Flusche 1 of 26 Criminal Law
Outline
I. The Criminal Act A. Conduct 1. Doe v. Lafayette a. Facts – Doe, sex offender, banned from city parks after thinking about children b. Possible Criminal Prosecutions i. Doe didn’t commit a crime; no criminal offense ii. Molestation or statutory rape? – no act iii. Attempt? (a) He did not take a “substantial step” toward committing the crime (b) What would be a substantial step? – initiating contact with a child, maybe talking to a child iv. Stalking? (a) Requires: repetitive behavior AND put a reasonable person in fear (b) It’s not repetitive and didn’t make anyone afraid v. Loitering? (a) Many jurisdictions have “loitering, with intent to…” commit some crime (b) Loitering is easier to prove than attempt (c) Assuming that “loitering, with intent to molest children” exists, can you prosecute him? (1) What would defense say? – he had every opportunity to molest them, but he went home vi. What about making this a crime? (a) Registered sex offenders can’t go to the park (1) This can’t be imposed on Doe (ex post facto) (b) Illegal to think (favorably) about sex with children (1) This reaches Doe, but is unenforceable (2) But sometimes it can be easy to know what someone thinks 2. Significance of Act Requirement a. Criminal law requires an act to evidence the intention of the actor (act corroborates intention) b. But there are cases where the intention is known without an act c. If you have a case where intention is clear, why do you still require an act? i. This provides a clear boundary – point of no return – locus poenitentiae (a) This creates a boundary between my person and the coercive power of the state (b) Requirement of conduct is an ingredient of political liberty ii. Conduct also evidences the fixity of the intention (a) Many human intentions are “tried on for size” (b) Conduct proves that intention had will behind it B. Voluntary Act 1. Martin v. State a. Facts – he appeared in a public place and manifested his drunken condition b. Holding – but he didn’t appear, someone appeared him c. Is this an obvious reading of the statute and situation? i. Even if he appeared involuntarily, he voluntarily was boisterous or indecent ii. We routinely say that a defendant “appeared before the court”, even though he didn’t want to iii. This statute’s text doesn’t require that the appearance be voluntary iv. But the court doesn’t bother with the lack of voluntary mention d. Model Penal Code § 2.01 (p. 77) i. Voluntary act means act or omission 2. People v. Decina a. Facts – man had a seizure while driving and ran over and killed several children
Flusche 2 of 26 Criminal Law b. Holding i. His conduct included a voluntary act – operating a vehicle while knowing that he could have a seizure ii. To be convicted, must be “conduct which includes a voluntary act” c. Where do we create the line to say when an epileptic shouldn’t drive? i. Line drawing problem is solved in the text – driver must be reckless or culpably negligent ii. Don’t want to put the acquittal of Decina on voluntary act grounds – no one would be convicted in these circumstances iii. One bite rule – when dog bites the first time, it’s just one of those things; when dog bites the second time, owner is liable d. Crimes have a formula – AR + MR = X e. Voluntary act doctrine has to do with the conduct – whether it counts or not f. If you have done the conduct, you still have to have the state of mind (recklessly or culpably negligent) g. Requirement of voluntary act does not disable prosecution for drug or alcohol abuse 3. Other Doctrines a. Must be an act, and it must be voluntary (“minimum link between mind and body”) b. Can intoxication be a defense? i. If you were intoxicated involuntarily (drugged or something) ii. If the mens rea is intent or conscious action (a) Mens rea = purpose – YES (b) Mens rea = negligent – NO c. Actus reus includes: acts, omissions, possessions d. Mens rea – lump term for all the states of mind that might be relevant e. Most crimes have both of these elements, but some don’t (strict liability) i. Murder – causing the death of someone else, with malice aforethought ii. Statutory rape – as long as the person is too young, you committed the crime C. Previously Defined 1. Rex v. Manley a. Facts – Elizabeth Manley prosecuted under common law contributing to public mischief b. Holding – conviction stands – she committed a common law misdemeanor c. Where does the law come from? – precedent d. Is the problem that Manley shouldn’t be held liable for what she did? i. Is it surprising that American jurisdictions have criminal statutes that reach this conduct? (MPC § 241.5) ii. If you were a legislator and someone pointed out that you didn’t have a statute that reaches this conduct, would you be in favor of passing one? e. Manley did something which she should’ve known not to do, but there is something that is fundamentally wrong with punishing her f. What is so wrong with punishing Manley? – there is no statute 2. The Principle of Legality a. Summary – standing for the desirability of advance legislature definition of crime b. Why do you want legality? i. Political-legitimacy (a) Legislature should decide what a crime is, not the judiciary (b) Origin – associated with demands for representative government (Enlightenment) ii. Arbitrariness by judges iii. Deterrence – tyrants gain control by beating people down iv. Fairness / police and prosecutorial discretion (a) Why is it unfair to punish Manley?
Flusche 3 of 26 Criminal Law (b) Packer (1) The problem of arbitrary and discriminatory action is with police (i) Secret environments (ii) Act ex parte (2) Why should laws be laid out for the police? (i) Manley tells police – anything that you think disrupts the public order might be a crime v. Fairness / fair warning, notice (a) But statutes are numerous, inaccessible, and hard to understand vi. Uselessness (a) Common law crimes came along when the legislature didn’t meet often or very long (b) The last thing we lack are criminal statutes 3. Hypothetical – You are a legislator and have studied common law method. Manley case comes up. Someone proposes MPC § 241.5. You look at it and say that we should stop that crime. You say, “I am happy to pass it, but the ingenuity of criminals knows no bounds.” You propose to get ahead of the movement and pass a statute to say “It’s a crime to do whatever the judges say tends to the public mischief.” a. Is there a political-legitimacy complaint here? Jeffries says “No.” b. Arbitrariness by judges – judges aren’t any wiser – Same c. Fairness / police – same d. Fairness / fair warning – no e. Uselessness – N/A f. Historically, legality came from political-legitimacy concern g. Jeffries claims that he solved the concern with our hypothetical situation h. To the extent that the principle of legality stands for the primacy of legislative action, the statute solves the problem i. There can be no judicial usurpation of legislative authority D. Vagueness 1. Introduction a. Two problems with a vague statute: i. Lack of notice / fair warning but criminals don’t learn what is forbidden by reading statutes ii. Arbitrary / discriminatory enforcement but all laws allow for this b. Vague statutes are said to deny Due Process of law, so they are unconstitutional c. There must be advance specification of criminal conduct that is good enough to not be vague d. The hypothetical statute is not good enough 2. The Significance of Context a. Almost all of the invalidations for vagueness come in one of two contexts: i. Vagueness is a stalking horse for 1st Am concerns (a) Vagueness is related to protected freedoms (usually protected speech) (b) If a statute defines obscenity vaguely it will entrench upon protected speech (c) If a statute inhibits, or “chills” protected speech, it is struck down ii. Street-sweeping statutes (a) Usually applied against persons in public places, who are thought to be disorderly (b) Historically, these have usually been “loitering” or “vagrancy” (c) Most of the vagueness cases arise in this conduct (d) Police invoke the statute to control public spaces (p. 101a) b. Why are street sweeping statutes particularly vulnerable to vagueness arguments? i. When the crime is trivial, it is vastly more difficult to control arbitrary / discriminatory enforcement (a) The major concern is the cop on the beat, and what he does (b) The more “throw away” the charge is, the more discretion the police officer will have
Flusche 4 of 26 Criminal Law ii. The more trivial the conduct, the more likely the police officer can choose any of us to arrest 3. Kolender v. Lawson a. Facts – man liked to walk around Beverly Hills in the middle of the night b. Ruling – statute unconstitutionally vague – must make clear what “credible and reliable” ID is c. There are legitimate reasons for law enforcement to stop people and ask what they are doing d. Probable cause i. When the police stop you, they have seized your person in a way ii. Police can arrest someone if they have probable cause that you committed a crime (a) They must have “a pretty good reason” (b) If there is a string of crimes and you meet the description of the suspect – that wouldn’t be probable cause e. Terry v. Ohio (1996) i. The police can stop you if they have “reasonable suspicion” ii. It is less than probable cause, but more than nothing iii. Seeing a person who matches the description of the suspect – can be stopped iv. This isn’t a big deal – you can only be detained on the street for about 10 minutes f. What is it that is too vague? – California Penal Code § 647(e) i. If the statute just said that it was criminal to loiter and wander from place to place without a purpose – that would easily be vague ii. Why did they add the identification clause? (a) Asking for identification and purpose puts you on notice that you might be committing a crime iii. The statute is unconstitutional because there are no standards that define what kind of answer suffices (California Court of Appeals said the id had to be “credible and reliable”) iv. Statute means whatever the state court says it means v. CA court is construing a CA statute to include the standards set forth in Terry vi. Statute has notice built in vii. It authorizes police conduct that is arbitrary viii. It is a sensibly drawn statute E. Omissions 1. Duty to Act a. Omission is a sufficient basis for criminal prosecution only if there is a legal duty to act b. Homicide i. Traditional definition – killing of a human being with malice or forethought ii. The result – death of another – retrospectively defines the conduct that you can’t engage in iii. There is a body of doctrine on omissions for this c. Criminal law does not impose a general duty to rescue – no duty to save the life of another d. Why don’t we punish people for not saving life? – it would be difficult to enforce e. Common law – must have a legal duty to act i. Statute – must file a tax return; failure to do so is a crime ii. Contract – you are a lifeguard; failing to rescue someone is a crime iii. Relation – parent/child is clear, spouses isn’t clear (yes, generally) iv. Voluntary assumption of responsibility (a) Once you have asserted responsibility, you can’t simply walk away (b) This is because you have taken the child out of public where others could help him 2. Billingslea under common law a. Assume that B’s conduct causes the death of his mother b. There is no legal obligation for children to care for their parents (even elderly ones) c. B is living in his mother’s house, probably living on her money d. B rebuffs inquiries from her granddaughter, who is interested in her welfare
Flusche 5 of 26 Criminal Law e. B voluntarily assumed the responsibility by living with her 3. Billingslea under Texas Statute a. Jury found B guilty under § 22.04 on the facts b. The question is purely one of law c. § 6.01 – omission is an offense only if there is a statute that defines it as such d. § 22.04 – says that omission of caring for an elderly person is a crime i. However, there is nothing that imposes the duty of care onto B ii. If a duty arises under § 22.04, it is imposed on everyone – there is no language to limit the duty iii. If you stretch the statute to B’s case, it’s a rule that you won’t be willing to live with e. The court didn’t think that the legislature intended to punish all omissions from everyone f. Section 22.04.b includes legal duty to act g. Under the amended statute, this is easy F. Keeler 1. Facts and History a. K beat his ex-wife, killing her unborn baby b. Facts come from a preliminary examination (or preliminary hearing) i. What happens at the end of the preliminary examination? – prosecution decides whether or not to try the case ii. Preliminary hearing – judge determines whether there is probable cause to go forward c. Keeler made motion to set aside information for lack of probable cause – denied by trial judge d. How could this case lack probable cause? i. Assuming all the evidence is proved at trial, D still can’t be indicted for murder ii. D didn’t kill a human being within meaning of § 187 e. Keeler asks for a writ of prohibition – stop court from proceeding with trial (interlocutory appeal) 2. Statutory Language and Meaning a. Section 187 – Murder is the unlawful killing of a human being with malice aforethought i. Unlawful – excludes intentional killing that isn’t unlawful ii. Malice aforethought – intention; doesn’t mean spite or ill will b. The text of the statute doesn’t provide an answer c. Legislative intent comes next i. 1872 – first adoption of this particular statute – but it looks like the one from 1850 (CA criminal law) ii. Assuming that the judges and lawyers have found everything there is to find, is there anything on the subject? – no iii. Some states had adopted feticide statutes between 1850 and 1872, and California did nothing and said nothing (a) This could mean that they didn’t want the law to reach it, but it could also mean that they thought it was already covered iv. What is the evidence of what they thought in 1850? – nothing d. Look at cases next – stare decisis i. People v. Chavez (a) Woman was convicted of manslaughter when her baby was being born and died (b) A baby, who is in the process of being born, is a human being ii. Defense – common law rule is that you have to be born alive, Chavez doesn’t change it iii. Prosecution – Chavez tells us that common law rule is not immutable; the definition should reflect changing medical conditions e. We can’t discern the meaning of the statute this way 3. Policy (extrinsic to the statutory definition of murder) a. Strict construction (rule of lenity) (p. 137a) i. Construe statute in favor of defendant when there is any doubt
Flusche 6 of 26 Criminal Law ii. This is a policy of California b. Section 4 of Penal Code – fair construction i. Rule of common law to strictly construe penal statutes has no application ii. All the provisions should be construed according to a fair import of the terms iii. But judges are supposed to look at the statutes and see what makes sense c. Constitution i. Court claims that Keller wouldn’t have fair warning (a) But Keller wouldn’t have had hope to find the common law rule ii. Lawyer’s notice – if someone had asked a lawyer, and the lawyer had the time and resources to research it, what would the lawyer have found foreseeable? (a) The lawyer wouldn’t find it foreseeable (b) Doesn’t Chavez say something here? (1) California courts aren’t limited to common law (2) With the right medical evidence, the courts will abandon common law (c) Wouldn’t any competent lawyer say, “The California courts have shown that they are prepared to depart from the common law standards”? iii. What is the lack of fair warning? – Bouie v. City of Columbia (a) It was a crime to enter the private property of another without permission (b) It doesn’t say anything about remaining on the property after being told to leave (c) This was one of about 33 sit-in cases that went to the Supreme Court – they were reversed for various reasons – Congress considering Civil Rights Act – SC stalling G. Theft 1. Introduction a. Definition – Cal. Penal Code § 484.a b. Crime that we call theft was “larceny” at common law i. Required a trespass in the possession of the property by the thief ii. Defined entirely in terms of taking c. The words in § 484.a – trying to come up with all the ways a person could take another’s property d. Didn’t have to prove that you actually owned the property, only that you lawfully possessed it e. Common law defect: larceny didn’t reach the case of theft by a lawful possessor f. Parliament stepped in to create a statute against embezzlement (1400s) g. There are some other cases that are not quite larceny and not quite embezzlement (larceny by false pretenses OR trick) 2. People v. Sobiek a. Facts i. D and 14 friends started a real estate investment partnership ii. D was indicted on 4 counts of grand theft iii. D moved to quash the indictment on the grounds that a partner can’t steal the property of the partnership b. What if I take partnership property? – no possibility of larceny c. The law of partnership doesn’t split ownership – partners are undivided owners of the whole d. Words in dispute: “of another” e. Cal. legislature told the courts to make sense of the statutes i. It makes sense that partners shouldn’t be able to steal from the partnership ii. There are many cases that say “wholly of another” f. If you were a lawyer consulted by Sobiek, what would you say? – according to case law, you can get away with it g. Keeler i. Could never have guessed that this action would have been murder
Flusche 7 of 26 Criminal Law ii. He would’ve been surprised, not had fair warning h. It’s “not fair” to convict Keeler, but Sobiek gets convicted; why? i. Keeler – lawyer’s notice – we don’t want to hammer everyone like him ii. Sobiek – what common social duty would require – we’ll hammer everyone like him 3. The Art (and Science) of Statutory Construction a. See both the judgmental quality of this AND the categorical nature of the question i. It isn’t just deciding case-by-case, ad hoc, on the case at hand b. Why do CB authors include Keeler? i. It fits in the line of cases, from vagueness ii. It teaches us to be skeptical about cases iii. It shows the difference between deciding cases as a matter of law and a matter of ad hoc policy H. Optional Concluding Problem 1. Strict Construction a. Despite the fact that Cal. Penal Code § 4 adopts “fair import” approach, Cal. court adopts lenity b. The existence of § 4 is a reaction against strict construction c. Historically, it has a particular origin i. 18th C England – two categories of crime: local jail vs. death penalty ii. This drove judges to use strict construction d. United States. v. Bass i. There is a case today for strict construction of federal statutes ii. The question is whether there will be an additional liability at the federal level iii. Federal courts are well advised to be economical in convicting people iv. Constitutional concerns about federal authority restricted vis-à-vis state authority v. State courts usually take a pretty fair construction e. Keeler, Sobiek, and Rogers all present the same question i. Criminal statutes which probably incorporated common law rules ii. In all three instances, common law rules today seem very strange iii. Can a court, confronted with a nonsense common law rule, destroy the law? 2. Rogers v. Tennessee a. Facts i. SC of TN would be talking policy – is it a good idea to get rid of year-and-a-day rule? ii. It isn’t the job of the SC to decide what state law should be iii. SC decides whether what the state court has decided is permissible b. Ex Post Facto i. Article I.10 – no states shall “pass” any ex post facto law ii. Only about legislatures iii. Ex Post Facto != Due Process iv. This change in the law is permissible by a court, but we don’t know about a legislature v. Why is there a reason to treat legislative change differently from judicial change? (a) Does Rogers have any more warning from leg. or jud. action? (b) Legislatures are in charge of change – nothing presumes fidelity to past practice (c) Courts make changes on a small scale (d) The danger of retroactive legislation is greater than retroactive judicial decisions vi. Common Law (a) Judges in late 18th C “found” the law – applied the law to cases (b) 21st C judges decide and create the law (c) Common law judges discerned the answers to questions placed before them vii. Scalia – common law judges declared the law (p. 166a) viii. Why can’t legislatures change the law for past events, but the courts can?
Flusche 8 of 26 Criminal Law c. Is there any idea that the D’s are being unjustly punished? i. No – fairness to the D isn’t a concern ii. Almost everyone agrees that these D should be hammered d. SC of TN thinks it’s making a generally applicable decision II. The Criminal Mind A. Introduction 1. Terminology a. Prolific and variable b. Both of today’s cases fit under the general intent umbrella – both interpret “maliciously” different 2. Minimum mens rea requirement – least culpable state of mind that suffices for conviction a. If Faulkner meant to burn down the ship, of course he is guilty b. If Cunningham intended the woman next door to die, he is guilty 3. Regina v. Faulkner (Ireland 1877) (p. 176) a. Facts – seaman stole rum, lit a match to seal the cask, ship caught fire; charged with theft and arson b. Ruling – Faulkner must have failed to foresee a risk that a reasonable person would have foreseen – N c. Indictment – feloniously, unlawfully, and maliciously set fire to the ship d. Minimum state of mind – prosecutor and Justice Keogh i. Any wicked intent suffices ii. Faulkner was engaged in a theft – involves malice iii. What state of mind must Faulkner have with respect to setting fire to the ship? – none e. Opinions i. D must have intended to do the act with which he is charged, or it was a consequence of some other criminal act, or that he should have foreseen the consequence ii. Minimum mens rea – negligence – must have foreseen the fire and proceeded anyway iii. The overt act must result from general malice iv. When you commit a criminal act, you are taking on the responsibility of foreseeable consequences of the act 4. Regina v. Cunningham (1957) (p. 180) a. Facts – D wanted to steal the gas meter for coins inside, tore meter from wall, gas asphyxiated neighbor, D convicted under endangerment statute b. Trial court – with respect to “cause to be…taken…any poison”, what state of mind is necessary? – none c. Appellate court i. Minimum mens rea – recklessness – must foresee harm, but do it anyway ii. If Faulkner never thought about the asphyxiation, he wouldn’t be convicted d. Assume facts of Cunningham, but Faulkner court’s interpretation i. Cunningham would be guilty 5. Murder in Cal. Penal Code a. To cause the death of another human being with malice aforethought b. AR = causes death of another c. MR = malice aforethought i. Intent kill ii. Intent cause grievous bodily injury iii. Really extreme disregard of risk of death iv. Minimum – D foresaw the risk of death of another, but didn’t care what might happen – R B. Crucial Elements 1. Specific Intent vs. General Intent a. General – intent generally required by crimes – ordinary, usual – not special b. At common law, general intent meant something in the range of negligence or recklessness
Flusche 9 of 26 Criminal Law c. General intent is objective, and specific intent is more subjective d. United States v. Yermian i. Facts – Yermian knew he was lying, but he claimed he didn’t know that the claims were under federal jurisdiction ii. False statement offense iii. Intended to punish people who “knowingly” make false statements iv. This crime has a specific intent element (know falsity), but the rest of the crime is a general intent element (guilty if you are negligent or careless) v. You don’t have to actually know everything 2. Mistake a. A – It is a crime to file a materially false return i. General intent ii. Prove with W2’s b. B – It is a crime to file a materially false return with knowledge of its falsity i. Specific intent ii. Prove falsity, then ask jury to infer that D knew c. By the time the prosecutor rests, there is likely to be no difference between A or B d. If D made a mistake, he is guilty under A, but not under B e. Mistake is defense if: i. General intent – honest & reasonable AND it means you would be innocent ii. Specific intent – honest AND negates the mens rea f. Lesser legal wrong – a mistake is not exculpatory if you’re guilty of a crime anyway g. Lesser moral wrong – even if the facts had been as you believed, you were a bad guy i. Defense of mistake isn’t granted h. Regina v. Prince i. Facts – D claimed he thought the girl was over 16 ii. Ruling – even if jury believed that the mistake was honest and reasonable, he is still guilty 3. The Pattern of the Common Law a. When does the common law use specific intent, and when does it use general? b. AR = A + B i. A = files return ii. B = materially false c. Specific intent, with respect to falsity – this is unusual d. Most of the time, mens rea with respect to what must happen is general intent e. Most of the time, specific intent pertains to conduct that need not happen – future conduct / harm f. Generally speaking, common law requires specific intent with respect to some future conduct or general harm i. Theft – unlawful taking of personal property of another, with intent to deprive permanently ii. Burglary – breaking & entering with intent to commit a felony therein iii. Loitering, with intent to solicit sex / sell drugs – specific iv. Assault, with intent to kill – specific C. Model Penal Code 1. Culpability Structure – §2.02(1),(2),(5) a. §2.02(1) i. Culpability applies to each material element of the offense, each component of the actus reus ii. Actus Reus = Conduct + Circumstance + Result (some combination – most lack results) b. §2.02(2) – Kinds of Culpability i. Four types (a) Purpose – did it because the actor wanted to
Flusche 10 of 26 Criminal Law (1) For circumstances, purpose = knowledge or awareness (you can’t intend a circumstance) (2) When the MPC requires purpose, usually duplicates a specific intent requirement (b) Knowingly – not the conscious desire and objective to kill someone, but knowledge that your actions will result in that death (c) Recklessly – risk; aware that there is a serious risk that the act will kill someone, but proceeds with the action anyway (d) Negligence – inadvertent risk creation (1) In general, straightforward application of ordinary English words (2) Why does negligence say “reasonable person” while recklessness says “law abiding person.” (i) You don’t get a pass for violating the criminal law because other people do it ii. Application of culpability to elements: (a) In purpose, separate C and R from Cir b/c cannot “intend” Cir (b) In knowledge, separate C and Cir from R b/c cannot “know” R (c) In recklessness, can be applied to all – conscious disregard for substantial and unjustifiable risk – need to consider: (1) Nature and degree of risk (2) Nature and purpose actor’s conduct (3) Circumstances known to actor (d) In negligence, inadvertent risk creation c. §2.02(5) -- Hierarchical relationship i. Any point higher in culpability suffices 2. Drafting Conventions – §2.02(3),(4) a. §2.02(3) -- For convenience, we all agree that “silence means recklessness” b. §2.02(4) – when we say something, we mean it generally (for all elements) 3. The Effect of Mistake – §2.04(1) a. §2.04(1)(b) – if the law says it; OR b. §2.04(1)(a) – what would happen if you took this provision out? i. What is the functional consequence of this clause? – nothing ii. There isn’t really any law of mistake to talk about iii. Mistake matters when it negates the mens rea required by the offense c. If you have the mens rea required, you’re guilty D. Mistake of Law 1. State v. Fox (Idaho, 1993) a. Facts – man bought controlled substance, claiming he didn’t know it was illegal b. He challenges MR for not knowing that possession is illegal, but this is irrelevant because MR necessary is for simply possession c. Ct does not construe as strict liability, but instead attributes general intent to statute d. D’s claim – he didn’t know he was buying a controlled substance Mistakes of: General Specific Fact (in Fox if Exculpatory when honest and Exculpatory when honest didn’t know buying reasonable ephedrine) Law Not exculpatory (no determination Exculpatory if law is non-criminal of reasonableness – not an issue) law; if criminal, not exculpatory e. If translating to MPC, note that reasonableness requirement translates to negligence, and if reasonable or unreasonable mistake permitted translates to knowledge f. To determine MR in common law, ask how mistake is treated (two sides of same coin) g. Rule for general intent – mistake of fact counts, but mistake of law doesn’t
Flusche 11 of 26 Criminal Law h. MPC does not speak in language of mistake, but rather depends on MR – don’t define rule of mistake but rather make clear what definition of offense is i. Important to see why §2.02(9) says same thing as common law and why it approaches it differently 2. Ignorance of the law (ignorantia juris) a. An honest mistake of law does not afford a defense to a general intent crime 3. Rationales? – why don’t we allow for mistake of law? a. History suggests issue of descriptive accuracy at play – everyone is presumed to know the law b. Irrelevance to blameworthiness? c. Austin – hard to prove d. Holmes – maximize incentives to know the law e. In universe where individual blameworthiness thought to be central in criminal law, then why in this one category do we draw the line with regard to mistakes? f. J. Hall – noting structure of adjudication – two sides and court gives definite answer i. If person has a defense b/c she reasonably believes the law is X, case is over when you confirm reasonable belief – everything after that is dictum ii. You have to have AN answer – in order for this to happen, ignorance of law cannot be viable defense iii. Principle of legality invoked here is that law must become clear E. Mistake of Non-Criminal Law 1. Fact vs. Law General Specific Fact If reasonable YES Law NO Yes, if non-criminal a. Premier example are crimes based on common-law larceny i. All of them included a specific intent element – to deprive the property b. For general intent crimes, there is a categorical difference between mistake of fact and law c. It’s often not obvious whether a mistake is fact or law d. Long i. Facts – got a divorce in Arkansas, moved back to Delaware to get married, prosecuted for bigamy ii. Mistake of law – he is mistaken about his legal relationship to his first wife iii. Can you argue that it’s a mistake of fact? – there is a factual description of who it is who can’t do X iv. It was a mistake of law, but not about the bigamy statute v. The mistake is about divorce law – non-criminal law e. Bray i. Facts – in possession of concealable firearms; question whether he is a convicted felon ii. Question of law – is he a convicted felon? iii. Can also say that the statute applies to a category of persons – he was factually mistaken whether he belongs in the category f. Usually courts looked to see if the defense should count, then assigned the term to the mistake i. Common law MPC Fact Law Non-Criminal Criminal YES ? NO ii. Common law was confused about what to do in the non-criminal law category iii. Courts didn’t know what to do with category of mistake that is law, but looks like fact g. Divorce law and jurisdiction i. In general, most states recognize marriages and divorces contracted elsewhere ii. General rule in most states, we recognize divorce in any state if the state had jurisdiction h. Common law drew the line in the wrong place, treating non-criminal law like criminal law
Flusche 12 of 26 Criminal Law i. Fox i. Is his testimony that he believed he was buying aspirin relevant? (a) Yes – if he is telling the truth, he hasn’t consciously recognized and disregarded the risk ii. If he testifies that he didn’t know ephedrine was a controlled substance, is that relevant? (a) No – ignorance doesn’t negate the conduct with which he is charged 2. MPC a. MPC tries to confine common law rule to criminal law i. 2.04(1) – destroys common law line (a) Mistake is exculpatory if it negates an element of the offense ii. 2.02(9) – says mistake of criminal law isn’t a defense (a) You don’t need any mens rea, with respect to content of criminal law 3. What We’ve Done a. Difference between common law & MPC i. Articulation of mens rea standards & rule of mistake ii. Common law conceptualizes actus reus as conduct iii. MPC – actus reus is conduct, circumstances, and result iv. The only reason the MPC discriminates among elements of actus reus is for mens rea rules b. Criminal law is premised on liberal, western democracy c. If you start in the world of liberalism where individual is prior to government…person can say “I didn’t know that was a crime” – that would be exculpatory – Lambert d. If you claim “I didn’t know” in Marxist Russia, that is inculpatory – this means that you are a bad person, since you didn’t know what the government has said e. We have two vocabularies to describe almost everything i. Very often they say the same thing ii. Sometimes they do disagree, then you come across why they are different f. MPC i. Crimes generally consist of actus reus (conduct) and mens rea (culpability) ii. The concept of what constitutes mens rea has evolved over time (a) It used to be a global judgment about the person – was the person wicked, bad, up to no good (1) Reflected in Faulkner and Cunningham (b) Today it is construed as state of mind with respect to actus reus (1) Why? – because of grading (2) If there are only two categories, Faulkner distinctions don’t matter – theft. (3) When prison is the usual sanction, there are gradations of punishment (4) You then have to ask “is he guilty of this particular crime?” iii. MPC carefully lays out mens rea to discriminate against different crimes iv. Mistake (a) Common law – rules on mistake implemented mens rea (b) Under MPC, rule of mistake disappears – it has better mens rea terms F. Negligence 1. D.P.D v. Smith a. Issue (according to House of Lords) – jury instructions were wrong about what mens rea is required b. Jury instruction – D must pass reasonable man test that he should have known his actions would cause grievous bodily injury c. Jury that heard all of this would be entitled to convict Smith if they found that he failed to anticipate what the reasonable man would have anticipated d. Common law history – malice includes: i. Intent to kill ii. Intent to cause grievous injury
Flusche 13 of 26 Criminal Law iii. Extreme recklessness iv. [Intent to commit a felony] – “felony murder rule” e. Two objections i. Court is wrong because it simply got the words mixed up (a) Blackstone’s classic definition of the mens rea cannot be derived from the word “malice” (using ordinary sense of languages) (b) Judges weren’t interpreting the words “malice aforethought” (1) They were deciding what murder ought to include (2) The phrase is a conclusion, not a premise (c) There is nothing odd to construing “intent to cause grievous bodily injury” in a way that requires negligence ii. Is court right as a matter of policy? – should negligence be sufficient basis for capital murder? – no 2. MPC Homicide Offenses (§ 210 – p. A-60) a. If you were the judge, would you submit these charges to the jury (under available facts): i. Negligent homicide (§ 210.4)? – yes ii. Manslaughter, recklessly (§ 210.3(1)(a))? – yes iii. Murder, extreme recklessness (§ 210.2(1)(b))? – yes b. If the evidence in the case justifies conviction for murder & manslaughter, why quibble about negligence? i. In this case, there is much more than negligence; but, in a future case, the same instructions will result in a conviction of someone who is merely negligent c. House of Lords brought all cases of negligent homicide up to murder i. But legislature intended negligent homicide to be something less than murder d. Why did the Lords get it wrong? i. Extremely cynical (a) Members knew they were wrong, but said it anyway (b) But, if they vacated the ruling, it would be remanded to lower court for another trial ii. Traditional slipperiness of mens rea language (a) If you translate mens rea requirements to clarity of MPC, this case is simple (b) These judges don’t have force or example of MPC (c) It’s not that we’re so smart, but that we have better intellectual tools to examine the case (d) JJ They got confused between a rule of evidence and a rule of law (1) Evidence (i) If the trial had been murder under MPC, evidence would’ve been about what D did (ii) You get to the jury with this question (iii) “Jury, you may infer intent from objective evidence of unreasonable behavior” (2) Law (i) What you have to conclude that the D thought (ii) “Jury, you must convict D if he failed to act reasonably” (3) They got confused between what the jury is permitted to find & what jury is required to find 3. Negligence as Basis of Criminal Liability a. This is a moral, philosophical question b. Should there be an offense for negligent homicide (§ 210.4)? c. Or should you have to prove (as a minimum) that the actor consciously perceived the risk and disregarded it? d. Every Anglo-American jurisdiction on the planet has always had N as a basis for criminal liability e. No one, in his or her own life, regards negligence as un-blameworthy f. Negligence isn’t as bad as intent or knowledge
Flusche 14 of 26 Criminal Law g. Why might it be morally acceptable to blame someone who is unaware? i. We live in a society & want people to be careful ii. What about a strict liability felony? – not fair (a) There is a moral objection to punishing people who are not blameworthy iii. Most of the time inattention describes only the last stage (a) You probably recognized the risk in an earlier stage (b) You know, at some level, that what you are doing is risky (c) Inadvertent risk creation follows advertent risk creation G. Intoxication 1. D.P.P v. Majewski a. Facts – D convicted for “assault occasioning actual bodily harm” b. What legal question is the appellant raising? – judge told the jury that intoxication was immaterial c. Lords see the intent doctrine as illogical – intoxication isn’t exculpatory, even if it would be d. Adopts precisely the MPC structure i. Intoxication is relevant and potentially exculpatory for specific intent crimes ii. For basic intent crimes (recklessness), intoxication is irrelevant 2. MPC §2.08(2) a. Takes away a defense in the case of recklessness b. Is voluntary intoxication exculpatory? i. N – no ii. R – no – voluntary intoxication is R itself, substitutes for R of offense iii. K – yes (making false statement, etc.) iv. P – yes (attempted murder) c. MPC changed the common law by adopting recklessness as the default rule d. Evidence of intoxication is potentially exculpatory (for recklessness), but the prosecutor is likely to introduce it anyway e. Where in the course of the criminal trial does §2.08(2) matter? i. Jury instructions ii. Prosecutor – evidence of intoxication isn’t exculpatory f. Situation i. Assuming that the crime requires recklessness ii. Assume that prosecutor introduces evidence of intoxication that suggests D might not have been appreciative of the risk iii. The judge turns to the jury and says that the voluntary intoxication is immaterial iv. Jury is asked to find would D been aware of the risk, had he been sober? (a) If answer to this question is yes, D is guilty 3. Specific Intent Crimes a. MPC, with respect to recklessness, demands the jury answer a hypothetical – if he had been sober, would he have recognized the risk? b. MPC could ask a similar hypothetical about knowledge – if he had been sober, would have known that the property wasn’t his? c. MPC could do the same with purpose d. It would be possible, analytically, but for 2.08(2) to intervene for specific intent also e. Why does MPC allow evidence of intoxication to have full relevance for specific intent? i. Disproportionate mens rea (a) Recklessness involved in getting drunk is somehow comparable to a reckless intent (b) But recklessness in getting drunk is not comparable to intent to steal or murder ii. Social control (a) Courts are reluctant to let people off for general intent crimes due to intoxication
Flusche 15 of 26 Criminal Law (b) Courts let people off for specific intent crimes due to intoxication, but they are usually still guilty of a lesser crime f. Intoxication is not a defense for a specific intent crime i. Not true in California, England, or MPC g. Intoxication is potentially exculpatory for a specific intent crime i. Usually being drunk does not negate the mens rea ii. Would say “I didn’t mean to kill him, because I wasn’t capable of it at the time” h. Virginia i. Voluntary intoxication is not exculpatory for any crime except murder (a) The person will still be convicted of manslaughter – possible 20 year sentence ii. Generally, evidence of intoxication is going to be in the case (a) Jury needs to hear the details (b) Witnesses saw the situation, and will report that people were drunk iii. What does trial judge say to the jury? (a) Judge won’t give an instruction that intoxication is exculpatory (b) Judge says “you must determine whether the D intended to kill, without considering his intoxication” iv. This doesn’t matter much i. California rule matters to the jury j. Cognitive awareness is not the first thing that goes when one is drunk i. What goes first is a sense of restraint 4. Other Drugs a. Alcohol is one of the widely used drugs today b. There are other drugs that directly and immediately attack cognition c. Think about hallucinogens d. Rules that the law evolved come from the context of alcohol e. They derive from centuries of experience with alcohol f. The same rules have a very different impact when applied to other drugs g. Challenges of the legal system – what to do with PCP users h. The structure might not make sense for other drugs H. Strict Liability Federal Regulatory Offenses 1. United States v. Balint a. Man is appearing to make an ignorance of the law claim (didn’t know it was illegal to possess substance) 2. Morissette v. U.S. a. Statute – 18 USC § 641 i. “Whoever…knowingly converts to his use or the use of another…any…thing of value of the United States [s]hall be fined…” ii. Convert – civil law term – strict liability – doesn’t matter what you intended to do b. Issue – in order to be guilty of a statute that punishes knowingly conversion of property of U.S., do you have to know that it’s the property of the U.S.? – yes c. TJ – hard on this D – if you take someone’s personal property from their land, you can’t claim it was abandoned d. If D honestly believed that the property didn’t belong to anyone, he shouldn’t be a criminal e. Court says – we’re dealing with legislative intent – rule of thumb i. Traditional crimes (mala in se) – require mens rea – read it in ii. Public welfare / regulatory – strict liability – legislature can require more – if silent, none 3. Public Welfare Offenses a. Characteristics (p. 253)
Flusche 16 of 26 Criminal Law i. Recent in origin ii. Inaction / neglect, rather than affirmative misconduct iii. Risk creation – not realized harm iv. Penalties light v. Less public stigma b. Why does Congress use criminal law in the first place? – precisely because of the stigma attached i. Business people are used to paying fines & taxes, but criminal prosecution is much worse c. SC says you can use criminal sanction because there is little stigma, but Congress makes them crimes because of the stigma 4. Administration of Same – e.g. U.S. v. Park a. Facts – Park (CEO) tried for selling adulterated foods after being warned three times b. Strict liability crimes transfer adjudication from the court to the prosecutor c. Principle of legality – don’t want to give prosecutors discretion over what crimes they prosecute i. Prosecutors must bring their cases to a committee before they can indict ii. There is still the problem of political motivation – people at the top can make examples of people they choose iii. Why are we happier having judges make these decisions? – rigorous, in the open, judges are impartial 5. Lambert v. California (1957) a. Facts – in LA convicted felons must register w/in 5 days of entering city b. Ruling – struck it down c. Lambert was prosecuted for an omission, failure to register d. Ignorance of the law – no excuse e. Vagueness i. Vague statutes are a problem because they allow police too much discretion in deciding whom to arrest ii. But the statute here is clear f. Strict liability i. Didn’t know she had to register ii. But SL is constitutionally acceptable g. Lambert is good law when the proto-typical law-abiding citizen wouldn’t know any better 6. United States v. Freed (1971) a. Facts – man indicted for possession of unregistered hand grenades, violating federal statute b. Ruling – affirmed indictment; absence of mens rea is ok c. Can we reconcile Lambert and Freed? i. Dealing with hand grenades ought to put people on notice ii. There was nothing special going on with Lambert for her to think to act differently d. Lambert might be a pick-and-choose statute while Freed is not 7. United States v. Staples (1994) a. Facts – man possessed a weapon, convicted for having a machine gun b. D claims that he didn’t know it was a machine gun c. Machine gun – can be fired repeatedly with a single pull of the trigger d. The general law-abiding citizen would know that you should register a machine gun 8. Yermian (1984) a. Idea that you should be quite discerning in assigning mens rea to the specific elements of the offense b. Statute, in express terms, requires mens rea – knowingly or willfully c. But there is no mens rea for the jurisdictional element d. MPC disaggregates offenses i. Knowledge – false statements
Flusche 17 of 26 Criminal Law ii. Recklessness – materiality iii. Strict liability – jurisdiction of the U.S. e. We know the jury found N, since instruction stated Yermian must know or should have known III. Attempt A. The Required Conduct 1. Introduction to Attempt a. There has to be a specific offense that you were attempting to do b. Mens rea = intent 2. Common Law Proximity Test(s) a. People v. Adami (Cal. App. 1973) (p. 306) i. Facts – man hires undercover policeman to kill his wife ii. Ruling – man didn’t attempt murder iii. Proximity test – how much remains to be done? – start from the crime and go backwards iv. Did it come dangerously close to Mrs. Adami dying? – no b. People v. Rizzo (NY App. 1927) i. Facts – guys try to rob payroll clerk, but never find him ii. Ruling – men didn’t attempt robbery iii. They did the best they could; they were saved only by their stupidity iv. Since they never found the payroll clerk, they never came dangerously close (physically to victim) c. United States v. Harper (9th Cir.) (p. 301) i. Facts – men create “bill trap” and wait to ambush ATM service person ii. Ruling – no attempt to steal iii. Victim never showed up, even though they were in position where crime would take place d. 98% of common law attempt convictions are attempted homicide – shot, but missed e. Many common law jurisdictions have statutes that substitute for attempt i. Assault with intent to kill – attempted murder ii. Assault with intent to rape – attempted rape iii. Possession of drugs with intent to distribute – attempt to distribute 3. MPC “substantial step” a. MPC § 5.01(2) i. Conduct is substantial if it is strongly corroborative of the criminal purpose ii. The following will not be insufficient: (lists common law precedents to overturn) b. MPC – conduct suffices for liability for attempt if it constitutes a substantial step in a course of conduct planned to culminate in the commission of the crime c. Substantial step – strongly corroborative of the criminal’s purpose – asks “what did you do?” d. Criminal solicitation (§ 5.02) i. This is the hardest category ii. You don’t want to wait until the crime is dangerously close to success iii. You want to insert an undercover agent e. What’s wrong with this? i. How do you tell what a “substantial step” is? ii. You take away the opportunity for reformation 4. People v. Bowen and Rouse (Mich. App. 1968) (p. 292) a. Facts – men had girls distract old lady while they robbed her b. This case satisfies both MPC and common law approaches c. Why did the court overturn the judgment? i. TJ didn’t ask the right question of the jury – “Is there an overt act?” ii. Prosecutor should’ve asked for the correct instruction d. Why did prosecutor and TJ screw up? – D focused attention on whether there was a criminal intent
Flusche 18 of 26 Criminal Law e. If TJ didn’t instruct the jury, why is there all this talk about whether entering the building is sufficient? i. The jury found them guilty of larceny in a building ii. Even though the instruction was wrong, the jury found that the Ds entered the building B. Mens Rea 1. Cases a. Thomas i. Facts – D shot alleged rapist of his former girlfriend ii. Ruling – attempted reckless manslaughter IS a crime; general intent b. Thacker i. Facts – D shot at a light 3x, narrowly missing someone; convicted of attempted murder ii. Ruling – conviction reversed; must have specific intent c. In both cases, course of conduct is sufficient – actor’s conduct wasn’t interrupted 2. Common law rule (Thacker) a. Attempt is a specific intent crime b. To be liable for attempt, you have to actually intended the entire thing 3. MPC a. Has the mens rea requirement been met? Conduct Done Other AR YES Conduct Circumstances Results = = = P (or K) b. MPC fractures AR – can then assign different mens rea to different parts i. Conduct ii. Circumstance (common) iii. Result (not many) c. Attempt requires at least the same mens rea as the underlying offense d. Is there a special mens rea policy for attempt? i. Thomas (a) If reckless manslaughter is the underlying crime, and it requires recklessness, then attempt requires only recklessness (b) The actor must purposely engage in a course of conduct that is reckless (c) If the death results, the person is guilty of manslaughter; else, the person is guilty of attempt ii. Thacker (a) To be guilty of attempt, you must have the specific intent (purpose) to do the whole thing (b) If you have to have purpose with respect to death of another, you are guilty of attempted murder 4. Conduct a. There almost aren’t any issues that arise here – people usually know what they’re doing b. Purpose 5. Results a. MPC requires P (or K) – if you don’t you contradict grading decisions made by legislature in definition of crimes b. Criminal law and torts used to be the same (11th C) – you do something bad, you pay fine c. But our criminal law has always focused (at least for homicide) on results d. What’s wrong with this? i. If there is no special mens rea policy for result, the results don’t matter – this contradicts legislature ii. This works under Colorado Penal Code iii. MPC – 210.0+ (a) 210.3.a – manslaughter
Flusche 19 of 26 Criminal Law (1) For this offense to be made out, I not only have to be reckless with regard to death of another, but I have to consciously perceive the risk and disregard it (2) To be guilty of manslaughter, I must have this state of mind & I have to kill someone (b) If I am reckless with respect to death of another but no one dies, what do you charge me with? (1) Recklessly endangering (§ 211.2) – misdemeanor (c) If I recklessly endanger someone & the person dies, I am guilty of manslaughter (2nd degree felony) iv. If the mens rea of the underlying offense suffices for attempt, then every case of reckless endangerment becomes an attempt to commit a F2 (a) § 5.01 (attempt) + 210.3 (manslaughter) = F2 e. Colo. court – actor must have the purpose to complete the conduct, not the result – missed architecture f. Example – assume that negligence is the key – I am driving while talking on a cell phone i. I am a N driver, creating a risk of death of another, but I am unaware of the risk, and should be aware of it ii. If death of another results, it’s N homicide – § 210.4 = F3 iii. N without death resulting = 0 iv. If Thomas is the law, all cases of N with respect to death of another would be F3 g. Thacker – Colorado court would say that he is reckless with respect to death of another – he should be punished h. Why do results matter at all? i. Stretching criminal liability too widely would put us all in jail – self-protective ii. You can administer this regime more easily – someone has died, and you can find out about that iii. Most experts think that the biggest bang is to increase the probability (pS) iv. Retributive justice – if someone dies, there is a demand for response v. Evidentiary functions – without the result, it’s hard to see how N or R you were 6. Circumstances a. Rationale from conduct doesn’t apply here b. Circumstances are extrinsic to the conduct of the actor – not within the actor’s control c. Most people would say that there is no special mens rea for circumstances d. Ex: statutory rape i. Statutory rape is strict liability with respect to the age of the other person ii. Lesser moral wrong theory – even if person consented, it was still wrong iii. If you conclude that strict liability is the right answer for statutory rape, it is the right answer for attempted statutory rape C. Impossibility 1. This isn’t a big problem – probably 10 cases that deal with it 2. In some sense, every case of attempt involves impossibility 3. Kinds of cases – conduct is never dangerously close a. Stuffed deer case – shot a stuffed deer out of season – but impossible to shoot a real deer b. “I attempted to kill someone, and I missed, because he wasn’t there” 4. There is something about the condition of the real world, unknown to the actor, that made success very unlikely 5. Three stages a. Always a defense – common law view – actor never comes dangerously close to success b. Defense of “factual” not of “legal” i. Results depend upon what kind of impossibility it is – factual = no defense; legal = defense ii. But these labels are completely plastic c. Never a defense i. MPC – isn’t a defense any longer
Flusche 20 of 26 Criminal Law ii. Most jurisdictions today say this most of the time 6. Cases a. Case #1 i. Professional thief steals bolts of cloth, meets the “fence” & sells the cloth for cash b. Case #2 i. Person walking down the street goes up to a watch cart ii. Guy offers him a Rolex for $100 iii. Man pays $100 and walks away with the watch c. Conduct must be informative d. Difference between these cases isn’t impossibility, but how good the evidence is of criminal intent 7. Dlugash a. Facts – D shot at a man that had already been shot, convicted of murder b. Ruling – reversed – evidence is insufficient that the man was alive – can’t attempt to murder dead man D. MPC § 5.01 1. The course of conduct is complete 2. 5.01.1.a – deals with impossibility – not a defense 3. 5.01.1.b – most crimes don’t have results, except homicide (do it with purpose) 4. 5.01.1.c – generally applicable provision – substantial step IV. Sexual Offenses A. Introduction to Rape 1. Two problems (historically): a. Hard to track down and link offender to the crime b. Cultural – victims didn’t report the incident right away (shameful for women) 2. Now a. It’s not shameful to report rape b. Most police jurisdictions have special sexual victims units mainly run by women c. It’s easy to link evidence to offender 3. Rape has heaviest penalties, second only to murder B. State v. Rusk 1. Facts – D convicted of second degree rape 2. Ruling – reversed – conviction stands 3. Illustrates the traditional common law approach, as it has evolved 4. Question: sufficiency of the evidence 5. Prosecution’s case – Pat gave Rusk ride, R took keys, R pulled P to bed, P submitted 6. Court interprets statute: a. Intercourse b. By force or threat c. Against will / w/out consent 7. Problem cases: victim did not consent, but there was not direct force 8. What does the prosecutor do when the D tells a completely different story? – who’s credible? 9. Standard for appellate review: could a reasonable juror find beyond a reasonable doubt that D was guilty? 10. Resistance = law today – but not required if there is force of threat of force that trumps instinct C. In re MTS 1. Facts – girl consents to petting, but not intercourse; boy convicted of sexual assault 2. Ruling – conviction stands – applies law of battery – victim must consent to each kind of touching D. Sex by Fraud or Extortion 1. Sex induced by fraud is rape, or some other offense, depending upon the jurisdiction 2. Fraud in the factum – man fraudulently induces a woman to engage in sexual intercourse, not knowing the facts of the act – tricked into sex – punished
Flusche 21 of 26 Criminal Law 3. Fraud in the inducement – opportunistic representations to gain sex – persuaded into sex – disregarded 4. Bora v. Superior Court (Cal.) a. Facts – man told woman she had disease, curable with $9k surgery or sex with person for $4.5k b. Ruling – fraud in inducement – woman understood nature of the act 5. MPC – anachronistic a. § 213.1(1) – defined as male having sexual intercourse with a female – not gender neutral i. Spousal exclusion – husband had a property right in sexual relations with his wife b. Deviate sexual intercourse – gender neutral c. § 213.1(2) - gross sexual imposition i. Section (a) – deals with threats other than imminent death, serious bodily injury, kidnapping… d. If a man threatens a woman with a trivial harm & she submits, he is not guilty of a felony – why? – no coercion e. Threat vs. bargain i. Threat to commit an independent crime (213.1(1)) ii. Threat by prison guard against inmate, employer against employee iii. Bargain – man offers woman $50 million to be his mistress – she accepts and then leaves after a few days iv. Threat – woman moves in and lives for a while with man – he says he will evict her and throw her out on the street E. Mens Rea for Non-Consent 1. Mistake is almost always, “I thought she consented” 2. Mens rea is all over the board a. United Kingdom = K i. If you are drunk and you didn’t know, you wouldn’t be guilty b. Alaska (and MPC) = R i. You have to conceive and disregard the risk that there is no consent ii. If you are sober and the other person is very drunk, you might be R iii. In 99% of cases, R = N (when intoxicated) iv. When R is required, it is judged as if the person is sober v. You are judged by whether you would have perceived the risk, had you been sober c. Connecticut = N d. Massachusetts = SL – if woman didn’t consent, man is guilty F. Rape Shield Laws 1. Evidence about prior consensual relations between accused and victim – admissible 2. Evidence about woman’s relations with other men or her general reputation – inadmissible V. Justification and Excuse A. Justification 1. Introduction to Defenses a. Defense – must be raised by D, and not part of prosecutor’s case in chief b. Burden is on D – D most likely knows if a defense exists c. Burden of proof i. Production – on D – issue not raised unless D produces some evidence that X is an issue ii. Persuasion – more commonly, on prosecutor – must disprove the defense 2. Necessity Generally a. Choice of evils = necessity – rarely raised in court b. Necessity i. Self-defense ii. Defense of others iii. Defense of property
Flusche 22 of 26 Criminal Law iv. Public authority c. Most of the time the defenses are decided, they arise under the different categories d. General necessity covers all – but it’s doctrinally important when it doesn’t fit any of the categories 3. Commonwealth v. Markum (Penn. 1988) (p. 404) a. Facts – abortion protestors were convicted of trespassing into the clinic b. Pennsylvania § 503 i. Why would the defense say “believes to be necessary”? (a) What kind of belief suffices if the underlying offense requires R? – non-reckless belief (b) Could a belief be non-reckless, but still N? – yes (c) If offense requires only N, belief has to be non-negligent c. MPC i. § 201.2 – P or K – homicide ii. § 210.3 – R iii. § 210.4 – N iv. If you are consciously aware of the risk that this action might not be necessary, but you don’t know, you can be convicted of manslaughter v. If a person killed because someone told him it would be a good idea, he could be convicted of negligent homicide d. Justification & offenses are mirror images e. Many jurisdictions & common law said – justification is a defense only if reasonable i. If reasonable – always get off ii. If unreasonable, always get convicted – even though has mens rea for K f. § 503(a)(2) – when law is specifically spelled out, can’t just go back to general principles i. MPC § 3.02, 3.04 g. § 503(a)(3) – legislative purpose excludes the justification i. Same principle as (a)(2) – if we have confronted this somewhere else, you can’t evade that decision h. Choice of evils – designed to address the case no one thought of i. Capitolo – Ds claim – B&E nuclear power plant was necessary j. Berrigan – Ds claim – B&E bomb plant was necessary k. Aren’t these cases peas in a pod? l. Question is what the law is – abortion is controversial, but allowed – legislature balanced evils for us m. Why not let everyone use the defense? – just let juries decide? – rule of law! 4. Rules or Standards? – Retreat – The Example of MPC § 3.04(b)(ii) a. Common law uses standards; MPC codified them b. Retreat rule i. Between an aggressor and victim, it is socially desirable that the aggressor’s life is taken ii. Autonomy – people who are not in the wrong are generally entitled to stand their ground iii. Maybe you should retreat if you can do so safely iv. Retreat rule only applies to DEADLY force v. § 3.04(b)(ii) – use of deadly force is justifiable unless actor can retreat with complete safety except if you are in your dwelling or place of work 5. The Effect of Mistake a. MPC integrates culpability required under definition of the crime and the kind of mistaken belief that counts b. If crime is purposeful or knowing homicide and you honestly believed self-defense was necessary, you are not guilty c. If you are reckless in your belief of needing self-defense, you can be convicted of a crime requiring R d. Goetz – more common approach (common law) i. If your killing is justified, you’re not guilty
Flusche 23 of 26 Criminal Law ii. A mistaken belief in the existence of justificatory facts is a defense, if it’s reasonable iii. If you’re claiming justification, and you’re wrong, you’re ok if you’re reasonable; but if you’re negligent, you can be convicted of any crime 6. People v. Goetz and Objective/Subjective Reasonableness a. Facts - D shot and wounded 4 youths on subway after they asked for $5 b. Ruling – reinstated charges c. Appellate court – Goetz can’t be convicted unless he was an unreasonable Bernard Goetz d. CoA – objective standard (but not completely objective) e. You must treat everyone as equals to maintain control, but treat them as individuals to keep punishment moral f. Law has been content to rely on standards and not attempt to codify rules g. MPC – “in the actor’s situation” – invites particularization of the negligence standard – thrown to jury 7. Battered Women’s Syndrome a. State v. Kelly (p. 439) i. Facts – woman stabbed and killed husband, claimed self-defense ii. Ruling – reversed & remanded – expert testimony was relevant – frames woman’s belief iii. If recognized, syndrome allows testimony by an expert b. Rhythm to these situations i. Tension-building ii. Acute-battering iii. Contrition c. Key is to tie this sequence to question “why didn’t wife leave?” i. Overestimate batterer’s ability ii. Underestimate their own abilities and options iii. Personal responsibility by woman for husband’s behavior d. Expert testimony i. Court has to decide whether there is scientific basis for expert to testify ii. Includes questions about expert as an individual – must demonstrate expert-ness iii. Sometimes validation includes the scientific inquiry iv. Standard – whether there is a significant body of believers e. Difficulties i. Easy case – standard for admitting testimony – acceptance in the field ii. Hard case – what happens to evidence once in court? f. BWS is a way of viewing the evidence to decide whether a person is guilty or not g. These cases are often supposed to demonstrate that this husband needed killing h. BWS typically only looks at the relationship between one woman and the dead man 8. Battered Children’s Syndrome a. It may just be that there are not many cases of this b. Most murders are domestic violence – not much data here 9. Urban Survival Syndrome a. Doesn’t really exist, but makes a wonderful point b. Blacks in inner-cities grow up in harsh environments – homicide, incarceration, bad relations w/ police c. If Walker devoted time and expertise to urban situations, they would come up with a good urban survival syndrome d. There is plenty of raw material, but not enough interest or funding e. Why is there no urban survival syndrome? i. One problem – people are afraid of young black men ii. Why aren’t people afraid of woman who shoots her sleeping husband? iii. We don’t ever think that we could ever be a wife beater – it’s ok to take out the bad husband
Flusche 24 of 26 Criminal Law iv. Authorizing urban survival syndrome creates a threat to all of us B. Situational Excuse 1. Justification and Excuse a. Justification describes a category of offenses in which the actor did the socially desirable thing b. Excuse looks to understandability of actor, not desirability of conduct – actor should’ve done otherwise i. Something about the case seems so pressing on actor’s free will that we aren’t comfortable condemning c. Justification – abstract principle called necessity – choice of evils d. There is nothing comparable for situational excuse e. Difference between excuse and justification i. It’s not a good thing to kill an innocent bystander – excuse ii. But it is a good thing to kill the madman aggressor – justification 2. Duress a. MPC § 2.09 i. Section 1 – affirmative defense if actor was coerced to do the act with force against his person or the person of another (a) Threat against 3rd party is allowed (b) “in his situation” – this is a marker for what characteristics will be taken into account (c) No explicit requirement of immediacy (but implicit) (d) No exclusion of homicide (e) Coercion = use of, or threat to use, unlawful force b. United States v. Haney (10th Cir. 2002) (p. 481) i. Facts – man thought escape from prison was his only choice, friend helped – but gave themselves up ii. Ruling – duress can extend to third parties iii. They talk about avoiding a greater harm by committing a lesser harm – jaywalk to avoid being shot iv. Court is saying we should have a defense called duress, defined doctrinally as excuse, with rationale that is justification c. BWS for duress – defense is rejected 3. Entrapment a. Police can and do lie all the time – people don’t have a problem with this b. Entrapment = police doing things against people that aren’t permissible c. Subjective approach – don’t want to induce a criminal act that wouldn’t occur d. MPC § 2.13 – difference is whether the actor had a predisposition to commit the crime or not e. When police create the crime, that’s entrapment – D isn’t really responsible f. Why does it have to be a cop at all – why isn’t there entrapment for regular people? g. We agree that the defense is a good idea, but we don’t agree why C. Insanity 1. Overview of the Insanity Defense a. MPC § 4.01 i. There is no general principle of situational excuse in our criminal law ii. D not responsible if, as result of mental disease or defect, he lacks capacity either to appreciate wrongfulness of his conduct or to conform his conduct to law iii. “substantial capacity” – suggests degree in the line-drawing – left to the jury b. M’Naghten – did not know right from wrong i. Facts – indicted for shooting secretary to Prime Minister in error, claimed insanity defense ii. Ruling – every man presumed sane; cognitive rule iii. Criticism – took too narrow a view on what it was that made humans responsible for conduct – focused solely on cognitive awareness iv. Ought to be knowledge fused with affect – know, in the sense of understand
Flusche 25 of 26 Criminal Law v. “Appreciate” emerged as a code-word to signal this vi. Courts routinely allowed jury to have testimony that D didn’t understand situation vii. Conform conduct to requirements of law – irresistible impulse test c. MPC’s influence i. Many states adopted it by statute, others by decision ii. Even federal courts adopted it iii. After acquittal of Hinckley, many people wanted to bail on the irresistible impulse test d. Imagine that courts required that actor not know nature of his conduct or didn’t know right/wrong i. Only people who got off – could not cognitively correctly identify what they were doing OR didn’t know they were doing wrong ii. If this is your standard, role of requirement of mental disease/defect isn’t very great e. Today, insanity embraces an affective notion of knowledge (understand/appreciate) – emotional component – mental disease becomes critical – there are many things that might affect a person like this f. Anti-social personality disorder – people who don’t care about what happens to you i. Almost all people diagnosed with this are male ii. Disorder is defined by repeated misconduct g. Insanity defense is extremely rare i. Historically, you would immediately be sent straight to the asylum ii. Today, you must have a hearing to determine whether someone should be committed 2. The Case of Joy Baker a. Unusual case – D is very articulate b. B says she knew it was Trevah – it looked like she looks when she is angry c. B says she wasn’t hearing any voices d. Assume: B is truthful (no prior history), 4.01 is the law – is she guilty? i. Appreciate (a) Criminality – there is a social standard that I must identify with (b) Wrongfulness – subjective approach ii. If she had killed Curtis, would we think her insane? –B would plead self-defense (BWS) iii. Her reality testing problems were only related to the first shot iv. She had a moment of clarity – knew exactly who it was & had an intellectual reason for killing her e. Actual result – prosecutor joined in motion for directed verdict of acquittal 3. Rationale for the Insanity Defense a. Some states have abolished it – but still have to prove mens rea b. Would it be a good idea to abolish insanity defense? c. When we can trace back your actions to a mental disease/defect, we allow a defense – why? d. Answers: i. Maybe we see ourselves as possible victims of mental disease ii. Maybe we just think it’s not fair e. Suggestion: one of the reasons we allow insanity defense is that flips into alternative mechanism of social control – we don’t give up much – this is cheap generosity – you still get locked away 4. Control Test a. Introduction i. Labels – irresistible impulse, control, volition ii. Actor lacks substantial capacity to conform his conduct to law iii. Idea got started in mid 1880’s iv. About 40 states had insanity defense based on MPC § 4.01 v. Hinckley caused public thinking to reverse course – many states eliminated it b. Virtues
Flusche 26 of 26 Criminal Law i. If you punish people for doing wrong things, it’s not right to punish them if they couldn’t do otherwise ii. Free will vs. determinism (a) Packer – criminal law assumes free will – we punish people for things they choose to do (b) No one actually lives as if determinism was operational iii. If there are people who can’t make choices, it’s morally wrong to blame & condemn them c. Difficulties i. Fact – are there people who, practically, cannot control their actions? (a) Impulse disorders – pyromania (Barnes), kleptomania (1) Repetitive behavior that seems to gain them nothing (2) Over short term, they have a compulsion, at least a strong urge (3) But over long term, they choose when they act (b) What about an isolated act? (1) Chester – shot his girlfriend through a door (2) Ellingwood – shot two people who were stealing gravel ii. Medicine / law interfere (a) Psychologist and psychiatrists proceed from determinist beginnings – figure out the cause (b) Lawyers start from premises of free will – people engage in behavior by choice (c) Experts would believe that human behavior can be caused by unconscious motivations (d) Experts are expert in something entirely different, and perhaps not even related (e) The law isn’t interested in explanation, it’s interested in compulsion iii. What if you acquit? (disposition) (a) With major reality testing impairments, confinement (b) No one on medical side suggests confinement for impulse disorders iv. Compare with addiction (a) This is a much bigger problem (b) Aren’t people also compelled by drug addiction? (c) We don’t have a defense for drug addiction at all (d) Bazelon – extend control branch to addiction – radical view (e) Flusche drug addicts are responsible for their addiction, mental-diseases aren’t voluntary (1) What about people who don’t take their medication? (2) Some problems are more like addiction – they get worse as you go along (3) Faus What about alcoholics? – they start with a legally-sanctioned activity (i) Powell v. Texas – habitual alcoholics can’t be punished for actions when drunk (f) Criminal law sets the floor – way at the bottom – you can’t be bad v. What does insanity defense do? (a) In order to demonstrate that we believe in free will, we isolate a case where we don’t