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Intro: a. Criminal law uses crude tools to differentiate degrees of badness b. Identifying characteristics of criminal law i. state brings the action ii. life and liberty at stake iii. stigma: the greater the stigma the higher the mens rea required (culpable mind) iv. purpose is to honor the law c. We focus on the elements of crime d. How this course differs from other law courses i. half truths, unclear law, inconsistent Regina v Dudley and Stephens (boat cannibals) a. H: To preserve your own life you may not kill an innocent person who does not threaten your own life. i. cannibalism has never been illegal ii. Special verdict: jury found facts, but made no conclusion b. Argument types i. a fortrori: if X is true then by god Y must be true because it is like X only more so. 1. ex. if you can’t steal for hunger you certainly can’t kill for it ii. legal authority: iii. morality: relation of crim law to morality iv. slippery slope v. Role of judges: “decide the law to the best of their ability” 1. ... save mercy for the sovereign: pervasive view? Purposes of punishment a. Significance of punishment i. where the state and the individual confront each other in the most dramatic way ii. (def of the state): that community that holds a monopoly over the legitimate use of force within a given territory: Authority = legitimate power. [Max Weber] b. How we punish i. Stoning, burning, execution, fines, banishment... founding of Australia [movie: rabbit proof fence] ii. Prison as punishment: modern concept: begun by the puritans c. Theories or justification of punishment: 3 R’s and a D i. Past oriented: 1. Retribution: the notion that you punish because someone committed a crime and did so with a culpable mind ii. Future oriented 1. Deterrence: a. specific b. general 2. Restraint: incapacitation
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V.
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3. Rehabilitation: transformation of the criminal in such a way that he or she will commit no crimes upon release. d. Retribution Theories: i. backward looking in time, ii. an end unto itself iii. NOT ABOUT VENGEANCE (simple view) iv. Sophisticated view: Durkheim 1. Criticism: retribution is merely mystical 2. we need to respond or the community will lose faith in government: a. it does fulfill a utilitarian function, but only if done for non utilitarian reasons. e. Deterrence: (romantic outlaws beloved prisoners: by Prof: people who liked prison) i. specific v general ii. conflict with retribution f. Restraint g. Rehabilitation i. introduced in 19th century ii. association between penitentiary and Christianity iii. tension w/ in concept: some prisoners only rehabilitated when in prison Essential elements of a crime a. actus reaus b. mens rea c. concurrence : Mens Rea must be simultaneous with actus reaus d. harmful result and causation Actus Reaus i. Definition 1. either a voluntary physical act: (including speech but not thoughts) OR 2. failure to act under circumstances imposing a legal duty to act. ii. Voluntary act: a conscious exercise of the will. (can’t deter involuntary acts) 1. Involuntary acts: not the product of D’s determination: ex. you were pushed 2. Reflexive of convulsive acts 3. acts done while unconscious or asleep, unless D knew that this was likely to happen Case law a. Martin V State: Voluntary act required (drunk and taken from home by police, charged with being drunk in the street) i. presumed to be in the statute: comes from the common law ii. Constitution requires notice: Due Process
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VII.
VIII.
1. so all criminal laws are statutes, but they are still deeply connected with the common law. b. People V. Newton: (shot in stomach, then shot cop while “unconscious”) i. neither general or specific deterrence work on voluntary acts ii. sense of personal security might be lost... if you could be sued for involuntary acts c. p. 178: Cogdon: Dreams: No actus reaus (vol. act) or mens rea (culpable mind) if sleep walking i. not every act leading up to a crime need be voluntary if you knew it was likely to happen. Culpable omissions: NOT A QUESTION OF VOLUNTARY i. General Rule: not liable for omissions (most states do not have good Samaritan laws.) ii. 4 Exceptions 1. Statute: ex. driving law 2. special relationship: relative, maybe roommate 3. K duty: ER /EE, captain / crew 4. Vol. assumption of care: precludes others from giving aid 5. creation of peril a. intentional: liable: intentionally set house on fire. b. accidental: (ex. fire accidental, but you chose not to call the fire dept. ) i. courts split on liability Mens Rea (the culpable mind): Common law v MPC approach (know both) a. Common law Approach i. Regina V. Cunningham: (ripped off gas meter while stealing $, and gas hurt neighbor): 1. Intent or recklessness required: SUBJECTIVE: personal awareness ii. Regina v Faulkner: (rum caught fire) 1. must have culpable mind for the crime you’re charged with: (criminal intent does not apply to all possible outcomes) a. outcome must be intended or foreseeable 2. Mala in se: an act evil unto itself (natural law) 3. Malum prohibitum: criminal because of legislation (ex. speeding) b. MPC approach (25 ½ states use): ACTUS REAUS i. ACTUS REAUS: requires 1. voluntary act or failure to act when action is physically possible 2. Involuntary acts: a. reflex or convulsion b. movements when asleep on unconscious c. conduct under hypnosis d. bodily movement caused by external forces
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3. Liability: for omission only when a. statute expressly makes failure to act a crime b. civil law requires the D to perform the action 4. To be guilty of possession the possessor must have: a. knowingly procured or received the thing possessed, OR b. been aware of his control for long enough to have been able to terminate the possession ii. Intent: 1. Subjective a. Specific intent: usually no difference in the result of the case, but treason and Accomplice cases require purpose i. purpose ii. knowledge: High % chance b. recklessness: conscious risk creation 2. Objective a. negligence: should have known: unjustifiable and unreasonable. b. rarely applied in criminal cases c. Burglary: (Memorize) i. an unlawful entry ii. into a dwelling iii. at night iv. with intent to commit a felony therein Set 2 I. State v Jewel (car w/ secret marijuana) a. Disagrees with MPC: liable if ignorance solely and entirely the result of a conscious purpose to avoid the truth b. dissent: i. must be aware of probability of presence ii. D should get of if he honestly believed it wasn’t there Regina v Prince (taking daughter from a father.. mistake about age) a. D: requires mens rea for age.. P no.. its mala in se b. no rule.. just recognize this is the way they argue Mistake a. Review i. R v. Prince: D claimed intend applied to both: (1) property of another, and (2) intent to destroy. P claimed it only applied to (2) intent to destroy. ii. R v. Morgan mistake need not be reasonable (objective) just honest (subjective: knowingly): Parliament lowered the standard to reckless (conscious risk creation)..
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IV. V.
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VII.
1. Standard varies in the US... reasonableness often creeps in as proof of honest belief. 2. strange ruling.. Judge wrong, but no miscarriage of justice so D still guilty.. (non reversible error) b. Traditional approach to mistake i. mistake of fact excuses, ii. mistake of law does not c. Problems with traditional approach (often unclear and arbitrary) i. x hunts coyotes but mistakenly kills a wolf ii. Against law to kill wolves in S. Dakota but not in N Dakota 1. mistaken about which state you are in iii. Against the law to kill wolves, but you don’t know the law iv. Ranger tells you the law was repealed d. Sophisticated analytical approach i. mistake of fact 1. (regina v prince) mens rea applied only to other elements 2. (Regina v morgan) mistake not honest or real (rape wife) ii. mistake as to a matter of civil law that has become incorporated into a criminal statute (S v. wood, r. v D. Smith, Morissette) iii. mistake as to the existence or meaning of a criminal statute 1. traditional approach sort of works here 2. LAMBERT IS AN exception (felons must register) iv. (bad advice) mistake as to a law that would justify something that would otherwise be criminal (US v. Baker) (minister advertised) State v Woods: (Nevada divorce, not honored.. guilty of adultery) a. mistake of law ruling. honest mistake defense disallowed Regina v. Smith: (tenant removing improvements) a. Sophisticated approach: not guilty: mistake of a matter of civil law applied to criminal statutes b. Traditional approach: mistake of the law is no excuse c. Honest / Reasonable belief standard: court applied honest. US v International minerals a. “knowingly” ships hazardous materials. i. D: must know its against the law ii. P: no you just have to know its acid b. “should have known”: well regulated Lambert v Ca: (felons must register w/ county) a. Due process violation: b. Contrast with International minerals i. Not a highly regulated area ii. local not national law iii. both require affirmative action iv. neither is mala in se v. no reason to know
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set 3
Mistake of Law
I. Mistake of law: a. Private counsel: no state other than NJ allows reliance on private counsel b. more states allow reliance on public officials in the area Arguments for and against crimes of OMISSION a. FOR PUNISHMENT i. shield for D ii. criminal law severs an educational purpose (we see other people convicted and are expected to learn) iii. Legality: the law must be (1) certain (written) and (2) knowable (not written in a foreign language. b. AGAINST i. harsh ii. do we want to stigmatize people with no intent? iii. non feasance: 1. mens rea: works well w/ commission, a. mind tends to be on the action done 2. OMISSION: you don’t think about not doing something, no mens rea. Approaches to Mistake of law a. Traditional: {inconsistent, unjust} i. mistake of fact: excusable ii. mistake of law: is no excuse b. MPC Approach: 2.04 (is it any clearer? circular reasoning..) i. Ignorance or mistake of FACT or LAW is a defense if it negatives the mens rea required by the crime. ii. 2.04 (3) b: interpretation of the law by an official charged with interpretation shall be a defense. c. Sophisticated analytical [no legal status] just theory i. four types of excuses 1. mistake of fact 2. mistake as to a matter of civil law that has been incorporated into a criminal prohibition 3. mistake as to the very existence or meaning of a criminal law (not an excuse) 4. mistake as to a matter of law that would justify what would otherwise be a crime. d. synthesis: which leads to the most predictable, consistent, just results? i. NEED for FLEXIBILITY: its impossible to make a perfect rule
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Intl. Mineral (transporting chem) UPHELD should have known feasance (more reason to know) GOV interest large
Lambert (felons must register) UN CONSTITUTIONAL no reason to know emphasized.. non feasance.. less reason to know Due process GOV interest small
Hopkins
Cox
no reason to know
STRICT LIABILITY I. Morissette v US: (took shell casings from military lands.) STRICT LAIBILITY a. almost all criminal law is state law b. felony is as bad a word as you could give to anything. c. even if the statute contains no mans rea language, the court may still require mens rea. d. General rule: the more heinous the offense the harder to convict. e. Individualism in the US creates a presumption that both a BAD act (actus reaus), and a guilty mind (mens rea) are required, eastern society is more open to the notion of community wrongs. i. there is no bright line distinction f. PUBLIC WELFARE OFFENSES (intent not required) REGULATORY OFFENSES i. General characteristics (not binding) 1. not MALA IN SE 2. related to industrial revolution 3. used where intent is not cost effective to prove. ii. REQUIREMENTS 1. no stigma 2. penalty low 3. not a common law crime (or legislature must explicitly change the common law presumption of mens rea) g. NORMAL CRIMES i. punishment higher ii. stigma requires due process II. State v. Baker: (cruise control stuck) a. you can’t be held strictly liable if your act was not VOLUNTARY b. you may have defenses even if you have the mens rea c. ex. involuntary intoxication, vs. vol. intoxication (fewer excuses)
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Proportionality
I. 8th amendment (traditional interpretation.. its changed recently) Cruel and unusual punishment is not allowed: a. Supreme: justices split: i. 2 justices: there is no proportionality requirement / ii. 4 justices: it must be extremely (grossly) disproportionate. TEST: so disproportionate that it shocks the conscience and offends fundamental notions of human dignity. a. Disproportionate OR (may bring law into disrepute) b. Absolutely barbaric i. ex. lingering death, loss of citizenship, Relationship to purposes of punishment : imprisonment is more desirable than death or other absolute punishments b/c imprisonment it easier to match to the crime. a. retribution: very closely connected with justice. concerned with past action and moral dissert. (punishment must fit the crime) b. rehabilitation c. deterrence: “i’d as soon be hanged for a sheep as a goat” if several crimes of varying severity all have the same punishment then criminals may be inclined to chose the more heinous crime. d. restraint STATE TEST: In Re Lynch: (most states have a similar test) a. Unconstitutionality i. consider the MAX possible sentence for constitutionality ii. Unconstitutional if: so disproportionate that it shocks the conscience and offends fundamental notions of human dignity b. TEST: (to check for “shocks conscience”) FACTORS i. AGGRAVATED CIRCUMSTANCES 1. danger of the act 2. violence of the act 3. other aggravating factors ii. SAME JD: equivalence of punishments for other crimes iii. OTHER JD: equivalence of punishments for the same crime
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IV.
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Legality
I. INTRO a. Principle that the criminal law must be certain & knowable (and readable) b. Murder is the unlawful killing of a human being w/ malice aforethought i. common law definition everywhere (memorize) Legality (keeler and shaw and opposite ends of the spectrum) a. DPP v Shaw: (ladies directory: conspiracy to corrupt public morals) i. English ct. created common law crime (rare now) ii. court didn’t care about notice iii. Calvinist: negative approach to human nature. iv. no fear of separation of powers v. “decision foreseeable” vi. court should be able to fill in the gaps left by the legislature b. Keeler: American court found that a FETUS was not a HUMAN BEING within the meaning of the criminal law statute and so unenforceable: i. deference to SEPARATION OF POWERS and NOTICE ii. Duncan: notice is not about actual notice but about ones theoretical ability to check. (NO EX POST FACTO LAWS) iii. LEGISLATURE: changed it later anyway. c. Papachristou: (vagrancy crimes.. standing around) i. Void for vagueness: a reasonable person could not know when he was breaking the law. 1. allows abuse of discretion ii. “inchoate” offenses: preemptive measure: (vagrancy, conspiracy, attempt / solicitation)
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HOMICIDE
I. Levels a. Murder b. vol. Manslaughter c. Involuntary manslaughter Common law murder: a. Def: unlawful killing of another human being with malice aforethought b. MALICE AFORE THOUGHT: can be proven in 1 of 4 ways i. ***degrees were not part of the common law system, added so the jury could convict of murder without requiring death. ii. intent to kill / murder 1. premeditated / deliberate 1st degree 2. not premeditated and deliberate 2nd degree a. Carol Approach: “no time needed” 2nd degree leaves almost nothing this category. b. Anderson: leaves more room for this category i. PREMEDITATION: requirement would be meaningless if all it ment was intent to kill. ii. GO with plain meaning of language iii. TEST: 1. PLANNING: prior to actual killing 2. MOTIVE: 3. MANNER of Killing: demonstrating action designed to kill “preconceived design”. (ex. lots of little wounds might not prove, but shooting at head would) iv. Must have 1. really strong PLANNING OR 2. MOTIVE and PLANNING or 3. Motive and Manner or 4. all 3. v. Carol: would be guilty under this test (had MOTIVE (bad wife) and MANNER(shot in head) iii. intent to do serious bodily injury 2nd degree 1. MPC folds into criminal negligence or depraved heart. iv. depraved heart murder (reckless ness without intent) 2nd degree v. felony murder: (abolished every where but the US, Michigan court recently abolished) 1. MPC folds it into depraved heart. a. list of felonies raise a presumption of “rescless indifference to human life” 2. mens rea for some lesser felony, and then accidentally kill someone while committing the crime. 3. 1st or 2nd degree depending on the type of lesser crime.
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c. Carroll: (D shot wife, after a fight b/c he “felt an impulse to shoot her” i. Court: “pre-meditation requires no time” ii. Doctors: “should not be given the final word on intent’ 1. everyone has impulses: slippery slope.. law would have no power Exaggeration MPC MURDER: a. No degrees b. Pre meditation: is not necessarily more heinous. Ex. old man who kills his wife because she is in pain. (MPC REMOVED and replaced with aggrivating and mitigaing factors) c. Aggravating / Mitigating factors i. IF DEATH IMPOSED must have at least 1 with no mitigating factor. ii. Aggravating: 1. by convict under sentence 2. previous murder / violent felony 3. ADD MORE p 1079 iii. Mitigating: 1. no prior criminal history 2. extreme mental / emotional distress 3. victim participated / consented 4. D believed it was morally justified 5. D was an Accomplice with a minor role 6. D acted under duress 7. ability to know right and wrong impaired 8. youth of D d. Common law homicide i. Common law def: unlawful killing of a HUMANBEING with malice aforethought ii. TYPES OF MURDER 1. intent to kill 2. intent to do serious bodily harm 3. depraved heart 4. felony murder e. Approaches to murder requirements i. MPC did away with 1. degrees 2. premeditation: not a good proxy for heinousness... a. ex. mercy killings, b. murder with no thought may be more dangerous ii. Common law 1. Split: a. Carol: “no time required for a wicked mind to form intent” b. Anderson:
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i. FORMULA (would help anderson but not carol) 1. manner 2. motive 3. planning
IV. Heat of Passion {voluntary manslaughter} (mitigates murder)
in most jurisdictions voluntary manslaughter is an intentional homicide committed under extenuating circumstances that mitigate but do not excuse or justify the crime b. Elements required i. the elements for murder ii. the provocation formula (provocation to what? CAMPLIN... murder or a response? the average person never murders) 1. a reasonable person would have been provoked 2. the defendant was actually provoked a. ex found spouse in bed 3. a reasonable person would not have cooled off in the time that elapsed a. ex. knew spouse was in bed and drove over there... on the line. b. REKINDLING: (COURTS SPLIT) cooled off after rape, but then made fun of... and killed rapist. 4. the defendant in fact did not cool off c. Reasonable provocation standards: WHO IS THE REASONABLE PERSON.. D or anyone? PROVOKED TO WHAT? i. common law: 1. limited / enumerated circumstances: (otherwise the excuse can’t go to the jury) a. extreme assault or battery even w/ out touching b. painful blow: unless started it c. mutual combat d. illegal arrest (must know its illegal) e. defense of family f. sudden discovery of adultery i. MODERN TREND: 1. spouses treated equally 2. don’t have to actually see 3. OLD: used to be ok to kill an adulteress g. mere words never sufficient i. SPLIT liberal JD’s: “Jury, not judge can determine this” ii. Common law reasonableness 1. Maher v people: (Michigan, 1862) a. “men of fair average mind and disposition” 12 a.
b. UNLESS; “defendant has been shown to have some particular weakness not arising from wickedness of heart or cruelness of disposition 2. Camplin: 1978 House of lords a. person with the accused’s characteristics AND b. would have been provoked to TAKE THE ACTION THAT THE ACCUSED TOOK. iii. MPC: § 210.3 (b) 1. criminal homicide is reduced to manslaughter when a. homicide committed under influence of i. extreme mental or emotional disturbance ii. with a reasonable explanation or excuse 1. reasonable person in the a. actor’s situation and b. circumstances... AS HE BELIEVES THEM TO BE iv. MPC vs. common law: Hypo “chimp researcher’s work challenged and she kills” “monkeys are stupid creatures... incapable of talking” 1. common law a. strict: mere words are never enough b. broad: let the jury decide 2. MPC: a. let the jury decide d. Arguments i. In favor of more objective standard 1. excusing abnormal behavior encourages it 2. the very factors that call for mitigation under the provocation formula are the ones that make use fearful of the individual. ii. in favor of a more subjective standard 1. all people are not the same and holding them to the same standard would be unfair 2. we naturally perceive people as less culpable when we can imagine ourselves doing what they did. e. Heat of passion doesn’t have to be rage: i. jealousy, fear / terror, desperation Heat of passion mitigates murder.
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Involuntary manslaughter
I. II. An unintentional homicide (under certain circumstances) Two types a. unlawful act doctrine... or misdemeanor manslaughter.. an act not amounting to a felony that results in death. i. ex. ex. accidentally ran a stop sign.. and kill someone... guilty ii. WON’T STUDY: ABOLISHED IN MOST STATES b. Criminal negligence (common law approaches) i. simple tort negligence (MINORITY) 1. just like torts.. conduct creates A RISK ii. gross negligence (MAJORITY) 1. TRADITIONAL : GROSS NEGLIGENCE: D’s conduct just creates a HIGH RISK 2. MODERN: RECKLESS: D must be AWARE of the HIGH RISK. 3. Examples of Involuntary manslaughter a. TRADITIONAL VIEW i. physician kept a patient wrapped in kerosene soaked rags ii. night club owner provided no fire escape (court applied criminal negligence standard) iii. mother allowed lover to beat child... didn’t have to know child would die. b. MODERN VIEW i. D must actually be aware of the risk. iii. INHERENTLY Dangerous instrumentality : 1. most states only require simple negligence when D was using an inherently dangerous instrument. 2. in most states a car is not an inherently dangerous instrument. c. Criminal negligence (MPC APPROACH) i. does away with distinction between 1. voluntary / involuntary AND 2. heat of passion ii. reorganizes.. but the rules are the same.. iii. CRIMINAL HOMICIDE = Manslaughter (2nd degree) WHEN 1. RECKLESS (Criminal negligence... of the majority kind) at common law 2. HEAT OF PASSION iv. POLICY: Holding people liable for negligence as involuntary manslaughter
III.
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IV.
a. Legitimate purpose of punishment? i. NO mens rea ii. if they are unreasonable can they be deterred? b. who is the reasonable person (Subj or Obj)? i. cultural standards vary 1. ex. Navaho Indians.. are they unreasonable when they don’t take a baby to the doctor? Williams: a. Simple negligence + Proximate cause b. a reasonable person would have known child needed care, and would have noticed in time to save the kid.
Over view of Homicide (Contrast depraved heart with involuntary MS)
I. Common law murder a. Intent to Kill b. Intent to commit serious bodily injury c. Depraved heart murder (NOT INTENTIONAL) d. felony murder (NOT INTENTIONAL) Voluntary Manslaughter a. elements of murder + provocation formula (4 parts) Involuntary Manslaughter a. criminal negligence (UNINTENTIONAL) b. Misdemeanor Manslaughter (UNINTENTIONAL)
II. III.
Depraved Heart Murder
I. ELEMENTS: UNINTENTIONAL homicide resulting from: a. conduct creates an UNJUSTIFIABLE risk of death or serious bodily injury i. ex. not a hospital run... b. the RISK is EXTREMELY HIGH i. (difference of degree) Invol MS might just say HIGH. c. A REASONABLE PERSON would have been aware of (a) and (b) d. SPLIT (D’s awareness) i. Some JD: reasonable person standard is enough. ii. D must be aware of UNJUSTIFIABLE and EXTREME risk 1. INFERRING or ASSUMING AWARENESS: Some courts that do require awareness are willing to infer it.. from the D’s actions a. only really becomes an issue with odd cases like drunk driving or other cases where awareness can’t be assumed. MPC puts depraved heart murder under FELONY MURDER a. FELONY MURDER DEF: i. (traditional) murder committed with an abandoned and malignant heart: 15
II.
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ii. (MPC): reckless indifference to human life.. iii. rare case: used this def to get D off: D took victim to hospital.. and this proved that his heart was not abandoned and malignant. Depraved heart VS. Criminal negligence: examples of each (HOW do you differentiate? very similar.. one of degree.. no bright line) a. the difference is one of degree b. Depraved heart MURDER: (tends to be BAD ACTION)... NO intent to kill but action seems more bad. i. shooting a moving car ii. throwing a beer glass at a woman carrying a lighted oil lamp iii. Russian roulette c. Criminal Negligence Involuntary MANSLAUGHTER: (tends to be BAD OMISSION) i. wrapping patient in kerosene soaked rags ii. mother left child with abusive lover iii. night club owner failed to provide proper fire escapes iv. parents failed to take sick baby to the doctor. Voluntary Intoxication (big issue to her) a. Can it negative mens rea i. Common law: Split: some states.. no it was a voluntary choice... 1. Specific vc. General intent a. SPECIFIC INTENT crimes: require PURPOSE or KNOWLEDGE. i. ex. unlawful entry into a dwelling at night w/ intent to commit a felony there in. ii. if you’re drunk you can’t form the specific intent for the crime. b. GENERAL INTENT crimes: require mere RECKLESSNESS OR NEGLIGENCE. i. ex. Depraved Heart murder. ii. if drunk you can still be guilty c. Many states have repealed this exception ii. MPC: where the crime requires reckless awareness of risk VOLUNTARY INTOXICATION is no defense to a reckless crime. 1. MPC USES FRAME OF REFERENCE OF D> usually this helps D, but in this case it hurts him. b. Examples i. Drunken drinking alone is usually not enough for depraved heart murder 1. drunk driving + extremely risky driving= depraved heart. a. states split over awareness of risk requirement b. VOLUNTARY INTOXICATION IS usually NOT A DEFENSE BECAUSE DEPRAVED HEART DOES NOT REQUIRE INTENT... what about states that require awareness of the risk?
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V.
Involuntary intoxication a. Negatives i. Actus reaus AND ii. MENS REA b. EXAMPLE i. Clear: D forced to drink ii. On the line: you take medication.. and a reasonable person would know this is will Its one of the four types of murder a. intent to kill b. intent to do serious bodily harm c. depraved heart (NO INTENT) d. felony murder (NO INTENT) Definition: a. an unlawful killing that occurs in the commission or attempted (furtherance of) commission of a felony. not necessarily caused by felon or by felony. Purposes a. deter accidental killings b. make it easier to convict on murder i. MALICE NOT required ii. expands liability to cases where intent or recklessness can’t be proven. 1. Precludes use of the provocation formula 2. precludes use of diminished capacity (intoxication..) c. fix the degree of murder Arguments against (its a DISFAVORED DOCTRINE) (BIG ISSUE) a. departure from basic principles of criminal law (mens rea) b. leads to non proportional punishment i. EX. stamp quiet robbery.. victim happens to have a heart attack.. 1. whether D committed robbery or murder is merely a function of his luck... c. Can you really deter accidental killings? MPC approach a. Might need more info: {definition of murder: §210.2 definition of rebuttable presumption: §1.12 (5)}... but probably not b. Eliminated felony murder as a separate type of murder i. but brings it back as a REBUTTABLE PRESUMPTION on the issue of MENS REA needed for DEPRAVED HEART MURDER ii. if person engaged in a felony and a death occurs: 1. MUST go to jury on issue of whether exhibited a. extreme indifference to value of human life b. jury MAY find that the FELONY was sufficient evidence that D had MENS REA for DEPRAVED HEART murder.
Felony Murder (precludes capacity and provocation defenses)
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V.
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VII.
Limitations on the felony murder doctrine: a. why needed: felonies used to be really bad and all required death as punishment, now many felonies are NOT DANGEROUS TO LIFE. (ex.. tax fraud) and the punishment is often much lower. i. courts find it absurd that you could be guilty of murder if your IRS agent tripped and died while examining your claim.. so they have worked to limit the felony murder doctrine. Limits placed on felony murder a. Limit to named felonies b. Limit crimes to crimes that were felonies at common law. i. rape, sodomy, burglary, arson, mayhem, larceny OR ii. malum in se felonies OR c. dangerous to life (split courts) i. determined in the ABSTRACT (not particular facts of crime) 1. people v. phillips: ex. eye cancer.. doctor committed “grand theft..” not inherently dangerous felony. 2. people v. satchel: concealed weapon by felon not always dangerous. ii. OR PARTICULAR facts: d. Narrow construction of TIME PERIOD FELONY IS IN PROGRESS e. Mala in se felonies f. Proximate Cause vs. Agency (Courts split) i. PROXIMATE CAUSATION: (harsh on D) 1. RULE: liable for any death proximately related to actions of FELONS (accomplices) regardless of who actually did the killing. a. ex foreseeable to for firemen to be killed in an arson’s blaze but not on the ride home. b. force used unlikely to cause death.. ii. AGENCY THEORY : 1. WHO DOES THE KILLING a. RULE: no one can be guilty of homicide unless the act was ACTUALLY or CONSTRICTIVELY his i. can only be liable for acts of accomplices, 1. Accomplice = persons furthering the purpose of the felon as an agent. ii. not liable for acts of victims b. EXCEPTION: Shield doctrine i. if you use someone as a shield, and a innocent party shoots them while trying to stop you than you’re liable for the victim’s act. 2. WHO IS KILLED: a. limit is based on who is killed (LIABLE FOR ANY INNOCENT DEATH) i. no one liable for death of felon
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1. he assumed the risk ii. Doesn’t matter who shoots 3. VICARIOUS LIABILITY (Taylor) ??? a. robbery not always dangerous.. b. behavior must be PROVOCATIVE OF A DEADLY RESPONSE i. conscious disregard for human life: = depraved heart murder. c. RULE: if you chose to be an accomplice and your accomplices chose to provoke murder through RISK CREATION (conscious in most JD) then you are also guilty of depraved heart murder. g. TAX HYPO: commit tax fraud and agent happens to die while auditing i. Ways to limit the application of the disfavored doctrine. 1. not on list of felonies 2. not in the furtherance of the crime (or during the crime.. if strictly defined).. 3. not inherently dangerous 4. not mala in se. h. MERGER DOCTRINE. i. RULE: predicate felony must have an “independent felonious purpose”. 1. a felony is precluded by the merger doctrine if it and the murder were part of a single purpose. ii. Idea: almost all murder cases involve assault, so if we allow felony assault to work for felony murder then INTENT will NOT BE REQUIRED for almost any murder. iii. (ireland) ASSAULT: “assault with a deadly weapon is an integral part of the homicide” iv. (berton): ARMED ROBBERY is an “independent felonious purpose” v. (wilson): FELONY BURGLARY: 1. “unlawful entry into a dwelling at night with the intent to commit a FELONY there in.” 2. What if the felony intended is Assault? (Courts split) a. (miller) ALLOWED: attack in a dwelling is more dangerous.. family, trapped, people likely to help b. (smith) NOT ALLOWED: too closely related. vi. CHILD ABUSE: (problem: may help bad people and hurt good ones..) 1. (smith) BEATING: merges with assault 2. (shockley) LONG TERM.. dehydration / malnutrition.. does not merge.
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Felony Murder (continued) I. Felony murder under: Agency Theory (Taylor): WHO DOES THE KILLING: F can be liable for killings by co F only if they were actually done by the co F a. Get away Car driver, friends in store crazy... co F shot by victim II. Vicarious Liability: WHO PROVOKED THE KILLING a. ACCOMPLICE liability: people who act together in furtherance of a crime can be VICARIOUSLY liable for the other’s actions. b. Quiet vs. Aggressive robbery: i. a quiet accomplice who is shot by a victim may not have provoked the response and so the D may not be liable. ii. an aggressive accomplice may provoke a lethal response through CONSCIOUS RISK CREATION which is depraved heart murder 1. accomplice who wasn’t aggressive may then be liable vicariously for his partner’s depraved heart murder c. WHO IS KILLED: i. TAYLOR: D can be liable even if the accomplice provokes his own death. ii. ANTICK: D can not be liable if the accomplices provoked his own death.. accomplice could not be guilty of his own murder so neither can D. d. FURTHERANCE: in Antick the accomplice was running away while the D had surrendered. you might also argue that at that point the accomplice was no longer acting in the furtherance of the crime he and D planned together.
Death Penalty
I. many laws used to impose the death penalty.. judges, juries perceived as too harsh... and developed fictions to help mitigate the punishment imposed. a. The Neck Verse: i. Clergy in England were exempt from murder. In reaction against the death penalty, courts defined clergy as any one who could read. The reading test was always the same verse: Psalm 51, and so illiterate people would just memorize the verse. b. Current events: laws are still dynamic and unusual. 8th amendment: No cruel and unusual punishment a. originally applied only to fed. 14th amendment (makes 8th apply to states) Furman v. GA: 5 – 4 vote a. Majority split: i. 3: PROCEDURE: arbitrary and capricious. practice so unfair and unevenly applied... getting death penalty is “like being struck by lightning” 1. PROCEDURE MUST NOT CREATE A SUBSTANTIAL RISK OF ARBITRARY AND CAPRICIOUS INFLICTION OF DEATH PENALTY
II. III.
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IV.
a. can any procedure guarantee this? some say no. ii. 2: ABSOLUTELY BAD: not a question of process. barbaric and not in keeping with civilized society. Gregg v GA: a. ABSOLUTELY BAD? (inherently bad) i. “cruel and UNUSUAL” word unusual invites investigation of what everyone else is doing. 1. evolving standard 2. still in keeping with society’s values ii. still proportional iii. serves a purpose of punishment. “retribution is legitimate.. so is vengeance” b. PROCEDURE? (TENSION BETWEEN THE REQUIREMENTS.. CAN THEY BE COMPATIBLE?) i. SYSTEMATIC: (rule based) procedure must be systematic and orderly 1. bifurcated procedures a. guilt b. sentence 2. guidelines for jury (aggravating and mitigating circumstances).. ok to require aggravating before death can be imposed.. 3. Automatic appeal ii. MANDATORY: (must allow discretion) death can NEVER be absolutely required. 1. Particularized consideration: a. Respect for individual dignity requires the flexibility to consider the particular facts. 2. Can’t be arbitrary and capricious. 3. can’t limit mitigation to a mandatory set of factors. c. APPLICATION TO CO FELONS i. INMAN: no death penalty if you didn’t commit the murder or intend the murder ii. TAYLOR: allowed where: Sons helped father out of jail and GAVE HIM WEAPONS.. when they knew he was violent and crazy.. father killed a family while boys were in gas station.. death sentence allowed for boys. 1. CONFLICT WITH INMAN? a. P: could argue that they intended the murder.. but b. D: but they didn’t actually do it and the proof of intent is weak... i. felony murder disfavored.
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Attempt
I. Introduction a. Definition: an act that although done with the intention of committing a crime, for one reason or another falls short. general categories: i. Failed attempt: failed on your own ii. truncated attempt: stopped on your own.. locus penetiatie.. iii. stopped by third party b. Common law vs. MPC i. Common law: lesser punishment ii. MPC: punishes the same 1. except in cases where the penalty would be death c. substantive crimes of attempt.. i. they make it a crime to do the things that are generally attempt.. so attempted burglary is attempt to attempt ii. burglary iii. loitering d. Merger: you can not be guilty of both the actual crime and attempt because it merges unlike conspiracy. Intent (Mens Rea) and Actus reaus (bad acts) a. Intent: an inchoate crime. i. SPECIFIC INTENT ALWAYS required: intent to complete the crime: PURPOSE AND KNOWLEDGE 1. Knowledge of the risk is not enough 2. Smallwood: AIDS: specific intent might be inferred but the court refuses to. ii. Even required for strict liability crimes: Mohan: iii. Why? attempt is dominated by the mental element. b. Mens rea is inherently ambiguous in attempt courts have struggled with it. Actus Reaus: when in time is the ACTUS REAUS made out? a. Mere preparation.........................actual complete attempt. b. Proximity / last step: SPLIT: i. SPLIT 1. D must take the last step possible OR 2. Dangerous proximity to success ii. Focus 1. not on what D has done but on what remains to be done... time and place of intended crime become important iii. Argument for: an act should not be punished except to prevent some harm which is likely to follow that act... narrowness serves justice. 1. deterrence is the function iv. Argument Against: neutralizing dangerous individuals not deterring dangerous acts should be the purpose of the law.... proximity too narrow and not enough convictions c. Locus Penetatie / Probable Desistance: time to repent: the outcomes are very similar to the last step test.
II.
III.
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IV.
1. crime is made out when it becomes very clear that the D will not desist. a. Criticism: artificial: no way to know when the average person would desist d. Equivocally: or Res Ipsa Loquitor test: objective acts must prove crime i. a criminal attempt should bear criminal attempt on its face ii. requires unequivocal behavior: such that the jury can tell what he would next commit the crime. :. don’t punish thoughts alone iii. Criticisms: 1. restricts the value of confessions in attempt cases 2. could bar conviction that wasn’t obvious without the confession... even with confession this test would let him off if it wasn’t obvious from the facts. e. MPC Approach i. an act or omission constitution a substantial step in a course of conduct planned to culminate in the actor’s commission of the crime. 1. conduct must also be strongly corroraboriative of purpose ii. Broadens the scope of liability.. restrains dangerous persons not just dangerous acts. 1. emphasis on what the actor has done, not on what remains to be done 2. liability requires some firmness of criminal purpose be shown 3. conduct may be assessed in light of defendant’s statements (by contrast with equivocality test) iii. Adopted by many states Special problems a. Attempt crimes which are already attempt or anticipatory in variety i. burglary ii. assault: mc quirter 1. courts split over whether you can be guilty of attempt to attempt.. especially silly when the crime you’re attempting is a substantive crime of attempt.. a. some courts frown on this b/c its pushing the time for guilt further and further back towards mere preparation. iii. abortion b. Solicitation i. last act of solicitation or very early stage of the completed crime? ii. Common law requirements 1. Split: (solicitation as that attempt for the crime attempted.. many states have simplified by just making solicitation a crime).... all would agree its very full proof of solicitation.. but the proof of attempt is a bit low. a. solicitation alone is enough
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i. focus on solicitor’s acts b. solicitation w/ out an act moving towards the crime is not enough i. focus on hitman not on solicitor ii. if the hitman doesn’t intent to kill some JD would say the solicitor can’t be guilty. 2. Group Crime: theory split a. less dangerous b/c more than one person can say no b. more dangerous b/c criminals are cooperating
Defenses to Attempt
I. Abandonment c. Common law: not allowed b/c its so hard to make out attempt i. once the elements of attempt are present, you are guilty even if you change your mind later. d. MPC: its easy to make out attempt but defense allowed i. VOLUNTARY COMPLETE ABANDONMENT 1. Voluntary: no outside force made you 2. Complete: you didn’t just go commit it somewhere else e. Affirmative defense i. most JD use impossibility as an affirmative defense that excuses the crime after it is fully made out. ii. D must make a Prima facie case of abandonment, and then JD’s split on the burden placed on the prosecution. Impossibility of success f. Contrast with mistake i. mistake is the buzz word used for completed offenses, impossibility is the buss word used for attempt.. g. Traditional approach: the inverse of the Mistake doctrine for completed crimes i. Factual impossibility does NOT excuse ii. Legal Impossibility does excuse iii. Too ambiguous to be of any real use. h. MPC Approach: goes by the attendant circumstances as D understood them... here it tends to work against D. i. eliminates impossibility as a defense ii. EXCEPTIONS 1. Intrinsic impossibility: ex voodoo a. left to the court’s discretion 2. True Legal Impossibility: what you tried to do wasn’t in illegal iii. Objections to MPC approach 1. Impossibility defense requires close scrutiny of mens rea 2. exact language of statutes give criminals a windfall. (jaffe.. trying to buy.. “stolen” property
II.
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i. MPC application i. Think its English but its actually French: 1. no intent so excused ii. thinks its french, and its English 1. not excused b/c has the intent iii. thinks its legal to import french but its illegal 1. no intent, but not excused b/c of overriding concern of legality.. what constitutes the law must remain constant and external iv. thinks its illegal to import french lace but there’s no such crime 1. True legal impossibility.
Attempt: Constrast of MPC and Common Law
Mens Rea Common Law specific intent Knowledge & Purpose (even if SL crime) (some fed cts disagree) Attempt distinguised from “mere perperation”.. proximity, probable desistance, or equivocality test NOT ALLOWED, crime harder to prove.. and already made out Law excuses, Fact does not not useful MPC Purpose only
Actus Reaus
Substantial Step Strongly Corroraborative of criminal intent
Abandonment (affirmative defense)
Impossibility defense
Punishment
Traditionally attempt given much lower punishment... today.. its a reduction of the main crime
COMPLETE and VOLUNTARY Abandoment... easier to convict so offers defense Abolished with 2 exceptions (1)Intrinsic impossibility (2) true legal impossibility same as punishment for target, except: in death penalty or life in prison cases
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Conspiracy
I. II. relation to attempt and complexity a. Accomplice / conspiracy relationship: both are group crimes b. Attempt / Conspiracy: both are inchoate crimes Elements of Conspiracy a. Mens rea: Specific intent: Purpose and knowledge i. Ambiguity: 1. Purpose to agree 2. purpose to actually have crime occur b. Actus reus: i. At common law agreement alone was enough, 1. very low threshold... a nod would suffice ii. Modern common law: more is usually required Collateral Consequences of Invoking Conspiracy: DISFAVORED Doctrine a. Vagueness b. Venue c. Hearsay: hearsay is allowed when made during and in furtherance of the conspiracy i. Krulevitch: how long does the conspiracy last.. should it always be assumed that every conspiracy has a collateral purpose of concealment? ... NO. 1. what if they intentionally cons d. Joint Trial: makes the implication of guilt easier (birds of a feather) e. Chameleon Like: f. Enhanced Punishment: i. at common law conspiracy does not merge ii. MPC merges it. Liability for conspiracy a. Common law: the Pinkerton Doctrine: “conspirators are liable for the substantive crimes of their co conspirators so long as” i. the conspiracy is still ongoing ii. the actions are in furtherance of the conspiracy, and iii. reasonably foreseeable. Abandonment as a defense to Conspiracy a. Common law i. Not allowed as a D to conspiracy: (once its made out you’re guilty) ii. Allowed as a defense to substantive crimes made after withdrawal 1. Requires an affirmative act of withdrawal: b. Modern Law: allows abandonment as a defense to conspiracy and the substantive crime i. D to Conspiracy: allowed but standard is very high 1. D must take action that prevents the crime planned by the conspiracy. ii. D to Substantive crime 1. D must inform conspirators or call the police.
III.
IV.
V.
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VI.
VII.
VIII.
IX.
X.
Actus Reaus requirements for conspiracy a. the BAD ACT is merely agreement and it can be inferred... no substantive crime required i. “alverez noded his head and for this he will go to jail.” Mens rea: the intent required for conspiracy a. Courts Split LAURIA i. Harsh Courts: knowledge alone is enough in any case ii. Modern Trend: KNOWING SUPPLIER PROBLEM: if you sell goods or services that you know will be used for a crime are you guilty of conspiracy? 1. Felonies (henious crimes): only knowledge is required: a. Policy: we should be slow to impose a duty to act (culpable omission) but in cases of really bad crimes its ok to impose that duty b. you can be liable for 2. Misdemeanors: Require Specific Intent: (Knowledge and Purpose.. intent to further the object of the conspiracy) a. Knowledge: actual knowledge of crime required b. Intent to further the crime: How it can be proven i. Direct evidence: ex. supplier helped the criminals commit their crime. ii. Indirect Evidence: STAKE IN THE VENTURE 1. HIGH PRICE: Supplier sold goods for a price far above MKT value 2. EXTREME VOLUME: Supplier sold quantities that had no legitimate purpose 3. NO LEGAL USE / High % of supplier’s volume is used for illegal activity: c. Policy: the burden imposed by requiring suppliers not to sell to people they believe will use the goods to commit misdemeanors is greater than the benefits it brings... would have a chilling effect on society. Scope of Conspiracy: who is included a. Wheels: better for D: just a spoke, used the same dealer/ broker, but not part of the other crimes and only liable for a small conspiracy. b. Chains: worse for D: part of a big chain and liable for all crimes c. NOT ON TEST Special Purpose of conspiracy law a. prevention: inchoate crimes b. group criminality: group acts are more dangerous, but sometimes conspiracy law is too much for small crimes, benefits to prosecution Elements of Conspiracy a. Actus reaus
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XI.
i. Common law: : Just agreement ii. modern law: Agreement, + an overt act b. Mens Rea: Knowledge vs. Intent (unclear) c. MPC: purpose and knowledge MPC looks at mind of D: who did he intent to agree with.
Accomplice Liability (aka “Complicity”) I. Conspiracy and Accomplice liability are heavily mental crimes with little physical action, so courts require more mental proof. II. Ways of categorizing the parties to a crime: ONLY APPLIES TO FELONIES a. Common law i. Principal in the 1st degree: actually engages in the act of omission which causes the result, or acts through an innocent or incompetent party. ii. Principal in the 2nd degree: 1. aids by act or omission 2. Present a. actually b. constructively: helping while elsewhere.. ex playing loud music in another room to cover the sounds of the crime. iii. Accessory before the fact: AIDS / Protects with prior agreement and intent to help. iv. Accessory after the fact: 1. AIDS while knowing about the crime 2. with the intent to help avoid capture b. Modern categorization i. Accomplices: P2 and accessory before the fact 1. punished the same as the principal in the first degree ii. Accessory after the fact 1. still a separate category why? c. Inconsistent Verdicts: (missing something here?) i. Traditionally not allowed ii. Modern / MPC: you can be guilty if an A/Before the fact, P1 or P2, but not if A/After the fact... (requires that the principle criminal first be convicted) d. Intent: i. Intent to assist in the commission of the crime ii. Knowledge: Split--> knowing supplier problem 1. similar to LAURIA factors. III. Elements of accomplice liability a. Without agreement: one is liable as an accomplice for the crime of another if She/he i. gave assistance or encouragement, or failed to perform a legal duty to prevent the crime ii. with the intent to promote or facilitate commission of the crime
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IV.
1. note: courts are split as to whether some lesser mental state such as knowledge will suffice. b. With Agreement: if you’re present you’re liable even if you don’t act. Special Problems: a. Issues involving mens rea i. purposely or knowingly 1. Early decisions 2. Today: Peoni, gladstone 3. Compromise view ii. Suppose D intends the actions but merely risks the result 1. can you have an accessory to misdemeanor manslaughter or felony murder? 2. Not liable for unauthorized acts: Regina v anderson and morris b. Issues involving the actus reaus i. accomplice liability based on omissions ii. unsuccessful attempts to aid 1. variation on tally c. The relationship between the liability of the parties i. inconsistent verdict problem 1. otherllo and Iago 2. regina v. Cogan
Accomplice liability I. Wilson: (helped friend in burglary and then called police.. set up 4 revenge) a. Trial: you can’t get out of it just by saying so afterwards b. Appeal ct: Larceny requires “intent to permanently deprive” i. no mens rea to deprive permanently II. Mens rea: Better academic view: a. 2 separate intents: i. intent to aid ii. intent that the crime should be completed III. 4 Variations on Hicks: Hicks: actus reaus and mens rea, very important (take your hat off and die like a man): a. Hicks hears R is going to kill his old enemy C and so goes along to enjoy i. No act or intent to further the crime and no legal duty to prevent b. “ “ + words of encouragement i. Actus reaus: (satisfied by the words) ii. Mens rea: debatable 1. did he actually intent to help?, or was he just afraid. c. “ “ + mentally decides to help if necessary i. Actus reaus: none, unless there was a prior agreement ii. Mens rea: yes, d. “ “ + Promise to help + mental intent to help i. Actus reaus: yes (agreement) 1. some JD require an overt act.
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IV.
V.
VI.
VII.
ii. Mens rea yes Gladstone (“i don’t have any drugs but I’ll draw a map to where you can get some.. no contact with supplier... charged with aiding and abetting the sale of marijuana.) a. Necessary nexus: need a link between the sale and the D’s actions... would be enough for a link between D and Purchase.. i. not the main reason b. Purpose: Mens rea for accomplice liability requires that D embrace the purpose of the venture and wish for the crime to succeed. (doesn’t have to benefit D but it helps when trying to prove) i. the main reason D got off Tally: (judge stopped the telegraph message that might have warned the victim)-> accomplice in murder a. Does not have to be a but for cause of the crime i. enough if they destroy one little chance for the victim to escape b. No pre-concert requirement: its enough that he contributed to the death. i. Pre-concert is only required for liability if he doesn’t actually act. Actus reaus: Ineffectual attempts to AID a. BEFORE MPC: not criminal at common law prior to MPC b. AFTER MPC: criminal if had PURPOSE to AID Contrast between conspiracy and accomplice liability a. Accomplice Liability Requires i. Intent to Aid ii. Intent for crime to occur b. Conspiracy Requires i. Agreement ii. Some JD require an overt act
Self Defense and Defense of Another I. Elements: (US. v. Peterson) self defense begins and ends with necessity a. For the use of deadly force: (subj. and obj) i. defender must perceive a threat of the use of deadly force against herself (peril of death or serious bodily harm including rape). ii. must perceive threat as unlawful iii. must perceive threat as imminent 1. right now (majority) vs. inevitable (very few) iv. Defender’s beliefs must be reasonable (mere words can be enough) b. “Imperfect” Self Defense: i. 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 ii. Punishment: 1. All or nothing vs. Mitigation 2. At common law it was often an all or nothing deal... guilty or not guilty
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3. Many jurisdictions now mitigate unreasonable responses so D is only guilty of manslaughter c. Defense of another: two approaches i. “standing in one’s own shoes” ii. Standing “in the shoes” of the person in whose defense he acted 1. right to defend another is coextensive with the other’s right to defend himself II. Self defense : Issues a. How objective should the reasonable person standard be? i. Civil rights perspectives: 1. Goetz: “reasonable to him”(from his perspective) subjectified the objective component. ii. Feminist Perspectives 1. Wanrow: Reasonable “man” standard might bias jury against a woman who is 5’4 and not very strong. iii. MPC Approach b. Immediacy i. How immediate must the danger be? ii. Is it the danger or the need for defense that should be immediate 1. Case of the prisoner who was threatened with being made a bitch a. State v. Schroeder: i. Majority: danger must be immediate ii. Dissent: this the only time he could kill him 2. Battered women, abused children killing parents, parents burning crack houses a. Jankey: Child abused for 14 years, and waited to kill father. Self defense denied b/c not immediate b. Kelley: i. Expert testimony requirements 1. admissible / relevant 2. ideas too complex for jury to just understand w/ out help 3. must be a true expert 4. actually a field with state of the art knowledge 5. Expert usually can’t speak directly to the question before the jury (can’t give the answer, but can give supporting facts.) ii. Battered wife syndrome: Phases. cyclical iii. may help subjectify the reasonable person st. 3. MPC approach c. Limitations on the right to self defense i. Common law Retreat: honor vs. value of human life
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1. Abbott: (majority approach) “value of human life” a. Before using deadly force D must retreat if i. he KNEW (subjective) that he could retreat with COMPLETE SAFETY. ii. Most JD require retreat or at least consider when assessing necessity b. The duty to retreat kicks in the moment you decide to use deadly force. c. No duty to reatreat when on your own property. 2. Minority: “don’t tread on me”: no duty to retreat. ii. MPC: if you know you could do so in complete safety you must retreat, surrender, or comply with their demand. iii. Initial aggressor 1. If P is trying to leave you may not use deadly force merely to protect property.. if you provoke the continued fight even if you were the initial victim, then you may be liable.
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