Common Law as a Source of Criminal Law 7 original offenses: mayhem, homicide, rape, larceny, burglary, arson and robbery o Used to be a difference b/w crimes and torts, but now most can be punished both ways Limitations of the Criminal Law Void for vagueness: o Fair Warning – a statute must give a person of ordinary intelligence fair notice that his contemplated conduct is forbidden by the statute. o Arbitrary and Discriminatory Enforcement Must be Avoided – A statute must not encourage arbitrary and erratic arrests and convictions. The Due Process Clause of the federal constitution has been interpreted by the Supreme Court to require that no criminal penalty be imposed without fair notice that the conduct is forbidden. Rule of lenity: court must construe criminal statutes strictly – resolve doubt in favor of the defendant o Ambiguity in the language should be resolved in D’s favor Ex Post Facto: o Makes an act criminal that was not criminal when it was done Cruel and Unusual Punishment Sources of Criminal Law Statutes (MPC, etc.) Administrative Regulations o 4 times as many as statutes o 7 times as many as judicial law Constitution Common Law (rare) Justification for Punishment Weapons society uses to prevent harmful conduct Purposes of the criminal law o Prevent social harm o Control social misfits o Safeguard non-harmful conduct o Give warning of what is an offense o Differentiate b/w severe and minor offenses What to Punish If your morals, or actions arising from those morals, effect the public good then the criminal law should enforce. People who do not have capacity need to be protected. Retributivism Punishment is imposed to vent society’s sense of outrage and need for revenege
The defendant must be punished to atone for their immoral actions Punishment justified by the moral culpability of those who receive it o Don’t have to penalize by doing to the criminal the crime that was committed Moral guilt of the offender is necessary condition of punishment o Morally culpable victims need to be punished o Gives people a duty to punish System in society in which everybody voluntarily sets upon themselves a system of both burden and benefit
Deterrence Threat of punishment deters potential offenders in the community o Specific deterrent: Punishment may deter the criminal from committing other acts Has been shown that increase in convictions will deter the most o General deterrent: Punishment may deter persons other than the criminal from committing similar crimes for fear of incurring the same punishment (U.S. v. Bergman – skilled man, committed a crime, how long to punish?) Threat of punishment through stigma and expressive condemnation o Influence of social group sanctions are most powerful determinants of conduct Rehabilitation Imprisonment provides the opportunity to mold or reform the criminal into a person who, upon return to society, will conform her behavior to societal norms. 3 stages: scare, determine type of criminal and base rehab on that and gauge seriousness of the crime b4 imposing sentence Prepare to live on the streets again and benefit society again Incapacitation While imprisoned, a criminal has fewer opportunities to commit acts causing harm to society. Requires punish for lengthy periods of time Accurately identify those who are most likely to reoffend and impose on them lengthy period of incarceration. Offenders must be prevented from reoffending Not proven to necessarily work Is there a difference b/w morality and the law? If so, where is the line drawn? State v. Chaney – military man, seemingly a good person, convicted of rape – given a seriously reduced sentenced based on what was recommended – do good people get more favor from the courts?) Theory of 3-strikes-and-you’re-out You commit the ANY felony 3 times, you’re automatically sent to jail for life – many states have amended it to say only violent crimes
Federal Sentencing guidelines No parole, max and min w/ 25% of each other General deterrent to crime – reflect crime, criminal and allow for training while in prison Mitigating circumstances can seriously affect sentencing terms (U.S. v. Johnson) Sentences may be lower due to outside circumstances (family, children) Is there such a thing as public morality? Yes – abortion, euthanasia, etc. All that is legal is not moral and all that is moral is not legal Starting the Analysis Statute o Findings and purpose o Definitions o Guts: relevance – do the facts apply? o Defense/Exemption o Constitutional? – On face/As applied Definition of offense Isolate definition o Prosecutor’s Prima Facie Case (what the prosecutor must prove) Material Elements of a Crime Conduct – Act, omission, possesion Result Circumstance You do not consider the Mens Rea of a crime a Material Element Actus Reus Basic Elements of a crime o Voluntary of act (thinking of doing it is not enough) o Omission and legal duty (no punishment for failing to prevent harm) o Mental state (mens rea) (guilty mind) o Summary Most crimes require mens rea and actus reus (and these must be concurring, but it does not have to be simultaneously – poisoning, etc.) Strict Liabilty does not require mens rea – occasionally there is a legal duty to act to prevent, but this is rare (mostly takes place with small violations and when there is not possibility of incarcenation) Voluntary Act: Must be a conscious exercise of the will Involuntary Act: acts over which the actor has no conscious control o Spasms, jerks, sleepwalking, etc. – can be a defense (People v. Newton) Omission and Legal Duty – a person will have a legal duty to someone else in these times o Parents taking care of their kids
o By statute (report child abuse) o Contract to provide care o Voluntary assumption of care o Creating of peril o Duty to control conduct of another o Duty of landowner Moral duty: most courts do not uphold this Possession: possession, or failure to get rid of something once you know it is there, can be enough for a crime
Martin v. State (was brought outside of his home by police, where he was arrested for public intoxication) Must be a conscious act, not something you are forced to do Model Penal Code Not voluntary acts: reflex or convulsion, bodily movement during unconsciousness/sleep, hypnosis, movement not the product or determination of the actor Ex: Burgarly is the breaking and entering of the dwelling of another in the nighttime with intent to commit a felony. Act? Breaking and entering Circumstances? Dwelling, nighttime o What is a dwelling? What is nighttime? Who be considered another? o Difference b/w common law and MPC: MPC will define everything Section 2.01 – Requirement of Voluntary Act: Omission as Basis of Liability; Possession as an Act. Conduct 1. Act a. Physical activity required i. Burglary: MPC 221.1 (1) p. 1086 b. Physical activity may not be specified – a result must be caused i. Criminal Homicide: MPC 210.1 p. 1076 ii. Causing or risking catastrophe MPC 220.2 (1) 2. Omission a. MPC: 2.01 (1) b. MPC: 2.01 (3) c. Expressly made sufficient by the law defining the defense i. MPC 220.1 (3) p. 1085 d. Imposed by law parents let child starve 3. Possession a. Possession is an act: MPC 2.01 (4) – requirement for knowledge b. Knowingly procured or received the goods, or knowingly possessed for a substantial period in which he should have been able to terminate the possession. Result
Most crimes do not include a result element consequence must be caused b defendant’s conduct: MPC 211.1 (1) (b) p. 1079
Circumstance External conditions that must exist when the engages in the conduct: MPC 223.3 (1): Theft by unlawful taking p. 1088 (It must be someone else’s property) MPC 213.1 (1): Rape p. 1082 Problems of Interpretation Always look to definition o General MPC 1.13 o MPC Part II Definitions of specific crime – any section followed by number “0” o Purposes and Principles Voluntary Act Must be voluntary: MPC 2.01 (1) Look at negative: MPC 1.13 (3), MPC 2.01 (2) Omission: MPC 2.01 (3) Pope v. State Lady kills her daughter while at Pope’s residence – Pope did nothing to stop it o Court determines she is not guilty b/c she was not guardian of the child – was an omission, but one she was not legally required to do Misprision of a crime – Obsolete Law Failure to report a crime Some states do penalize this – “Good Samaritan” code (RI, Vermont, WI) Higher sense of duty for family members Barber v. Superior Court Must try to save a patient’s life, once it is determined as non-beneficial, doctor can stop trying to save their life PHYSICIAN HAS NO DUTY TO CONTINUE TREATMENT ONCE IS FOUND TO BE INEFFECTIVE
Mens Rea People that know they’re doing something wrong: a guilty mind Traditional mens rea: truly immoral person Statutory mens rea: mental state of a person required by statute to be guilty Specific Kinds of Mens Rea Transferred Intent o “Intent follows the bullet” – but only follows on the same level as the original intent o If a defendant intended a harmful result to a particular person or object and in, trying to carry out that intent, caused a similar harmful result to another person or object, her intent will be transferred from the intended person or object to the one actually harmful. Oblique Intent – Common Law (similar to knowingly) Specific and General Intent o Specific Intent – Purposely, Knowingly, Intentionally The definition of the crime will require not only the doing of the act, but the doing of it with a specific intent or objective o General Intent Recklessly and Knowingly An awareness of all factors constituting the crime; the must be aware that she is acting in the proscribed way and that any attendant circumstances required by the crime are present. Willfully and Knowingly Knowingly almost the same as oblique – virtually certain (know) it will happen Willfully blind – don’t want to know what something is o Is considered knowingly and does not negate the mens rea. Recklessness Conscious decision to ignore a risk, of which the defendant is aware that a bad result will occur o Only when social good does not outweigh the risk Negligence as a Predicate for Criminal Liability Person who is negligent has not subjectively foreseen the remotest possibility that harm may occur o Courts tend to use the “really stupid reasonable person” test Subjectivity v. Objectivity o Higher degrees of training increase duty standard o Age/Physical characteristics can be used to determine level of duty Proving Mens Rea Culpability must specifically match law being applied – specific/general intent Mens rea and actus reus most occur at the same time
o Relevant actus reus must be the overt act committed, not the actual results that occurred In the MPC, assume the mens rea listed applies to all elements of the crime o If there is none, assume it is reckless In statutes written by the legislature, assume a knowingly mens rea Statutes about similar crimes must be similarly constructed o Use common sense – legislature isn’t always 100% clear MPC reduces mens rea culpability to 4 states o Again, reckless is the default position o In common law, mens rea is not required (act only) 4 Culpability Levels o Purposely Intentionally – be aware or hope or believe o Knowingly Oblique intention – practically certain to occur o Recklessly Actually foresee – of real importance o Criminally Negligent Mitigating punish. for those that may not deserve harshest level o **Each material element in every statute must be modified by one of the mental culpability states
MPC Allows for reasponable prudent person in the actor’s situation 1.13, 2.02 (2a-d) Always look at state or federal statutes first, but MPC can help mesh together when it isn’t all defined Ex: Conduct – Sexual Intercourse Result? None Circumstances? Not with his wife, not w/ consent What all parts does knowingly apply to? o If not statutorily defined, check with MPC – good place to check – MPC says that if is isn’t clearly defined, it applies to all elements If culpability is not defined, go with standard o MPC = recklessly o Federal = purposely Sexual intercourse wnot with his wife without consent Common Defenses to mens rea Involuntary act, duress, legal insanity, accident, mistake But did D know, intend or should have known about the consequences?
See Mens Rea2 in saved notes – read through discussions of cases Deliberate ignorance is the same as positive knowledge “head in the sand” provision: 2.02 (7) – req’t of knowledge satisfied by knowledge of high probability Need to act to avoid learning the truth
Causation When do we look at causation? o When the results are an issue o No clear line of reasoning to determine causation Two steps to causation o Is it the “cause in fact” of the result? o Is it the legal cause of the result? Cause in Fact o If the harm would not have occurred unless D had engaged in the conduct o Necessary req’t for the result to occur in the first place Omission as a cause o Purposely avoiding doings something that eventually leads to harm Concurrent Causation o 2 people do something that yields same result – CIF not needed b/c both intended same result Direct cause o When D’s act is only causal agent in bringing about the harm Proximate Cause o D should be held liable even when intervening cause helped bring harm Intended or reasonably foreseeable Not too remote/accidental as to fairly hold D responsible o Cannot be settled by physical sciences o Depend large part on policy and value judgments by judge/jury based on moral culpability of D Dependant Intervening Cause o One that was intended or reasonably foreseeable by D, or sufficiently related to his conduct, to impose criminal responsibility for causing harm o Another causal agent contributed to the result will not relieve D of responsibility Stabbing some guy and the doctor screws up but can’t save him Independent Intervening Cause o Harm was not intended by D or was not reasonably foreseeable o Simply unfair/unjust to hold D responsible for harm that has occurred Stabbing some guy and doctor grossly screws up and then can’t save him Judicial rules of thumb for finding dependent intervening causation o Harm intended or risked versus the manner in which it occurs Harm is intended, but resulting harm is different, intervening cause is dependant o Preexisting conditions and negligent medical treatment o Foreseeable human actions o Contributing Cause Judicial rules of thumb for finding independent intervening causation o Grossly negligent medical treatment o Irresponsible human action/Unforeseeable human action Somebody reacts to an action that is completely unreasonable
o Identifying the specific causal mechanism Contributory Negligence and Proximate Causation o Conduct by a victim that would be considered C.N. in a tort case doesn’t prevent a finding that D was the proximate cause of the victim’s death Ex: Drag racing cases
MPC Compares what actually happened versus what D thought or should have thought would happen o If the result differs from what the actor purposed or knew would occur, then D is not responsible unless: Different person/property is harmed D actually caused lesser harm than contemplated o Even if same injury occurred as intended, D is not responsible if unusual and unexpected causal mechanisms actually caused the harm People v. Acosta (car chase, 2 helicopters crashed, charged w/ their deaths) Malice was not present o Results were foreseeable – strict liability?? People v. Arzon (A lit fire, FD came, FD died when 2nd fire trapped them) Was no intervening cause – realistic to think that FD would respond to a fire o No 1st fire, FD may not have gotten trapped in the 1st place o FD been killed by a sniper, Arzon would have been ok – indep. Variable People v. Warner-Lamber Co. D always “takes his victim as he finds him” o Victim dies of heart attack during a robbery, D is presumed liable o Victim dies of heart attack 4 hours later while playing cards, D not guilty People v. Campbell (D convinces Basnaw to commit suicide – gives B the gun, then leaves) Providing the gun was not homicide, but many states have enlisted assisted suicide statutes – human intervention o Diff. b/w “help preparation” and “actual help” Foreseeability v. Autonomy Culture now says that people control their own actions – somebody puts you in a position, still your choice to actually conduct in that action Stephensen v. State (man abducted a woman and molested her – she took some poison to kill herself) Extended liability in criminal law – doesn’t apply to legal acts o Is a limit to where it stops Commonwealth v. Root and State v. McFadden (drag-racing cases) Root: not guilty, was not direct cause of victim’s deaths McFadden: Iowa applied tort law – was the proximate cause by drag racing to begin with
Mistake of Fact Common law acquits those who, because of mistakes of fact, commit a crime o Only reasonable excuses o In cases of “specific intent,” only the “really” bad should be convicted Specific Intent – listed by the statute – has a mens rea element in the definition o Honest Mistake is a defense o Burglary o Didn’t honestly believe that the house you were breaking into was your buddy’s house that you had been invited to, it was an honest mistake and is thus a defense General Intent – intent to commit the act o Honest and reasonable mistake is a defense o Conduct must not be criminal if the facts were as the defendant believed them to be Defendant is criminally responsible for harm that he unintentionally causes as a result of a reasonable mistake of fact if his conduct is immoral/illegal based on the facts as he believed them to be Ex: Suppose I own 5 houses, and I instruct somebody to burn down one of them. They burn down the wrong house and I am charged with arson – why am I not convicted? B/C I had an honest and reasonable belief that the house they were burning was mine – I can’t be penalized for their mistake
Knowledge and Willful Blindness Common Law says that people have a duty to inquire when the facts are highly suspicious Mistake of Legal Fact If it is a legal mistake, no amount of reasonableness can exculpate The Model Penal Code View “…ignorance or mistake as to a matter of fact…is a defense if: o It negates the purpose, knowledge, belief, recklessness or negligence required to establish a material element of the offense” A D who honestly, no matter how unreasonably, believes that the fact does not exist does not know the contrary o Any mistake “negatives” the requisite mental state o Except for willful blindness A Note on the Future of Mistake Only subjectively culpable defendants should be punished Courts are beginning to see no difference b/w legal and factual mistakes Regina v. Prince When there is no mens rea listed, the crime is considered general intent, and as such, the mistake needs to be both honest AND reasonable o Specific intent requires purpose, knowledge, reckless, etc – mens rea – if there is one, then the mistake needs to be honest only
Strict Liability Act only imposes liability o “Public welfare” or “regulatory crimes” Usually only incur fines, etc o Rarely, if ever, a jail sentence Mallum prohibitum – is guilty by its nature Mallum in se – prohibited by statutes If there isn’t intent in the statute, try to determine what the Legislative Intent is Litmus test for available punishments o If the max penalty consists of no more than a light fine, and if the character of the offense is such that the infraction involves wide-spread public injury, S.L may be proper Strict v. Vicarious Liability o Hold the owner liable for a strict liability action of its employees? Alternatives o If deterrence is deemed necessary, leg. Could add a crime of recklessness and severely increase the penalty o Req. the state to prove negligence
Recap and Methodology If imprisonment is possible, statute cannot impose S.L. If statute contains mens rea, then it is likely that the word modifies all material elements of the offense If statute does not contain any mens rea, then: o If it involves a complex regulatory scheme, it may be S.L. as long as it isn’t an original common law crime, or it can impose a severe jail term (usually more than 1 year) o If it involves a complex regulatory scheme, it may be S.L. Public Welfare Offenses o Nature of neglect where the law req’s care, or inaction where it imposes duty Many create simply a danger or probability of which the law seeks to minimize Staples v. U.S. Knowledge simply of possession of object Knowledge, in addition, that the object in itself violates the statute Knowledge, beyond dangerousness, of the characteristics that render the object subject to regulation State v. Guminga Vicarious liability – civil offenses first, escalate them if they don’t work Regina v. City of Sault Saint Marie Administrative Efficiency
o Proof of fault is too great of burden in time and money to place upon the prosecution – absolute liability is the most efficient and effective way of ensuring compliance w/ minor regulatory legislation Defenses to S.L. If a person is already taking every reasonable precaution, is he likely to take add. measures, knowing that regardless of what he does, it can’t be a defense? Options to minimize it: o The act proves the prima facie case of the prosecution – but the D can avoid liability if they can prove that they took all reasonable care Supreme Court has held that absolute liability is unconstitutional
Mistake of Law Common law o Mistake of Law not a defense (Issues that are determined by the judge) o Mistake of non-criminal law (issues determined by a jury) Specific intent: Honest mistake that negates is a defense General intent: Ignorance of law is no defense MPC o Mistake of law is a defense if it negates a mens rea element o Exceptions Not property “published” Reasonable reliance – official lstatement, statute, judicial decision, administrative order, official interpretation of top official Most courts are beginning to hold that if D relies on advice, however unreasonable, it would exculpate Ignorance of the law is no excuse o Duty to inquire Reasonable reliance does not protect advice from attorneys o Theory is that attorneys may be encouraged to lie about the law in order to protect their clients
People v. Marrero Mistake of law o Who defines who a peace officer is? The judge – it is a criminal law mistake, so mistake of law is not a defense If the mistake negates the mens rea element, it is a valid defense Cheek v. U.S. Mistake of criminal law o Judge determined that not paying taxes was a crime – wasn’t a jury determination o There was a mens rea element – w/o willfully, it can’t be a mistake of criminal law Cheek did the conduct – knew of the law, can’t then claim misunderstanding of the law – could have at least gotten support for his belief U.S. v. Albertini Can’t be held liable for knowing a law that hasn’t been published/decided yet Must be notice of a law before people can be expected to know it
Proportionality Sentence same for similar offenses o Similar to other jurisdictions Value of the punishment can’t be less than what is sufficient to outweigh the profit of the offense When two offenses come in competition, the difference must be sufficient to induce a man to prefer the less offense Legality Person may not be prosecuted under a criminal law that has not been previously published If there is too big of a gap in the law, then the Legislature needs to address it, not the Courts o Too ambiguous for a Judge to determine it all Discretion ultimately applies mostly to the police b/c they are the ones upholding the law o Limit by making it specific – don’t allow police room for interpretation where you don’t want them to Jury’s job to decide levels of morals w/in the public Court can add persuasion, but they can’t change the law
Homicide Unjustified killing of a human being by another o w/o justification or excuse o Justifications Self-defense Defense of property Use of force: arrest, escape, crime prevention Conduct which the criminal law does not seek to deter or prevent o Excuse Infancy Insanity Involuntary intoxication Duress Entrapment st Murder (1 and 2nd degree) o Willful, deliberate, premeditated o Extreme indifference to human life (recklessness plus) o Felony murder Murder that occurs while a felony is being committed Manslaughter o Voluntary – would be murder but for provocation Heat of passion Adecquate or reasonable provocation (see below) Before reasonable time to cool off o Involuntary Recklessness Unlawful Act Doctrine Negligent Homicide (this may also be a division of manslaughter – may also not be homicide at all depending on the jurisdiction) o Simple negligence o Recklessness minus
Murder First Degree o Premeditated, willful and deliberate Thought about doing it (includes even split-second decisions) Brooded over it for some time (deliberated) o Increasing # of courts have 3-step method for this Planning activity Motive Manner of killing Second Degree o “Default” position o Was the killing a “murder” o Was it “premeditated, deliberate and willful?” o If yes, then 1st degree; if not, then 2nd degree
Felony Murder Any death occurring during the course of a felony is murder o From of strict liability o Theory of transferred intent Restrictions on the Doctrine: “Cause” Questions Proximate Cause Theory “In Furtherance” or “Agency” theory o Furthers along the intention of the crime o Accomplice/agent of the criminal also the guilty party Shield Cases o Using a bystander as a shield during a crime Other Restrictions Killing must be done “during” the felony o Must come w/in a reasonable time to the felony committed “Merger” or “Independent Felonies Purpose” Doctrine o Predicate felony must not be one involving personal injury “Inherently Dangerous Felony” Rule o Felony can only be used as the basis of a conviction if D was engaged ina felony that created serious risk of death o Dangerous described in the abstract If the felony is not dangers to human life in most cases, it is not considered dangerous “in the abstract” o Only when truly dangerous felonies are carried out in nondangerous ways can the full impact of the doctrine be put to the test o Most courts have abolished this rule – if you’re going to commit a felony, you have to deal w/ the consequences MPC approach limits it to certain crimes Manslaughter Voluntary is a killing is done “on a sudden” in the “heat of passion” after “adequate provocation” Involuntary is either merely reckless or criminally negligent Voluntary Manslaughter “Legally adequate Provocation” o Adultery – words alone cannot be enough Reasonable Man Test Cooling-Off Period o Now a jury matter Involuntary Manslaughter Reckless and Negligent Manslaughter Misdemeanor-Manslaughter (manslaughter version of felony murder)
Determine premeditation w/ the facts of the case o Witnesses, stuff like that – cross-examination Provocation and murder o Point to which you just can’t handle the abuse anymore o Cannot be expected to “guide” your anger o Judge must decide if the evidence provided is enough to even suggest the idea of provocation MPC – Might cause a reasonable person in the passion of the moment to lose self-control and act on impulse w/o reflection o Implies that people in the passion of the moment lose ability to control their actions Rekindling defenses are not provocation!
Provocation Objective test (why actor was mad) o Reasoning behind the act must be reasonable excuse for the actor’s disturbance Subjective test (actual act – what actor did in response to provocation) o Act itself must be what a reasonable man would do in that particular case Gross negligence can equal recklessness (involuntary manslaughter) o Substantial and unjustified to make it reckless Ex: Commonwealth v. Welansky o Fire started in the club, killed a bunch of people o Objective standard? Even if he was ignorant to the point that he actually didn’t know, he should have known o Subjective? He personally admitted that the club was designed by him – that’s how he knew of the dangers
Three Different Options of Unintentional Killings Involuntary Manslaughter: Wanton and reckless (wanton has a depraved heart element); gross negligence (unaware of the risk – gross disregard for life that reasonable person would have) o MUST separate from civil law o Gross negligence or recklessness substitutes for actual mens rea o Contributory negligence not a defense Negligent homicide Murder III Break into classes as to what they did based on the risk the people took to avoid the harm MPC A person acts recklessly w/ respect to the death of another when he consciously disregards a substantial and unjustifiable risk that his conduct will cause that result.
Additionally, the nature and degree of risk must be such that, considering all the circumstances, its disregard “involves a gross deviation from the standard of conduct that a law-abiding person would observe in the actor’s situation.” o Also allows for a lesser degree of this, known as “negligent homicide” – D acts w/o knowledge of such a risk Gross recklessness can equal malignant heart = murder not manslaughter o (Extreme Indifference to Human Life) o Malice is a difference of degree, rather than kind (can be reckless enough, as opposed to yes or no)
Felony Murder A person who has the culpability for any felonty will be convicted for murder if, during the course of the felony, another person is killed Limitations: o Inherently dangerous o Independent felony limitation o Killing not in furtherance of the felony Agency theory Proximate cause theory o Act done in conscious disregard for life Intent for the murder is the intent for the underlying felony o May come across constitutional issues If you’re going to commit a felony, at least be conscious of other people while doing it Many jurisdictions have narrowed it to only a few crimes (rape, robbery, etc) Inherently dangerous – view it on the whole and in the abstract, not literally and by-thefacts
Misdemeanor Manslaughter Any death that occurs during the commission of a misdemeanor Any (unlawful act) will be involuntary manslaughter Limitations o Malum in se o Inherently dangerous o Committed in a manner that was dangerous to life The Merger Doctrine If the underlying felony is the reason that the person died, you can’t piggyback a felony murder charge along with it o Ex: Assault leads to death – can’t use the assault as the underlying felony Agency Theory In furtherance of the crime Shield cases Killing of felons is justified – protect your property, etc.
Was the killing w/in foreseeable risk of the commission of the felony? Disregard for life o Felon acting in such a way that it was putting everyone at risk (reckless robbery that was so dangerous that it lead to shooting) Jury usually makes this decision
Attempt Inchoate offenses o Incomplete or imperfect offenses Attempt: D attempts to perpetuate an offense by himself Solicitation o Another person is brought into the picture Conspiracy o Commit the act for him; help him in a joint effort Attempt consists of an act that falls short of completion of a specific criminal offense – committed w/t he intent to complete the offense Mens rea of attempt is the mens rea of the target crime Smallwood v. State: Man tried for attempted murder for having sex w/ women while knowingly having AIDS. Convicted o Recklessness plus not enough to show specific intent
The Wrongdoing Process 1. Conceives of the criminal idea 2. This about it 3. Intention to go forward 4. Preparations to commit the crime 5. Beings to commit the offense 6. Completes the crime Mens Rea Must intend… o To do that act o To accomplish the result o Under the same circumstances Actus Reus Last act o D must’ve taken the last step w/in his power to commit the target offense o Provides D w/ max time to change his mind Proximity test o Provides flexibility but also creates uncertainty about when an attempt occurs Probable desistance o Only an act that would normally be sufficient to result in the commission of a crime “but for” the intervention of some outside person or event is sufficient for the actus reus of attempt MPC Requires a substantial step towards the commission of the crime Mens rea o Conduct Purposely engages in all the elements
o Result D acted w/in purpose or belief that his act would cause a certain result o Circumstance Mens rea of the target offenses controls all the circumstance elements Actus reus o Dangerousness of the offender based on her criminal determination rather than on how close she is to committing the target offense o Last act
Abandonment Once you cross the line b/w preparation and implementation, you can’t go back Must be voluntary Must be complete o Can’t just find a better time to do it Impossibility Cannot break a law that isn’t an actual law Can be convicted of attempt even though it was factually impossible for him to accomplish his goal o Must be proven that it’s actually illegal, regardless of the actual facts w/in case Attempt requires a specific intent – purpose – to produce the result, even when the conviction of the lesser offense may require a lesser level of mens rea Attempted felony-murder does not exist Once you cross the line b/w desire and actual attempt, you can’t come back o But may help in sentencing MPC moves attempt line closer to state/police, but it also gives them a renunciation defense w/in substantive crimes, because attempting to doing the act is actually doing the act, many states have added a “preparatory behavior” addition to the attempt statute Three tests for culpability: o Culpability required for the crime o Substantial step – engaged in conduct that demonstrates it o Substantial step must be strongly corroborative of their criminal attempt Conduct is strongly indicative of the goal ** Actions may define a substantial step, as long as they are serious enough o Some states say that solicitation can be enough for attempt True legal impossibility is a defense o If there is no statute to violate, how can it be violated? Factual impossibility – Crime cannot be committed b/c of some condition unknown to D o Not a defense under common law o Go to pick somebody’s pocket, but they aren’t carrying a wallet – still a crime
If D believes it to e a crime, or intends for it to be a crime, even it if factually isn’t possible, it can still be a crime
Complicity Imposes criminal responsibility on individuals for a crime committed by someone else, usually b/c the secondary actors have intentionally helped or encouraged the primary actor to commit the crime Physical aid o Actually helping; lookout, etc. Psychological aid o Encourage, reinforce **Dependant on the primary part actually committing the crime By intentionally helping another to commit the crime, they have demonstrated the same mens rea as the guilty party, so they are just as socially dangerous
Principles and Accessories Principle in the 1st degree is who commits the crime or uses an innocent agent to do so Principle in the 2nd degree is who intentionally helps/encourages P1 to commit the crime Accessory before the fact (A-BTF) is someone who intentionally helps before hand o Obtain murder weapon, etc – not actually present @ time of the act Acessory after the fact (A-ATF) someone who intentionally assits after the crime o Furnish plane tickets to leave, etc. MPC considers all actors, minus those involved after the fact, as equally involved Actor only charged where crime committed; A-BTF tried only where assistance provided Can be charged as either primary actor or accomplice b/c they’re on the same level; not on same level, can’t be charged as such A-BTF can’t be convicted if primary actor isn’t convicted first Accessories act w/ at least the same mens rea as the primary actor o If specific intent required for the crime, it must be the same intent o Attempts to aid also sufficient for mens rea Being present at the time of the offense is enough to cover actus reus; offering encouragement is also enough (unless actor can’t hear the encouragement) o Not doing something you’re legally req’d to do is enough Can’t prosecute a guy for being a principle actor when he’s a necessary part of the crime itself In order to withdraw from being an accomplice: o Inform actor to not commit the offense o Do everything possible to render ineffective any aid she has already given Do these in sufficient time to prevent actor from using help Intent must be to have the meaning of the words the accomplice are accused of having
Purpose of the assistance (gradation of the crime) o May be so blindingly obvious that the assistance leads from accomplice to principal Has been held that if you make a crime happen faster, you are an accomplice, even if the crime would have happened regardless o Aid doesn’t have to be known-of But if there is an attempt to aid, even if the aid doesn’t actually occur, that is still enough **Remember entrapment defense Justification typically will not apply to the accomplice (minority rule)
Liability w/in the Corporate Framework Corporations can commit a large class of crimes Corporate liability usually limited to regulatory offenses Usually held liable for its agent’s actions if agent: o Commits a crime o w/in the scope of the employment o w/ the intent to benefit the corporation Courts are divided about whether actual “knowledge” is required Alternative to this view: o Corporate “ethos” Only if the way of corporate living encourages agents of the corporation to commit the criminal act Corporate policy rationale o If it is beneficial, hold the corporation liable o Employee can show corporate policy by his acts and lack of control by the actual policy “Responsible Corporate Officer” doctrine o Theory that establishes liability simply b/c of the officer’s position in the corp. o Courts are slow to recognize situations in which it was “objectively impossible” to avoid the harm
Self-Defense A threat of; “imminent,” unlawful (serious) bodily harm to which there are, or appear to be, no available alternatives to D except for use of force Sometimes… o Nonculpability on the part of D in bringing about the situation o Sometimes preemptive strikes are ok, but not very often Unreasonable mistakes are not excuses
Deadly force Actual or apparent threat of deadly force Threat is unlawful and immediate Imminent peril of death or serious bodily harm and that this response is necessary to save his life o Honestly entertained; objectively reasonable If negligently/recklessly formed, may still be convicted of type of response used in the defense Withdrawal o Must state they are withdrawing o Physically removed themselves from the immediate area If person attacked isn’t unlawful, they can typically respond w/ deadly force **Most courts allow at least a partial-acceptance of battered-wife syndrome
Exculpation 3 defenses for crimes o Prosecution failed to establish one or more req’d elements of the offense o Justified o Excuses – suggest further considerations that negate culpability even when all elements of the offense are clearly present Can only use same level of self-defense as aggression used against you Most courts have held that killing during sleep is not self-defense, but acceptance is growing in that area Victim actually required to know that they are in imminent harm – if pistol is fake, but you think it is real, can’t be a defense Usually up to prosecution to disprove self-defense
Battered Woman Syndrome Learned helplessness Courts moving more towards a reasonable “battered woman” standard
Retreat req’d in about half the states o Usually not req’d in your own home If you start a fight, and somebody responds w/ deadly force, you can’t then turn around and use deadly force as a defense as well
Defense of Property and Habitat Not available if there are timely legal means Must warn aggressor before attacking, unless warning would be useless Can only use deadly force if there is going to be a felony committed therein Can’t use mechanical devises to protect real property if you aren’t there o Can use non-deadly forces if you post a warning Negligently formed beliefs are not defenses to deadly force being used MPC says you can only use force in “fresh pursuit” o Request to desist o Risk of serious bodily harm not permitted o Deadly force only if: Believes aggressor has no claim to the possession Aggressor committing serious crime and has used/threatened deadly force Non-use of deadly force expose you to substantial danger of serious bodily injury o Mechanical devises permitted as long as they don’t threaten death, are reasonably used or a warning is given
Arrest – Use of force Can arrest w/ reasonable belief suspect committed felony, or actually commits misdemeanor in their presence Deadly force only when crime is a felony, and felon trying to escape – only way to prevent escape is to use deadly force o If practical, warning must be given MPC o o o o
Arrest for a felony Person is a peace officer or assisting someone she believes is one No substantial risk to innocent people Arresting for crime involving use of threat of deadly force or there is a substantial risk of death/bodily harm if apprehension is delayed o If belief recklessly/negligently formed – prosecuted for applicable offense
Most jurisdictions now require that deadly force only applicable in serious crimes o Rape, murder, robbery, etc. o Protection of property is of higher importance than protection of self Killing of one usually acceptable to save the lives of many o But only in “extreme, ticking-time-bomb” situations **Euthanasia requires informed consent before you are allowed to do it
Duress Doctrines of Duress Well grounded fear, generated by A threat from a human being of An imminent (or immediate) Serious bodily harm or death To himself (or sometimes to a near relative) Not of his own doing Personal injury o No threat to property will sustain a duress claim Imminence o What exactly is imminence? Reasonableness of fear o Can’t fear unreasonably – objective standard To “Himself” o Can be threats to family now as well Creating conditions of duress o Can’t be responsible for the threat Duress and Homicide o Common law req’d you to give up your life to the threatener rather than fighting back MPC o Allows for objective standard in D’s situation Threats of slight injury or harm to property not enough Excuse or justification? o Justification says it is ok b/c of external factor; excuse says excusable under those circumstances o Lesser of two evils Subjective for person in those circumstances Objective for a person’s way of thinking Tangible factors objectively taken into account – size, age, etc. o Non-tangible factors subjectively taken into account – mental framework, etc.
Intoxication Intoxication can negate specific intent b/c it can eliminate the elevated level of mens rea o Not the same w/ general intent crimes o Means that you can mitigate the charges in specific intent crimes b/c of intoxication Alcoholism now occasionally viewed as a disability Has to be equated to insanity in order for it to be a defense General v. Specific intent analysis o Drunkenness can eliminate “superior level” of mens rea o Majority of jurisdictions
o Roberts case – can’t be guilty w/o requisite intent Ad hoc approach o Depends on how you define crimes o California court has to redefine the definitions of intoxication so it can fit into the crimes better o What happens when one of the elements of a general intent crime is a specific intent to commit the crime? o Hood case – intoxication prevents a more serious thought process to come up w/ a specific intent crime The approach that considers intoxication where factually relevant – except in crimes of recklessness o Broader version o MPC version Rejects as a defense except for premeditation in 1st degree murder o Stasio case o Completely eliminates intoxication as a defense **Typically, rape is considered a general intent crime o So intoxication usually cannot be used as a defense for the crime
Insanity