Criminal Law – Levine I. CRIMINAL LAW A. Public policy theories behind criminal law 1. Retribution Principle–punishment a) Person is morally blameworthy (1) Moral condemnation of the community b) Not only the act, but the person and their state of mind that is wrong 2. Utilitarian Principle–deterrence a) Cannot deter someone if the state of mind is not present B. Limits on Criminal Law 1. Ex post facto laws 2. Cruel and unusual punishment 3. Deprived of life, liberty or property w/o due process II. ACTUS REAS A. Voluntary Act 1. Martin v. State (martin not convicted of public drunkenness b/c was forced out of his home by the police) 2. State v. Utter (father kills son out of “conditioned” response, still found guilty in WA State) a) Some affirmative defenses, but state by state case on conditioned responses B. Omission: the failure to do an act or withholding of a benefit. (Duty + Breach of duty + causation = culpability) 1. Can be held liable for an omission if.... a) Certain duties/relationships are created (1) Where a statute imposes a duty (2) Certain status relationship (parents/spouses/commander, etc) (a) People v. Beardsley (woman dies mixing morphine w/alcohol, state claims bf had duty, court reluctant to classify affair as a spousal duty, found not guilty) (3) Contractual duty of care (a) Barber v. Superior Court (doctors remove all life support and feeding instruments w/family’s permission, found not guilty b/c contractual duty ended once treatment proved to be ineffective) (4) Voluntarily assuming the care of another which deters others from administering help (5) Creates a risk of harm to another Criminal Law – Levine b) Knowledge that omission will cause a criminal harm c) Willful or negligent failure to rescue or prevent criminal harm d) Legal duty is established and an reasonable attempt to save the person is not made III. Mens Rea–a guilty mind or a guilty/wrongful purpose A. Cannot punish or deter a person without mens rea b/c it would go against the principles behind criminal law 1. Purposefully (conscious expectation, intent, desire) a) Transfer of Intent: a person intends the natural and probable consequences of his actions (i.e. intent to hit can transfer to intent to inflict damage) (1) People v. Conley (boy found guilty for serious damage to another after hitting them in the face with a wine bottle. Claimed that he didn’t intent the damage, but intent to act transferred to the intent to damage) (2) People v. Morris (act of intentionally entering a network and releasing a worm transfers to the damage caused by act) (3) Transfers b/c society is harmed in the same way (a) One Mens Rea can transfer to two+ Actus Reas (i) many courts will add consecutive charges (a) X&Y shooting V b) Intent can be inferred by: (Conley Case) (1) Words Spoken (2) Weapon Used (3) Force of the Blow/Act 2. Knowingly (high probability, actual awareness) a) Interpretation depends on the court. Two common meanings: (1) Actual Knowledge (a) State v. Nations (owner of strip club didn’t know girl was under 17 b/c she never check ID) (2) Should have known or had cause to know 3. Recklessly (awareness of probability, disregard, willful blindness) 4. Negligently (should have known) Criminal Law – Levine B. Mistake of FACT 1. If there is a mistake in factual circumstances, D cannot have necessary Mens Rea a) Mens Rea (Intent) can be interpreted by a jury based on words and surrounding circumstances (1) Whether Good Faith and/or Reasonable depends on jurisdiction (2) Burden of Proof is on the Prosecution to prove intent for Felonious Acts C. Mistake of LAW 1. Common law: A mistake in interpreting the law is NOT a valid defense a) Courts want to establish a bright line rule in order to prevent fostering lawlessness 2. Exceptions: a) Court must find that relevant statute was WRONG in order for D to claim as a defense (1) Hardly ever happens IV. CAUSATION (But for...) A. Actually and direct (proximate) cause 1. Grandparents/parents cannot be held liable for only the fact that they brought a killer into the world....factual cause, but NOT proximate case B. Acceleration–shortening life even if for only a few seconds 1. Oxendine v. State (father found guilty of homicide even though it was the gf beating of the son that inflicted the life threatening, 2nd beating accelerated death) C. Substantial Factor Test 1. Used when “But for” test fails... a) X & Y both shoot Z at the same time with fatal wounds (1) Public policy dictates that both should be found guilty even though the but for test does not work 2. Intervening Cause–possible defense a) Coincidence (1) Foreseeable: LIABLE (a) Kibbe v. Henderson (2 man leave drunk man in the middle of a dark highway after robbing him. Drunk man is later hit and killed by a car. 2 Men found guilty b/c intervening cause was foreseeable) Criminal Law – Levine (2) Unforeseeable: NOT LIABLE b) Response to D’s act (1) Foreseeable: LIABLE (2) Unforeseeable: NOT LIABLE V. Criminal Homicide A. Intentional (Murder & Manslaughter) 1. Premeditated a) Ways to look at premeditation (1) No time is too short to reflect on act of killing (a) State v. Schrader (man gets into an argument with an owner of a war souvenir shop who was known to carry a gun. Man stabbed owner 51 times) (2) Must allow for some time of reflection (a) only a heightened intent = premeditation (3) Statute Specific (a) Some states of done away w/premeditation requirement b) Some state statutes might make the distinction between the premeditation to hurt and the premeditation to kill (1) Midgett v. State (father abuses son regularly, son ends up dying, but father’s premeditation is in hurting only) c) Ways to determine premeditation (1) Provocation on the part of the deceased (2) Conduct and statements of the D before and during & after killing (a) State v. Forrest (son kills his terminally ill father in the hospital b/c he promised he wouldn’t let him suffer) (3) threats and declarations of D (4) Ill-will or previous difficulty (5) render blows after V is helpless (6) evidence killing was done in a brutal manner 2. Additional facts of the case can mitigate a charge done to manslaughter a) Only asks for a lesser charge, does not allow D to completely get off (1) Girouard v. State (army man shoots wife after she goes on about what a horrible husband he is and Criminal Law – Levine tells him how she’s filled abuse charges and spoke w/his superior) (a) Words alone are not adequate provocation (b) Rules of Provocation (for state of Maryland) (i) adequate provocation (ii) killing must have taken place in the heat of passion (iii) must be a sudden heat of passion w/o time to cool off (iv) must have been a causal connection b) General Cases that would Apply (1) Finding spouse having sex with another (2) mutual combat (3) resisting an illegal arrest (4) assault & battery (5) injury to a family member B. Unintentional 1. Murder Charge a) Some states require a malice requirement (1) CA states as a abandoned and malignant heart (a) Berry v. Superior Court (D’s pit bull mauled and killed a 2 yr old. Was sold as a fight dog and used to protect marijuana plants) b) Courts’ test for Malice: raising manslaughter to murder (1) high probability that behavior will result in death (2) Subjective appreciation of the risk by D (3) based in antisocial purpose 2. Manslaughter a) Simple negligence can give way to homicide...use objective, reasonable standard (1) ignore any ignorance, subjective good faith and good intentions (2) People v. Fuller (D were stealing tires and hit pedestrian during get-away police chase) b) Common law states gross negligence required (1) can be re-defined by statutes (a) can be excusable if D used ordinary caution (2) State v. Williams (Parents found guilty of negligent homicide when they failed to take their baby to a doctor. Baby died of a tooth infection) Criminal Law – Levine VI. Felony-Murder Rule (Felony, with mens rea + death + causation = Murder 1) A. Doesn’t matter if death is accidental or unintentional B. Reasons for Use 1. Deter felons from using “as much” violence 2. Deter people from committing felonies C. Limitations 1. Underlying felony must be inherently dangerous to life a) Potential felon is not deterred if not inherently dangerous b) View One: felony must ALWAYS be inherently dangerous (1) People v. Burroughs (self-healer kills patient w/leukemia after abdominal massages causes severe internal bleeding. Practicing medicine w/o a license is not inherently dangerous..everyone does it) c) View Two: Felony must be dangerous in given situations w/given facts d) View Three: abstract OR facts of the case 2. Underlying felony must not be an integral part of homicide...must be separated a) People v. Smith (Mother and BF abused 2 yr old daughter who fell back, hit her head and died of respiratory arrest. Abuse was WILLFULL and therefore cannot be separated) b) Felonies that wouldn’t count for felony-murder (1) Assault w/a deadly weapon (2) Aggravated Battery 3. Must still include causation a) King v. Commonwealth (D was with V in plane transporting marijuana. Plane crashed into mountain b/c of poor weather, death of V was not cause by the felony) (1) Mens Rea must be included in the Felony D. Expansion 1. Can apply felony-murder rule to all acts leading up to, during and immediately following the felony a) People v. Stamp (D still responsible for heart-attack of V even though it was after D had committed the burglary and left the house) 2. Co-felons are responsible for the actions of each other a) State v. Bonner (Security guard shot one felon during a robbery. Ds not responsible for his death b/c action was committed by an adversary) Criminal Law – Levine (1) if individual committing the act is not culpable, cannot hold Ds liable....Security could claim selfdeffens 3. Also applies with ANY person causes the death of any other non-participant 4. Agency Approach 5. Proximate Causation Approach VII. Defense to Criminal Homicide A. Self-Defense: The law of Necessity 1. Can use Self-Defense against unlawful and immediate threat of deadly force a) Words alone are not enough provocation 2. MUST have REASONABLE belief that response is necessary to save one’s life a) MUST BE SUBJECTIVE AND OBJECTIVE (1) People v. Goetz (D shoots 4 youths on NY subway. His previous experiences let him to believe he would have been mugged and severely beaten) 3. Aggressor DOES NOT have self-defense claim 4. Exception a) Adversary can become victim is there is an attempt to withdraw and there was a good faith attempt to do so (1) US v. Peterson (V is trying to steal windshield wipers, D had opportunity to stay in house, became the aggressor when he went out and provoked V not to leave) 5. Retreating a) Majority: Castle Doctrine (1) do not need to retreat, take pride in defending home b) Minority: (1) if safe retreat is possible, it is necessary 6. Battered Spouse Syndrome a) Not a sufficient reason for self defense b) Still need requirements: (1) D believed killing was necessary (2) an ordinary person under the same circumstance would find behavior reasonable (a) MUST BE IMMINENT with NO ALTERNATIVE (i) kill of be killed (ii) imminent – no other way of getting help Criminal Law – Levine c) State v. Norman (D did not have defense b/c husband was asleep and she would have been safe if stayed at mother’s house) B. Defense of Others 1. Requirements a) Reasonable person would believe intervention is necessary b) 3rd person (victim) would be justified in using force (1) mistake IS allowed as long as D reasonable thought person needed help 2. Force CANNOT be excessive 3. Commonwealth v. Martin C. Defense of Property 1. Some States: D allowed to use all force necessary to prevent entry 2. Common View: D allowed to use all force necessary to prevent entry AS LONG AS D reasonably believes a felony will be committed inside the home 3. 3rd View: Deadly force allowed ONLY IF intruder is posing a danger to an immediate occupant D. Law Enforcement Defense 1. If no immediate threat to officer or others, deadly force NOT allowed 2. Test: a) Suspect is dangerous AND (1) suspect must threaten officer OR (2) officer has probable cause that suspected committed a crime involving or threatening serious bodily harm b) Use of deadly force is NECESSARY to prevent escape c) Warning must be given if feasible 3. Some jurisdictions allow for deadly force ONLY as a last resort and only when NECESSARY E. Necessity–choosing between two evils 1. Elements: a) Clear and imminent danger (1) Taken away by the Model Penal Code b) D reasonably expects his actions will directly abate the danger c) There is no legal alternative d) Legislature has not acted to preclude the defense (1) clear and deliberate choice regarding the values at issue 2. Commonwealth v. Leno (2 men could not use necessity for getting of needle charges. HIV is not considered imminent) F. Duress–from D’s perspective as long as reasonable 1. Elements: a) Immediate threat of death or serious bodily injury Criminal Law – Levine b) Well-grounded fear that the threat will be carried out c) No reasonable opportunity to escape 2. Difference from necessity...more human coerced 3. US v. Contento (D was being threatened by death and the death of his family if he did not traffic drugs into the US) G. Intoxication 1. Voluntary (self-induced) Commonwealth v. Graves a) Previous Rule: intoxication is only valid for MITIGATING charge (1) will not change the nature (a) murder cannot go to manslaughter (b) will not work on felony-murder b/c no intent for the murder part needed (c) Cannot completely get off b) New Rule: if statute requires a particular mens rea, and intoxication prevents that mens rea...CRIME HAS NOT BEEN COMMITTED (1) Not really a defense...attacks the intent element c) Legislature: goes back to the old rule 2. Involuntary–no actus reas b/c act was not voluntary a) Coerced Intoxication–under duress 3. Unexpected Intoxication–ingestion of medically prescribed drug a) Must not know of likely effect b) Prescribed drug must have caused intoxication (1) not anything else (2) not any combination against doctor’s orders c) Must render temporarily insane H. Insanity 1. M’Naghten Rule: D did not know the nature and quality of the act AND did not know what they where doing is wrong (cognitive focused) a) Does not agree with scientific understanding b) Requires expert witness to testify that D did not know difference between right and wrong 2. Irresistible Impulse/Volitional Test (volitionally focused) a) D DOES know right and wrong b) D is irresistibly driven to do the act (1) duress of the disease, no choice or power to do otherwise c) Not liked by court b/c seems to require sudden/explosive fit 3. Durham/Product Test a) “If act was product of mental disease, then not responsible” (1) circular reasoning b) Tends to allow expert witnesses to take away jury’s trier of fact power 4. Model Penal Code Test Criminal Law – Levine a) Elements: (1) D cannot appreciate conduct was wrong OR (a) Cognitive (b) better standard b/c broader (2) D lacks ability to conform conduct to requirements of the law (a) Volitional b) Changed after assassination attempt on Pres Reagan (1) Insanity Defense Reform Act–requires D cannot appreciate wrongfulness of action (a) no volitional defense VIII. INCHOATE OFFENSES A. Attempt 1. Mens Rea a) Must have actual INTENT (1) any lesser mens rea is NOT valid b) Cannot Intent something that doesn’t have a necessary mens reas (1) Felony Murder (2) Involuntary Manslaughter (3) Any negligence 2. Actus Reas a) Must be supported by a PRESENT mens rea....future mens rea is not sufficient b) Must be MORE than Preparation c) Tests to Determine Actus Reas: (1) Dangerous Proximity to Succcess (a) Hyde v. US (robbers could not have succeeded b/c intended victim was not around) (2) Overt Act (a) direct movement towards crime after completing preparations (3) Tenn State Statute (a) Conduct would constitute a crime OR (i) if circumstances had been as D imagined (b) D believes conduct will cause harm w/o further actions OR (c) D as conducted a Substantial Step towards crime (i) Model Penal Code test for Substantial Step: (a) Possession of materials to be used during crime Criminal Law – Levine (i) must be specially designed for the crime (ii) no other reason for possession (b) Possession of materials is at or near crime scene 3. Abandonment as a Possible Defense a) Modern Trend: accept abandonment as an affirmative defense (1) D still have time to undo attempt (2) MPC § 5.01(4)–must VOLUNTARILY abandon attempt b) Traditional View: if elements have been established...NOT AN AFFIRMATIVE DEFENSE (1) there still is some harm to society B. Assault 1. Traditional Elements: attempt to cause...bodily injury 2. Model Penal Code §211.1©): attempts by physical menace to put another in fear of imminent serious bodily injury a) Only need attempt to cause FEAR...not necessarily injury C. Solicitation–involves the asking, enticing, inducing or counseling of another to commit a crime 1. “An attempt to conspire” a) WILL MERGE with conspiracy once the other person agrees (1) cannot have both solicitation and conspiracy 2. Most courts say there can be an attempted solicitation a) i.e. mailing of a letter that is never received 3. Crime is completed as soon as the solicitor encourages another to commit a crime 4. State v. Mann a) Solicitation can be more dangerous b/c actor would have remained passive if not encouraged b) Solicitor is more culpable b/c he is hiding behind the actor D. Conspiracy–mutual agreement or understanding. expressed or implied by 2+ persons to commit a criminal act or to accomplish a legal act by unlawful means 1. Actus Reas = agreement (expressed or implied) a) Must also include some kind of an overt act (Pinkerton v. US) (1) modern view 2. Mens Rea– a) Intent to combine with others AND Criminal Law – Levine b) Intent to accomplish the illegal objective 3. Can be inferred from surrounding factors (Commonwealth v. Azim) a) Association with alleged conspirators b) Knowledge of the commission of the crime c) Present at the scene of the crime d) Participation is the object of the conspiracy 4. DOES NOT MERGE...can be combined with substantive crimes a) In order to convict of substantive crime must show (1) Was part of the conspiracy (2) Evidence shows that D was not part of committing the crime (3) Evidence shows D did not act to withdrawal b) In the case D abandons... (1) must show there was an affirmative action to withdrawal (a) will usually only goes towards a defense against the substantive crime, cannot really withdraw from a conspiracy once the agreement has been made c) Pinkerton Liability–Each conspiring partner acts for all the others in carrying out the crime (1) Doesn’t matter if a partner did not affirmatively act in committing the crime (a) must still prove conspiracy (2) EXCEPTIONS: (a) substantive offense is not in furtherance of the conspiracy (b) Substantive offense is beyond the scope of the conspiracy (c) Substantive offense is not reasonably foreseen as an outcome of the conspiracy (i) assume that all accept the natural and probably consequences E. Accomplice Liability–accomplice is guilty of the very crime that the principal was convicted 1. Requirements a) Must participated in some way (1) aider and abettor (2) present and knowing of crime IN NOT sufficient b) Must share the criminal intent of the principal 2. Lookout: by prearrangement, keeping watch to avoid interception or detection or to provide warning...thereby participating in the offenses charged a) Does not need to be an active participant 3. Accomplices can also be found guilty for secondary crimes Criminal Law – Levine a) State v. Linscott (accomplice found guilty of murder although he only wanted to be part of the robbery) b) Requirements: (1) Accomplice intended to promote the primary crime (2) Commission of the secondary crime was a foreseeable consequence of participating in the primary crime 4. Possible actus reas: a) Actually commits the offense b) Does some act which forms a part c) Assists in the actual commission Directly or indirectly counsels or procures any person to commit the offense or to do any act forming a part