Law School Outline- Criminal Law - Witte Chevon

CRIMINAL LAW OUTLINE SPRING 2005 WITTE Chevon Walker  4 Questions for Substantive Criminal Law  Why?  Why do we punish?  Retribution, deterrence, rehabilitation  When?  When does conduct justify state interference and prosecution?  Will Voluntary act  Reason  Mens Rea – bad state of mind  Cause Cause a prohibited harm  What?  What kinds of crimes?  Against person  Homicide and rape  Against property  Burglary, larceny, embezzlement  How?  How can the defendant escape prosecution/punishment?  Usually holes found in prima facie case  Sometimes use justification or excuse (affirmative defense)  Recurring Theme  Tearing of Social Fabric  Community is hurt and is participating in retaliation of itself JUSTIFICTION OF PUNISHMENT (Why Punish?) Theories of Punishment  Retribution  Anyone‟s immediate visceral reaction to an assault is retaliation  Translates vicariously from parents to children, etc.  Theories  Give defendant what he deserves  Sometimes done on behalf of victim for the goal of order  Restoration of torn social fabric on behalf of society  Why criminal punishment is always public Deterrence  Can‟t use a man as a means to an end. You can only use him as an end to himself.  Specific deterrence – deter that criminal   General deterrence  People won‟t want to commit the same offense as someone punished  While trying to receive deterrent end, you have to view both deterrences at once  They go hand-in-hand  Incapacitation  Form of specific deterrence  cannot commit crimes while in jail  Rehabilitation  Two types  Return offender to society – interest of society  Return offender to have successful life – interest of offender  Confess to themselves, victim, their God  penance  Presence of religious services  Why the court would not execute the mentally-insane  Would send him to hell without penance Tensions between theories:  Is punishment to be retroactive or prospective?  Retribution – backward-looking punishment theory (retributive)  Deterrence and Rehabilitation – forward-looking theories (utilitarian)  Trying to fix defendant to make him function again  Is punishment for the sake of the individual defendant or for the sake of society?  Is punishment to be subjective or objective?  Take into elements of criminal and adjust punishment based on that?  Or objective with mandatory sentences?  Regina v. Dudley and Stephens, (Queen‟s Bench Division, 1884), p. 135  Holding  guilty of murder  Sentenced to death  Crown changed to 6 months imprisonment  3 types of Necessity according to Lord Bacon  conservation of life, obedience, and act of God or of a stranger  Temptation and necessity are not synonymous  Temptation is not an excuse just because you yielded to it  Defense wants court to look at this case, dealing with these defendants in this situation  Suffered enough already  Don‟t need to be rehabilitated  Not a menace to society – they were in an extremely rare situation  Prosecution would like the court to see it as an attack on greater society United States v. Bergman, (U.S. Dist. Ct., 1976), p. 140  Defendant being sentenced for conviction of 2 counts of 11-count indictment  Sentenced to 4 months in prison  Guilty plea to federal 2 counts was entered for state to drop other counts  Allegations of fraudulent claims for Medicaid funds at nursing homes and tax fraud  Lesser sentence would depreciate seriousness of crime  Defense  One man should not have to suffer for general deterrence  Retribution remains the dominant factor  2 Infliction of punishments for crime may not be separated from ideas of blameworthiness, recompense, and proportionality  Defendant‟s fame/notoriety should not lessen his sentence  If have punishments that have min and max sentences, then can subjectivize the punishments of different people depending on social prejudices  Good side of this is that the law can bend with regard to circumstances  State v. Chaney, (Alaska, 1970), p. 143  Rape punishment (1 to 20 years)  Range of possible crime is wide, so want to do equity with punishment  Robbery punishment (1 to 15 years)  Chaney gets 3 1-year concurrent terms for 2 counts of rape and 1 count of robbery  Judge‟s possible reasoning  He and society will be better served if he were in the military rather than in prison  His commanding officer would likely punish him as well  Jail would probably only bring him in contact with the wrong influences Equity Subjectivization, Individualization  Now, legislation is starting to tighten up sentences and not allow so much discretion in courts.   WHEN DO WE PUNISH: THE GENERAL REQUIREMENTS FOR CRIMINAL LIABILITY  Every crime must have certain fundamental elements that must be proved beyond a reasonable doubt  Prime Facie case  Voluntary act  Bad state of mind  Causation of harm Rules for each must be separately gone through  Cannot put them together Prime Facie Case (prosecution must prove all elements beyond a reasonable doubt)  Actus Reus (Voluntary Act)  Mens Rea (bad state of mind); defined by the statute  They must happen at the same time  They must cause a harm to a victim  Cause in fact  Cause in law Three principles limit the distribution of punishment  Culpability, proportionality, and legality  Supported by general purposes stated in §1.02(1) of Model Penal Code  Culpability – “to safeguard conduct that is without fault from condemnation as criminal.”  Legality – “to give fair warning of the nature of the conduct declared to constitute an offense”  Proportionality – “to differentiate on reasonable grounds between serious and minor offenses”    3 ACTUS REUS – Culpable Conduct  The requirement of Overt and Voluntary Conduct  Model penal code § 2.01: Requirement of Voluntary Act; Omission as Basis of Liability; Possession as an Act  No guilty of offense unless liability is based on conduct which includes voluntary act/omission to perform an act of which he is physically capable  Not voluntary acts  Reflex/convulsion  Bodily movement during unconsciousness/sleep  Conduct during hypnosis or resulting from hypnotic suggestion  Bodily movement that otherwise is not a product of the effort/determination of actor, conscious or habitual  Liability for commission of offense may not be based on omission unaccompanied by action unless;  Omission is expressly made sufficient by law defining offense; or  Duty to perform omitted act is otherwise imposed by law  Possession is an act if possessor knowingly procured or received thing possessed or was aware of his control thereof for a sufficient period to have been able to terminate possession  Martin v. State, (Al Ct. of App., 1944), p. 173  Defendant appealed conviction of being drunk on a public highway  Defendant was arrested at his home and taken onto the highway by the officers  Voluntary appearance is presumed by the statute that prohibited public intoxication      Statute never says that volition is necessary In every instance, the court reads in actus reus requirement Read as a matter of course It is the nature of criminal law to insist upon volition The assumption of the necessary volition is always there in every statute  Judgment reversed  People v. Newton, (Cal. Dist. Ct. of App., 1970), p. 175  Defendant appealing conviction of voluntary manslaughter of a police officer  Gun went off and wounded another police officer, Heanes  Defendant also claims that he does not remember anything from the time he was shot until the time he was in the emergency room  Doctor testified that unconsciousness could happen when struck in the abdomen by a bullet  Trial court refused to instruct jury on subject of unconsciousness as a defense to a charge of criminal homicide  Where not self-induced, as by voluntary intoxication or the equivalent, unconsciousness is a complete defense to a charge of criminal homicide  Refusal of a requested instruction on the subject of involuntary unconsciousness where evidence has been produced in its favor is prejudicial error.  Holding  Judgment for defendant  Prosecution argument - Voluntarily protested to arrest  There are foreseeable consequences of resisting arrest (death, bodily harm to someone)  Voluntarily put himself in position of having his risk impaired (impairment by self) 4    Defense – blacked out and involuntarily shot the officer (by nature; 3 rd party intervention)  Resisting arrest is very different from committing homicide Two plausible arguments; gap in the law Defense wins  Model Penal Code approach  Code does not explain what voluntary means  People whose involuntary movements threaten harm to others may present a public health or safety problem, calling for therapy or even for custodial commitment; they do not present a problem of correction  Voluntary v. Involuntary Acts  Involuntary act does not include when  Actor does not remember  Act could not control his impulse to do it  Unintentional or consequences are unforeseen  Habitual action done without thought is to be treated as a voluntary action  Possession  Code provides that possession is an act only if the person is aware she has the thing she is charged with possessing  Some courts, particularly when the sentence is minimal, hold that the defendant should have known  Hypnosis  Code provides that acts of hypnotized subject are not voluntary  Subject‟s dependency and helplessness are too pronounced  Somnambulism (acts during sleepwalking)  Recognized by the Crown in Ghosts, Spiders and North Koreans  Legal Insanity  Burden of Proof  Presence of voluntary act – burden on government to prove beyond reasonable doubt  Can‟t have crime without voluntary act  Legal Insanity Defense – burden may be and often is on the defendant  Disposition  If prosecution doesn‟t prove voluntary act, then defendant is released without further supervision over her conduct  If defendant proves legal insanity subject to commitment or other protective or therapeutic protocols  Prior knowledge  Defendant has prior knowledge that he is subject to epileptic seizures and drives anyway and kills someone  He deliberately took a chance by making a conscious choice in disregard of the consequences which he knew might follow from his conscious act  Does amount to culpable negligence – 1053-a  Nonactions v. Excused Actions  Nonactions (where action misfires)  Seizures, convulsions, reflex movements, somnambulism  No human action occurred at all  Excused Actions  Done mistakenly, accidentally, compulsorily, under duress 5  Mitigate actor‟s responsibility or excuse the act  Note on Innocent Acts and Culpable Thoughts  No one is punishable solely for his thoughts  If punished for thoughts, all mankind would be criminals  If punished for thoughts, no need for deterrence for action, only for thoughts  Difficulty of distinguishing between daydream and fixed intention  Don‟t want to broaden criminal law so wide as to cover a mental state that the accused might be too irresolute even to begin to translate into action  Assure that evil intent of man branded a criminal has been expressed in a manner signifying harm to society; that there is no longer any substantial likelihood that he will be deterred by the threat of sanction  Law requires an act as well as an accompanying state of mind (mens rea)  Impairment of Will  By self  Voluntarily impair your volition and do something illegal, still guilty  Ex. Get drunk and then drive and kill someone, guilty  May be different if you have an unexpected impairment of volition from something, may not be guilty  By others  Involuntarily impair one‟s volition and do something illegal, one is not guilty  Being hypnotized by another and do something illegal, one is not guilty  If you know that others are likely to do something to you, then you put yourself in that position, your volition is impaired and do something illegal; you may have assumed the risk and you are guilty  Issue of control  Could the defendant have controlled the situation?  General Rule on impairment of volition  By self  guilty  By others  not guilty  Anything in between is open to characterization (gray area)  Prosecutors will make it look like voluntary self impairment  Defense will make it look like involuntary impairment by others or something else  By nature  If you do not know of a condition that could impair your conduct, then if it happens and harm occurs, you are not liable  Know that you can be involuntarily impaired but continue regardless, do something illegal, still guilty  Ex. If you know you are a narcoleptic and drive anyway and kill someone; still guilty of vehicular manslaughter  What about addicts/alcoholics?  2/3 of the states don‟t feel that this submission to these urges and thus impairing one‟s condition is not the same as someone with an involuntary impairment by nature  believe there is a moment of voluntary action Omissions  General rule – voluntary choice not to act to rescue is not actionable  Policy  6   Protection of liberty Privacy against the state (criminal system) must be maintained  The state can take stuff away (liberty, property)  Don‟t sacrifice liberty  Once you let the state in, you can‟t remove them  Pope v. State, (MD Ct. of App., 1979), p. 183  Pope refrained from trying to stop a mother from beating her child to death, nor did she call the police  Would be guilty of child abuse for lack of protection of the child if she was a caregiver of the child  Caregivers, guardians, adoptive parent, parents are liable for omission or commission  Relationships often create duties  In loc parentis (in place of parent)  You must discharge duty up to the point of risking your life and limb  You don‟t have to risk injury or death to yourself in order to save another (whether a duty or not)  By-stander indifference  Fear of retaliation  Lack of opportunity for plaintiff and rehearsal and difficulty in selecting appropriate type of intervention might make assistance less likely  Pluralistic ignorance  People less likely to call for help in groups  “choice of nightmares”  live with the fact that you did nothing, minimal threshold of decency, or  risk being wrong, ridicule from other bystanders, retaliation, encounters with police, lawyers, and judges  Misprision of felony  18 USC § 4 – requires active concealment of known felony; merely failing to report is not sufficient  Numerous jurisdictions make failure to do something a misdemeanor in violent crimes  Exceptions  Most cases where liability for homicide is imposed for failure to act are involuntary manslaughter  Or defendant refused aid with the intention of achieving the death of the decedent or with full knowledge of a great risk that the decedent would die as a result  Relationship (based on relationship between defendant and victim)  Parent and child  Husband and wife (what if just lovers? How far does it extend?)  Guardian Ward – duty to care for someone  When kid comes of age, they have obligation to you  Ship captain and crew  Extended to any relationship of same intensity (long-standing employer-employee relationship) 7     Statute  License for a group home, inn, etc. triggers basic duty of care up to defendant risking his/her own life  Civil servant (police officer/fire fighter) on duty must interfere  But when on duty, must discharge the same duty that police officers or fire fighters extend that may involve certain risks to life and limb  Usually even if off-duty, but normal considerations of life and limb  Some states create statutory duty based on driver‟s license  Duty to help another driver in peril; at least to take care  Ex. if you see an accident and leave and party dies from freezing rather than bleeding, you may be culpable Contract  Breach of the contractual duty will be sufficient to provide traction for a finding of actus reus  Law lives off of a private law duty  Can get him on failure to discharge contractual obligation to even a third party  If there is a third party beneficiary that one doesn‟t discharge duty to, then can be held culpable  Bilateral or TPB Voluntary Assumption of care  If voluntarily assume care of person and fail to discharge care properly, precluding others in like position from helping, that person can be culpable  ex. Pope would have been liable if she went and tried to assume care, but didn‟t do so properly and stopped others from intervening  Negligent caregivers can be culpable  Deters people from helping others  Beginning to act can implement a duty Creation of peril  Duty of rescue if the defendant creates that victim‟s peril (accidentally or intentionally)  Still consider risk to your own life and limb  You must be aware that a peril was created over which you‟ve had some control  Take victim as you find him  Euthanasia (Take life of person who consents or help person take his own life)  Constitutional dimensions  Passive - Withholding or withdrawing of life-sustaining services  Active – Give someone something that will speed death  Cruzan v. Director, Missouri Dept. of Health, (U.S. 1989), p. 832  Person has liberty right to passive euthanasia  Have fundamental right to refuse medical services and state has no right to intervene  Statement to her roommate that she would not want to live if she was not ½ normal was “unreliable for purpose of determining her intent”  Whether person‟s constitutional rights have been violated depends on liberty interests of that person and interests of the state  US constitution would grant competent person a constitutionally protected right to refuse lifesaving hydration and nutrition  US constitution does not forbid establishment of procedural requirement (clear and convincing evidence of competent person‟s interests) 8  US constitution allows states to protect their interests  However, there is no fundamental right to active euthanasia  Cannot kill yourself or have others facilitate your killing  Constitution does not allow one to hire a killer  State can criminalize active euthanasia and all parties involved  State can also legalize active euthanasia  The constitution creates no limitation on that  Barber v. Superior Ct., (Cal. Dist. Ct. of App., 1983), p. 198  Doctors have duty to exercise reasonable care for a person up to point of utility (customary rule)  Statute is in play here  Physicians took the victim off of life support at the direction of his family  There is no criminal liability for failure to act unless there is a legal duty to act  Physician has no duty to continue treatment, once it has proved to be ineffective  No duty to continue its use once it has become futile in the opinion of qualified medical personnel  This is a determination for the medically trained and facts are different for each case  Though intentional and with knowledge that patient would die, was not unlawful failure to perform legal duty  Washington v. Glucksberg, (U.S. 1997), p. 834  Terminally-ill patients and their physicians of state of Washington sue for declaratory judgment that state‟s ban on assisted suicide violates due process clause of 14 th amendment  Holding  Ban does not violate due process clause  Constitution requires Washington‟s ban to relate to legitimate Gov‟t interests  Interest in preservation of human life  Interest in preventing suicide, studying, identifying and treating its causes  Research indication that many people who request suicide withdraw that request when depression and pain is treated  Interest in protecting integrity and ethics of medical profession  “physician-assisted suicide is fundamentally incompatible with physician‟s role as healer” – American medical association  interest in protecting vulnerable groups from abuse, neglect, and mistakes  protecting disabled and terminally ill people from prejudice negative/inaccurate stereotypes, and “societal indifference”  fear that this will start down the path to voluntary and perhaps even involuntary euthanasia  cannot have limited assisted suicide  if it is a constitutionally protected right, every man must have it MENS REA – Culpable Mental States  General  Actus Reas and Mens Rea must occur at the same time  Must have Mens Rea at the time of the act  Defense attorney tries to get these out of sequence  How to figure out the defendant‟s state of mind?  You ask 9 Usually the defendant won‟t tell (don‟t have to speak if they think it will incriminate them)  Most of mens rea is characterization by the prosecution  Policy  Common law v. Model Penal Code  Often legislature leave the mental element undefined or ambiguous  Regina v. Cunningham, (Court of Criminal Appeal – Q.B., 1957), p. 204  Charged with unlawfully and maliciously caused Sarah Wade to take a noxious thing, coal gas and endanger her life  Malice  Could be actual intention or recklessness without or with limited ill will  In court‟s opinion – word maliciously in a statutory crime postulates foresight of consequence  Error of other judge to say that malicious in statutory offense means wicked  Jury should have decided if he foresaw the harm  This court- for mens rea  Need to prove intention to harm or  Knew gas would do her harm  Knew she was there  Knew gas would spread into house  Obvious consequence makes it look like intent  Lower charge of intention to act with reasonably foreseeable consequence of harm  Should have known Common Law  Innocent conduct  purposeful intention to harm  Take intent to harm (subjective) or  Intent to act with foreseeable consequences of harm to this victim or anyone (objective, reasonable person standard) Model Penal Code §2.02 General Requirements of Culpability  Minimum Requirements of Culpability  Person is not guilty of an offense unless acted purposely, knowingly, recklessly or negligently, with respect to each material element of the offense  Negligence  Recklessness  Knowledge  Purpose  Purposely (Hard intent to harm)  It is his conscious object to engage in conduct of that nature or to cause such a result; and  He is aware of the existence of such attendant circumstances (if any involved) or he believes or hopes that they exist  Not only did you know the victim was there, not only did you know that the thing you did would harm her, but you wanted to do that particular harm to that particular victim, in that particular way  Must prove all knowledge elements  Knowingly (Soft version of intent to harm)  He is aware that his conduct is of that nature or that such circumstances exist  Aware that it is practically certain that his conduct will cause such a result  Some things are expected but not completely worked out  When knowledge of existence of particular fact is element of an offense, such knowledge is established if a person is aware of a high probability of its existence, unless he actually believes it doesn‟t exist    10    Willful – satisfied if person acts knowingly with respect to material elements of offense  Recklessly (Hard version of intent to act)  Consciously disregards a substantial and unjustifiable risk that material element exists or will result from his conduct  Gross deviation from reasonable person standard of conduct  Negligence  Should have been aware of substantial and unjustifiable risk that material element exists or will result from his conduct  Gross deviation from reasonable person standard of care  Doesn‟t involve state of awareness General Rule  Must have same mens rea standard for each element of crime if statute is silent on mens rea Transferred Intent  Regina v. Faulkner, 1877, p. 206  Recklessness arson of a ship  Transferred intent  What looked like theft  Turns out to be arson  Lit a match to see and rum that he wanted to steal caught on fire  What can we impute into defendant‟s state of mind when he did the actus reas (lighting the match)?  Wanted to see, or  Wanted to burn the ship, or  Disregarded risk of the ship burning  Higher on Mens Rea scale, the more difficult it is to do transferred intent  Ex. purposeful rape, murder  Usually have to go down a notch, maybe 2 or 3 to get a conviction  Look at intent from perspective of victim  See what state of mind you can impute to the defendant  Usually easy to do recklessness with transferred intent  Harder to only go down one notch to knowledge Intoxication  Regina v. Kingston, 1994, p. 861  Defendant was drugged and abused a young boy  Conviction reinstated  Fault doesn‟t negate mental element of offense  Does intoxication affect mens rea?  Actus reas  Did he voluntarily impair himself?  His volition was impaired  Mens rea  He didn‟t intend to do this  He couldn‟t have formulated the purpose or even the knowledge to do this  He didn‟t know what he was doing  After get actus reas, ask about mens rea Intoxication  Eclipses purpose; no longer in position of formulating the kind of purpose that the high level of mens rea purpose insists upon   11     Charge with second level under purpose Usually the stance of jurisdictions Jury can decide as a matter of fact that defendant could not establish mens rea purpose Model Penal Code § 2.08 – Intoxication  Relevant intoxication should be permitted in cases of purpose or knowledge crimes  Difficult question with recklessness  Awareness of risk created by actor‟s conduct ordinarily is requisite for liability under 2.02  Intoxication could disprove such awareness just as in purpose and knowledge  Awareness is the essence of moral culpability in this case  Self-induced intoxication may be immaterial  Negligence  Failure to perceive risk that actor should have perceived  Judged against reasonable standard  Intoxication should not be admissible  Voluntary or involuntary masks purpose  You can never have a purpose mens rea if you were drunk or high  It does not matter whether one got themselves drunk or high or if a third party got them drunk or high  Because of this, it can only be a 2 nd level crime Motive  Often stated as irrelevant to liability  Usually relevant to sentencing  Some situations in which law does make motive relevant to criminal liability  Specific intent crimes – doing act with some further intention  Ex. burglary is not burglary if you break in without the intention of stealing  Ex. self-defense  Statutes – hate crimes (harsher punishments if do something out of hate for particular group) Recklessness/Awareness  Crucial fact distinguishing recklessness and negligence is awareness  Recklessness – fault is choosing to run the risk  Culpable b/c actor was aware of the danger but acted anyway  Conscious disregard for substantial and unjustifiable risk  Negligence – fault is inattentiveness  Less culpable b/c actor only acts inadvertently; should have been aware of danger, but was not Specific v. General Intent  Specific intent crime – actions that must be done with some specified further purpose  Intent to harm  Subjective  Purpose (hard specific intent)  Knowledge (soft specific intent)  Assault with intent to kill  Burglary  Requires actual knowledge (subjective awareness) of some particular fact or circumstance    12  Bigamy – not guilty unless you know your ex is not dead  General Intent – defendant can be convicted if he did what in ordinary speech we would call an intentional action  General Intent  Objective (reasonableness standard)  Recklessness (hard general intent)  Negligence (soft general intent)  Battery  Mistake of Fact/Law  Model Penal Code § 2.04 Ignorance or Mistake  Mistake as a matter of fact or law is a defense if… (mistake of fact)  Ignorance/mistake negatives the purpose, knowledge, belief, recklessness or negligence required to establish material element of offense; or  Law provides that state of mind established by ignorance or mistake constitutes a defense  Not defense if defendant would be guilty of another offense had situation been as he supposed  May reduce to the lesser offense  Belief that conduct does not legally constitute offense is defense when… (mistake of law)  Statute is not known, published, or otherwise reasonably available prior to conduct  Reasonable reliance on official statement of the law, afterward determined to be invalid or erroneous, contained in  Statute or other enactment,  Judicial decision, opinion or judgment,  Administrative order or grant of permission, or  An official interpretation of public officer of body charged by law with responsibility for interpretation, administration or enforcement of law defining offense  Defendant must prove mistake of law by preponderance of evidence  Mistake of Fact (affirmative defense – defendant must prove beyond a reasonable doubt that he/she was mistaken)  Ignorance/mistake has only evidential import  Whenever logically relevant  Relevant to negate required mode of culpability  Culpability of specific offenses  Impossible to assert that crime of intention or recklessness can be committed although the accused labored under a mistake negativing the requisite intention or recklessness  Cannot be a defense of negligence  General Rule  Must prove  Reasonable mistake,  Honest mistake, and  Conduct would have been legal if the facts were as defendant supposed them to be  Regina v. Prince, (Crown, 1875), p. 226  Defendant took girl under age of 16 from her parents  Statute is silent on mens rea element of crime  Majority  „knowingly or unknowingly‟ 13   Mens rea doesn‟t matter in this case  Wants people like the defendant to verify the age of their dates  Not doing so is immoral  If you don‟t, you do so at your peril  To do the act is to commit a crime  Public policy issue  Only asks “was there actus reas?, was there harm?”  If statute is silent on mens rea, assume there is no mens rea (*this is not the law today) Brett (Dissent)  If statute is silent on mens rea, assume there is one  Assume knowing  If people wanted higher or lower standard, they should have imputed it  Impute mens rea of knowing  Know taking girl under 16  Know without parents knowledge  Would pass mistake in fact test  Majority reading is an unusual reading of mens rea  Read in mens rea into silent statute  Always read basic prima facie case into naked statute Strict Liability-Like Offenses: When there are serious sexual offenses, the law will make naked statutes into strict liability statutes (regardless of mistake) – only distinction in states is how seriously they pursue crimes, how seriously punished, and other jurisdictional wrinkles  Has strict liability offense effect but is NOT strict liability – prosecutor must put on mens rea evidence (lack of proving evidence isn‟t fatal)  Intentional or unintentional abandonment of a pregnant wife  White v. State, (Ohio App. 1933) p. 227  Most jurisdictions still maintain this law  Effectively a strict liability offense  Law does not want to hear about the defendant‟s mistake  Public interest issue (if man abandons his pregnant wife he is burdening the state with having to raise that child)  Protection – abstain for at least 9 months before leave wife  Incest  Sex with someone within 2 generations (usually)  Act itself of incest is one that we consider to be evil in itself  Even if consensual, and results in no harm, it is a crime  Protection – check your family tree  Bigamy/Polygamy  Every state in the union has a firm criminal law against a man having more than 1 wife  Usually minimum sentence of 3 years and if done intentionally can be as high as 20 years  Wrong in itself  If do it, do so at your peril  Protection – get ex-party divorce  Have the law be the determination of the expiration of your prior marriage  14      Statutory Rape  Not rape  Rape – presupposes an adult victim and has specific actus reas requirements  Statutory Rape is any lude or lascivious acts with a minor (usually young woman of tender years)  Whatever the statute says is the limit  Protects young woman of tender years (high as 17, low as 12)  Actus reas - Any sexual touching of any sort of a girl under the statutory age  Law does not care about mistake of fact (not a defense)  To do the act that causes the harm (touching) is to commit the crime  The more lude the act or the more harming the consequences, the higher the level of crime Exceptions  People v. Olsen, (Cal. 1984), p. 230  Belief was that victim was 16, not 14. This would still be a crime, just a lesser one  Purpose of statute for statutory rape  Will not tolerate sexual touching of young children  Liberties in their fullest form are to be enjoyed by adults, not children  Children don‟t have the capacity to judge gravity of his/her conduct  Protect them from themselves until they reach a certain level of maturity  Don‟t want anyone inducing them to do this conduct  Protect them even if they start the conduct  Defendants must not indulge in hormonal lust; in moment of reason must make sure that their partner is of age  Defendant is supposed to be the rational adult capable of judging gravity of his/her conduct  Intimacy Discount  Does seriousness of crime get mitigated by prior intimacy between actors?  Does this tear the threads of statutory rape? Infant (under 14)  Very little criminal law involvement; leave to parents Juvenile (14-18)  Juvenile law applies (has its own rules, procedures, etc.)  Juvenile can never be an accessory to a crime  Recently, criminal law has pushed adult law into juvenile law  Question is not how old a juvenile is  Question is the nature of their crime (juvenile v. adult)  Some jurisdictions will hold juveniles under adult law if the crime so warrants Adult (18-21)  Only issue is if you can find proper defense b/c criminal law applies  Mistake of Law (affirmative defense – defendant must prove beyond reasonable doubt that he/she was mistaken)  General Rule and Policy  Honest, reasonable, legal if facts as defendant believed them were true  Impute common mens rea to every element of offense  Defendant thought he was acting legally  General Rule – mistake of law is no excuse 15   Rationale – burden on prosecution to prove someone knew the law would be too great People v. Marrero, (NY Ct. of App., 1987), p. 255  Defendant arrested in Manhattan social club for unlicensed possession of gun  Statute “exempted „peace officers‟ – includes “corrections officers of any state correctional facility or of any penal correctional institution.”  NY Penal code §15.20 – mistaken belief can excuse conduct if belief is founded upon official state of law contained in statute or other enactment  Model Penal code – he acts in reasonable reliance upon official statement of law, afterward determined to be invalid or erroneous contained in statute or other enactment  Holding  Conviction affirmed  Reasoning  Central issue is whether defendant‟s person misreading/misunderstanding of a statute may excuse criminal conduct in the circumstances of this case  Weiss  Good-faith belief in legality of conduct would negate an express and necessary element and crime of kidnapping (intent without authority of law, to confine or imprison another)  Have to know that law is to act without authority of law (must prove defendant knew the law, defendant knew he didn‟t have authority, and defendant acted anyway)  State relies on model penal code; saying that NY legislature intended it  If defendant‟s argument were accepted, the exception would swallow the rule  Possession Offenses  Actus Reus  Having an illegal thing (stole goods; illegal firearms; counterfeit currency, illegal drugs, etc.)  Action – physically acquiring the thing  Omission – not getting rid of the thing  Mens Rea  Soft knowledge (between recklessness and knowledge) of illegality and possession of illegal good  Willful blindness – know with high probability that something is wrong and don‟t inquire (If person should have known)  Subjective world of soft knowledge  Take into account the particularities of the incident and defendant involved  Subjective disability and subjective abilities (could help or hurt defense)  Not objective standard  United States v. Jewell, (U.S. Ct. of App, 9th Cir. 1976), p. 220  Defendant appeals conviction of knowingly transporting a controlled substance into the US  Testified that he did not know the marijuana was present, but did know his car had a secret compartment  Holding  conviction affirmed  Trial judge rejected jury instruction that he “absolutely, positively has to know that it‟s there.” – positive knowledge  Told jury that gov‟t must prove beyond reasonable doubt that defendant “knowingly” brought marijuana into US and “knowingly” possessed marijuana 16     If he truly was ignorant, state must prove that his ignorance was a result of his having made a conscious and purpose to disregard the nature of that which was in the vehicle, with a conscious purpose to avoid learning the truth Substantive justification – deliberate ignorance and positive knowledge are equally culpable Textual justification – common understand – one “know” facts of which he is less than absolutely certain  Not necessarily positive knowledge to act knowingly  Act with awareness of high probability of existence of the fact in question  Positive knowledge is not required Model Penal Code  Knowledge is established if a person is aware of a high probability of its existence, unless he actually believes it doesn‟t exist  Does not satisfy himself that it does not exist  Strict Liability and Due Process  Regulatory offense small fine  waive mens rea  Usually strict liability cases carry less punishment  Can‟t have felony record as criminal for regulatory offense  Due process issue – can‟t create criminal record on regulatory offense (must give full due process protection – Actus reus and Mens rea)  Staples v. U.S., (U.S. 1994), p. 241  Defendant appeals conviction of possession of unregistered firearm  Act‟s definition of firearm – capable of automatically firing more than one shot with a single pull of the trigger  Act is silent concerning mens rea  Read in mens rea, or  Treat as statutory offense  Holding – conviction reversed and remanded  Reasoning  In cases that fit precedent concerning public welfare or regulatory offenses, impose form of strict criminal liability through statutes that do not require defendant to know facts that make his conduct illegal  Infer congress‟ intention to leave out mens rea  As long as defendant knows that he is dealing with a dangerous device, he has burden to ascertain at his peril whether his conduct comes within the inhibition of the statute  But, 50% of American houses have firearms  Unthinkable that congress intended to subject innocent people to harsh sentence  Assume mens rea of knowledge  Vicarious Liability  Criminal law doesn‟t like vicarious liability or joint and several liability  Usually only interested in punishing the defendant for what s/he has done  Few instances where vicarious liability is allowed  Vicarious liability of employers  Courts generally uphold convictions of employers for illegal conduct of employees even in absence of employer‟s fault  Less agreement on conviction for offenses that carry sanction of imprisonment as opposed to fines 17 Vicarious liability of parents  Courts will not impose any liability on parents for illegal acts of their children  State v. Guminga, (Minnesota, 1986), p. 244  Owner of a bar was charged with violation of statute selling liquor to minors b/c his employee (waitress) did so.  Regulatory offense  Vicarious liability for regulatory offense cannot carry heavy punishment  Holding  statute does violate defendant‟s right to due process under 14 th amendment  Violation of substantive due process, only civil penalties are constitutional  Substantive Due process analysis  Balance public interest protected by intrusion against (protection of minors)  Private interest compromised (liberty in this case)  Intrusion on person liberty is not justified by public interest protected where there are alternative means by which to achieve the same end, civil fines/license suspension  There is a deterrent in individuals being charged and suspension or revocation of business‟ license  Speeding also doesn‟t require mens rea  CAUSATION  Foreseeability and Coincidence  People v. Acosta, (Ct. of App. Cal. 1991), p. 518  Defendant appeals conviction on 3 counts of 2 nd degree murder  Defendant led police on a chase  Decedents were pilots of helicopters  Helicopters were assisting in tailing the defendant  Expert concluded that accident occurred b/c of an error of one of the pilots (Costa mesa helicopter) – closed into fast  Holding  Judgment reversed  Threshold question in examining causation is whether defendant‟s act was an “actual cause” of the victim‟s injury  But for test  Otherwise, don‟t get to test proximate cause  Standard should exclude extraordinary results from proximate cause  This result was not highly extraordinary  High probability that in the heat of a chase, one may act negligently or recklessly to catch the quarry  The fact that this has not happened before is merely a comment on police flying skills  Malice issue  Not enough evidence to show that Acosta consciously disregarded the risk to the helicopter pilots  In the absence of more evidence, no reasonable juror could find a conscious disregard for a risk which is barely objectively cognizable  No murderous mens rea  People v. Arzon, (Supreme Ct, NY County, 1978), p. 521 18     Defendant indicted on 2 counts of murder in 2 nd degree and arson in 3rd degree after allegedly intentionally setting fire to a couch, thus causing a serious fire on the 5 th floor of an abandoned building Murder in 2nd degree  „Under circumstances, evidencing a depraved indifference to human life, recklessly engaged in conduct which created a grave risk of death to another person,‟ thereby causing the death of Martin Celic, and with felony murder Holding  defendant‟s motion to dismiss murder charges denied Reasoning  Murder requires causal link between crime and death  „It is not necessary that the ultimate harm be intended by the actor. It will suffice if it can be said beyond a reasonable doubt, as indeed it can here be said, that the ultimate harm is something which should have been foreseen as being reasonably related to the acts of the accused.  Defendant‟s conduct need not be the sole and exclusive factor in the victim‟s death  Individual is criminally liable if his conduct was a sufficiently direct cause of death, and the ultimate harm is something which should have been foreseen as being reasonably related to his acts  Place deceased in position where they were vulnerable  Cause in Fact  Doesn‟t need to be exclusive cause, just one of them  As long as there is a sufficiently direct chain between your action and victim‟s harm, then cause in fact is proven  Coincidental causation theory  Don‟t worry about other people‟s actions compounding with your action  Don‟t get caught up in joint and several liability  Don‟t try to divide up the harm  Can have 40 defendants all be found guilty for a single harm, homicide, etc.  Concurrent and coincidental causation mean the same thing  Cause in Law  Whether harm occurred is reasonably foreseeable  Objective inquiry – what would a reasonable person have foreseen? Not a subjective defendant  How do we characterize what is foreseeable or foreseen?  Ask the jury if they could reasonably foresee that harm, that victim, that circumstance  Prosecutor  Wants to make the crime generic  When you do the thing, some kind of harm is going to ensue  Defense  Focus on precise harm and the precise manner  Get jury to have doubts about whether that could have been foreseen  Ex. Helicopter case  No rule precludes characterization as generic or precise  Can get the jury to doubt  defense wins  Intervening Causation  General Rule  Reasonable foreseeability  If intervening cause is foreseeable, doesn‟t break the chain 19  If intervening cause is not foreseeable, does break the chain Does intervening causation become supervening causation (break the chain of causation)  Not broken if intervening causation is reasonably foreseeable  Never Subjectivize the causation inquiry  Disability or special ability don‟t count in coating causation inquiry  Even if defendant did foresee interference, if reasonable person would not have, there is no causation  Natural/Physical Conditions  Same general rule; if foreseeable, doesn‟t break chain of causation  Don‟t take into account individual‟s disabilities and special abilities  that‟s a mens rea question; this is objective  Similar to thin skull rule  But, in criminal law must apply to foreseeability  If people do have this ailment, then the person you are harming could have this ailment, so it is foreseeable that he could have this ailment and you could harm him greatly  Third Party conduct  Rule of Thumb  Same rule of reasonable foreseeability  But, we must think about the third party, regardless of whether he/she is a defendant and try to characterize the mens rea of the third party  Reckless and negligent conduct of a third party is viewed as reasonably foreseeable; defendant has to anticipate and defendant is still fully liable  Purposeful or knowing conduct of a third party is not viewed as reasonably foreseeable – may lessen punishment of defendant  It doesn‟t matter if the person is being prosecuted, was prosecuted and walked or was convicted; just a mental game  Defense does not turn on going after the third party  Doesn‟t matter if third party is prosecuted  Victim‟s own conduct  Rule of Thumb  Same rule of reasonable foreseeability  But, impute same characterization of mens rea to the victim as you do to the third party  To figure out what is reasonably foreseeable, you must inquire about the mens rea of the victim  Reckless/negligent  foreseeable, doesn‟t break chain of causation  Purposeful/knowing  not foreseeable, breaks chain of causation  When talking about victim‟s mens rea, don‟t discuss his special abilities b/c objective reasonable person could not foresee these special abilities (even if defendant knew of victim‟s special abilities)  Commonwealth v. Root, (PA, 1961), p. 545  Victim challenged defendant to a drag race on a public road  Victim was killed when he went into oncoming traffic lane and was hit by a truck  Defendant conviction reversed  Victim challenged the defendant  Victim took risk and swerved on his own volition  Knowing  not foreseeable  Prosecution would argue  Focus on mens rea at the exact time that harm occurred  Victim was being reckless; didn‟t want to kill himself  Recklessness is foreseeable  20     Commonwealth v. Atencio, (Mass. 1963), p. 550  Russian Roulette Case  Defendant and victim playing Russian roulette in victim‟s home  Trying to break chain of causation between defendant action and victim‟s death at point of victim‟s own actions  Actus reas is passing the gun to the victim  Facilitated conduct by victim  Defense tries to prove that action was purposeful and unforeseeable  Knowing risk, purposefully did the act  Prosecution tries to prove that action was reckless  Wasn‟t trying to kill himself  Defendant had to foresee this in giving him the gun  Defense in this case tries to say that there were 3 separate games going on  Victim acted independently  Traditional causation inquiry would allow defendants to walk b/c there was no chain of causation  Court says that this is not so and there was a game going on between them all  Death to someone is reasonably foreseeable when playing this game  The game itself is dangerous and if you engage in it you are liable for foreseeable harm (death in this case)  Court‟s message  when do certain things, dangerous things with reasonable foreseeability of harm or death then all involved bear risk of liability for foreseeable harm/death *Most courts have stopped trying to reconcile Root and Atencio cases  Will now say that if you do certain dangerous things (drag racing, games of chicken with mortal risk, drugs, game involving a lethal weapon, some even include dangerous sex) liable for foreseeable harm  All parties bear the risk  Renders all participants liable  Even though shown that victim purposefully acted in causing the harm  Waive usual intervening causation rules or say that participants must reasonably foresee this  Ex. someone dies from aids given to them by their sexual partner; sexual partner is liable  all parties bear risk Starts law down a dangerous path State v. McFadden, (Iowa, 1982), p. 548  Drag race between defendant and Sulgrove who struck and killed a six-year-old passenger and himself  Defendant charged with 2 counts of involuntary manslaughter  Defendant aided and abetted Sulgrove in commission of involuntary manslaughter  Proximate cause is based on concept of foreseeability  Foreseeability requirement coupled with recklessness – will prevent possibility of harsh or unjust results in involuntary manslaughter  Suicide  People v. Campbell, (Ct. of App, Mich. 1983), p. 530  Defendant, angry with the victim, convinced him to kill himself and provided him with a gun  Holding  remanded with instructions to quash and discharge defendant 21    Reasoning  Terms suicide excludes by definition of homicide  Defendant had not present intention to kill  Defendant hoped the victim killed himself after he left  Hope alone is not the degree of intention required for murder Defendant not liable for victim‟s death if victim committed suicide unless defendant has harmed victim in such a way that reasonable victim in that circumstance would have believed that he would die (all victim did was hasten his inevitable death)  defendant is liable for death About 8 jurisdictions today have a more victim-friendly rule  Victim‟s mind overborne by defendant (mental and physical)  Victim was deprived of having capacity of purposeful or knowing decision of taking their own life  Kept person from being a rational character and he responds by killing himself  If this is so, then defendant is liable  Presupposes kidnapping or some type of isolation of victim  Growing trend in the US  Victim must die within statute of limitations from time defendant completes their act Assisted Suicide  People v. Kevorkian, (Michigan, 1994), p. 531  Precedent in Michigan (Campbell) states that suicide breaks the chain  Kevorkian not liable b/c suicide is not a crime  Michigan creates statute that says active participation in facilitation of suicide is itself a crime  Trend in states now is in this direction  Creates new theory of homicide Model Penal Code §210.5(1) – permits convicting person of criminal homicide for causing another to take his life, but „only if he purposely causes such suicide by force, duress or deception.” New York Penal Code §125.15  Makes it manslaughter (15 year max sentence) to cause another to take life, regardless of deception or duress Majority of states now have assisted suicide statutes prohibiting the act; many similar to model penal code §210.5(2) – felony (punishable at level of manslaughter) to purposely aid or solicit another to commit suicide Supreme court – no constitutional right to commit suicide; states may allow Exception for reckless or negligent aid  One who recklessly or negligently makes means of killing oneself available to a person who is “intoxicated and despondent or agitated” can sometimes be convicted of lesser degree than homicide – involuntary manslaughter  If decedent‟s actions are not fully rational, they do not breach causal chain  Disregard for substantial and unjustifiable risk Stephenson v. State, (Indiana, 1932), p. 537  Defendant abducted and subjected the deceased to rape over the course of several days  Deceased bought and took poison to kill herself  Holding  guilty of second-degree murder, affirmed        22   Inflicted upon his victim both physical and mental injuries; natural and probable result of which would render deceased mentally irresponsible and suicide followed  murder  Appellant‟s control and dominion over deceased was absolute and complete  At moment she swallowed poison she was subject to passion, desire, and will of appellant  Knew not what moment she would be subjected to same demands she was while on train Derive principle that insane intervening actor will not break causal connection between defendant‟s act and death WHAT DO WE PUNISH I: CRIMES AGAINST THE PERSON HOMICIDE  Unlawful killing of another human being  Lawful killing – defense of self, others, license to kill by military orders (internal rule restrictions)  Killing  When does death have to occur? How long after defendant conduct?  Most jurisdictions say that death must occur with in a year and a day of final act of actus reus called homicide; old common law rule of 1066  10 states say 3 years and a day; 2 states say within a reasonable time  Issue of „pulling the plug‟ on someone; if pull plug before statute of limitations then defendant is liable  When is the person dead?  People can now be put on respirators, so hard to go with breathing rule (when person stops breathing, they are dead)  Some states say brain death (shows no brain activity anymore, no reflexes, no dilation of pupils, etc.)  Jurisdictions split between breathing rule and brain rule  Factual Impossibility Doctrine – cannot even attempt to kill a dead person b/c it is factually impossible to do this regardless of the defendant‟s intention  Who?  Common law – must be a living person  When is it a living person?  Embryos, fetuses, etc.  When the being is quickened, when the soul enters the fetus (after the first trimester) – life begins in second trimester  *Abortions – mother can consent to interrupting the growth of that being  Victim is already dead  Can‟t charge for homicide  Maybe desecration of a corpse  Can‟t be attempt b/c it was factually impossible to have completed the crime  Death is inevitable to victim and then he is killed by defendant  Defendant is still liable if you were living at the time 23   Murder – 1st v. 2nd degree  General Distinctions  Most jurisdictions have at least 4 levels of murder  California Penal Code  § 189 – Five Degrees of Murder  “By destructive device or explosive,  “Knowing use of ammunition designed primarily to penetrate metal or armor, poison, lying in wait, torture  If do these knowingly, get defendant for murder 1  If use this instrument, get for murder 1 **California law sees break here to another level of murder**  “Any other kind of willful, deliberate, and premeditated killing  seems to be purposeful mens rea  just consider whether act is purposeful, focus on mens rea over actus rea  don‟t care what instrument is used  “Which is committed in perpetration or attempt to perpetrate arson, rape, robbery, mayhem, kidnapping, train wrecking, or  If death occurs as a result of these things; hold for murder 1  Built in statutory transferred intent action  Don‟t have to prove that one was trying to kill the person  “Act punishable under § 286, 288, 288a, or 289”  MR – Based (further discussed on next page)  Carroll p. 396– broad  Pennsylvania Code  Definition of intentional killing – Killing by means of poison, or lying in wait or any other kind of willful, deliberate and premeditated killing  Prosecutors smile in Carroll jurisdiction; defendant‟s frown (1/2 jurisdictions in the country)  Find out what was in the state of mind of the defendant  Infer it from defendant‟s words, conduct, or from the attendant circumstances together with all reasonable inferences therefrom, and may be inferred form the intentional use of a deadly weapon on a vital part of the body of another human being  Infer premeditation just from the act  When representing defendant in Carroll jurisdiction, best defense is a gag (shut the client up) b/c it will allow court to infer premeditation  Carroll said too much  Guthrie p. 400 – narrow  Same standard of intentional killing “willful, deliberate and premeditated”  Proving is harder in this jurisdiction  Look at planning activity (facts regarding the defendant‟s behavior prior to the killing which might indicate a design to take life.)  Facts about defendant‟s prior relationship or behavior with victim which might indicate motive to kill  Evidence regarding the nature or manner of the killing which indicate a deliberate intention to kill according to preconceived design Murder 1st degree v. 2nd degree  1st degree murder  Killing with malice aforethought;  Killing with premeditation, deliberation, and willfulness (favored language of most jurisdictions) 24 Only short time required for premeditation Intoxication an negate deliberation (still get under 2 nd degree murder usually) Certain felony murders (rape, robbery, arson, and burglary) Model penal code – no distinction between 1 st and 2nd degree murder; no significance to premeditation  Carroll (shot wife in the head)  Premeditation, deliberation, and willfulness are synonyms – only question is was there prior reflection?  If there was, there is no time constraint on that prior reflection; as long as there was a moment, can infer intent  Specific intent – can be found in words or conduct or from circumstances together with reasonable inferences therefrom  Intentional use of deadly weapon on vital part of the body  Can infer intent by actus reus chosen  Point gun at someone‟s head and pull the trigger  intent; 1st degree mens rea murder  Requirement of premeditation and deliberation met when there is a conscious effort to bring about death  Can look at words, circumstances in which act occurred to infer intent as well  Prosecutors in Carroll jurisdiction have upper hand  Still can play causal games sometimes  Still play actus reus games  Most of 1st degree murders are pled down to 2 nd degree  Defense in Carroll jurisdiction  Tell client to shut up  Try to resist the evidence  Try actus reus and causation games  Will lose case through actus reus  Guthrie/Anderson Jurisdiction (Guthrie – defendant with nose complex, conviction reversed)  Evidence jury looks over for premeditation  Planning activity  Relationship between victim and defendant (more intimate, more motive)  Mode of killing and cleanup  More planning, more motive, manner; more strategic cleanup  premeditation  Would be hard to convict Carroll case in this jurisdiction (lack of plan, lack of cool and steady killing and cleanup)  Carroll would almost certainly get second degree murder  There must be some period between formation of intent to kill and actual killing  The accused must kill purposely after contemplating the intent to kill  Notion of instantaneous premeditation and momentary deliberation is not satisfactory for proof of first degree murder  Cold-blooded assassination – this is what 1st degree murder is reserved for in Guthrie/Anderson jurisdiction  Elaborate plan to kill  Cool and steady execution of plan  Prosecutors have a harder time getting 1 st degree murder convictions  Defense attorneys do much better here  2nd degree murder  Knowing killing     25     Assumption is that there is still mens rea as in 1st degree but it is less than what is sufficient for 1st degree murder Classes of 2nd degree murder  No premeditation  Intent to serious injure (no intent to kill); sufficient for murder mens rea  Reckless indifference to value of human life  Felony murders (typically felonies other than rape, robbery, arson and burglary) Thought of as „safety net‟ category Another theory  Push-up theory  Talk about such recklessness that defendant is going to be imputed to have intended  AR Based  Alternative way of looking at second degree murder  Nature of Victim  Kill someone excessively important (cop) or helpless in society  1st degree murder  Instrumentality used  Poison, weapon of harm  Theories  To use those instrumentalities get premeditation  To choose those instrumentalities is to engage in premeditation, will and deliberate murder  Felony murder  Not a special kind of murder  This is simply a theory whereby you get a conviction of 1st or 2nd degree murder  Built-in transferred intent theory  Prosecution must only prove that defendant committed the felony  3 requirements  Felony inherently dangerous  Killing occurs in course of felony  Independence requirement  Inherent danger to life (burden of prosecutor to prove this; some jurisdiction legislatures have listed what felonies it considers to be ripe for felony-murder theory)  Example  Felony murder one – kidnapping, rape  Felony murder two – arson, statutory rape  Regina v. Serne, p. 448  Defendant committed arson for insurance fraud  His son is killed in the fire  Court convicts him on felony-murder charge  What he did was inherently dangerous  Intent only points to arson  People v. Phillips, p. 459  Felony of fraud – embezzlement through false pretences  Wasn‟t intrinsically dangerous to human life  No Felony Murder  Doctor tells parents they can cure their child by massaging his feet; child still dies  Short of proving danger of felony, can‟t have felony-murder charge  Some states leave this open and don‟t give a list of felonies 26    In this jurisdiction, prosecution must document that the felony is inherently dangerous to life (any threat or violation of the body)  Some states have lists for 1 st degree inherently dangerous felonies and 2nd degree inherently dangerous felonies In the commission  Also, killing must occur in course of commission of felony for felony-murder  Must be close enough in time and in cause sequence  Ex.  Armed robber leaves the scene and hits someone 20 miles away  Some jurisdictions will say it is felony-murder  Some jurisdictions will give jury instruction  Jury would have to consider the speeding as part of the escape and therefore a part of the robbery  Attempted armed robbery (moved from mere preparation to execution of felony) can be used for felony-murder  Ex.  Teller of bank dies from anxiety of robbery  felony-murder if death within reasonable time  Teller of bank kills himself later b/c of anxiety after felony  Probably not felony-murder  Jurisdiction-specific as to how wide spread time limit can be or causal link Independence Requirement  Felony murder is exception to prima facie case of murder  Reserve this for the unusual case (death occurs and have no evidence that defendant intended to kill the victim)  Normally, we want a prima facie case of murder  Regina v. Serne  Problem with this case is that there is intent to kill the child through the means of arson  So, cannot use the felony of arson to implicate felony-murder, for the act of arson was part of the execution of murder  People v. Smith, (Cal. 1984), p. 466  Mother and boyfriend convicted of felony-child abuse, child died, felonymurder?  Issue is the third independence requirement  Prosecution tried for felony-murder charge  Prosecution got lazy  Easy Malone Case for 2nd degree murder – betrayed gross wanton disregard for life  Anderson Jurisdiction is the current jurisdiction  Much harder to get murder 1, so prosecutors go for felony-murder  Worry that depriving the proper factfinder of making an inquiry; using a rare weapon for prosecutors and doing something that law wouldn‟t allow on any other theory **Don‟t use felony murder unless you have to  If you can show that the defendant intended to commit grievous bodily harm on the victim which resulted in death, that actus reas of battery/assault is merged into the actus reas of homicide itself  We will reserve felony-murder to situations in which the defendant intended to commit felony that is dangerous to life but did not intend to commit grievous bodily  27 harm (burglary, rape, robbery, kidnapping, commit lude, lascivious act on a girl) and a death occurs  *Causation  It is the decision made by the defendant to execute the felony (inherently dangerous to life) that allows the additional risk of death  One must reasonably foresee the risk of death in commission of felony inherently dangerous to life (causation argument)   People v. Stamp, (Cal. App. 1969), p. 450  Defendant burglarized the residence of decedent and robbed him at gunpoint  Defendant convicted of 1st degree murder  Felony-murder doctrine is limited to foreseeable deaths but felon is held strictly liable for all killings committed by him or his accomplices in the course of the felony  As long as the homicide is the direct causal result of the robbery the felony-murder rule applies whether or not death was natural or probable consequence of robbery  Robber takes his victim as he finds him (inherently dangerous activity  foreseeable consequences)  People v. Satchell, (Cal. 1972), p. 462  Court held instruction erroneous and reversed the conviction concluding that the felony of possession of a concealable weapon by an ex-felon was not a „felony inherently dangerous to human life‟ Merger Doctrine  Many courts, unlike California, hold that burglary based on an intent to assault will support a felony-murder conviction (usually 1 st degree), even though a similar assault will not support a felony-murder charge in the absence of an entry into a building or room  Rationale – people are more likely to fight back for themselves or others in a confined space  After concluding that the felony was inherently dangerous to human life the court address the defendant‟s contention that the felony merged with the resulting homicide and could not therefore serve as the predicate for a felony murder charge  MR Based  Malone, p. 439  Gross reckless  Defendant is 17, victim is 13  Defendant got the bullet the day before and put bullet in gun at a store  They played Russian poker at suggestion of defendant  Defendant put bullet in last chamber of 5-chamber revolver  Defendant pulled trigger 3 times, pointed at victim  Victim was shot by defendant and dies 2 days later (within statutory period) nd  2 degree murder  court tries to say there was a 60% chance of the gun going off  Helps prosecution that defendant is not a gun expert b/c then he was acting more reckless and it is more of a dangerous activity  Gross Recklessness - Wanton disregard for human life evinced by the choice of an instrumentality that is dangerous  More dangerous the instrumentality, less we are interested in defendant‟s state of mind  If have something dangerous, don‟t care about subjective intent  Held liable b/c of inherent dangerousness of the thing you have 28  Provocation  Girouard v. State, (Ct. of App. MD, 1991), p. 405  Defendant sought to appeal conviction of 2nd degree murder  Defendant was arguing with his wife; she was taunting him and asking him, “what are you going to do?” and continued to taunt him  He eventually stabbed her 19 times  Conviction of 2nd degree murder affirmed  Cases where provocation allowed to mitigate murder to manslaughter  Extreme assault or battery upon defendant; mutual combat; defendant‟s illegal arrest; injury or serious abuse of a close relative of the defendant‟s illegal arrest; sudden discovery of a spouse‟s adultery (**since updated omitting adultery discovery)  For provocation to be adequate, it must be „calculated to inflame the passion of a reasonable man and tend to cause him to act for the moment from passion rather than reason‟  Words alone are not adequate provocation  Even „fighting words‟  Standard is one of reasonableness, doesn‟t focus on frailties of mind of petitioner  Manslaughter  Voluntary v. Involuntary Manslaughter  Has nothing to do with the actus reas (voluntary/involuntary are not terms of actus reas)  They are really 1st degree (voluntary) manslaughter and 2 nd degree (involuntary) manslaughter  Both are on a lower level than murder  Think of them as stopping points on a scale  Voluntary manslaughter – reason is partially impaired or extreme emotional disturbance  Partly mitigated in that respect  Bring defendant into a lesser form of homicide  Between 1st/2nd degree murder and insanity  “heat of passion”  There is generally an intent to kill  Involuntary manslaughter – between gross recklessness (Malone) and a simple accident  Defendant did something stupid but doesn‟t betray gross recklessness or wanton disregard for life  Every jurisdiction puts burden on defense attorney to try to demonstrate beyond a reasonable doubt that defendant meet criteria of voluntary manslaughter  Some jurisdictions will require defense attorney to demonstrate the involuntary manslaughter is the appropriate punishment rather than 2 nd degree (Malone) – partial affirmative defense against the more serious crime  Act of Murder  Voluntary M/S  Usually issue visited on appeal of homicide conviction  Instruction which fails to give jury opportunity to think about voluntary manslaughter along with homicide  Conflict between common law formulations and model penal code formulation  Half jurisdictions follow common law (Maher) , half penal code (Cassasa)  Common Law (Majority View) 29    Maher, p. 407 (defendant killed man after hearing that he slept with wife)  There is a finding of fact that the jury must do  Conviction reversed  Subjective Inquiry  Has the defendant portrayed a partially impaired reason (passion)? Question for jury (threshold factual inquiry)  Defense attorney must show that defendant is partially impaired  Then, was there adequate external provocation?  This case – hearing of wife‟s adultery  He saw them before and had someone tell him  Adultery – if you catch the victim or party with the victim in adulterous act and defendant acts in response to that, this is adequate external provocation  voluntary manslaughter  Some jurisdictions require that defendant catches them in the act, not circumstantial evidence  Usually, law says that pictures or hearing about it aren‟t good enough; adulterous act or something tantamount to adulterous act are necessary for adequate external provocation to cause partially impaired reason  Battery – dangerous assault against defendant or a third party  Can be adequate external provocation  voluntary manslaughter b/c may have slightly overreacted (circumstances didn‟t warrant this degree of reaction)  May use self-defense if didn‟t overreact  Many situations in which there is harmful or offensive touching of the body and defendant overreacts  Someone is trying to rape, and advance at defendant or harm defendant  Mere words are NEVER adequate external provocation  Was there time to cool down? Adequate External Provocation: Girouard, p. 405  Mere words are not enough, even if words are graphic descriptions of adultery or actual, prior or future threatened harm are not in itself adequate external provocation  Rare exceptions  Words with pictures  Words with videos No Cooling Time  Needs to be a reflex, not necessarily instantaneous  Reacts without reflecting or deliberating  Usual rule is 5-10 minutes between seeing provocation/having provocation visited upon you and reacting  Problem  Some people get more angry with time  NO VOLUNTARY MANSLAUGHTER  Some jurisdictions are second-guessing that rule  State v. Gounagias, p. 413  Victim of forced sodomy got angrier with time  Person who did this was taunting him all the time  Case in which it is not equitable to use the cooling time rule  Provocation was continuous and he never cooled down  It was the words of the sodomizer that got him heated over and over again 30   Or can say that words were coupled with the prior act Model Penal Code: People v. Casassa, (NY Ct. of App, 1980), p. 415  MPC has an alternative approach to voluntary manslaughter  Only 4 states still have full-blown model penal code approach; this is dying  Casassa killed a woman after she rejected him  No adequate provocation or inadequate cooling time  Conviction for 2nd degree murder affirmed  Ask the following questions…  Is he emotionally disturbed?  Is the response he made with that extreme emotional disturbance reasonable?  Is it reasonable for him to kill her if he is emotionally disturbed?  Possibly b/c she is the source of his disturbance  To kill a random individual is completely unreasonable  There is a connection between what caused him to be emotionally disturbed and his killing  The jury in this case did not find enough evidence of extreme emotional disturbance  Only one psychiatrist‟s testimony  He was emotionally disturbed, but is it extreme enough?  No, according to jury  Emotional disturbance evaluation is not all subjective  Particular defendant must have acted under influence of extreme emotional distress – subjective element  There must have been a reasonable explanation or excuse for such extreme emotional disturbance, the reasonableness of which is to be determined from the viewpoint of a person in the defendant‟s situation under the circumstances as the defendant believed them to be – not completely subjective  It is hard to decide what is reasonable for an emotionally distressed person  This is why the MPC standard is dying  Involuntary Manslaughter  Not an actus reas issue  Between wanton disregard for human life (intent to commit grievous bodily harm) and accident  Gross negligence and awareness of risk  “Misdemeanor-manslaughter” – permits conviction of involuntary manslaughter when death occurs accidentally during commission of a misdemeanor or other unlawful act  Some call this a substitute for criminal negligence  Not “inherently dangerous to life” – battery; traffic violations  Regina v. Cunningham – perfect case for involuntary manslaughter  He was simply being reckless  (noxious gas case)  Tough negligence, not exactly gross recklessness  More serious the harm or the more grave the improbable harm, just doing the dangerous thing is enough  Prosecutor doesn‟t have to worry about mens rea  Commonwealth v. Welansky, (Mass. 1944), p. 425  Club owner convicted for involuntary manslaughter of his patrons due to improperly kept emergency exits  For vicarious liability in Mass., have to drop down a level when hold someone vicariously liable 31     For vicarious liability in a criminal case, can‟t have a harsh penalty  Involuntary manslaughter carries 15 years  So can‟t use theory of vicarious liability Go for involuntary manslaughter  The condition itself of having the club that way, which he maintained, was dangerous  Doesn‟t turn on probability of fire, but the degree of harm (370 people died)  If you have a dangerous condition, even if improbable to its event, then you are liable when tragedy results  Maintaining hazard knowingly  hold liable  *If he were in accordance with fire code, then they couldn‟t have gotten past negligence  not criminally liable Contributory negligence of victim is immaterial  Causation and something you must reasonably foresee This could be tried as Malone type 2 nd degree case b/c it was a wanton disregard for human life. But a prosecutor would not have gone for this b/c he had 370 cases and the guy will go down for something  Vehicular manslaughter  Type of voluntary manslaughter and the instrument in which you chose was a car  Reckless offenses are those in which the person was warned of the danger their car had (i.e. bad brakes) RAPE  Introduction  Act of rape  Underlying act itself is good, rather than bad  Sexual intercourse, when done consensually, is one of the paramount forms of human trust  As rape, it is one of the most horrifying forms of abuse to another human  Victim is on trial as much as the defendant  Much of the definition of rape turns on the will, state of mind, consent of the victim  There is a deep actus reus and mens rea of victim inquiry  Forced to have the victim divulge information that is useful to the case  Publicity of trial and constitutional requirement that a defendant must be able to face his accuser, makes the prosecution of rape cases difficult  But still want to try to protect the victim  Legislatures, at least until recently, have left all of equities to the individual court  Have a large sentencing range and try to plug defendant into a slot  Unlike homicide that has a lot of different levels; legislature differentiates in advance – balance little equity at the end  Should we start differentiating the categories?  Is it disrespectful to the victim to play bargaining games with defendant as we do in homicide?  *My thoughts – no more disrespectful than when it is done in a murder case; but there is the issue of victim being alive to see it in this case (but still this is an issue with all crimes) 32  Definition  Some jurisdictions (majority) still stay with common law definition, but others have started rethinking the category  Common law definition  “Carnal knowledge of a woman by a man, not her husband, procured by force or threat of force, against her will, [and] without her consent.”  “not her husband” – marital rape exception; classical assumption in common law  Consent to marriage was an automatic consent to sex on demand of husband  Today, trying to limit or wipe out marital exception  “procured by force or threat of force, against her will, without her consent”  These are a lot harder to prosecute as three separate inquiries (this was old common law rule)  Classic understanding was that these are three separate elements, all of which need to be proved in order to convict someone of rape  Or could say that force could become proof of it being against will/without consent  Modern thought  Put “against her will” and “force” together  Carnal Knowledge  Vaginal penetration by the penis (ejaculation is not necessary)  Vaginal penetration with any other appendage or instrument is a form of sexual battery, but does not constitute carnal knowledge/rape  Penetration of the anus is not carnal knowledge/rape, it is a form of buggery which is a separate, equally serious, offense  Contact between the genitalia and the mouth, with or without emission, is not rape, but a form of sodomy  Any kind of touching of the sexual regions of a woman (breast, pubic area, buttocks) without penetration – sexual battery  Touching of woman anywhere by male organ – sexual battery  Trend  Tendency of today is to get far less specific about these different types of sexual offenses and to group them together into a general actual reus of carnal knowledge so that a party can be charged with rape even if what he did doesn‟t constitute carnal knowledge (vaginal penetration by the penis)  Rape is a crime against an adult woman  Moved beyond range of a girl of tender years  As soon as this period has expired, the victim of the actus reas is a woman and a woman if she is subject to this act is a victim of rape  If it is a woman below range of tender years, it is statutory rape  Statutory rape is a different offense and has a much more generic guidelines of what is considered statutory rape  V = woman; D = man  Defendant must be a male who is mature enough to perform  This could be a juvenile (Does his anatomy work?)  Whether he is charged as an adult or juvenile is a procedural question which doesn‟t matter when considering whether an offense is doctrinally rape  What about men being assaulted by men?  This is never considered rape  This may be sodomy, buggery, assault, battery 33   What about women being assaulted by women?  This is not considered rape  Instance of sodomy, buggery, assault, battery What about men being assaulted by women?  Never instance of rape  Instance of battery, buggery, sodomy, assault  Force/Threat/Resistance  Easy to prove when there are tell tale wounds on the victim  When there are no wounds, have to find out if there was a threat of some physical force  How do we characterize the conduct of the defendant? Would that be a threat?  What evidence is there of resistance?  Physical – bruising, scratching on defendant  Wouldn‟t resist unless there was force  No physical evidence –  Did victim make judgment that to resist is to make the rape more brutal and decided that it was not worth trying to fight so as not to make matters worse?  Jury is left with question of what a reasonable victim would do in the circumstance  No opportunity for resistance  Against her will  Sometimes people act involuntarily b/c they are forced to do so  In this case, force and against her will go hand in hand  What if the woman in incapable (drunk, high, passed out, asleep)?  Is she penalized for voluntarily impairing her judgment?  W/O her consent  Is this a different question than will?  Is it the difference between the actus reus and mens rea of the victim?  Why would we waist time with this?  What is the presumption?  Yes, until I say No.  Or No, no, no, until I say Yes.  If parties are in heavy foreplay  Is entering into the act that may lead to sex change presumption?  Does every level require a new definition of consent?  State v. Rusk, (Md. 1981), p. 323  Evidence of force  Repeatedly asks her to come up  Takes her keys  Pulls her on his bed  He choked her  Evidence or resistance  She tells him that this is a ride, not a rendezvous  She leaves the car running  She repeatedly refuses to come up  She sat in a chair in his room 34  She asked to leave over and over again  Defense  Motive for victim to lie b/c otherwise it would be adultery  Holding  judgment in favor of state‟s appeal  Lack of consent established by proof of resistance or failure to resist due to fear (must have actual and reasonable fear) – Jury question  Rape Trials  Prosecutor – focus on exact moment of intercourse and her lack of consent  Defense – create long scenario of flirtation, consent, willfulness and final small whimper of protest as insufficient  Also want to try to slander victim  Invite defendant to waive jury trial  Judges are more sympathetic to prosecution  Defense should spend a lot of time picking jury just to get one person with doubt, strong enough to stand alone on his doubt  Want as many men on jury as you can get  Don‟t want gays  Homosexual men tend to be more empathetic to victims than women Force v. Will  Evidence  Marks on victim  Third party testimony of a threat  Marks of resistance on defendant  Without above, hard to prove force  Extrinsic v. Intrinsic  Extrinsic  Threat that rape is looking for is threat of imminent force on body of victim (doesn‟t have to be mortal harm or death wish, just unwelcome touching)  Can also be a threat to the body of a third party  Film, telephone conversation are sufficient for threat of force  Future threat is not enough; that is blackmail  Intrinsic  Act of intercourse itself  May be sufficient if whole point of threat of force inquiry is to decide if it was voluntary  Increasing trend is to say that intrinsic force is enough  If there is no volition, then issue of force is not necessary  If there must be force, then intrinsic force is enough  Relational/Circumstantial  Can find force in relationship between individuals  Power imbalance may constitute a threat of force  Assumption that there is no capacity to engage in involuntary state when relationship is one that postulates involition  Manipulative or Blackmail Force  Not considered rape  Would be too easy to allege rape for generic reasons while relationships are easier to prove  State in re M.T.S., (NJ 1992), p. 338  15 year old girl slapped 17 year old boy when she woke up with him on top of her  35   Any penetration done without the affirmative voluntary consent of the victim to the specific act of penetration constitutes the offense of sexual assault Non-Consent  Evidence  Common law – evidence of non-consent and involuntariness may be the same but must be proved separately  Stronger resistance evidence, stronger non-consent evidence  Presume: Yes or No?  Woman must prove non-consent; stronger demeanor evidence toward consent, heavier burden on woman  Mere “no” may not be good enough  Trend today (Exact opposite of traditional rules)  Regardless of circumstance, the man must get consent  It is the man‟s burden to procure consent every step of the way  Most jurisdictions  In between the traditional rules and asking permission for every step  Some jurisdictions – need to ask clearly and verbally for the entire encounter (full bundle) in one instance  „No‟ is enough, even if started, no matter what the circumstances are  Difficult when have situations where consent is not verbal  Question for jury  Usually, if give a „yes,‟ victim is required to give a verbal „no.‟  Unless, victim is drunk, incapacitated  Cannot have sex with a person that is passed out, comatose  This is by definition rape  To enter a body that is not capable of verbalizing or intentionalizing in any way is rape  Growing trend that if you get a no, before you engage in the final act of penetration, man should get a yes  Rule on consent  New rule of presumed non-consent  Verbal non-consent, must always be countered by verbal consent  Verbal consent can expire after a reasonable period of time and needs to be renewed  Non-verbal consent likely needs to be confirmed by verbal consent at beginning of action  Today, man engages in sex at his peril  Context Driven? Marital Rape  Tradition  Impossible for husband to be guilty of rape of his wife (reflections of definition of marriage which goes into doctrine of coverture – when man and woman get married, the two become one flesh and that flesh is the man and they become one party at law; her legal identity is gone; she has consented to sex)  System doesn‟t like to invade the home (absent a crime like battery where there is tell tale evidence of hurting her, the law is not interested in invading a man‟s castle)  We don‟t like wives testifying against husbands  In most jurisdictions, wives were not allowed to testify against husband unless in cases of battery or divorce  36  Reforms  Most of these traditional rationales are gone  Merging into one party is no longer; no presumption of merger of 2 identities into 1; marriage is a third identity outside of their own individual identities; equality is presumed  Man‟s castle will be penetrated when a crime is done; rape is a crime/harm done to wife  Doctrine of privacy assumes consent  Spouses testify against each other all the time  Evidence rules are gone  21 states still have marital rape exception  Becomes an affirmative defense for the husband  But, law is getting more stringent  Must actually be married (not fiancés, long standing partners, etc.)  Must be living together  Must be sleeping together is a growing trend in these states  People v. Liberta, (NY 1984), p. 45  Brutally raped wife from whom he was separated  Conviction affirmed  Rational for marital exception doesn‟t exist  Privacy would permit husband to escape rape charge  Marriage subjected to forcible rape is hardly open for reconciliation  Martial rape is just as serious as other forms of rape  Statute applies to any person who engages in forcible sexual intercourse (equal protection); so men too  Mens Rea  Commonwealth v. Sherry, (Mass. 1982), p. 351  (doctor case) Victim testified that she felt outnumbered and couldn‟t fight  Defendants claim that she consented; defense of mistake to negate criminal intent  Victim is not required to use physical force to resist; any resistance is enough when it demonstrates that her lack of consent is “honest and real”  Defense of mistake requires that accused act in good faith and with reasonableness  Still not a defense to rape in Massachusetts  Commonwelath v. Fischer, (PA. 1998), p. 354  Appellant, relying on previous encounters with victim, didn‟t believe his actions were taken without her consent; got off of her when she said she honestly didn‟t want to have sex  Appellant tries to advance defense of reasonable mistake of victim‟s consent  When person uses force or threat of force to have sexual relations with a person, not his spouse, without person‟s consent he has committed rape  Defense of reasonable mistake and defendant‟s state of mind should be created by legislature  Forcible compulsion – use of physical, intellectual, moral, emotional or psychological force, either express or implied  Conviction affirmed P. 364-365: Proposed Model Statute  Decriminalize rape  Make it a civil issue  Privatize the act of rape  Possibly start with a base of non-consent and then have different levels of seriousness from there  37  Differentiating between husband and stranger?  Is it not more egregious for a husband to betray his wife‟s trust?  Maybe we should leave this differentiation out  What about mens rea?  If he knows?  (There will be a question on the exam about this; drafting a new statute, etc.)  Infant/Girl of Tender Years/Adult  Tendency to stretch „girl of tender years‟ out longer ASSAULT AND BATTERY   One who commits a batter cannot also be punished for assault b/c lesser offense of assault blends into actual battery Battery  Involves actual physical contact with victim  Definition – conduct producing a bodily injury or an offensive contact  3 Elements  Defendant‟s Conduct (Actus Reus)  Physical acts he performs in committing the crime  Directly touching a person or indirectly applying force to him  Injury not directly caused by defendant (ex. by poison; making someone touch something they don‟t want to; victim is injured in a dangerous situation intentionally created by defendant)  Some states hold persons criminally responsible when neglect of a duty to act causes injury to another (ex. lifeguard is negligent)  Defendant‟s Mental State (Mens Rea)  Intent to Injure  Usually not liable for committing battery with out intent to injure  Criminal Negligence  Not always accepted as sufficient  Some states make minor misdemeanor when one acts in reckless disregard of risk of causing injury to another  More than ordinary lack of due care is required  Require actions that create unreasonable and high risk of harm to others  Risk should be one a reasonable person would be clearly aware of, even if defendant doesn‟t perceive it  Some jurisdictions, sufficient if he commits an unlawful act, regardless of intent  One who is consciously acting unlawfully should be responsible for results of his actions regardless of his intent  However, if he is unaware that he is acting unlawfully, it is more difficult to argue criminal liability should automatically follow  Sometimes liability results if act is bad in itself, but not if simply prohibited conduct  Simply prohibited conduct may be enough if defendant is criminally negligent or intends to cause injury  Harm done to the Victim 38 Virtually any type of bodily injury  Offensive touching  Some states include forcing child to touch parts of defendant‟s body  Defendant initiated and controlled situation and victim felt personally violated by defendant  Aggravated Battery  Punishable as a felony (specially defined by state statute)  Ex. actions taken with intent to kill/rape  Usually, defendant must have intended to cause specific result otherwise regular battery  Not crimes based on criminal negligence  Assault  Attempt at battery or an intentional frightening of another person  Does not include physical contact  *Some states list as attempt rather than under assault  Attempted Battery  Must be a specific intent to cause injury  Some states – additional requirement of present ability to commit the crime  Intentional Frightening  Acts that are designed to frighten another  Intending to cause another person reasonable apprehension of immediate bodily harm  Does not plan actually to harm victim, but merely to frighten him  First requirement (Mens Rea)  Actual purpose to frighten  Focuses on intent rather than on present ability  Second requirement (Harm)  Victim actually frightened by defendant‟s action  If a reasonable person would be placed in fear of bodily harm by such conduct  Some courts distinguish between immediate fear and reasonable apprehension (response of which victim is not immediately aware; delayed reaction)  Apprehension is proven if gun is used unless victim knows it is not loaded  Actus Reus  Conduct must be of sort to arouse reasonable apprehension of bodily harm in the average person  Conditional Assault  Usually arises form failure of victim to act as defendant directs  Defendant threatens to shoot another unless that person does something  Defendant is not protected from complete charge of assault even if victim complied with condition  Aggravated Assault  Felony – assault with intent to kill/rape; use of deadly weapon in some states  Dangerous weapon – instrumentality designed and constructed to produce death or great bodily harm (ex. always guns) Defenses to Assault and Battery  Self-defense is the most popular  Consent defense  Sexual assaults  sports  Not defense when act violate public policy or battery is severe (street brawl)   39 WHAT DO WE PUNISH II: CRIMES AGAINST PROPERTY  Definitions  Real/Personal/Intangibles  Real property – Land and its permanent improvements  Not a mobile home on wheels  Things that cannot move  Personal Property (Moveables) – movable property  Everything else  Boat in the water  Intangibles  Ex. Money, key  Has representational value  Possession v. Title  Title  Gives right of use, to alienate, to devise,  Without possession, poses problems  Possessory interest in property is worth quite a bit  Bailment (contract)  Bailer – party that has temporary or permanent possession of piece of property and relinquish possession to Bailee who does not have title in property  Ex. Ask someone to give item to person with title  Ex. drop clothes off at the cleaners  Sometimes bailments are mutually beneficial Harm Crimes  Actual harm to the property  Model Penal Code  220 – Offenses Against Property  220.1 Arson– destruction by fire/explosion of a structure which is expected to be used by occupation by people  Most jurisdictions have 1st degree arson (almost always reserved for homes; structure principally reserved for permanent occupation); some jurisdictions extend to movie theaters, malls, etc.  2nd degree – intentionally burn an occupied structure and do for purposes of fraud  3rd degree – recklessness fires  Purposely start fire or cause explosion and thereby recklessly place another in danger of death or place building or occupied structure in danger of damage  Misdemeanor arson – breach of duty to report a fire  If breach is informed by hidden desire (fraud, murder), then beef crime up  Law is pretty consistent in each jurisdiction  Actus reus – burning  Harm – partial or total destruction of structure  Mens Rea – same as learned earlier in semester  220.3 – Criminal Mischief (wanton destruction of property; simple property harm)  Purposely, recklessly, or negligently  Basically everything else that results in destruction of property  40     Can be real property or personal property Fence, shrubbery, etc.  When burn house, burn all the stuff in it  Commit 2 crimes; arson against structure and damage to stuff inside  Depends on value of property, nature of holder, seriousness of harm, and danger to people involved  Law uses to differentiate between seriousness of crime  Harm to victim taken into consideration  Destroying a child‟s lunchbox is more serious than destroying an adult‟s briefcase  Child is more vulnerable 224.3 Criminal Defamation of Title  Felony of the 3rd degree  Harm to person‟s interest in property  Results in harm to the property  Party does something to cast doubt upon victim‟s title to her property  By action, omission, destruction 221.2 Criminal Trespass  Usually aggravated and accompanied by something more serious  or on a secured property (ex. White House)  Property Line and Occupation Line  Criminal Trespass 1 – person crosses property line  Issue is whether they did it with proper mens rea  There is a sign outside for no trespassing  If no one in the neighborhood can speak English, then owner is burdened with responsibility of having to make it known to them  If there is a fence, or some kind of demarcation some jurisdictions say (higher than a foot)  Line created by notice, common sense, structure (fence)  Court uses degree of notice or height of fence in seriousness  Criminal Trespass 2 – aggravated trespass; break the plane of the house  Most serious if trespass occurs on occupied structures made primarily for living; nature of structure being broken into  Often a bargaining tool used by prosecutors and police  Get someone to plead guilty to burglary or rape that occurred in the house and drop trespass  Or can use to grab someone and try to then find something on them  Look for on exam  Harm in trespass  Turns on simply crossing the property line  Unwelcome presence of an unauthorized person  If something is destroyed on the property, then also have wanton destruction of property  Aggravated if it happens at night  Defenses  Structure was abandoned; open to the public; reasonably believed that owner of premises would have licensed him to enter or remain  Deprivation Crimes  Could be permanent, temporary, harm to possesory or title interest to property 41  Getting closer to MPC, but not there yet  MPC 223 (KNOW VERY WELL)  Call these types of theft, MPC Theft, unless he is trying to hit on something in particular  Grand v. Petty  Almost exclusively based upon value of property that is object of deprivation  Not the value of the deprivation  To steal a valuable painting only temporarily is considered just as serious as taking it permanently  Value of property – fair market value  Line - $1,000 (for our purposes)  In jurisdictions, goes from $500 – 20,000  You take your property as you find it, you commit crime at your peril  MPC v. CL  Common law – big on making sure you get the right crime  If it fits the common law crime category, the common law category must be used  Common law theft – crime of last resort  MPC theft – crime of first resort  CL Larceny (3 types)  Larceny by trick, larceny by bailee discussed below  Larceny definition - The trespassory taking and asportation of the personal property of another with intent to deprive  If no trespass, can‟t get larceny  Trespassory  Must have trespass  Any invited guest cannot commit larceny  Negotiating when license expires is key  Depends on what license allows  License is only to do the thing designated by the license  Otherwise, there is a trespass  There can be a relationship that allows entry  Customer in store cannot commit larceny unless goes into staff only area (usually past the cashier)  Committed shoplifting  Have a store with private are and public area  Taking something from public space, to private space, and then back out to public space is sufficient  Form of physical trespass triggers larceny  In some jurisdictions, license expires when you form the intent of taking an item without paying for it  Some jurisdictions say that the intent to steal breaks the license and arrest for larceny while still in the store  Aggravating factors  Nature of occupied structure (living quarter is more serious than office)  Nature of your entrance (entrance at night more serious than entrance during the day)  Nature of the entrance (entry by force; breaking  robbery)  Intent once inside (trespass for sake of doing legal thing is less serious than trespass to do something dangerous)  Taking/asportation-control 42    Getting effective control over the good (actual or physical, with/without destruction, permanent/temporary)  If go up to a book and take a picture  You have control of the information in it  Or call someone and tell them the information in the book  Or glue the book shut; gives control  Destruction crime as well  For more than a moment, you have gained control over that item or personal property  That it affects the owner is irrelevant  That the owner doesn‟t know about temporary control is irrelevant Personal Property of Another  Title holder and possessor are not necessarily the same person  Can be 2 kinds of crimes and 2 victims  Mistake of fact may be a defense  Intangibles are included in personal property for larceny purposes Intent to deprive  When is the concurrence inquiry?  When must the intent be triggered?  Trespass, taking, or leaving?  Old Rule - Intent must form at time of taking and aspiration  Now, law doesn‟t care  As long as intent occurs during the actus reus  No intent, no larceny  Intent must be to deprive owner of property  Drunken parties cannot form purpose  Mistake, no purpose **Theft – a residual character; if there is no trespass and can‟t get larceny**  CL Burglary  Breaking and entry of the occupied structure of another with intent to commit a larceny or some other felony therein  Home, at night requirements are no longer (now just aggravating addition)  Cannot burglarize a small shed (not occupied)  Can burglarize a big shed (could be occupied)  The point is whether or not a person can occupy the space  Can burglarize a tent (temporary nature doesn‟t matter)  Breaking and Entering  Any act done purposefully or even accidentally in which the defendant touches a structure upon entrance, constitutes breaking  Entry – breaking of exterior plane of occupied structure  *An entry, followed by breaking is not burglary; this would be trespass and criminal mischief possibly  *Though entry must follow breaking, it is not necessarily immediate; this is a reasonableness question for the jury  Opening interior room can constitute breaking and entry  Breaking  Kicking door open, destroy window, jam whole in something 43         Any mechanical force beyond mere force of locomotion Anything that you have to do short of locomotion into the home  Even if you inadvertently hit part of body on the door  If item that you are stealing hits the door on the way out Entry  Personal intrusion of the occupied structure by yourself or your agent (includes having someone else enter for you)  Any breaking of the plane of the occupied structure through personal uninvited intrusion, through agent or instrumentality Super larceny or some other felony Super trespass Intent: concurrence  Law is very clear that want to know defendant‟s state of mind when he entered the building  There must be intent to commit felony upon entrance  It is not necessary to actually commit the felony  That post-entry, the intent is frustrated, abandoned, etc. is immaterial; this is still a burglary  If you take something  committed 2 offenses; burglary and larceny  This is a super trespass; aggravated Ex. Someone enters home of another just to look around and ends up accidentally destroying something  This is a trespass, not burglary  No wanton destruction of property Aggravating conditions  Know people will be there  Destroy something  Go through with committing a felony  Take something  Do it at night  Robbery  The taking and asportation of the personal property of another from that party‟s person or presence through use of force with intent to deprive  Trespass is aggravating but not necessary for robbery  Aggravating factors  With deadly weapon  In someone‟s home  The personal property taken  Trespass, especially home  Taking/Asportation  Getting actual or constructive control of item/personal property of another  Same as notes on larceny  Personal Property  From the Person/Presence of the victim  Taking something from the person (from their hand, from their bag that they are carrying)  Taking something from presence (from person‟s immediate wingspan)  Venue of robbery  Area of constructive control that this person exclusively enjoys 44 Doesn‟t turn upon anatomy; it is a question of reason Custom can play a role in this Person‟s home – 4 corners of house, and some jurisdictions say the land around  To take something from that space is a robber  Personal space v. Public space  The more private the space, the more serious  By force/threat  Force of battery or assault  Imminent injury or actual injury to body  Victim must know that he or she is the victim not only of deprivation of personal property but also the threat or the force  **good pick-pocket can never be guilty of robbery; the victim never knows  Requires something beyond intrinsic force required to take the property  Victim of robbery need not be the same as victim under threat of imminent harm  But must be threat to someone within eyeshot, earshot of victim of robbery  Don‟t have to be able to see them, could be on the phone  Future threat is not enough  Kidnapping constitutes a threat to life  Mere disparity in size may be enough  Take victim as you find him  Is the threat real to this particular victim?  Victim may have specific fears of something that the assailant is aware of  If assailant didn‟t know, it‟s a little harder b/c then don‟t know assailant‟s intent  Armed robbery  Large aggravator  Doesn‟t have to be directed at victim of robbery, can be against someone else within an ear shot or eye shot  Extortion – under false pretences, but is not robbery  Intent  Intent to deprive  Same as in larceny  Need momentary interruption in the property interest that the victim has in his personal property  Momentary deprivation – victim must know False Pretences/Embezzlement  Offenses that can be committed against any property owner  Attached only to possessory interest personal property  Only difference between false pretences and embezzlement is where you locate the intent  If intent to deprive is located at time of acquisition of property interest, there is a case of false pretences  Larceny by Trick (false pretences)  Ex. person pretends to be a valet and takes you car for a spin, but you get it back  Intent at time of acquisition  Intent to just use property is insufficient  Misrepresentation must be such that a reasonable person would have relied on it and in fact the owner of property did rely on it  If intent to deprive sets in after proper acquisition is had, there is embezzlement  Later formulation of bad intent after receiving proper acquisition (got property properly and afterward misappropriate)    45   Defendant has possession by and for another After the fact by action or omission, you do something that is not in victim‟s interest Ex. know you wrote a bad check but don‟t tell Larceny by bailee (embezzlement)  Post-acquisition of possessory interest, intent sets in  Misappropriate property interest  Ex. valet takes car for a spin, but you get it back False Pretenses  MPC 223.3-4; 224.5-7 Embezzlement  MPC 223.5-8     WHAT DO WE PUNISH III: INCHOATE OFFENSES Inchoate Crimes (crimes that defy usual prima facie case – something is missing; lives vicariously off the definition of completed crime)  Attempt Liability  When is there a prima facie case of attempt?  When does defendant‟s conduct rise to the level of a separate offense (less serious than actual crime)?  It is possible that defendant may attempt to do one crime, but may end up completing another.  Results in him being charged with attempted crime and the completed crime committed.  Punishment of attempted crime  Dictated by punishment of completed crime  Usually 1/3 – ½ of actual crime punishment  Self-checking, self-abandonment, self-annunciation by the defendant is a mitigant  May still get attempt but gets reduced sentence  Dangerousness of conduct itself needs to be addressed by the criminal system  Want to deter this conduct  Want to help the cops  Don‟t want cops to have to wait until someone actually completes the crime  Prima Facie case:  Harm to victim has not happened  There was some interruption or some intervening causation that has broken the chain  Will try the defendant nonetheless  Fast tract attempts  call these attempt crimes, completed crimes  Attempted battery  Assault  Burglary – break and entry with reckless intent (fatal element is intent to do something bad upon entering)  AR Requirement (tests are split among jurisdictions, 1/3, 1/3, 1/3)  When do we move from acts of mere preparation (innocent/cannot be criminalized) to acts which constitute the actus reus of the attempted liability?  Last Act Test (Barker) – Old test of common law, not much applicability today  Requires that defendant have completed every step  Natural sequence after would be the completed crime 46    Attempt liability when have intervention after last act; hope cops can break chain of causation  Interested in giving defendant a chance to repent Proximity Test – most defendant friendly  Look back at what defendant did and ask if it was close enough to completion of the crime  Look down chain of causation and look at acts  How close is crime to being completed?  What other steps need be taken and what other causes must unfurl after last step?  Ex. Arrest after the moment gun is pulled out (ready, aim, fire)  Ready is good enough  When there is a very tight cluster of actus reus steps, can arrest after first few steps (the tighter, the earlier you can arrest)  Focus on where crime would take place and if defendant was there when committing first steps  Look at reasonably prudent person  People v. Rizzo, p. 565 – defendant friendly  Was going to rob individual if got the chance; arrested when jumped out of car  Never found the person they wanted to rob, nor was he around  Opportunity to commit the crime never came  „there must be dangerous proximity to success‟  State v. Duke, p. 567 - proximity test doesn‟t allow prosecution in this case either  Defendant that was in the park waiting for a little girl with a flashlight  Poisoning example  Person has to give victim a certain amount of doses and has not given enough yet  Can he be arrested before final, fatal dose is given?  Proximity test would say that he can be arrested on day of lethal action  Forget about prior days of giving doses  Wait until arsenic is put in the tea  All other times, we can call battery until the day of fatal dose  What if have imperfect knowledge and don‟t know how many doses need to kill?  Law says that dose 1 is close enough Equivocality Test – most prosecution friendly  Means unequivocal – defendant hasn‟t completed crime  Rather look at what the defendant has done so far  The narrower and more elaborate the steps of the actus reus, the earlier we can arrest  Same thing as Res Ipsa Loquitor (The thing speaks for itself)  The defendant‟s acts speak for themselves; attempt to harm the victim  What is suspect about the defendant‟s behavior?  Probably would walk on proximity test  State v. Duke, p. 567 – moment he walks into park with flashlight, would be arrested and could be convicted on equivocality test  No other scenario whereby we could imagine one acting in the same manner other than attempting to commit the crime  Problem – McQuirter v. State, p. 569 – can impute any kind of mens rea into the mind of the defendant  Defendant, black man, was walking down the street and was accused of attempted rape 47  Open season for all manner of prejudicial application of criminal law  No doctrinal stopping point as to what chain of causation you can infer from what defendant did early in his actus reus  MPC Test – Just as hard for prosecution and defense  Substantial Step Test  Combination of proximity and equivocality  Defendant must have taken a substantial step toward the completion of a crime  Elaborate actus reus – can get early in the game but need set of substantial steps already taken which show that defendant was going to commit that crime  No elaborate actus reus – can‟t arrest until end (pull pistol out; don‟t have to aim and fire)  Wait until there is enough evidence  Ex. Wait until going into place to commit arson; must give them a chance to walk away  MR Requirement  Specific Intent  Factual Impossibility  Smallwood v. State, (MD, 1996), p. 556  Defendant with aids is not using protection  Trier of fact may infer existence of required intent from surrounding circumstances such as “the accused‟s acts, conduct and words”  New that his weapon was deadly, and  Knew that he was firing it at someone  Conviction of attempted murder and assault with intent to murder reversed  Not the same probable result as firing a gun at someone  B/c waiving some of actus reus, mens rea standard must be high  specific intent  Specific intent – specifically intend to commit specific crime  If can‟t prove specific intent to do specific crime  Must show that defendant specifically intended to do those acts which compose the actus reus of the act  If you can show that the defendant intended to do all these acts which constitute the completed crime, then can get attempted crime  Ex.  Drunk driving is a strict liability crime  If someone is about to drive drunk, can‟t get for attempted drunk driving  Drunkenness when voluntarily induced, masks purpose, so can‟t get mens rea for other components of crime (Regina v. Kingston)  Ex.  Can get someone for attempted arson if can get mens rea for intention of parts of arson  Attempted Involuntary Manslaughter  Ex. Case where people died in club from one exit being locked, one blocked  When can we get for attempted involuntary manslaughter?  When place is simply open for business?  When he invites a whole bunch of people in with the risk of a fire  Factual impracticability  There is no way that the crime could have been completed for some reason  ½ jurisdictions say that this is a complete defense (when it can‟t be done, defendant is innocent)  ½ jurisdictions say that this is not a defense; this is immaterial; it is only one other reason why the defendant couldn‟t complete crime 48  This is the increasing trend  One final tool for defendant to try to derail the case (final link to causation)  Solicitation  Right in between attempt liability and accomplice liability  State v. Davis, (Missouri, 1928), p. 581  Davis pays an undercover cop, Dill, $600 to kill his girlfriend‟s husband  Dill goes to the girlfriend‟s/victim‟s house and reveals his identity  Then arrests Davis for attempted homicide  Solicitation wasn‟t around at this time  Actus reus: motive – would like to do completed crime; specific intent to complete crime; paid someone to kill and worked out plan  There is too much that still has to occur for crime to occur  In equivocality jurisdiction, this may work  From proximity test, actus reus of attempted homicide is not made out at all; so much more has to occur  Substantial step test – still need more steps  Legislatures stepped in and decided that now can get people for solicitation b/c don‟t like people doing this  Act of specifically intending to solicit death of someone else is solicitation  MPC 5.02  Talks about solicitation for any crime  Most jurisdictions have reserved this for serious crimes against the body (homicide, kidnapping, torture, mayhem, etc.)  Can be held to full liability of accomplice you solicited  Liability as a solicitor doesn‟t depend on prosecution or success of accomplice in completing the crime  Another issue  Some solicitations are inherently dangerous  Ask someone to take someone at gunpoint but don‟t ask them to shoot the person  If the person is shot, can get on felony-murder (holding someone at gunpoint is inherently dangerous to life)  Could get felony-murder and solicitation of assault with a deadly weapon  Accomplice Liability  When parties cooperate together we hold them all liable b/c of relationship between them in commission of the crime  Conspiracy – the network of people working together to contemplate or commit the crime  Even if you don‟t have a personal association with actual commission of crime can still be included in the conspiracy  Need to know common law language and MPC language (see chart below) MPC Accomplice COMMON LAW Accessory before fact – Aid before crime actually happens (leave instructions before, case the place out before) 49 Accomplice Defendant Obstruction of Justice  X Play game of how wide you can stretch crime (minute before, may bump up to principal in 2nd degree) - Aid, encourage, command, facilitating, abetting, counseling Principal in 2nd degree – party not performing the crime but at the actual crime scene and does something to help the principle in 1 st degree commit the crime - (don‟t have to be there to complete crime) – can do this over the phone; must be there in space, in time, or cause (more or less simultaneously when crime occurs) - Can also be by omission; mens rea must be met; (ex. alarm company doesn‟t respond to alarm going off – Contractual duty was breached which aided and abetted principal in 1 st degree) - More serious than being an accessory before fact or accessory after the fact Principal in 1st degree – party that actually commits the crime; there can be more than 1 - Issue is if it what is done can be called a second crime; if it can then one may be a principle in 2nd degree for one crime and principle in 1st degree in another crime Accessory after the fact – party that helps cover up the crime - Obstructs knowledge of the crime after the fact - Would exacerbate the crime - Make crime worse by reason of an act or omission - Not fulfilling a duty (fire chief decides not to put fire out) - **Don‟t spell principal wrong on the exam!!  AR of Parties  Law tends to be very generous in this respect  Anything in aiding, abetting, counseling, ordering with respect to a crime that does occur meets the prima facie actus reus test  MR: Specific Intent  Purposeful or intentional mens rea attached to the act 50      You must specifically intend to do the act that you did or perform the omission and you must know with reasonable likelihood that the defendants are inclined to do the criminal act that follows  Even if you know they are going to do a specific crime  Problem of what is specific enough – Jury question  Specifically intending to only sell a gun, this is not good enough  One must have really good knowledge that the defendant wants the gun to commit a crime  Suspicion is not good enough  You must know that he is likely to commit the crime and specifically do something to aid him in doing so  Most jurisdictions say that willful blindness is not enough  Why is the mens rea so high?  An accomplice can be guilty of the full liability as if he were the one to actually commit the crime Law insists that the crime in fact as occurred  Crime has to have occurred on which your accomplice liability will depend  Doesn‟t mean that the principle is prosecuted  Means that there must be an injury for which you were the accomplice  Principle can even be acquitted; found to not be of criminal conduct Can‟t find high level mens rea when drunk  Maybe negligence If just don‟t perform a duty  Ex. Fire chief doesn‟t put out a fire that was done with explosives in an occupied home (1 st degree)  Arson by omission  Omission is almost always 4 th degree  But if go after her as an accessory, can get 1 st degree Attempt crime  Sometimes can characterize from accessory before the fact to co-party in attempt  Choice of theory; accessory theory can be hard  Aiding party knowing they are going to use your aid for an illegitimate purpose  Certainly accessory before the fact  Could this be that party was engaging in attempted misuse  Depends on principal actually doing a crime  Main diff. between accomplice and conspiracy  In conspiracy, principal need not do a crime      In equivocality jurisdiction can get more creative with characterization of conduct Accessory gets same defenses as principal Example  Accessory before the fact aids crime, later the accessory calls the police on the principal  Still responsible for mens rea present during her actus reus  still committed a crime  Can mitigate punishment if you tried to stop the crime Can‟t use accomplice and attempt theory on same person for same crime  Have to pick one Ex. Can a bailee (has temporary possessory interest; delivery guy) be an accessory before the fact when negligent?  Yes 51  Delivery guy doesn‟t get signature but dumps package on front porch and someone comes and steals it  Larceny by bailee – committed unexpected action with respect to the item he has possessory interest in  Can this ripen into being an accessory before the fact in accomplice to the theft (larceny)?  Case turns on not whether delivery guy intended to have a theft occur, but whether delivery guy intended to help thief commit the crime  Argument can be made if thief told delivery guy, “Leave the package there, I got it.”  Defense  Mistake of fact  Would the conduct have been legal if the facts were the way he believed them to be?  Not accessory unless specifically intended help him do the crime Defenses  Intro  Defenses in Prima Facie Cases  Derailing the prima facie case  Attack case at most elementary level  No actus reus, mens rea, causation  Attack especially in causation  When there is intervening causation that is a defense attorney‟s friend  Mitigate offense  Voluntary manslaughter – defense against homicide  Partial affirmative defense  Post-Hoc Defenses  Reasonableness – objective inquiry Justification  Yes, the defendant has committed a crime, but the acts that he has performed in the circumstances are justified  Defending herself, another, property, interest that we deem sufficient  Necessity – chose the better of 2 evils; had to commit a crime, picked the lesser  Protect person, property, another  Can be an exculpator (get off completely) or a mitigant (lessen crime)  Self-Defense Excuse Doctrine  What defendant did is a crime and the only question is whether we will excuse defendant from liability for committing the crime  b/c of defendant and that particular circumstance  2 classic instances  Duress  Insanity  Worried about the fact that defendant‟s mind was overborne temporarily (duress) or permanently (insanity)  Duress usually involves another party  Insanity involves defendant‟s mind now working  Distinguished from a plea bargain which is prosecutorial discretion  Focuses on mental state when committed crime Competence to stand trial  Focuses on mental state at time of trial    52  Necessity  Yes, defendant‟s action was wrong, done voluntarily, intentionally, and with full knowledge of consequences; BUT thought that conduct was justified b/c it was forced on defendant by necessity  Done for sake of worse evil being averted  Examples  Boat case when men eat the cabin boy to save their lives  Declared 1st degree murder  Killed 1 to save 3  Law of necessity – may not kill life to save life unless in exigent circumstances  Break into someone‟s house to get fire extinguisher b/c need to put out a fire  May split jury b/c ask why didn‟t she call the fire department instead  Also, hard if this individual created the peril  Kill 10 to save a million  Harder as amount have to kill increases  Law won‟t give license to kill a whole bunch of people to save some  May give person a slap on the wrist but leery of saying conduct is completely justified  Never justified destroying life to save property!  If death is certain, property is in no way worth saving  If death is probable, it can get tricky  May not kill to save life unless in exigent circumstances.  Reasonability  Ask jury if this is a reasonable case where necessity might lie  Law says that anything is ripe for a potential necessity defense  Defendant must prove beyond a reasonable doubt that it was reasonable response in light of the circumstances  This is an absolute jury call as to whether we want to hear necessity at all  Stupid threshold – what makes sense is the original screen  Reasonableness inquiry usually easy to negotiate  Proportionality  Was this a proportionate/appropriate response to the dilemma that the defendant was presented with?  Would a reasonable person have acted this way?  Jury question to decide if defendant chose lesser of 2 evils and responded proportionally  Recognize that with necessity you are conceding to commission of the crime  Prosecutor will jump all over it  Self-Defense/Defense of others  Can be seen as a type of necessity doctrine  Used to be only defense of a loved one; but now want to encourage defense of everyone in trouble  Examples  Defend yourself, someone else, your property, or someone‟s property  Reasonableness  Ask what is reasonable in the situation  Imminence  Law requires that the threat be imminent or the harm be occurring 53    No opportunity for the party to get someone else to help  Presupposes that in self-defense you are your own police b/c no is there to help and you must react immediately  Don‟t have to wait for harm to occur  Reasonable that harm is about to happen b/c of threat  Threats to property in general is good enough, but imminence is key Proportionality  Did defendant, even in being reasonable in determining a justified defense of self, act reasonably in response to the threat visited upon him, someone else, it?  What is in proportionate? Force-Force equal?  Assault retorted by battery is ok  Battery retorted by aggravated battery  Someone hits you hard and you pull out a knife  One can reasonably escalate in his defense General rules  In a public place, reasonable evasion is required (if you can get out, you must)  If someone tells you to hit them first and you do, you can‟t later claim self defense  Exception: Never have to evade on your own property; can‟t escalate or encourage; may engage in verbal retaliation but don‟t have to evade  If kid pulls out a knife on you, you can pull a knife on him on your property  Never OK to kill in defense of property  Can use force to protect property if you are on your property  If someone is threatening property on your real property then they are threatening your person as well  Same as if some takes it from you (presence; wingspan)  If someone takes property, you have to try to get it back by nonassaulting means  Mortal Force/Deadly Force is reserved only for deadly/serious crimes against the person – use of instrumentality that has death as its reasonably likely consequence when used or something you know to be deadly  Severe/aggravated battery, kidnapping, rape, attempted homicide, sometimes hijacking  People v. Goetz, (NY 1986), p. 751  Use of mortal force to engage in self defense  Issue – grand jury instruction given by prosecutor about whether or not this is a case where self defense can be used  Reasonableness – objective/subjective  Prosecutor  objective reasonableness  General person  Defense  Subjective reasonableness  Can you take into account that he was robbed previously?  Prior instances of interactions between Goetz and African Americans?  His background, his circumstance, his position?  Is there a threat of imminent bodily harm such that the defendant‟s defense is warranted?  If they had deadly instruments, there is definitely imminent danger (not so in this case)  Is this a proportionate response to the threat?  Was there reasonable evasion? – If not in home, have duty to deescalate if you can  Take each shooting individually  Guy next to him  maybe 54  Guy on the side of him  maybe  The other two  probably not  These are fact questions for the jury to decide  Don‟t want to take these questions from the jury  Jury decides that self-defense in this case is warranted   Objective reasonableness is what NY court ultimately instated Doctrine of Duress  Echo of doctrine of voluntariness  Seeing whether defendant‟s mind was completely overborne by physical, mental pressures of third party  No longer capable of acting volitionally  If it is nature, etc. pressuring person, then deal with necessity doctrine  Used when trying to defeat volition factor in a case  Complete jury question of whether person is completely overborne  Person has committed a crime but we will not convict him and give him a record for this  This is an early prima facie case inquiry and a last resort use as well for the defense  Extremely subjective view  Can be a backup to necessity 55