unclear 26 • Confessions not sufficient-look only at acts. • Determine if the D's overt acts are sufficient in themselves to declare and proclaim the guilty purpose for which they are done. • Can be the first act; it doesn't matter. • People v. Berger (abortion) • One who takes a light to a haystack intending to set a fire and then blows it out when observed. • criticism: There are almost no acts that are unequivocal. And the uselessness of confessions. C. Punishment: • Generally punished by a reduced factor of the punishment for the completed crime. i. Defenses: a. Abandonment: No defense. i. Reason: because CL has noticed the rel. between the difficulty to making out actus reus, so they will not allow an abandonment defense. ii. b. Impossibility of Law: • Is a defense. Cannot convict of an action that is not a crime. D. MPC: • Generally, attempt is easier to prove under the MPC as opposed to the common law. However, because of this it is also subject to more defenses. o An act or omission constituting a substantial step in a course of conduct planned to culminate in the actor's commission of the crime. a. Mens Rea (Intent): Only need purpose. If the D's conscious object, to engage in the conduct or to cause the result that would constitute the substantive offense b. Actus Reus: (Looks at what has already been done) Attempt is made out if D takes a 1. Substantial step: (act or omission) in the course of conduct intended to culminate in a crime 2. Conduct must be STRONGLY CORRORABORIATIVE of purpose o Broadens the scope of liability.. restrains dangerous PERSONS not just ACTS o Emphasis on what acts has been done by D. (not on what remains to be done) o D’s statements may be considered (unlike equivocality test) 27 c. Punishment: • Get the same punishment as the target crime, except life in prison or death penalty. E. Defenses: a. Abandonment: Affirmative Defense • Common Law: not allowed under common law Theory is that the crime of attempt is over and all that is left is to complete the target offense. • MPC: Allowed if there is complete and voluntary renunciation of the criminal purpose. • Not Voluntary where: The abandonment is motivated by circumstances not present at the beginning of the conduct that increase the chances of D being caught or make the crime more difficult to achieve. (check with Duncan) • Not Complete: If motivated to simply postpone the act until a better time. • Grey Area: When the victim talks the D out of the crime. Might be able to argue abandonment. Should bring it up. See People v. McNeal. Also, when a pregnant woman showed a rapist she was pregnant and he left. b. Impossibility: Common Law: • Legal Impossibility-When there is no law making an act a crime. Excuses an act. • Factual Impossibility-When the D cannot complete the intended crime because of facts unknown to him. Does not excuse a crime. MPC: • Legal Impossibility-Not a defense; all the prosecutor has to do is prove that there is a criminal statue punishing what the defendant (believed in his head) or intended to accomplish. Looks into the D's head; if a D intends to do something that he thinks is a crime not guilty of attempt. • Factual Impossibility-Not a defense. 28 Conspiracy Tuesday, April 12, 2005 11:24 PM I. Conspiracy • Definition -an agreement between two or more persons to do either an unlawful act or a lawful act by an unlawful means. • Relationship to Attempt and Complicity: • Attempt and conspiracy are both inchoate crimes (crimes that have not yet been completed). • In criminal law, “two” is a group and is defined as a conspiracy. • Purposes of Conspiracy Law: • Inchoate crime (trying to nab dangerous people before they commit the crime). • Special dangers of group criminality more dangerous the more people that you have. • Merger: • Common Law-Conspiracy does not merge with target offense. Will have two charges: substantive crime and conspiracy charge. • MPC-Conspiracy merges w/target offense-only one charge. the MPC diverges from the common law – it provides that a person may not be convicted and punished for both conspiracy and the object of the conspiracy or an attempt to commit the target offense, unless the prosecution proves that the conspiracy involved the commission of additional offenses not yet committed or attempted • Consequences of Invoking: • Benefits to Prosecutors: • Vagueness /chameleon like: fits the circumstances • Venue • Hearsay exception: in furtherance of the crime: conspiracy to conceal.. ongoing forever.. • Joint Trial: (birds of a feather) • Enhanced punishment: common law doesn’t merge conspiracy, MPC does • liability for substantive crimes of all conspirators so long as in conspiracy. • must be foreseeable and in furtherance of the conspiracy. II. Elements of Conspiracy 29 • Actus Reus: • Common Law-Agreement alone sufficed to make out the actus reus. See Alvarez (nodding of head is sufficient to make out actus reus). No overt act is required. does not need words; actions alone sufficient • M.P.C.-Requires an agreement to commit a crime, or aid in the commission of a crime (or crime attempt) An overt act is required except for first and second degree felonies • Mens rea: Type of Intent Required • Common Law: Specific Intent-purpose to agree and commit the offense and knowledge of the offense. • Can infer Intent: • Direct evidence that A intended to be a part of the crime. • An act showing that he intended to join the agreement • MPC: Purpose of promoting or facilitating commission of the crime. • Suppliers Issues: LAURIA • Common Law: Just being a knowing supplier to a conspiracy is insufficient to render the individual a part of the conspiracy. Need to show D's intent for the crime to occur. • In Lauria, Can Infer Supplier Intent by showing: 1. Supplier has a stake in the venture • by charging excessive prices 2. There is no legitimate use for the goods or the services of the supplier. 3. When the volume of illegitimate business in high in proportion to seller's total business. • MPC: Requires purpose of promoting or facilitating the commission of the crime. II. Scope of the Agreement: How Many Conspiracies: Common Law: Do we need to know MPC Scope of Conspiracy? a. Generally: One agreement est. one conspiracy; even if there may be several criminal objectives of that agreement. • Knowledge of other Conspirators: o Can’t convict if no knowledge of other conspirators. o Just because defendants dealt with same person doing illegal act doesn’t mean it is a conspiracy. (Kotteakos-loan scandal) 30 Need a connection or relationship between the defendants. o Don't have to know, but at least know of them. • Interdependences of a Conspiracy: • When there is a common venture; the courts are likely to find one conspiracy. If the D knew that the other conspirators had to have been there in order for their crime to work properly. (Bruno-drug conspiracy w/middlemen) • Duration of Conspiracy-Subsidiary Objective to Conceal: i. There is no subsidiary objective to conceal that will be read into every co-conspirator hearsay exception. (Krulewitch) ii. Prosecution needs to show express agreement to conceal the conspiracy. III. Collateral Consequences of Conspiracy Participation: • Pinkerton doctrine – D conspirators can be charged for the substantive offense that any one of the co-conspirators actually committed • Can avoid this by w/drawing from the conspiracy by doing some affirmative act • Pinketron rule not retroactive-A conspirator is not responsible for offenses committed by co-conspirators that happened before he joined the conspiracy. MPC: Rejects the pinkerton rule; prosecution must prove accomplice liability. IV. Renunciation as a Defense: a. Common law: • Common Law renunciation is not allowed. Once you complete the agreement, the crime of conspiracy is made out and you cannot undue it. b. The M.P.C.: • Must thwart the success of the conspiracy This undues the offense of conspiracy • Abandonment must be complete and voluntary Informing law officials is sufficient; simply withdrawing is not. V. Withdrawal as a Defense: • Common Law: o Permitted if D announces his w/drawl to all co-conspirators Does not undue the offense of conspiracy or responsibility for any crimes already committed. Only relieves liability from any future crimes. • MPC: Affirmative Defense o Permitted if D advises co-conspirators of abandonment OR tell cops of the existence of the conspiracy 31 VI. Punishment: a. Common Law: i. Own punishment range; unrelated to those for the crimes b. MPC: i. Same punishment as the most serious offense of the objective of the conspiracy. • Except first or second degree felonies. Accomplice Liability Wednesday, April 20, 2005 6:58 PM I. Accomplice Liability-Complicity-Vicarious Liability a. Mental-Psychological Help b. Physical Help II. Categories a. Common Law i. Principal in the 1st-• Person who actually does the crime If you use an innocent party to conduct the deed, who doesn't know, or give to a young child under 7, then the person is still a P1. ii. Principal in the 2nd-Aids, counsel, comfort-with strength. Commands and encourages the P1 to do the deed. Needs to be present acting as a look-out is constructive present iii. Accessory before the fact-aids, counsels, commands and encourages the commission of the crime beforehand, but is not present at the scene. Is not present at the crime. May not be present at the scene iv. Accessory after the fact: Relieves comfort the felons, knowing that they have committed a felony, after the fact. Has to have more than knowledge and intending to help. Wanting to assist in escaping an arrest, trial or conviction. If they tell the parties they will do this before hand, they are not accessory after the fact. acessory before the fact. III. Mens Rea Common Law: 32 Requirement: • The intent to aid (be of help), and • The intent that the crime be carried out. (The same mens rea for the target offense) • Wilson v. People: Wilson set up a sort of sting operation to catch his friend in the act of stealing; the court held that if Wilson did not have the mens rea to actually deprive the owner of is possession then he cant be found guilty. Three Approaches for Specific Intent Crimes (Purposely & Knowingly): i. Must have purpose to further the crime: i. see Hicks: Conviction overturned because he did not have purpose to further killer's act. ii. Just knowledge of the criminal act is usually insufficient: i. Need to show that the accomplice knew and intended to help bring about the crime. ii. Accessory must associate himself with the venture and must intend for the crime to come to fruition. State v. Gladstone 1980 • Gladstone gives a guy directions to buy marijuana, and is convicted of aiding and abetting the unlawful sale of marijuana. • SC reverses conviction: No nexus that D even knew the seller. The D must affirmatively desire to bring the crime about. • Purpose is required. (the important holding in the case) iii. Knowing might be sufficient in more serious crimes. People v. Lauria: Where the court said that a supplier who furnishes equipment with knowledge that a serious crime may occur, may be convicted based on this knowledge by itself. (In this case of course that did not happen) Reckless and/or Negligent Mens Rea Crimes • Most courts hold that an accomplice can be liable even if the mens rea for the target crime is recklessness or negligence. • ie. Lending car to a drunk driver: most courts find accomplice liability here • Depraved Heart-When the accomplice, acting with the same reckless indifference, encourages P to engage in the conduct causing the death. Strict Liability Offenses: • Generally, courts don't impose liability under an accomplice theory. MPC: o Actor must act with purpose of promoting or facilitating the commission of an offense. • Must have the purpose that the Principal will engage in object crime. • Mere Knowledge of D's actions is insufficient. 33 • MPC recognizes accomplice liability for negligence and recklessness crimes. Departure from the Common Design: When one of the parties goes beyond the scope of what was agreed upon his co-party is not liable for the unauthorized act. (Regina v. Anderson and Morris).Buddies went to beat a guy up and the other guy, stabbed the person. IV. Actus Reus Common Law: • Words are enough-Giving assistance or encouragement, or • Failing to perform a duty to prevent. (Omission) o If the person has a legal duty; he can be liable (same for MPC) o The actus reus can be made out even if the aid was not necessary and the crime would have been committed anyway (State v. Tally). o The actus reus can also be made out if the parties made only a prior agreement and the accomplice does nothing else. o But just failing to intervene-absent a duty is not enough o Attempt to aid is insufficient. • MPC: An attempt to aid is sufficient; even if the principal did not attempt the actual crime. • Difference between Conspiracy and Accomplice Liability • Conspiracy • The agreement (without aid [act]) at Common Law is the actus reus for conspiracy. • Accomplice • The aid [act](without agreement) at Common Law is the actus reus for accomplice liability. Exculpation: Self Defense Friday, April 22, 2005 7:13 PM I. SELF DEFENSE 34 • OVERVIEW:A successful argument of self-defense leads to complete acquittal/justification • (affirmative defense). A. ELEMENTS FOR SELF-DEFENSE Common Law: 1. D must perceive an actual threat of the use of deadly force against himself (peril of death or serious bodily injury) [subjective]. • Most jurisdictions expand this to include rape and kidnapping. 2. Defender must perceive the threat as unlawful [subjective]. 3. Defender must perceive the threat as imminent [subjective]. 1. This means that the threat must be immediate. This means that if you kill someone when they are sleeping the threat cannot have been imminent. This comes up most often in the context of battered women. 4. Defender’s beliefs must be reasonable. This is an objective requirement with a subjective twist (take into account circumstances, sex, etc.) MPC: • D needs to show that he believed that the use of deadly force was necessary to protect himself. • But: If the D's belief was wrong and was recklessly or negligently formed, he may be convicted of homicide requiring on reckless or negligent intent. • This is not a widely followed view. B. “Imperfect” self-defense: • Definition: Killing another in an honest but unreasonable apprehension of the need to kill to save one’s own life, or using more force than is reasonably necessary. • Punishment: Common Law: o In some jurisdictions, the defender will be guilty of murder. o In many jurisdictions, the defender will be guilty of voluntary manslaughter on the view that malice is not present. MPC : • “A person who believes that justifying facts exist, but has been reckless or negligent in so concluding, presents, the same type of problem as a person who acts recklessly or negligently with respect to the creation of a risk of death” 35 • Involuntary Manslaughter C. Defense of Another: Two approaches-• Standing in one’s own shoes: looks at the helper’s mind and see if it was a reasonable belief that the other was in imminent danger from a threat of unlawful force; (reasonable mistakes are allowed). You must apply the four requirements (above). • Standing in the shoes of the person to be defended [the alter-ego rule]: right to defend another is co-extensive with the other’s right to defend himself) –pretty harsh D. SELF DEFENSE ISSUES: i. How objective should the reasonable person standard be? • Civil Rights Perspectives (People v. Goetz): subway murder case where defendant shot four youths because he was thought he was going to get mugged. • Two Approaches: Subjective-What a reasonable person would have done in the defendant’s situation. • This means that the jury must take into account prior experiences of the defendant, background information, physical attributes of the people involved, etc.). Objective-What a reasonable person would have done. • Feminist perspective: (Kelly-Battered Woman kills husband in his sleep.) ii. How Imminent must the Danger Be?: Is it the danger or the need for defense that should be immediate? i. Mere Words not enough, threat must be imminent. Case of the prisoner who was threatened with being made into a punk and thus killed the assailant while he slept (State v. Schroeder). • The court refused to allow self-defense because the threat was not imminent; moreover, threats alone (words) are not deadly force. ii. Some courts allow expert testimony to explain why a battered woman who kills in a non-confrontational moment is in imminent danger. (State v. Kelley). D killed her husband with scissors a few minutes after he hit her because she claims she was scared he would kill her. She wanted to allow expert testimony to help prove her reasonableness. iii. Limitations on the right to self-defense 36 • Doctrine of Retreat: Flows from necessity. • Arises only if the defendant resorted to a deadly force: • Force which the actor uses with the purpose of causing or which he knows to create a substantial risk of causing death or serious bodily harm. • The use of deadly force (by the defender) is not justifiable “if the actor knows that he can avoid the necessity of using such force with complete safety by retreating. • But: One who is wrongfully attacked need not risk injury by retreating, even though he could escape with something less then bodily injury (State v. Abbott). • Jurisdictional Splits: o 2/3 of the jurisdictions either require retreat or will at least take it into account in determining the necessity of self-defense. o The MPC: Deadly force is unjustifiable if the actor knows that he can avoid the necessity of using such force with complete safety by retreating. • Emphasize: "knows & with complete safety" • At early Common Law, if someone is coming into your home you can defend yourself with deadly force. • Some say that self defense is available. MPC embraces this view. • Forcing retreat could harm battered women in making out self defense. • The Initial Aggressor • The initial aggressor doctrine limits a self defense claim. o D cannot not re-instigate the feud and use deadly forceaan then invoke self defense. Because there was no longer a necessity for his actions. o D must have clean hands before he can use the self defense doctrine. • An aggressor who in good faith withdraws is restored to selfdefeense • An aggressor, after using non-lethal force is met with deadly force, should the aggressor be denied his right to defend his life? o Most JD deny the a self defense claim. A minority will allow it. • U.S. v. Peterson: (windshield wipers case). The defendant reinittiate the conflict after it was over and killed victim; he 37 cannot invoke self-defense because there it was no longer a necessity.