Docstoc

morse_crim_2007-2

Document Sample
morse_crim_2007-2 Powered By Docstoc
					                  CRIMINAL LAW OUTLINE: MORSE 2007
GENERAL PRINCIPLES & THEMES OF CRIMINAL LAW .............................................................................4
    I.       CIVIL LAW V. CRIMINAL LAW (PREVENTION V. PUNISHMENT) ........................................................................4
THE JUSTIFICATION FOR PUNISHMENT .........................................................................................................4
    I.       TAXONOMY OF PURPOSES OF PUNISHMENT ......................................................................................................5
    II.      THE MODEL PENAL CODE ................................................................................................................................7
ACTUS REUS ..............................................................................................................................................................7
    I.       TYPOLOGY OF ACT DOCTRINES .......................................................................................................................7
    II.      THE “GUILTY ACT”—GENERAL .......................................................................................................................7
    III.       VOLUNTARY ACT ........................................................................................................................................8
    IV.        OMISSION .................................................................................................................................................. 11
    V.       THE MODEL PENAL CODE .............................................................................................................................. 13
MENS REA ................................................................................................................................................................ 15
    I.       MENS REA—GENERAL PRINCIPLES, THEORIES, CONSIDERATIONS................................................................ 15
    II.      THE MODEL PENAL CODE .............................................................................................................................. 17
    III.       MOTIVE V. INTENT, WISHING V. INTENDING AND OTHER RELATED QUESTIONS ......................................... 20
    IV.        SPECIFIC V. GENERAL INTENT ................................................................................................................... 20
    V.       CONDITIONS ................................................................................................................................................... 21
ATTACKS ON THE PRIMA FACIE CASE: MISTAKES OF FACT/LAW AND INTOXICATION ............. 22
    I.       MISTAKE OF FACT .......................................................................................................................................... 22
    II.      MISTAKE OF LAW .......................................................................................................................................... 25
    III.       INTOXICATION ........................................................................................................................................... 28
STRICT LIABILITY ................................................................................................................................................ 32
    I.       GENERAL ....................................................................................................................................................... 32
    II.      CASES—STRICT LIABILITY ............................................................................................................................. 33
    III.       VICARIOUS LIABILITY................................................................................................................................ 33
    IV.        “DEFENSES” TO STRICT LIABILITY ............................................................................................................. 33
    V.       THE MODEL PENAL CODE .............................................................................................................................. 34
CAUSATION ............................................................................................................................................................. 35
    I.       CAUSATION: PHILOSOPHICAL UNDERPINNINGS/THEORETICAL CONSIDERATION............................................. 35
    II.      CAUSATION: GENERAL ISSUES ....................................................................................................................... 37
    III.       CAUSE IN FACT ......................................................................................................................................... 37
    IV.        LEGAL CAUSE ........................................................................................................................................... 37
    V.       THE MODEL PENAL CODE .............................................................................................................................. 43
ACCOMPLICE LIABILITY ................................................................................................................................... 43
    I.   THEORETICAL BASES AND POLICY CONCERNS ................................................................................................ 43
    II. ACCOMPLICE LIABILITY, GENERALLY ............................................................................................................ 44
    III.   COMMON LAW ACCOMPLICE LIABILITY .................................................................................................... 46
    IV.    ACCOMPLICE LIABILITY: MENS REA .......................................................................................................... 46
    V. ACCOMPLICE LIABILITY: ACTUS REUS............................................................................................................ 49
    VI.    ACCOMPLICE LIABILITY: RELATIONSHIP BETWEEN THE PARTIES .............................................................. 50
    VII.   DEFENSES TO ACCOMPLICE LIABILITY ...................................................................................................... 51
RAPE .......................................................................................................................................................................... 54
    I.       POLICY CONCERNS AND GUIDING PRINCIPALS .............................................................................................. 54



BDF                                                                                                                                                                            1
    II.      STATUTORY FRAMEWORKS AND REFORM ...................................................................................................... 55
    III.       ACTUS REUS ............................................................................................................................................. 55
    IV.        MENS REA ................................................................................................................................................. 57
    V.       THE MODEL PENAL CODE .............................................................................................................................. 58
HOMICIDE................................................................................................................................................................ 58
    I.       HOMICIDE, GENERALLY ................................................................................................................................. 59
    II.      INTENT-TO KILL MURDER .............................................................................................................................. 59
    III.        THE RISKY KILLING TRACK ...................................................................................................................... 66
    IV.         GRIEVOUS BODILY HARM TRACK ............................................................................................................. 70
    V.       UNLAWFUL ACT (FELONY MURDER) TRACK.................................................................................................. 70
    VI.         MODEL PENAL CODE AND MURDER .......................................................................................................... 76
ATTEMPT ................................................................................................................................................................. 78
    I.    POLICY CONCERNS AND CRITIQUES: WHY PUNISH ATTEMPT? ....................................................................... 78
    II. MENS REA....................................................................................................................................................... 79
    III.    ACTUS REUS ............................................................................................................................................... 81
    IV.     SOLICITATION ........................................................................................................................................... 85
    V. OTHER SUBSTANTIVE CRIMES OF PREPARATION ........................................................................................... 85
    VI.     THE MODEL PENAL CODE ......................................................................................................................... 86
    VII.    DEFENSES: ABANDONMENT ...................................................................................................................... 87
    VIII.   DEFENSES: IMPOSSIBILITY......................................................................................................................... 87
CONSPIRACY .......................................................................................................................................................... 90
    I.    GENERAL ....................................................................................................................................................... 90
    II. POLICY GOALS AND CONCERNS ..................................................................................................................... 90
    III.    COLLATERAL CONSEQUENCES OF CONSPIRACY CHARGE .......................................................................... 91
    IV.     ACTUS REUS ............................................................................................................................................. 92
    V. MENS REA ..................................................................................................................................................... 94
    VI.     CONSPIRACY AND STRUCTURE .................................................................................................................. 95
    VII.    DEFENSES .................................................................................................................................................. 96
    VIII.   MODEL PENAL CODE ................................................................................................................................ 97
JUSTIFICATIONS & EXCUSES: GENERAL FRAMEWORK.......................................................................... 98
JUSTIFICATION: SELF DEFENSE ................................................................................................................... 100
    I.    GENERALLY ................................................................................................................................................. 100
    II. NECESSITY ................................................................................................................................................... 101
    III.    PROPORTIONALITY .................................................................................................................................. 103
    IV.     REASONABLE BELIEF .............................................................................................................................. 103
    V. LIMITATIONS TO DEFENSE ........................................................................................................................... 107
    VI.     DEFENSE OF OTHERS ............................................................................................................................... 109
    VII.    DEFENSE OF PROPERTY ........................................................................................................................... 109
    VIII.   RESISTANCE TO ARREST.......................................................................................................................... 111
JUSTIFICATION: NECESSITY (BALANCE OF EVILS)................................................................................ 112
    I.       GENERALLY ................................................................................................................................................. 112
    II.      PURPOSE ...................................................................................................................................................... 112
    III.       CRITERIA ................................................................................................................................................. 112
    IV.        NECESSITY SITUATIONS ........................................................................................................................... 114
    V.       LIMITATIONS ................................................................................................................................................ 115
    VI.        THE MODEL PENAL CODE V. NEW YORK ................................................................................................ 116
EXCUSES: DURESS ............................................................................................................................................... 116
    I.       NECESSITY V. DURESS ................................................................................................................................. 116
    II.      GENERALLY ................................................................................................................................................. 117



BDF                                                                                                                                                                         2
   III.      PURPOSE.................................................................................................................................................. 117
   IV.       ELEMENTS ............................................................................................................................................... 118
   V.      PROVOCATION/PASSION V. DURESS ............................................................................................................. 120
EXCUSE: LEGAL INSANITY .............................................................................................................................. 121
   I.    GENERAL ..................................................................................................................................................... 121
   II. PROCEDURAL ISSUES ................................................................................................................................... 121
   III.    PURPOSE.................................................................................................................................................. 122
   IV.     CRITICISMS.............................................................................................................................................. 123
   V. COGNITIVE TESTS ......................................................................................................................................... 124
   VI.     CONTROL TESTS ...................................................................................................................................... 126
   VII.    MENTAL DISORDER REQUIREMENT ......................................................................................................... 126
   VIII.   ALTERNATIVES TO LEGAL INSANITY DEFENSE ........................................................................................ 128
EXCUSES: AUTOMATISM .................................................................................................................................. 129
   I.      AUTOMATISM AS AN EXCUSING AFFIRMATIVE DEFENSE ............................................................................... 129
   II.     AUTOMATISM AND ACTUS REUS .................................................................................................................... 129
EXCUSES: DIMINISHED CAPACITY ............................................................................................................... 130
   I.      GENERAL ..................................................................................................................................................... 130
   II.     MENS REA VARIANT .................................................................................................................................... 130
   III.      PARTIAL RESPONSIBILITY VARIANT ........................................................................................................ 131
   IV.       CONSTITUTIONALITY: CLARK V. ARIZONA ................................................................................................ 132
EXCUSES: THE PROPORTIONALITY PRINCIPLE ...................................................................................... 133
   I.      UTILITARIANISM AND PROPORTIONALITY .................................................................................................... 133
   II.     RETRIBUTIVISM AND PROPORTIONALITY ...................................................................................................... 134
   III.      WHAT ARE THE LIMITS ON PUNISHMENT? ................................................................................................ 134




BDF                                                                                                                                                                      3
GENERAL PRINCIPLES & THEMES OF CRIMINAL LAW

  I.   Civil Law v. Criminal Law (Prevention v. Punishment)
       a. The states have wide discretion in exercising their police powers to
          incapacitate individuals they believe are dangerous. The distinction here
          is between punishment and prevention.
       b. The ―desert/disease‖ gap
               i. There are two reasons to detain people in our society
                     1. To punish someone who has committed a crime (we
                         incapacitate them after they have demonstrated their
                         dangerousness)
                     2. To incapacitate someone who may commit irrational and
                         dangerous acts in the future.
              ii. The Gap
                     1. What should society do with individuals are responsible for
                         their actions and are predictably dangerous? The Gap can be
                         closed by either increasing the sentences imposed by the
                         criminal system or by widening civil commitment
             iii. See Kansas v. Hendricks in which the Supreme Court held that
                  Kansas‘ Sexually Violent Predator Act did not violate substantive
                  due process, the ex-post facto or the Double Jeopardy clauses. The
                  law created a civil commitment procedure for those who had been
                  convicted or charged with a sexual offense and who suffered from
                  a mental abnormality could be confined in a State hospital until the
                  State certified that the individual was no longer dangerous. The
                  court found that the law was not punitive; it was intended to
                  provide treatment.
                     1. Hendricks provides criteria for deciding when a law that
                         deprives someone of their liberty is civil rather than punitive
                             a. “Where the State has „disavowed any punitive
                                 intent;‟ limited confinement to a small segment of
                                 particularly dangerous individuals; provided strict
                                 procedural safeguards; direct that confined persons
                                 be segregated from the general prison population
                                 and afforded the same status as others who have
                                 been civilly committed; recommended treatment if
                                 such is possible; and permitted immediate release
                                 upon a showing that the individual is no longer
                                 dangerous or mentally impaired…”

THE JUSTIFICATION FOR PUNISHMENT




BDF                                                                                   4
  I.   Taxonomy of purposes of punishment
       a. Consquentialist or Utilitarian Theories
              i. Consequentalists/utilitarians argue that punishment is justified
                 because it achieves some net social benefit.
             ii. General prevention
                    1. general deterrence through fear
                    2. non-depreciation of criminal law
                    3. social cohesion
            iii. Specific prevention
                    1. specific deterrence through fear
                    2. incapacitation
                    3. non-parentalistic reform
            iv. Other goals
                    1. social cohesion
             v. Sentencing under a consequentialist theory
                    1. Examples
                            a. In United States v. Bergman the court sentenced a rabbi
                               with a long and distinguished history of philanthropy
                               to four months in prison for committing fraud,
                               justifying the sentence partially on the need to
                               support general deterrence and to avoid diluting the
                               seriousness of the crime.
                            b. See State v. Chaney where court held that a sentence of
                               one year in prison for two counts of rape and one
                               count of robbery was inappropriate despite the
                               defendant‘s model background because doing
                               otherwise would not reaffirm social norms.
                    2. Sentence ―enhancements‖
                            a. Question: should we increase a criminal‘s sentence for
                               a crime on the basis of exogenous factors?
                            b. Examples:
                                    i. In Bergman the rabbi was sentenced to
                                       relatively little time in prison for his previous
                                       good works.
                                   ii. But in Chaney the court recommended that the
                                       sentence be increased despite the lack of a
                                       previous record.
                                  iii. In United States v. Jackson Judge Posner argued
                                       that a defendant who robbed a bank on the day
                                       of his release from prison (where he had been
                                       held for the same crime) should not be subject
                                       to an enhanced sentence because doing so
                                       would not increase the deterrent effect and was


BDF                                                                                   5
                                      not necessary to incapacitate him because a
                                      sufficiently long sentence would make him too
                                      old to commit the crime.
                                  iv. In United States v. Johnson the court used the
                                      sentencing guidelines established by the
                                      federal government to decrease the sentence of
                                      a defendant who had committed fraud and
                                      bribery because the defendant was the primary
                                      caregiver to five children.
      b. Retributive (deontological) Theory
             i. Punishment is justified by the desert of the offender. Some
                retributivists go so far as to say that punishment must be imposed
                because the offender must be treated as a moral agent who has
                earned punishment; failure to punish refuses to recognize this
                capacity.
                    1. many retributivists concentrate on the offenders ―choice‖ to
                       commit a crime
                    2. but some argue that we should punish people because of
                       their character—their choices are simply evidence of that
                       character.
            ii. Examples
                    1. In Regina v. Dudley and Stevens the court held that the
                       defendant was guilty of murdering a fellow sailor in order to
                       eat him while stranded on the high seas thousands of miles
                       from the nearest shipping lane. The court‘s arguments
                       justifying punishment on utilitarian grounds were
                       unpersuasive, but a retributivist would find no problem
                       with punishing the defendant.
           iii. Sentencing under a retributivist theory
                    1. In United States v. Bergman the court sentenced a rabbi with a
                       long and distinguished history of philanthropy to four
                       months in prison for committing fraud despite finding that it
                       would not serve the needs of specific deterrence,
                       incapacitation, education or reform. The punishment was
                       instead justified by need for retribution.
                    2. Sentence ―enhancements‖
                           a. Question: should be increase a criminal‘s sentence for
                               a crime on the basis of exogenous factors?
                           b. Examples:
                                   i. In Bergman the rabbi was sentenced to
                                      relatively little time in prison for his previous
                                      good works. A character retributivists would
                                      support this result.


BDF                                                                                  6
                                          ii. In United States v. Jackson Judge Posner argued
                                              that a defendant who robbed a bank on the day
                                              of his release from prison (where he had been
                                              held for the same crime) should not be subject
                                              to an enhanced sentence because, among other
                                              reasons, the defendant had not harmed
                                              anyone—the retribution imposed was too high.
                                         iii. But a pure retributivist would oppose the
                                              result in Johnson and a character retributivist
                                              might reject the reasoning in Chaney by
                                              claiming that the actions were out of character.
           c. Mixed theories
                  i. Punishment is justified if and only if it achieves a net social gain
                     AND the person deserves it
                         1. we should punish people some net social gain is achieved
                            but only if the person deserves it
                         2. we should punish people because they deserve it but only
                            when a net social gain is achieved.
                 ii. Punishment is justified if and only if it achieves a net social gain OR
                     the person deserves it
                         1. this theory has all of the problems associated with both
                            consequentialist and retributivists and is thus never
                            endorsed.
    II.    The Model Penal Code
           a. Section 1.02—Purposes; Principles of Construction

ACTUS REUS

    I.     Typology of Act Doctrines1
           a. Voluntary Act requirement
           b. Actus Reus requirement
           c. Double Jeopardy Requirement
    II.    The ―guilty act‖—General
           a. Dressler states that the term ―actus reus‖ general includes three
              ingredients of a crime
                  i. Voluntary act
                 ii. That causes2
                iii. Social harm3

1 Michael Moore, ―Act and Crime,‖ KMM p. 179, 184-85.
2 See the section on causation beginning on page 34
3 See page 8




BDF                                                                                         7
               b. Rationale—Why require action?4
                       i. A society might desire to punish individuals who harbor immoral
                          thoughts: desires to kill, maim or injure. But society does not
                          punish. Why?
                      ii. Pragmatic reasons
                              1. impossible to read other people‘s minds
                     iii. Theoretical/ Principled Reasons
                              1. everyone has desired that harm befall someone else at one
                                 point in time.
                              2. thoughts are not deterrable; action is.
      III.     Voluntary Act
               a. Morse: Be careful about the word “involuntary.” Involuntariness is a
                  legal conclusion, not an argument!
               b. Rationale
                       i. Utilitarian:
                              1. the threat of punishment cannot deter involuntary action,
                                 but it can motivate individuals to adjust their behavior.
                              2. the use of punishment can make involuntary actors less
                                 dangerous
                      ii. Retributivist
                              1. punishment should be inflicted on those who deserve it—
                                 those who act as the result of a free choice.
               c. Definitions
                       i. Dressler: ―A voluntary act involves the use of the human mind; an
                          involuntary act involves the use of the human brain. With a
                          voluntary act, a human being—a person—and not simply an organ
                          of a human being, causes the bodily action.‖5
                      ii. In Martin v. State the Alabama Court of Appeals held that the
                          prosecution had not established its prima facie case against the
                          defendant for violating a statute stating that ―any person who,
                          while intoxicated or drunk, appears in any public place where one
                          or more person are present,…and manifests a drunken condition
                          by boisterous or indecent conduct, or loud and profane discourse,
                          shall, on conviction, be fined,‖ because the defendant had not
                          ―appeared‖ in a public place voluntarily but had instead been
                          forcibly carried there by police.
                              1. ―Appears‖ was interpreted as an act—defendant could not
                                 be convicted because this act had not occurred voluntarily.
                                 Indeed, the defendant had not acted at all.


4   Dressler, 82.
5   Dressler, 86.



BDF                                                                                       8
                                    a. But See Winzar v. Chief Constable of Kent where the
                                        court found the defendant guilty after being found
                                        drunk near a hospital even though he had been taken
                                        to the hospital involuntarily. The court concluded
                                        that being found drunk was a circumstance and not
                                        an act. (this was result of statutory drafting)
               d. Time Framing Issues
                      i. The prosecution does not need to show that every act, or the
                         defendant‘s last act, was voluntary. It just needs to show that the
                         defendant‘s conduct included a voluntary act6
                     ii. Relationship to causation issue
                            1. Dressler: ―in time-framing, a court may not properly choose
                                any conduct it wishes; it must focus on the relevant conduct
                                (performed with the requisite mens rea) that actually and
                                proximately caused the social harm of the offense charged.‖7
                            2. See People v. Decina in which an epileptic was convicted of
                                criminal negligence after he had a seizure while operating a
                                vehicle, lost control and killed four children. Here, the act
                                was the operation of a motor vehicle with the knowledge
                                that he was an epileptic
               e. ―Actish‖ situations
                      i. Unconsciousness
                            1. In People v. Newton the court held that the lower court had
                                erred in refusing to give the jury an instruction indicating
                                that when not self-induced, unconsciousness is a complete
                                defense to a charge of criminal homicide. The case involved
                                Huey Newton, who was charged with the murder of a police
                                officer. The facts are unclear, but at some point Newton was
                                shot in the stomach. He argued that this shot placed him in
                                a state of semi-consciousness in which he was unaware of
                                his actions, which included drawing a pistol from a
                                policeman‘s holster, shooting a police officer and making his
                                way to a hospital.
                                    a. Morse: This is goal-directed behavior that looks like
                                        voluntary action. But one might conclude that
                                        Newton was not self-aware.
                            2. The Majority rule is to treat evidence of ―actish‖ activities as
                                evidence that negates the prima facie case.



6   Dressler, 90.
7   Dressler, 90.



BDF                                                                                          9
                    a. Some jurisdictions recognize an affirmative defense of
                       ―automatism.‖ See infra, p. 124
       ii. Habit
              1. Habit is explicitly recognized by the MPC as voluntary
                 action
      iii. Possession
              1. Possession is explicitly recognized by the MPC as a
                 voluntary action so long as the person is aware that she has
                 the thing she is charged with possessing.
                     a. Some courts find that it is sufficient that a person
                         should have known that they were in possession (see
                         mens rea)
      iv. Somnambulism
              1. Morse compares these cases to unconsciousness. Here, the
                 defendant is also, arguably, not self-aware.
       v. Hypnosis
              1. MPC Commentary: ―The widely held view that the
                 hypnotized subject will not follow suggestions which are
                 repugnant to him was deemed insufficient to warrant
                 treating his conduct while hypnotized as voluntary; his
                 dependency and helplessness are too pronounced.‖
      vi. Addiction and ―status offenses‖
              1. Status offenses (i.e., vagrancy laws) are often invalidated as
                 being unconstitutionally vague.
              2. In Robinson v. California the Supreme Court held that a
                 California law criminalizing addiction to narcotics was cruel
                 and unusual punishment in violation of the 8th/14th
                 amendments. The court agreed that addiction was an
                 illness. As such, it could be criminalized no more than being
                 a leper or being mentally ill or having a venereal disease
                 could be criminalized. The concurring opinion noting that
                 addiction alone indicates only a propensity to use
                 narcotics—the statute criminalized desire.
                     The dissent argued that the majority rule was illogical: it
                 would be no less offensive to convict someone for use on the
                 basis of the same evidence of use which proved that he was
                 an addict.
                     a. Morse says that this might be considered action. One
                         of the characteristics that defined addiction is seeking
                         and using. This is action and one might be justified in
                         punishing it. Robinson, however, is usually read
                         narrowly to hold that the state cannot punish mere
                         status. This is how the Supreme Court read the case


BDF                                                                           10
                                    when it heard Powell v. Texas—a case involving an
                                    alcoholic – a few years later.
           f. Social Harm – should it be a necessary element of actus reus?
                  i. The majority among academics believes that social harm is not a
                     necessary element of the crime—the act and mens rea are enough.8
                 ii. The law everywhere is that social harm is a necessary element of the
                     actus reus.
    IV.    Omission
           a. Theoretical/Philosophical concerns
                  i. The criminal law is more forgiving of omissions than action. This
                     reflects a value judgment that affirmative obligations are odious to
                     liberty and ought not to be imposed.
                         1. EX: Innocent causing of peril
                                 a. Arguments against imposing a duty to rescue
                                         i. Number of potential defendants would be
                                            enormous
                                        ii. Greatly increases the potential to infringe a
                                            person‘s liberty through incarceration after
                                            conviction and because every legal duty
                                            imposed is a liberty restriction
                                       iii. We don‘t want to force people to be virtuous
                                       iv. Evidentiary/epistemological problem: very
                                            difficult to infer a mental state from an
                                            omission
                 ii. An omission may be defined as stillness.
                iii. Distinguished from act
                         1. Parsed down to its philosophical essence, it is hard to
                             distinguish an act from an omission.
                                 a. See Barber v. Superior Court in which court dismissed
                                    murder and conspiracy charges against a doctor who
                                    removed life-support equipment and feeding tubes to
                                    patient in persistent vegetative state after consultation
                                    with the patient‘s family.
                                         i. The court struggled to define this as an
                                            omission to avoid legal sanction.
                                        ii. There is a general distinction in American law
                                            between letting die and killing.
           b. General Rule

8 Professor Morse‘s hypothetical involved a soldier in combat who intends to ―frag‖ his sergeant, but
accidentally kills an enemy soldier instead. Here the soldier performed a voluntary act with the
necessary mens rea, but the consequence was not criminal. Most academics believe that this is murder,
but our criminal law would not charge the soldier.



BDF                                                                                               11
                   i. Generally, a person may not be held criminally responsible simply
                      because of their failure to act unless there is a legal duty.
                          1. See Pope v. State the court held that Joyce Lillian Pope could
                             not be held criminally liable when Demiko Lee Norris,
                             whom Pope had offered to house, murdered her three-
                             month old infant in a violent religious frenzy. The court
                             held that Pope had no legal duty to act.9
            c. Exceptions to general rule: situations in which a duty is imposed10
                   i. Professional responsibilities
                          1. All American jurisdictions require physicians and other
                             designation professionals to report child abuse.
                  ii. General statutory prohibition of omission
                          1. Good Samaritan statutes
                          2. Tax laws
                 iii. Status relationships11
                          1. parent/child
                                 a. See Commonwealth v. Cardwell in which mother was
                                    convicted of child abuse for failing to take sufficient
                                    steps to protect her daughter from sexual abuse by
                                    the father/husband.12
                          2. husband/wife
                                 a. See People v. Beardsley in which court held that
                                    Beardsley could not be convicted of involuntary
                                    manslaughter when, during weekend rendezvous
                                    with a woman who was not his wife, the woman took
                                    a fatal does of morphine tablets and Beardsley failed
                                    to call a physician.13
                          3. master/apprentice
                          4. ship‘s caption/crew and passengers
                          5. innkeeper to inebriated customers.
                 iv. Contractual obligations
                  v. Where one has voluntarily assumed the care of another and so
                      secluded the helpless person as to prevent others from rendering
                      aid.
                          1. See Regina v. Stone and Dobinson where court held that Stone
                             and Dobinson could be convicted of manslaughter after

9 Morse‘s criticism of this case can be found in my notes on 1/23/2007
10 For a discussion of this issue see Jones v. United States in which court discussed situations in which a
person has a legal duty to act. Kadish, 191.
11 Footnote 9, Kadish, 191.
12 Kadish, 192.
13 Kadish, 194.




BDF                                                                                                     12
                              failing to provide adequate care for Stone‘s 61-year old sister
                              who had developed anorexia nervosa.14
                           2. See People v. Oliver where court upheld the involuntary
                              manslaughter conviction of defendant who met a man at a
                              bar, took him to her house, gave him a spoon to ingest
                              heroin, left after he passed out and then told daughter to
                              carry him from the room and place him outside behind a
                              shed.
                                  a. Here the court relied on the Restatement of Torts (2d)
                                      §321.
                  vi. Culpable creation of peril
                           1. one who culpably places another in peril has a duty to assist
                              the imperiled person.
                                  a. See Jones v. State where defendant was convicted of
                                      second-degree murder after refusing to rescue 12-year
                                      old girl who jumped into creek after being raped by
                                      the defendant.15
     V.      The Model Penal Code
             a. Section 1.13(9)16


14 Kadish, 194.
15 Kadish, 196. Note the connection to causation doctrine. If the girl was a rational actor who committed
suicide, then the defendant can not be held to be a ―legal cause‖ of her death. On the other hand, if after
the rape the defendant was irrational, the causal chain was not broken and the defendant is responsible.
16 MPC Section 1.13 GENERAL DEFINITIONS



     (1) ―statute‖ includes the Constitution and a local law or ordinance of a political subdivision of the
          State;
     (2) ―act‖ or ―action‖ means bodily movement whether voluntary or involuntary
     (3) ―voluntary‖ has the meaning specified in Section 2.01;
     (4) ―omission‖ means failure to act;
     (5) ―conduct‖ means an action or omission and its accompanying state of mind, or, where relevant, a
          series of acts and omissions;
     (6) ―actor‖ includes, where relevant, a person guilty of an omission;
     (7) ―acted‖ includes, where relevant, ―omitted to act‖;
     (8) ―person,‖ ―he‖ and ―actor‖ include any person and, where relevant, a corporation or an
          unincorporated association.
     (9) ―Element of an offense‖ means (i) such conduct or (ii) such attendant circumstances or (iii) such a
          result of conduct as
               a. is included in the description of the forbidden conduct in the definition of the offense; or
               b. establishes the required kind of culpability; or
               c. negatives an excuse or justification for such conduct; or
               d. negatives a defense under the statute of limitations; or
               e. establishes jurisdiction or venue;
     (10) ―material element of an offense‖ means an element that does not relate exclusively to the statute
          of limitations, jurisdiction, venue or to any other matter similarly unconnected with (i) the harm



BDF                                                                                                        13
                   i. Breaks down the actus reus requirement into three components
                      (material elements)
                          1. conduct
                          2. circumstance
                          3. result
            b. Section 2.0117
                   i. The Model Penal Code defines an act or action as ―a bodily
                      movement whether voluntary or involuntary.‖ MPC §1.13 (2)
                  ii. A person is not guilty of an offense unless the liability is based on
                      conduct that includes a voluntary act.
                          1. The commentary says that voluntary action is that which is
                              ―within the control of the actor.‖
                 iii. Omissions



         or evil, incident to conduct, sough to be prevented by the law defining the offense, or (ii) the
         existence of a justification or excuse for such conduct;
    (11) ―purposely‖ has the meaning specified in Section 2.02 and equivalent terms such as ―with
         purpose,‖ ―designed‖ or ―with design‖ have the same meaning;
    (12) ―intentionally‖ or ―with intent‖ means purposely;
    (13) ―knowingly‖ has the meaning specified in Section 2.02 and equivalent terms such as ―knowing‖
         or ―with knowledge‖ have the same meaning;
    (14) ―recklessly‖ has the meaning specified in Section 2.02 and equivalent terms such as
         ―recklessness‖ or ―with recklessness‖ have the same meaning;
    (15) ―negligently‖ has the meaning specified in Section 2.02 and equivalent terms such as
         ―negligence‖ or ―with negligence‖ have the same meaning;
    (16) ―reasonably believes‖ or ―reasonable belief‖ designates a belief which the actor is not reckless or
         negligent in holding.
17 MPC Section 2.01. REQUIREMENT OF VOLUNTARY ACT; OMMISSION AS BASIS OF LIABILITY;

POSSESSION AS AN ACT

    (1) A person is not guilty of an offense unless his liability is based on conduct which includes a
        voluntary act or the omission to perform an act of which he is physically capable.
    (2) The following are not voluntary acts within the meaning of this Section:
        (a) a reflex or convulsion;
        (b) a bodily movement during unconsciousness or while asleep;
        (c) conduct during hypnosis or resulting from hypnotic suggestion;
        (d) a bodily movement that otherwise is not a product of the effort or determination of the actor,
            either conscious or habitual.
    (3) Liability for the commission of an offense may not be based on an omission unaccompanied by
        action unless:
        (a) the omission is expressly made sufficient by the law defining the offense; or
        (b) a duty to perform the omitted act is otherwise imposed by law
    (4) Possession is an act, within the meaning of this Section, if the possessor knowingly procured or
        received the thing possessed or was aware of his control thereof for a sufficient period to have
        been able to terminate his possession.




BDF                                                                                                      14
                    1. No liability for omission unless statute expressly states that
                       failure to act is a crime or the defendant has a duty imposed
                       by civil law.

MENS REA

  I.   Mens Rea—General Principles, Theories, Considerations
       a. Meaning
              i. General Mens Rea
                     1. connotes the entire idea of culpability—all the elements of a
                        crime have been proven and there are no affirmative
                        defenses
                     2. Blackstone: ―an unwarrantable act without a vicious will is
                        no crime at all.‖
             ii. Specific Mens Rea
                     1. the mental state specifically required by the statute that
                        defines the crime
       b. Why have a mens rea requirement?
              i. Retributivist arguments
                     1. the purpose of criminal law is to punish for the desert of the
                        offender. If someone has not made a ―choice‖ to commit a
                        wrong then they do not deserve to be punished.
             ii. Consequentialist arguments
                     1. We can only deter voluntary acts.
                     2. We want to incarcerate those who desire to hurt other
                        human beings.
       c. Confusion/chaos of the common law
              i. The word ―intent‖ has at least three meanings in the case law
                     1. can be the mens rea defined by the statute that defined the
                        crime. In this context ―intent‖ usually means ―knowledge‖
                     2. can simply be a generic term used to refer to any mens rea
                        (i.e., ―criminal intent‖)
                     3. Can be a synonym for general mens rea—used to convey the
                        idea that the elements of the crime have been met and there
                        is no affirmative defense.
       d. Mens Rea is the pivot point of criminal law: holding all else constant, we
          assess culpability according to a person‘s mental state.
       e. THERE MUST BE A SPECIFIC MENS REA FOR EACH CRIME
              i. See Regina v. Cunningham in which a man convicted of larceny for
                 ripping a gas meter from a wall was also charged with ―unlawfully
                 and maliciously‖ causing to be taken by Sarah Wade a noxious
                 thing (coal gas) that endangered her life. The court concluded the



BDF                                                                                15
          mens rea of the theft could not be used to satisfy the required mens
          rea of the other crime.
      ii. See Regina v. Faulkner in which court overturned conviction of
          defendant for arson after he attempted to steal rum from the
          forecastle of a ship‘s hold at night and accidentally set fire to the
          ship while using a match to find his way.




BDF                                                                         16
      II.     The Model Penal Code18


18   Section 2.02 GENERAL REQUIREMENTS OF CULPABILITY

      (1) Minimum Requirements of Culpability. Except as provided in Section 2.05 (Strict Liability), a person
          is not guilty of an offense unless he acted purposely, knowingly, recklessly, or negligently, as the
          law may require, with respect to each material element of the offense
      (2) Kinds of Culpability Defined.
              a. Purposely. A person acts purposely with respect to a material element of an offense when:
                         i. If the element involves the nature of his conduct or a result thereof, it is his
                            conscious object to engage in conduct of that nature or to cause such a result; and
                        ii. If the element involves the attendant circumstances, he is aware of the existence
                            of such circumstances or he believes or hopes they exist.
              b. Knowingly. A person acts knowingly with respect to a material element of an offense
                   when:
                         i. If the element involves the nature of his conduct or the attendant circumstances,
                            he is aware that his conduct is of that nature or that such circumstances exist; and
                        ii. If the element involves a result of his conduct, he is aware that it is practically
                            certain that his conduct will cause such a result.
              c. Recklessly. A person acts recklessly with respect to a material element of an offense when
                   he consciously disregards a substantial and unjustifiable risk that the material element
                   exists or will result from his conduct. The risk must of such a nature and degree that,
                   considering the nature and purpose of the actor‘s conduct and the circumstances known
                   to him, its disregard involves a gross deviation from the standard of conduct that a law-
                   abiding person would observe in the actor‟s situation.
              d. Negligently. A person acts negligently with respect to a material element of an offense
                   when he should be aware of a substantial and unjustifiable risk that the material
                   element exists or will result from his conduct. The risk must be of such a nature and
                   degree that the actor‘s failure to perceive it, considering the nature and purpose of his
                   conduct and the circumstances known to him, involves a gross deviation from the
                   standard of care that a reasonable person would observe in the actor‟s situation.
      (3) Culpability Required Unless Otherwise Provided. When the culpability sufficient to establish a
          material element of an offense is not prescribed by law, such element is established if a person
          acts purposely, knowingly or recklessly with respect thereto.
      (4) Prescribed Culpability Requirement Applies to All Material Elements. When the law defining an
          offense prescribes the kind of culpability that is sufficient for the commission of an offense,
          without distinguishing among the material elements thereof, such provision shall apply to all the
          material elements of the offense, unless a contrary purpose plainly appears.
      (5) Substitutes for Negligence, Recklessness and Knowledge. When the law provides that negligence
          suffices to establish an element of an offense, such element also is established if a person acts
          purposely, knowingly or recklessly. When recklessness suffices to establish an element, such
          element also is established if a person acts purposely or knowingly. When acting knowingly
          suffices to establish an element, such element also is established if a person acts purposely.
      (6) Requirement of Purpose Satisfied if Purpose is Conditional. When a particular purpose is an element
          of an offense, the element is established although such purpose is conditional, unless the
          condition negatives the harm or evil sought to be prevented by the law defining the offense.
      (7) Requirement of Knowledge Satisfied by Knowledge of High Probability. When knowledge of the
          existence of a particular fact is an element of an offense, such knowledge is established if a person
          is aware of a high probability of its existence unless he actually believes that it does not exist.



BDF                                                                                                          17
             a. Baseline culpability is recklessness
                    i. This is because recklessness involves an awareness—it involves a
                       mental state while negligence does not.
             b. Elemental Analysis
                    i. Each material element of the crime has a mens rea requirement
                   ii. ―Material elements‖ are those that define the crime or an
                       affirmative defense
             c. Purpose/Knowledge
                    i. Commentary: ―action is not purposive with respect to the nature or
                       results of the actor‘s conduct unless it was his conscious object to
                       perform an action of that nature or to cause such a result. It is
                       meaningful to think of the actor‘s attitude as different if he is aware
                       that his conduct is of the required nature or that the prohibited
                       result is practically certain to follow from his conduct.
                   ii. Willful ignorance—―ostrich‖ rules
                           1. Nature of problem
                                  a. Assume a criminal statute with a knowledge
                                      requirement. The criminal does everything in his
                                      power to avoid actual knowledge of the criminal act,
                                      but has strong reason to believe that something
                                      criminal is occurring. How should the law respond
                           2. Model Penal Code19
                                  a. Knowledge is established if there is a high probability
                                      of the existence of the element in question
                           3. In United States v. Jewell the 3rd Circuit, adopting the analysis
                               used in the Model Penal Code, held that a defendant
                               charged with transporting drugs over the border between
                               the United States and Mexico could be said to have

     (8) Requirement of Wilfulness Satisfied by Acting Knowingly. A requirement that an offense be
          committed wilfully is satisfied if a person acts knowingly with respect to the material elements of
          the offense, unless a purpose to impose further requirements appears.
     (9) Culpability as to Illegality of Conduct. Neither knowledge nor recklessness or negligence as to
          whether conduct constitutes an offense or as to the existence, meaning, or application of the law
          determining the elements of an offense is an element of such offense, unless the definition of the
          offense or the code so provides.
     (10) Culpability as Determinant of Grade of Offense. When the grade or degree of an offense depends on
          whether the offense is committed purposely, knowingly, recklessly or negligently, its grade or
          degree shall be the lowest for which the determinative kind of culpability is established with
          respect to any material element of the offense.

19Requirement of Knowledge Satisfied by Knowledge of High Probability. When knowledge of the existence of a
particular fact is an element of an offense, such knowledge is established if a person is aware of a high
probability of its existence unless he actually believes that it does not exist.




BDF                                                                                                       18
                          ―knowingly‖ possessed the drugs if he acted with ―an
                          awareness of the high probability of the existence‖ of the
                          drugs.
          d. Risk Creation
                 i. Recklessness involves conscious risk creation. The risk must be
                    substantial and unjustifiable.
                       1. Commentary: ―Some standard is needed for determining
                          how substantial and how unjustifiable the risk must be in
                          order to warrant a finding of culpability. There is no way to
                          state this value judgment that does not beg the question in
                          the last analysis; the point is that the jury must evaluate the
                          actor‘s conduct and determine whether it should be
                          condemned.‖
                ii. Negligence
                       1. Does not involve a state of awareness (so actually not a mens
                          rea at all!)
                       2. Commentary: ―He is liable if given the nature and degree of
                          the risk, his failure to perceive it is, considering the nature
                          and purpose of the actor‘s conduct and the circumstances
                          known to him, a gross deviation from the care that would be
                          exercised by a reasonable person in his situation.‖
               iii. Framework for risk creation crimes
                       1. Two questions
                              a. How much risk was created?
                              b. What is the mental state (negligence or recklessness)
                       2. Civil v. Criminal Negligence
                              a. The difference between civil and criminal negligence
                                  lies not in the mental state, but in the amount of risk
                                  created.
                              b. How much more risk?
                                        i. Morse: Civil Risk2?
                                       ii. This will always be a very fact specific question
                              c. See Santillanes v. New Mexico in which court
                                  overturned defendant‘s conviction for negligently
                                  cutting his 7-year old nephew‘s neck with a knife
                                  because the trial court had delivered a jury instruction
                                  based on a tort definition of negligence.
Culpability level     Conduct                  Attendant               Result
                                               Circumstances
Purposely             Defendant‘s              Defendant is aware Defendant‘s
                      conscious object is or hopes or believes conscious object is
                      to engage in such the circumstances to cause this result.
                      conduct                  exist.


BDF                                                                                      19
Knowingly              Defendant is aware Defendant is aware Defendant is aware
                       his conduct is of this the circumstances that the results is
                       nature                  exist                 practically certain
Recklessly             Defendant               Defendant             Defendant
                       consciously             consciously           consciously
                       disregards           a disregards           a disregards           a
                       substantial       and substantial        and substantial        and
                       unjustifiable     risk unjustifiable     risk unjustifiable     risk
                       that he is engaging that the proscribed that the result will
                       in this proscribed circumstances exist occur
                       conduct
This disregard involves a gross deviation from the standard of conduct that a law-
abiding person would observe, considering defendant‘s purpose and the circumstances
known to him.
Negligently            ―grossly‖ fails to ―grossly‖ fails to ―grossly‖ fails to
                       recognize            a recognize           an recognize            a
                       substantial       and unjustifiable      risk substantial       and
                       unjustifiable risk he that the proscribed unjustifiable         risk
                       is engaging in this circumstances exist. that the result will
                       conduct                                       occur
The failure to recognize the risk, given defendant‘s purpose and the circumstances
known to him, involves a gross deviation from the standard of care a reasonable person
would observe.
   III.   Motive v. Intent, Wishing v. Intending and other related questions
          a. Motive distinguished from intent
                  i. Motive consists of the larger ―why‖
                 ii. Intent is the mens rea required for the crime.
                iii. Ex: A doctor injects his patient with poison to ease his suffering.
                     The doctor‘s motive is to end the suffering. But he has the intent to
                     kill the patient.
                         1. See Barber v. Superior Court20
          b. Motive is irrelevant to criminal liability
                  i. BUT, motive can help to infer the necessary mens rea
   IV.    Specific v. General intent
          a. Historical beginning
                  i. A common law doctrine introduced to limit the culpability of
                     defendants who could not be said to have developed the necessary
                     mens rea. Common law judges solved this problem by saying the
                     defendant had general, but not specific intent
          b. Specific Intent

20   supra, p. 9.



BDF                                                                                     20
                       i. Generally, specific intent identifies those actions that must be done
                          with some specified further purpose in mind.
                              1. Ex: Burglary—required that a person break and enter with
                                 the intent to commit a felony inside.
                              2. Ex: Assault with intent to kill.
                      ii. Specific intent is generally more subjective.
                              1. the crime requires the defendant to have actual knowledge
                                 of some particular circumstance
               c. General intent
                       i. General intent can often be gleaned objectively.
                              1. Ex: Assault
               d. Tools for distinguishing between specific and general intent
                       i. Look to see if the statute contains two mens rea requirements
                              1. the first mens rea is often general; the second mens rea is
                                 often specific
               e. This is a very messy and needless distinction. There are often no good
                  arguments distinguishing general from specific intent; the two concepts
                  are easily manipulated. But the distinction lives on in most states (though
                  is not present in the MPC)
                       i. See, for example, People v. Neiswender in which defendant was
                          found guilty of obstruction of justice—a crime requiring that the
                          defendant ―endeavor to influence, obstruct or impede the due
                          administration of justice‖—after approaching the lead prosecutor
                          in a high-profile case with information that he could control the
                          jury. The defendant, however, told the attorney to fully represent
                          his client to make everything look real. Since the truth of the
                          defendant‘s assertion could not be proved, he argued that the
                          specific intent requirement had not been met. The court upheld the
                          conviction using a negligence mens rea.21
                      ii. See People v. Hood in which Justice Traynor admits that there is no
                          rational way to characterize assault as a general or specific intent
                          crime.
       V.      Conditions
               a. General problem
                       i. How does the criminal law deal with defendants who commit a
                          crime with a condition attached to it; that is, they don‘t intend for a
                          specific harm to happen but have created the risk that it will
                          happen.
               b. In Holloway v. United States the Supreme Court held that a man could be
                  convicted of carjacking under a federal statute making it a crime to carjack

21   Kadish, p. 217. Also, my notes from 1.29.07.



BDF                                                                                           21
                 ―with the intent to cause death or serious bodily harm‖ even when the
                 government had not proven that the defendant had an unconditional intent
                 to kill or harm in all events rather than an intent to kill or harm only if
                 necessary to effect the carjacking.
              c. Model Penal Code Section 2.02 (6) supports the holding in Holloway.22
                     i. The element is established unless the condition ―negatives‖ the
                         harm.
                            1. Ex: Defendant takes property intending to keep it, but only if
                               it turns out to be his own. (negatives the ―property of
                               another‖ element in larceny).


ATTACKS ON THE PRIMA FACIE CASE: MISTAKES OF FACT/LAW and
INTOXICATION

      I.      Mistake of Fact23
              a. General
                    i. A pure mistake of fact negatives the mens rea requirement and
                        eliminates culpability
              b. The Model Penal Code24


22 Requirement of Purpose Satisfied if Purpose is Conditional. When a particular purpose is an element of an
offense, the element is established although such purpose is conditional, unless the condition negatives
the harm or evil sought to be prevented by the law defining the offense.
23 Morse‘s Tree Hypothetical: You are out in the forest. There is a person disguised as a tree. You desire

to shoot a tree so you purposely take aim at the tree and shoot at it. The person dies.

      (1) Purpose murder?
               a. Mistake unreasonable Not guilty (no purpose to kill person)
               b. Mistake reasonable Not guilty (no purpose to kill person)
      (2) Knowledge murder?
               a. Mistake unreasonablenot guilty (no knowledge that tree was person)
               b. Mistake reasonable not guilty (no knowledge that tree was person)
      (3) Reckless murder?
               a. Mistake unreasonablenot guilty (not consciously aware of the risk)
               b. Mistake reasonable not guilty (not consciously aware of the risk)
      (4) Negligent murder
               a. Mistake unreasonable guilty (person should have been aware of the risk)
               b. Reasonable mistake not guilty (no reason person should have been aware of risk)
      (5) In effect, prosecutor charging defendant with negligent murder is getting conviction on strict
          liability—the mens rea requirement was irrelevant.

24   Section 2.04 IGNORANCE OR MISTAKE

      (1) Ignorance or mistake as to a matter of fact or law is a defense if:



BDF                                                                                                      22
                      i. The model penal code allows a mistake of fact to serve as a
                         ―defense‖ if it negatives the mens rea stipulated in the statute
                     ii. The ―lesser crime‖ rule
                            1. The Model Penal Code provides that the defense is not
                                available ―if the defendant would be guilty of another
                                offense had the situation been as he supposed.‖
                                    a. For example: person breaks into a building believing
                                        it is a warehouse, but it is a dwelling. (1st degree as
                                        opposed to 2nd degree burglary)
                            2. But, the MPC differs from the Common Law in that the
                                ignorance or mistake reduces the crime to the one he would
                                have been guilty of had the mistake been as he supposed.
                    iii. Mistake of fact only applies to material elements25
                            1. Jurisdiction is not a material element
                                    a. See United States v. Feola in which the court upheld the
                                        conviction of defendants for an assault upon federal
                                        officers engaged in the performance of their duties
                                        even though the defendant were unaware that their
                                        victims were federal agents on the grounds that the
                                        ―federal agent‖ element of the statute was


            a.    The ignorance or mistake negatives the purpose, knowledge, belief, recklessness or
                  negligence required to establish a material element of the offense; or
              b. The law provides that the state of mind established by such ignorance or mistake
                  constitutes a defense.
     (2) Although ignorance or mistake would otherwise afford a defense to the offense charged, the
         defense is not available if the defendant would be guilty of another offense had the situation been
         as he supposed. In such case, however, the ignorance or mistake of the defendant shall reduce
         the grade and degree of the offense of which he may be convicted to those of the offense of which
         he would be guilty had the situation been as he supposed.
     (3) A belief that conduct does not legally constitute an offense is a defense to a prosecution for that
         offense based upon such conduct when:
              a. The statute or other enactment defining the offense is not known to the actor and has not
                  been published or otherwise reasonably made available prior to the conduct alleged; or
              b. He acts in reasonable reliance upon an official statement of the law, afterward
                  determined to be invalid or erroneous, contained in (i) a statute or other enactment; (ii) a
                  judicial decision, opinion or judgment; (iii) an administrative order or grant of
                  permission; or (iv) an official interpretation of the public officer or body charged by law
                  with responsibility for the interpretation, administration or enforcement of the law
                  defining the offense.
     (4) The defendant must prove a defense arising under Subsection (3) of this Section by a
         preponderance of the evidence.
25 ―material element of an offense‖ means an element that does not relate exclusively to the statute of

limitation, jurisdiction, venue or to any other matter similarly unconnected with (i) the harm or evil,
incident to conduct, sough to be prevented by the law defining the offense, or (ii) the existence of a
justification or excuse for such conduct;



BDF                                                                                                        23
                               jurisdictional so a mistake of fact defense did not
                               apply.
           iv. Commentary to MPC Section 2.04
                    1. ―Ignorance or mistake has only evidentiary import; it is
                       significant whenever it is logically relevant, and it may be
                       logically relevant to negate the required mode of culpability
                       or to establish a special defense.‖
      c. The Common Law
             i. Often the common law required that a mistake of fact be
                ―reasonable‖ (note that the MPC does not impose this
                requirement).
            ii. The “lesser wrong” principle
                    1. In Regina v. Prince Judge Bramwell argued that a defendant
                       who committed a wrong assumed the risk that his wrong act
                       was enough to hold him responsible for a crime even if the
                       defendant‘s mistake negatived the mens rea of the crime.
           iii. The “lesser crime” principle (adopted by MPC—see above)
                    1. In Regina v. Prince Judge Brett argued that ―if the facts were
                       as [the defendant] believed he would be committing the
                       lesser crime. Then he runs the risk of his crime resulting in
                       the greater crime.‖
           iv. Specific v. general intent
                    1. The common law allowed a mistake of fact defense only
                       with respect to specific intent. A defendant could still be
                       convicted of a lesser general intent crime.
      d. ―Bump-up‖ Strict liability: mistakes of fact in the common law
             i. Failure to recognize a mistake of fact defense, even if the mistake is
                reasonable, transforms a negligence crime into one of strict liability.
                    1. See Regina v. Prince in which court upheld the conviction of a
                       defendant who violated a statute making it unlawful to
                       ―take or cause to be taken any unmarried girl, being under
                       the age of sixteen years, out of the possession and against the
                       will of the father or mother‖ even though the defendant had
                       a reasonable believe that the girl was over the age of sixteen.
                    2. See White v. State, where court held that a defendant
                       convicted under a statute making it illegal to leave, ―with
                       intent to abandon,‖ a pregnant woman was guilty of the
                       crime even if he was not aware that his wife was pregnant
                       when he left.
                    3. See People v. Olsen in which California Supreme Court held
                       that a defendant convicted under a statute making it a felony
                       to ―willfully and lewdly commit any lewd or lascivious
                       act...upon of with the body, or any part or member thereof,


BDF                                                                                 24
                                   of a child under the age of 14 years, with the intent of
                                   arousing, appealing to, or gratifying the lust or passions or
                                   sexual desires of such person or child,‖ was guilty of the
                                   crime even though he had a reasonable belief that the girl
                                   was older than 14 when he was caught in the midst of sexual
                                   intercourse.
       II.      Mistake of Law
                a. General
                       i. The general principle is that ―ignorance of the law is no excuse‖26
                      ii. It does not matter if the mistake is reasonable or unreasonable
                b. Rationale
                       i. Consequentialist
                              1. objectivity in the law—want to prevent individuals from
                                  interpreting and thus ―making‖ the law themselves
                              2. increased deterrence—individuals thinking of doing
                                  something only questionably legal will be less likely to take
                                  the risk that it will be determined to be illegal.
                      ii. Criticism
                              1. Results in punishment out of proportion with culpability
                              2. Allowing people to assert reasonable interpretation of the
                                  law as a defense does not allow them to ―make‖ the law. As
                                  an affirmative defense, it would only work once. After that
                                  the law is clarified.
                c. Typology of mistakes/ignorance of law
                       i. Mistakes in which ignorantia legis doctrine applies
                              1. Mistakes about the meaning of the law
                                      a. See People v. Marrero in which New York Court of
                                         Appeals upheld the conviction of a federal
                                         correctional officer under a New York statute that
                                         made it illegal to possess an unlicensed handgun but
                                         that exempted ―peace officers‖ even though the
                                         defendant had read the law and believed that the
                                         exemption applied to him as a federal officer.‖
                      ii. Exceptions to the ignorantia legis doctrine
                              1. Mistakes involving non-criminal law
                                      a. See Regina v. Smith (David) in which court reversed
                                         defendant‘s conviction for destroying property
                                         belonging to another because the property destroyed
                                         had been installed by the defendant himself.



26   ignorantia lexis non exusat



BDF                                                                                          25
      2. Mistakes in which knowledge of the law is a specific element
         of the statute defining the crime
             a. See People v. Weiss in which defendants were acquitted
                 of kidnapping because they believed they had been
                 authorized by the local authorities and the statute
                 contained an element specifying that the kidnapping
                 must take place ―without authority of law.‖ (the
                 Lindbergh case)
      3. Mistakes in which a statute has been interpreted to require
         knowledge as an element of the crime
             a. See Cheek v. United States in which Supreme Court
                 held that a defendant convicted of ―willfully
                 attempting in any manner to evade or defeat any tax
                 imposed‖ should be retried in order to determine
                 whether the defendant was actually aware of his duty
                 to pay taxes under law.
      4. Mistakes involving a reasonable reliance on an official
         statement of the law
             a. See United States v. Albertini where court overturned
                 the defendant‘s conviction for illegally protesting at a
                 naval base in Hawaii—after he had previously won a
                 ruling from the 9th circuit holding that his activities
                 were protected by the first amendment of the
                 Constitution—in a period between the 9th circuit‘s
                 ruling and that ruling‘s subsequent rejection by the
                 United States Supreme Court
             b. But See Hopkins v. State in which defendant was
                 convicted of violating a statute prohibiting the
                 erection of a sign to solicit the performance of
                 marriages even after getting advice from the State‘s
                 Attorney.
             c. Entrapment by estoppel
                     i. The Supreme Court has held it to be a violation
                        of Due Process to convict a defendant for
                        conduct that governmental representatives had
                        earlier in their official capacity stated was
                        lawful.
                           1. See Raely v. Ohio in which court
                               reversed conviction of defendant who
                               invoked right against self-incrimination
                               after being told by the Un-American
                               Activities Commission that they could
                               do so but was then arrested by the


BDF                                                                   26
                                                         authorities for contempt when it was
                                                         later determined that the law did not
                                                         give them the privilege of refusing to
                                                         answer.
                               5. Mistakes involving a statute requiring that someone
                                  ―willfully‖ disobey the law?
                                     a. See Ratzlaf v. United States in which Supreme Court
                                         construed ―willfully‖ to require proof that defendant
                                         knew of the existence and meaning of a criminal
                                         statute making it an offense to willfully structure a
                                         transaction to avoid a federal reporting requirement.
                                     b. See Bryan v. United States in which Supreme Court
                                         held that defendant convicted of ―willfully‖ dealing
                                         in firearms without a federal license could be
                                         convicted if the prosecution proved that he acted with
                                         knowledge that his act was unlawful, but did not
                                         have to prove that he knew of the existence of the
                                         statute under which he was charged.
                               6. Mistakes about another law that negates the mens rea
                                     a. Examples
                                              i. D is charged with rape after having
                                                 nonconsensual sexual intercourse with V, who
                                                 he believes is his wife. In fact, the marriage
                                                 ceremony was invalid. Here D was mistaken
                                                 about legal status of the marriage, but not
                                                 about the law of the substantive offense. He
                                                 believed he was not breaking the law because
                                                 he was V‘s husband (assuming marital
                                                 immunity law).
                                     b. Specific intent offenses
                                              i. A different law mistake, either reasonable or
                                                 unreasonable, that negates the specific intent,
                                                 is a defense to the crime.
                                             ii. Example: D takes car back from V, who had
                                                 legal possession due to a lien statute. D cannot
                                                 be prosecuted for larceny because he lacks the
                                                 specific intent to take the property of another—
                                                 D believes that the car is his.27
                               7. Ignorance of a law that imposes an affirmative duty



27   This example is given in Dressler, 186-87.



BDF                                                                                           27
                                  a. See Lambert v. California in which the Supreme Court
                                     overturned the defendant‘s conviction for failing to
                                     register with the City of Los Angeles as a felon, on the
                                     grounds that convicting a citizen for failing to
                                     perform a duty under a law of which they were
                                     unaware would violate due process.
                          8. The ―Cultural‖ Defense
                                  a. There is a lively debate among academics over
                                     whether the law ought to excuse foreigners who
                                     violate the law by actions that are acceptable in their
                                     own culture.
                                  b. This defense is sometimes allowed, either as a
                                     negation of the mens rea or as an affirmative defense.
            d. The Model Penal Code
                    i. The Model Penal Code retains the ignorantia lex doctrine.28
                   ii. BUT, the MPC also provides a ―reasonable reliance‖ affirmative
                       defense29
                  iii. The MPC also creates a distinction between a mistake of law that
                       negatives a mens rea (Section 2.04(1)) and ignorance of the law
                       (Section 2.02(9)) on the one hand and mistake of law as affirmative
                       defense (Section 2.04(3)) on the other.30
     III.   Intoxication
            a. Generally




28 Section 2.02 (9)—Culpability as to Illegality of Conduct. Neither knowledge nor recklessness or negligence
as to whether conduct constitutes an offense or as to the existence, meaning, or application of the law
determining the elements of an offense is an element of such offense, unless the definition of the offense
or the code so provides.
29 Section 2.04



(1) Ignorance or Mistake as to a matter of fact or law is a defense it if negatives the purpose, belief,
recklessness, or negligence required to establish a material element of the offense…
(3)— A belief that conduct does not legally constitute an offense is a defense to a prosecution for that
offense based upon such conduct when:
            a. The statute or other enactment defining the offense is not known to the actor and has not
                 been published or otherwise reasonably made available prior ro the conduct alleged; or
            b. He acts in reasonable reliance upon an official statement of the law, afterward
                 determined to be invalid or erroneous, contained in (i) a statute or other enactment; (ii) a
                 judicial decision, opinion or judgment; (iii) an administrative order or grant of
                 permission; or (iv) an official interpretation of the public officer or body charged by law
                 with responsibility for the interpretation, administration or enforcement of the law
                 defining the offense.
30 See commentary in Kadish, 262.




BDF                                                                                                       28
             i. Intoxication, like mistake of law or mistake of fact, can either be an
                affirmative defense or an attack on the prima facie case to negate
                mens rea
      b. Involuntary Intoxication
             i. As affirmative defense
                    1. Involuntary intoxication is a defense only if it creates in the
                        defendant at the time of the crime a condition that meets the
                        test of legal insanity—a substantial incapacity either to
                        appreciate the criminality of the actor‘s conduct or to
                        conform to the law.
                    2. See Regina v. Kingston where British court upheld the
                        defendant‘s conviction for sexually assaulting a 15-year old
                        bear when he was involuntarily intoxicated by a third party
                        who intended to blackmail the defendant with pictures of
                        the sexual assault
            ii. As attack on prima facie case negating mens rea
                    1. Dressler: ―although there is exceedingly little case law on the
                        matter, it would seem that because the actor‘s intoxication
                        was contracted in a nonculpable manner, he should…be
                        acquitted of any general-intent defense.‖
           iii. Criticism of rule
                    1. In these cases the person became intoxicated through no
                        harm of their own, but they have an extremely high hurdle
                        to clear before they can be excused for the crime.
                            a. BUT, proponents would say that this rules gives
                               individuals an incentive to do everything they can to
                               bring their rational faculties to bear.
                    2. Morse: Believes that there should be a mitigating defense—
                        ―guilty but only partially responsible.‖ If rationality is a
                        continuum, then it is unfair to expect judges to make fine-
                        grain decisions about a defendant‘s position along that
                        spectrum.
      c. Voluntary Intoxication
             i. A growing number of states reject the defense all together
            ii. As affirmative defense
                    1. Voluntary intoxication is a defense only when it produces a
                        permanent condition sufficient to meet the test for legal
                        insanity.
           iii. As attack on prima facie case negating mens rea
                    1. Different approaches
                            a. Some states will allow evidence of intoxication to
                               disprove only specific intent. The defendant may still
                               be found guilty of the lesser general intent crime


BDF                                                                                29
                                   i. See Roberts v. People in which the Supreme
                                      Court of Michigan allowed evidence of
                                      voluntary intoxication to be introduced as
                                      proof that the requisite mens rea of assault
                                      with intent to murder was not present, but
                                      would not allow the defendant to be
                                      exculpated if the alcohol is simply a but-for
                                      cause of the crime.
                                  ii. See People v. Hood in which the California
                                      Supreme Court would not allow evidence of
                                      intoxication to negate the mens rea required
                                      for the crime of assault with a deadly weapon
                                      because, while the crime could not be
                                      rationally defined as one of either general or
                                      specific intent, the effect of alcohol was to
                                      increase the possibility of anti-social behavior
                                      that ought to be deterred.
                    2. Some states proceed on an ad-hoc basis, evaluating each
                       defendant on a case-by-case basis
                           a. See State v. Stasio in which the court held that the
                              defendant could not introduce evidence of
                              intoxication to negate the mens rea of the specific
                              intent crime of assault with intent to rob
                    3. Some states will allow evidence of voluntary intoxication
                       only to negate a purpose or knowledge mens rea (i.e., New
                       Jersey and California)
      d. Statutory manipulation, affirmative defenses and intoxication
             i. In Montana v. Egelhoff the Supreme Court held that a Montana
                statute providing that voluntary intoxication ―may not be taken
                into consideration in determining the existence of a mental state
                which is an element of [a criminal] offense‖ does not violate the
                Due Process clause of the 14th Amendment.
                    1. This is another instance of ―bump-up‖ strict liability:
                       Egelhoff goes to prison for first degree murder for the crime
                       of getting drunk! (he couldn‘t remember killing the victims
                       and his BAC was .36).
                    2. In her concurrence, Ginsburg did not interpret the statute as
                       a rule of evidence. Rather, she claimed that the statute had,
                       in effect, redefined the mental state element of the crime to
                       include knowledge or purpose ―but for‖ the intoxication.
            ii. A hypothetical statute

                              H1= causing death of another


BDF                                                                                30
                                           AffΔ1 = no P or K  Hom 2
                                           Aff Δ2 = no P, K or R Hom 3
                                           Aff Δ3 = no P, K, R, or N  NF

                                           Δ must provide aff Δ by
                                           1. preponderance of the evidence
                                           2. clear and convincing
                                           3. beyond a reasonable doubt

                  iii. Ginsburg‘s reasoning (and the general deference of the court to a
                       state‘s statutory drafting) would allow a state to undermine the
                       normative values behind the beyond a reasonable doubt standard
                       by placing the burden on the defendant.
                  iv. Thus, a state can, in effect, make murder a strict liability crime
                       through statutory manipulation that places the burden on the
                       defendant.
              e. Model Penal Code31
                    i. The Model Penal Code endorses ―bump-up‖ strict liability
                           1. If intoxicated, a defendant may be charged with recklessness
                               even if not aware of the risk (has a negligence mens rea)
                               (Section 2.08(2)).
                                  a. If the intoxication was involuntary, then evidence of
                                      the intoxication may used to negate even negligence
                   ii. A ―glitch‖ in 2.08

31   Section 2.08. INTOXICATION

      (1) Except as provided in Subsection (4) of this Section, intoxication of the actor is not a defense
          unless it negatives an element of the offense.
      (2) When recklessness establishes an element of the offense, if the actor, due to self-induced
          intoxication, is unaware of a risk of which he would have been aware had he been sober, such
          unawareness is immaterial.
      (3) Intoxication does not, in itself, constitute mental disease within the meaning of Section 4.01.
      (4) Intoxication which (a) is not self-induced or (b) is pathological is an affirmative defense if by
          reason of such intoxication the actor at the time of his conduct lacks substantial capacity either to
          appreciate its criminality [wrongfulness] or to conform his conduct to the requirements of the
          law.
      (5) Definitions. In this section unless a different meaning plainly is required:
              a. ―intoxication‖ means a disturbance of mental or physical capacities resulting form the
                   introduction of substances into the body;
              b. ―self-induced intoxication‖ means intoxication caused by substances which the actor
                   knowingly introduces into his body, the tendency of which to cause intoxication he
                   knows or ought to know, unless he introduces them pursuant to medical advice or under
                   such circumstances as would afford a defense to a charge of crime;
              c. ―pathological intoxication‖ means intoxication grossly excessive in degree, given the
                   amount of the intoxicant, to which the actor does not know he is susceptible.



BDF                                                                                                         31
                     1. The Model Penal Code Section 2.08 does not address liability
                        for involuntary intoxication based on a pathological
                        condition.

STRICT LIABILITY

  I.   General
       a. Characteristics of a strict liability crime: determining whether a crime is
          one of strict liability
               i. Can sometimes be determined from legislative history and express
                  intent
              ii. The statute expressly states that the crime is one of strict liability.
            iii. The penalty and stigma are generally minor.
             iv. The public injury is likely to be serious and exists despite the actor‘s
                  intentions (i.e., environmental crimes).
              v. No actual harm is required to occur
             vi. The conduct is not aimed at a particular, individual victim; the
                  activity is likely to harm large numbers of people
            vii. The underlying conduct is not immoral and not criminalized by the
                  common law but needs to be controlled for public health, safety or
                  welfare (the activity is mala prohibita rather than mala in se)
           viii. The more there are likely to be large numbers of prosecutions in
                  which it is difficult to prove fault, the more likely it is to be a strict
                  liability crime.
       b. Theoretical principles, debates and justifications
               i. Justifications
                      1. hyper-deterrence: strict liability will prevent individuals
                          from ever participating in an activity.
                      2. Difficulty of obtaining convictions (ease of affirmative
                          defenses)
                      3. Temporal parsing: while strict liability seems harsh, it is
                          possible to go back in time to a place where the actor could
                          have avoided the crime.
              ii. Criticism
                      1. may actually prevent socially useful activity (over-
                          deterrence)
                      2. imposes punishment out of proportion to culpability (all of
                          the arguments for strict liability are consequentialist. A pure
                          retributivist would completely reject strict liability)
            iii. Alternatives
                      1. The crime may not require the prosecution to prove mens
                          rea, but the defendant may have the option of proving lack



BDF                                                                                      32
                            of a mens rea (that he acted with reasonable care) as an
                            affirmative defense.
                        2. See Regina v. City of Sault Ste. Marie in which Supreme Court
                            of Canada recognized a middle ground between strict
                            liability and offenses that require a mens rea, in which the
                            prosecution does not have to prove mens rea and the
                            defense may escape liability by proving that he took
                            reasonable care.
         c. ―bump-up‖ strict liability
                 i. Often, a single element of a crime may be ―strict liability;‖ that is,
                    the prosecution will not need to show a mens rea requirement with
                    regard to that element (i.e., statutory rape)
  II.    Cases—strict liability
         a. See Morissette v. United States in which a junk dealer‘s conviction for
            knowingly converting government property was overturned because the
            defendant had believed that the property was abandoned (so didn‘t have
            mens rea) and their was no evidence that congress had intended to make
            the crime one of strict liability.
         b. See Staples v. United States in which defendant‘s conviction for a violation
            of the National Firearms Act, which makes possession of an unregistered
            automatic firearm punishable by up to ten years in prison, was overturned
            because the defendant was unaware that the rifle in his possession had
            been modified to fire automatically and there was no evidence that
            Congress intended to make the crime one of strict liability.
  III.   Vicarious liability
         a. Distinguished from pure strict liability
                 i. Vicarious liability consists of liability for the actions of another. In
                    these cases the defendant has not performed the actus reus AND
                    has no mens rea!
                ii. See State v. Guminga where court held that an employer could not
                    be convicted of a criminal offense through principles of vicarious
                    liability when one of his employees served alcohol to a minor and
                    there was no evidence that employer had encouraged or facilitated
                    the crime.
         b. Distinguished from accomplice liability
                 i. Vicarious liability is true strict liability in the sense that the person
                    being charged has neither committed the actus reus nor harbored
                    the requisite mens rea.
                ii. An accomplice must have an actus reus and mens rea. It is not a strict
                    liability crime.
  IV.    ―Defenses‖ to strict liability
         a. Non-action



BDF                                                                                       33
                    i. A strict liability crime is one that doe not require a mens rea. It
                       does, however, still require an actus reus. A defendant may be able
                       to exonerate himself by proving that no action was performed.
                   ii. See State v. Baker in which defendant argued that his conviction for
                       speeding ought to be overturned because of a malfunction of the
                       automobile‘s cruise control. The court upheld the conviction on the
                       grounds that the driver had voluntarily activated the cruise control.
     V.      The Model Penal Code32
             a. The Model Penal Code rejects strict liability
                    i. Culpability is not required only for ―violations‖—a classification
                       that is not criminal and carries with it small penalties (fines and NO
                       incarceration, even for a day)
                   ii. Even if the defendant is charged with a violation, the court may
                       interpret the statute to include a mens rea if doing so is still
                       consistent with enforcing the law defining the offense.
                  iii. Commentary: ―the method used is not to abrogate strict liability
                       completely, but to provide that when conviction rests upon that
                       basis the grade of the offense is reduced to a violation, which is not
                       a ―crime‖ and under Sections 1.04(5) and 6.02(4) may result in no
                       sentence other than a fine, or a fine and forfeiture or other
                       authorized civil penalty.
             b. Exceptions


 Section 2.05. WHEN CULPABILITY REQUIREMENTS ARE INAPPLICABLE TO VIOLATIONS AND
32

TO OFFENSES DEFINED BY OTHER STATUTES; EFFECT OF ABSOLUTE LIABILITY IN REDUCING
GRADE OF OFFENSE TO VIOLATION

     (1) The requirements of culpability prescribed in Sections 2.01 and 2.02 do not apply to
             a. Offenses which constitute violations, unless the requirement involved is included in the
                definition of the offense of the court determine s that its application is consistent with
                effective enforcement of the law defining the offense; or
             b. Offenses defined by statutes other than the Code, insofar as legislative purpose to impose
                absolute liability for such offenses or with respect to any material element thereof plainly
                appears.
     (2) Notwithstanding any other provision of existing law and unless a subsequent statute otherwise
         provides:
             a. When absolute liability is imposed with respect to any material element of an offense
                defined by a statute other than the Code and a conviction is based upon such liability, the
                offense constitutes a violation; and
             b. Although absolute liability is imposed by law with respect to one or more of the material
                elements of an offense defined by a statute other than the Code, the culpable commission
                of the offense may be charged and proved, in which event negligence with respect to
                such elements constitutes sufficient culpability and the classification of the offense and
                the sentence that may be imposed therefore upon conviction are determined by Section
                1.04 and Article 6 of the Code.



BDF                                                                                                      34
              i. ―bump-up‖ strict liability in cases of intoxication (negligence up to
                 recklessness)
             ii. Strict liability for sex crimes involving anyone under the age of 10.

CAUSATION

  I.   Causation: Philosophical underpinnings/theoretical consideration
       a. Why should results matter?
              i. Results should not matter
                     1. Retributivist arguments
                             a. Causation is the mechanism used by society to make
                                sure that criminal responsibility is personal.
                             b. Causation serves as the mechanism to indicate how
                                much the wrongdoer owes society.
             ii. Results should matter
                     1. Utilitarian arguments
                             a. Limits the scope of criminal liability
                             b. The law can only deter those behaviors that people
                                actually cause
                             c. Causation gives the criminal law legitimacy: it would
                                seem extremely unfair to hold people responsible for
                                events they did not cause even if results are largely
                                fortuitous.
            iii. A policy decision
                     1. Assuming results should matter, why isn‘t ―but for‖
                         causation enough?
                     2. The Model Penal Code
                             a. Conduct is a cause when ―the relationship between
                                the conduct and result satisfies any additional causal
                                requirements imposed by the code or by the law
                                defining the offense.‖
                     3. Most decisions simply build a bridge between the causation
                         formula and the legal conclusion without analysis. It just
                         seems intuitive.
                             a. Causation is largely done on a case-by-case basis
       b. Hart and Honore
              i. Causation always requires a ―but for‖ cause. Any additional legal
                 requirements will usually be dependent on whether there is a
                 ―statistically unlikely conjunction‖ between the action and the
                 result.
             ii. Then the argument becomes one of degree: how unlikely does an
                 event have to be before we stop holding someone responsible?



BDF                                                                                35
           iii. Subsequent human intervention is almost always a ―statistically
                unlikely conjunction‖ because humans activity doesn‘t operate
                mechanically.
           iv. The Hart and Honore Elements of Causation
                    1. ―but for‖ causation
                    2. ―statistically likely conjunction‖ between action and result
                           a. the more statistically unlikely an event, the less likely
                               it is to be found sufficient for purposes of criminal
                               law.
                    3. causal independence
                           a. the actor did not know of or contribute to a separate
                               casual chain.
                    4. not a result of human intention.
                    5. The KEY element is statistical likelihood
      c. Free Will, Determinism and Human Action
             i. What does it mean to be ―responsible‖ for something
                    1. Determinists
                           a. Believe      that    human      reasoning    is   simply
                               epiphenomena. The world is mechanical, operating
                               according to universal laws. Human activity is no
                               different.
                           b. If this is true, then human beings can‘t be
                               ―responsible‖ for their activities in the traditional
                               sense of the term—they are simply following the laws
                               of physics.
                    2. Libertarians
                    3. Compatabilists
                           a. MORSE: Does not believe in unlimited, contra-causal
                               free will. But believes that human beings are unique
                               in their ability to make reasoned, rational decisions.
                               Our free will is itself determined.
      d. Causation: Tort law v. Criminal Law
             i. Tort law
                    1. the function of tort law is to place financial responsibility for
                       causing harm; to distribute the costs of negligence
                    2. because it seeks to compensate victims, legal cause is greatly
                       expanded in tort law
            ii. Criminal Law
                    1. the function of the criminal law is to blame, stigmatize and
                       deter.
                    2. The stakes in criminal law for a defendant are much higher
                       and there is a much stronger commitment to personal
                       responsibility.


BDF                                                                                  36
                             3. legal cause is consequently narrower than in tort law.
       II.     Causation: General Issues
               a. Causation is only an issue when the statute defining a crime specifically
                  requires a result. (i.e., murder)
               b. Analytically, causation is part of the actus reus.
       III.    Cause in Fact
               a. A defendant must be a ―but for‖ cause of the crime.
               b. Multiple causes
                      i. Concurrent sufficient causes (i.e., two defendants shoot victim at
                         same time)
                             1. expanded ―but for‖ test: ―‘But for‘ defendant‘s act would the
                                 harm have occurred when and as it did.‖ (i.e., was the
                                 victim‘s death caused by two simultaneous mortal wounds)?
                     ii. Obstructed cause
                             1. D1 shoots victim in the stomach. D2 shoots victim in the
                                 head and this is determined to be the cause of death. D1 did
                                 not cause the death but can be convicted of attempt.
       IV.     Legal Cause
               a. ―Direct‖ cause
                      i. Dressler: ―The closest thing to a bright-line rule in the realm of
                         proximate cause is this: An act that is a direct cause of social harm is
                         also a proximate cause of it.‖
                     ii. What is ―direct‖?
                             1. mechanical: cause to cause according to predictable laws of
                                 physics.
               b. Intervening causes
                      i. The legal question: ―when is the intervening conduct of a third
                         party, the victim, or a natural force sufficiently out-of-the-ordinary
                         that ‗it no longer seems fair to say that the harm was ‗caused‘ by
                         the defendant‘s conduct.‘‖33
                     ii. Factors determining whether an intervening cause relieves the
                         defendant of criminal responsibility
                             1. substantial factor
                                     a. If the defendant‘s contribution is very small, it is less
                                         likely that he will be held criminally responsible (was
                                         the defendant‘s action de minimis?)
                                             i. Example: criminals rob someone and leave him
                                                 alone in the woods. He is then hit by a meteor.
                                                 The meteor was the most substantial factor.
                             2. Reasonable Foreseeability


33   Dressler, 202.



BDF                                                                                           37
      a. Hart and Honore: statistical probability will play an
         important role in foreseeability analysis
      b. Dependent intervening causes
             i. Dependent intervening cause defined
                    1. A dependent intervening cause is one
                        that occurs in reaction or in response to
                        defendant‘s prior wrongful conduct.
            ii. General Rule: a defendant bears criminal
                responsibility for dependent intervening
                forces UNLESS the dependent intervening
                force is bizarre or extremely abnormal (the
                statistical probability analysis).
           iii. Examples
                    1. Medical malpractice:
                            a. hospitalization and malpractice
                               are a foreseeable consequence of
                               criminal harm.
                            b. BUT if the doctor is GROSSLY
                               negligent or the dependent cause
                               is bizarre, a defendant may not
                               be held responsible.
                                   i. See People v. Stewart in
                                      which doctor performed
                                      unnecessary          hernia
                                      operation that resulted in
                                      victim‘s death.
                    2. Dangerous self-rescue
                            a. if defendant has created a
                               dangerous situation, he will be
                               held responsible for a victim‘s
                               attempt to extricate himself from
                               the     situation,     even      if
                               contributorily negligent.
                            b. See People v. Kern in which white
                               defendants who chased black
                               victim while carrying weapons,
                               shouting racial epithets and
                               threatening murder may be
                               convicted of murder when the
                               victim contributes to his own
                               death by attempting to escape
                               across a busy highway and is
                               struck by a car.


BDF                                                            38
                   3. The ―eggshell victim‖
                          a. See People v. Stamp in which court
                             convicted defendants of felony
                             murder when robbery victim
                             died of a stress-induced heart
                             attack.
                   4. Police chase
                          a. See People v. Acosta where court
                             held that defendant‘s flight from
                             police in a high-speed case along
                             a California interstate highway
                             was a proximate cause of the
                             death of three helicopter pilots
                             when police helicopters chasing
                             the defendant collided due to the
                             reckless conduct of one of the
                             pilots.
      c. Independent intervening causes
             i. Independent intervening cause defined
                   1. An independent intervening cause is
                       one that does not occur in response to
                       the wrongdoer‘s conduct.
            ii. General rule:      a coincidental intervening
                cause relieves the original wrongdoer of
                criminal    responsibility,     UNLESS      the
                intervening act was foreseeable (statistical
                probability analysis).
           iii. Examples
                   1. Foreseeable
                          a. See People v. Arzon in which the
                             court held that a fire started by
                             the     defendant      could    be
                             considered a proximate cause of a
                             firefighter‘s death even though a
                             separate, independent fire, had
                             also contributed to the death,
                             because the ultimate harm was
                             reasonably foreseeable.
                   2. Unforeseeable
                          a. See People v. Warner Lambert in
                             which court held that defendant
                             could not be held criminally
                             liable for an explosion at a gum


BDF                                                         39
                                       factory when the defendant had
                                       been warned that conditions at
                                       the factory were dangerous, but
                                       the prosecution was unable to
                                       prove that the ―but for‖ cause of
                                       the explosion was foreseeable.
      3. Defendant‘s mens rea (intended consequences)
            a. General rule: “intended consequences can never be
                too remote.” (i.e., if the intended result occurs, no
                matter how bizarre the mechanism, defendant will
                be criminal liable)
            b. ―Transferred intent‖
                     i. Defendant intends to shoot and kill A but
                        misses and kills B. Defendant intended to kill
                        by shooting and is held criminally responsible
                        even though he had no intent kill B.
                    ii. See State v. Contua-Ramirez where defendant
                        was convicted of assaulting a child when he hit
                        baby being carried by his wife but intended
                        only to hit his wife.
      4. Free, Deliberate, Informed human Intervention
            a. MORSE: BE CAREFUL. To say that someone is an
                independent intervening actor is a conclusion, not
                an argument!
            b. General rule: defendant may not be held criminally
                responsible for subsequent intervention of rational
                human being acting on own free will.
            c. Examples
                     i. See People v. Campbell where court held that
                        defendant, who provided a gun to distraught
                        and intoxicated man who had slept with the
                        defendant‘s wife and then encouraged him to
                        commit suicide, could not be convicted of
                        murder when the man subsequently used the
                        gun to kill himself.
                    ii. See People v. Kevorkian where court held that
                        defendant who provided the distraught victim
                        of a chronic disease with an apparatus
                        designed to self-administer a cocktail of drugs
                        could not be convicted of murder.
                   iii. But See Stephenson v. State where court held
                        that defendant who kidnapped and sexually
                        abused his victim could be convicted of


BDF                                                                  40
                                                 murder when the woman, while in the
                                                 defendant‘s custody, subsequently self-
                                                 administered several tablets of a poisonous
                                                 substance with the intent to commit suicide
                                                 and died several weeks later due to
                                                 complications arising out of the suicide
                                                 attempt.
                                   d. Exception: free, informed and deliberate intervention
                                        that recklessly creates unjustified risk
                                             i. See State v. McFadden in which court, using an
                                                 expanded definition of proximate cause
                                                 borrowed from tort law, held that a defendant
                                                 who participated in a drag could be held
                                                 criminally responsible for the death of fellow
                                                 racer.
                                                     1. But See Commonwealth v. Root in which
                                                          court held that defendant who
                                                          participated in a drag race could not be
                                                          convicted of involuntary manslaughter
                                                          when a competing racer chose to
                                                          attempt to pass the defendant and
                                                          collided with oncoming traffic.
                                            ii. See Commonwealth v. Atencio in which court
                                                 held that defendant could be convicted of
                                                 manslaughter when he provided the deceased
                                                 with a loaded handgun used by the deceased
                                                 to participate in a game of Russian Roulette
                                                 that led the deceased to shoot himself in the
                                                 head.
                                                     1. But See Lewis v. State where court
                                                          refused to convict on similar facts.
                          5. Omissions
                                   a. General Rule: an omission is rarely, if ever, a legal
                                        cause of a crime UNLESS there is a duty to act.34
                          6. Summary
Proximate Cause --------------------------------------------------causation of result


―but for‖ D‘s Act or omission + Foreseeability of social harm occurring
                              Dependent Intervening Cause

34   See supra, p. 9-10.



BDF                                                                                            41
Proximate Cause              +    Dependent intervening cause-----------caused result


―but for‖ D‘s Act or omission +                      Does not break causal chain
Foreseeability of social harm occurring              because act foreseeable or
                                                     Reasonable related to D‘s conduct
                             Independent Intervening Cause

Proximate Cause       +    Inependent intervening cause-----------did not cause result


―but for‖ D‘s Act or omission +                    Breaks causal chain because act
Foreseeability of social harm occurring             not foreseeable or reasonably
                                                    related to D‘s conduct




BDF                                                                                  42
     V.      The Model Penal Code35
             a. Cause in fact
                   i. A ―but for‖ cause is necessary to establish causation
             b. Proximate cause
                   i. Proximate cause is based on the actor‘s mens rea
                          1. The MPC embraces ―transferred intent.‖
                          2. the actual result—including the way in which it occurred—
                              must not be ―too remote or accidental‖ in its occurrence.

ACCOMPLICE LIABILITY

     I.      Theoretical bases and policy concerns
             a. Why do we have a doctrine of accomplice liability?
                   i. MORSE: behavior that encourages others increases the probability
                       that they will actually commit the act. Accomplice liability deters
                       this kind of encouragement which, in turn, deters the principal act.

35SECTION 2.03. CAUSAL RELATIONSHIP BETWEEN CONDUCT AND RESULT; DIVERGENCE
BETWEEN RESULT DESIGNED OR COMTEMPLATED AND ACTUAL RESULT OR BETWEEN
PROBABLY AND ACTUAL RESULT

     (1) Conduct is the cause f a result when:
              a. Is an antecedent but for which the result in question would not have occurred; and
              b. The relationship between the conduct and result satisfies any additional causal
                  requirements imposed by the Code or by the law defining the offense.
     (2) When purposely or knowingly causing a particular result is an element of an offense, the element
         is not established if the actual result is not within the purpose or contemplation of the actor
         unless:
              a. The actual result differs from the designed or contemplated, as the case may be, only in
                  the respect that a different person or different property is injured or affected or that the
                  injury or harm designed or contemplated would have been more serious or more
                  extensive than that caused; or
              b. The actual result involves the same kind of injury or harm as that designed or
                  contemplated and is not too remote or accidental in its occurrence to have a [just] bearing
                  on the actor‘s liability or on the gravity of his offense.
     (3) When recklessly or negligently causing a particular result is an element of an offense, the element
         is not established if the actual result is not within the risk of which the actor is aware or, in the
         case of negligence, of which he should be aware unless:
              a. The actual result differs from the probably result only in the respect that a different
                  person or different property is injured or affected or that the probable injury or harm
                  would have been more serious or more extensive than that caused; or
              b. The actual result involves the same kind of injury or harm as the probably result and is
                  not too remote or accidental in its occurrence to have a [just] bearing on the actor‘s
                  liability or on the gravity of his offense.
     (4) When causing a particular result is a material element of an offense for which absolute liability is
         imposed by law, the element is not established unless the actual result is a probable consequence
         of the actor‘s conduct.



BDF                                                                                                        43
              ii. Kadish: the problem of free will
                     1. causation doctrine does allow society to hold someone
                        responsible for encouraging another person to commit an act
                        because we assume that the principal actor has free will.
                     2. Accomplice liability solves this dilemma. It is an alternative
                        doctrine which ―imposes liability on the actor who is to
                        blame for the conduct of another, but which does so upon
                        principles that comport with our perception of human
                        actions.‖
             iii. Katz: Diminishing marginal returns
                     1. each additional participant in a criminal act contributes less
                        than the previous addition. So if every group member has to
                        answer only for the harm that wouldn‘t have occurred
                        without his participation, not all of the harm would be
                        answered for.
             iv. Dressler
                     1. accomplice liability can be justified in two ways
                             a. analogous to civil agency law: an accomplice
                                manifests his assent to the criminal action in the same
                                way that a principal manifests his assent to be bound
                                by actions of agent.
                             b. ―forfeited personal identity‖—an accomplice forfeits
                                his right to be treated as an individual.
  II.   Accomplice liability, generally
        a. Nature of accomplice liability
               i. Accomplice liability v. conspiracy v. vicarious liability
                     1. Accomplice liability is derivative liability. An accomplice‘s
                        guilt is derived from the guilt of the primary party with
                        whom he has associated himself.
                             a. if the primary party is not guilty of a crime, the
                                accomplice is not guilty of a crime
                     2. Conspiracy—―Pinkerton‖ liability
                             a. Conspiracy is an independent crime.
                                     i. Actus reus: agreement to commit a crime. The
                                        agreement can be tacit.
                                           1. some jurisdictions have an ―overt act‖
                                               requirement. The conspiracy does not
                                               begin until someone takes an overt act
                                               in furtherance of the conspiracy (the
                                               overt act may be lawful)
                                    ii. Mens Rea: agreement with purpose to commit a
                                        crime.
                             b. ―Pinkerton‖ liability


BDF                                                                                 44
                     i. Step One: guilty of conspiracy
                    ii. Step two: a conspirator is guilty of all crimes
                        committed by a co-conspirator if it
                            1. falls within the scope of the conspiracy;
                                or
                            2. is a foreseeable consequence of the
                                unlawful agreement.
            c. Pinkerton Liability distinguished from accomplice
                liability
                     i. A member of a conspiracy may be convicted of
                        a substantive crime on the basis of Pinkerton
                        liability even if they have not aided the
                        substantive crime.       Being a part of the
                        conspiracy is enough. Morse calls it ―bump up
                        liability with a vengeance.‖          You can
                        potentially be convicted of very serious crimes
                        with only a negligent mens rea!
                    ii. Often, but not always, accomplice liability and
                        Pinkerton liability overlap.
            d. See Pinkerton v. United States in which Supreme Court
                holds that defendant convicted of conspiracy to
                commit tax fraud may also be convicted of the crimes
                of a co-conspirator even if the defendant did not
                directly participate in the other crimes.
            e. See State v. Bridges where court holds that defendant
                convicted of conspiracy may also be convicted of
                murder when co-conspirators fired into an unruly
                crowd even though the purpose of the conspiracy was
                simply to use handguns to hold off a hostile crowd so
                the defendant could fight his enemy.
            f. See United States v. Alvarez where court held that
                defendants convicted of conspiracy to sell drugs may
                also be held criminally liable for the murder of an
                undercover BATF agent.
      3. Vicarious liability
            a. True vicarious liability is strict liability—someone is
                held responsible for the acts of another even if they
                did not encourage the act.
            b. See State v. Guminga in which court held that
                defendant could not be convicted of a criminal
                offense through principles of vicarious liability when
                one of his employees served alcohol to a minor.



BDF                                                                  45
  III.   Common Law accomplice liability
         a. Classification of the parties
                 i. Principal in the first degree
                        1. a principal in the first degree is the person who
                               a. physically commits the substantive crime
                               b. commits the offense through the use of an innocent
                                   instrumentality
                ii. Principal in the second degree
                        1. a principal in the second degree is one who
                               a. intentionally assists in the commission of the crime
                                   either in the actual or constructive presence of the
                                   principal in the first degree.
                               b. Uses an innocent instrumentality to effectuate the
                                   crime.
               iii. Accessory before the fact
                        1. an accessory before the fact is distinguished from a principal
                           in the second degree only in that he is not actually or
                           constructively present when the crime is committed.
               iv. Accessory after the fact
                        1. an accessory after the fact is someone who, with knowledge,
                           intentionally assists a felon to avoid arrest, trial or
                           conviction.
         b. Significance of classification
                 i. At common law, accessories could not be tried before the
                    principals. If the principals were exonerated or could not be
                    brought to trial (because of death, immunity, etc.) then accessories
                    could not be convicted
                ii. At common law, an accessory could not be convicted of a more
                    serious offense than the principal.
         c. Influence of common law
                 i. The common law distinctions have largely been abolished.
                        1. the punishment for all accomplices is the same, with the
                           exception of accessories after the fact, who are usually
                           subject to lesser punishment
  IV.    Accomplice Liability: Mens Rea
         a. In General
                 i. An accomplice must have two states of mind
                        1. the true purpose to assist the principal in the substantive
                           crime
                        2. the mental state required for the substantive crime
         b. Mens Rea: actions of the principal
                 i. General rule: An accomplice must have the true purpose to aid the
                    principal in the substantive crime.


BDF                                                                                   46
             1. Examples
                   a. See Hicks v. United States where Supreme Court held
                       that defendant may not be held criminal liable as an
                       accomplice when the prosecution had not proved that
                       the defendant intended to encourage and abet an
                       acquaintance in a murder.
                   b. See State v. Gladstone where court held that defendant
                       may not be found guilty of aiding and abetting the
                       sale of marijuana when he directed a potential
                       purchaser to a dealer but there is no evidence that the
                       defendant had a relationship with the dealer or that
                       the defendant acted with the purpose of aiding the
                       sale, rather than the purchase, of marijuana
             2. The accomplice must also have the mens rea of the
                substantive crime
                   a. The ―Feigning accomplice‖
                            i. See Wilson v. People in which court held that
                               defendant could not be found guilty as an
                               accomplice when he agreed to aid Pierce in the
                               burglary of a store but did so only in order to
                               incriminate the principal.
                                   1. Wilson, the putative accomplice, acts
                                       with the purpose of aiding Pierce in the
                                       burglary. BUT he lacks the mens rea of
                                       the underlying substantive crime.
      ii. Exceptions to the general rule
             1. Knowledge as sufficient mens rea for accomplice liability
                   a. general rule: knowledge is not sufficient for
                       accomplice liability. Must act with true purpose
                            i. See State v. Gladstone, supra
                           ii. MPC rejects knowledge as a sufficient mens rea
                               on the grounds that it would over expand
                               liability.
             2. Criminal facilitation
                   a. Often a separation crime—provides that knowingly
                       assisting another in the commission of a crime is an
                       offense (even if your purpose is not to commit the
                       crime)
             3. Major/Minor crime distinction
                   a. Some jurisdictions will hold a knowing accomplice
                       liable for the actions of the principal if the crime is a
                       major one



BDF                                                                          47
                                  i. See United States v. Fountain in which Judge
                                     Posner argues that this type of liability would
                                     deter serious crimes.
                   4. The ―Natural and Probable Consequences doctrine‖
                         a. The natural and probable consequences doctrine
                             holds that a personal may be held criminally liable as
                             an accomplice not only for the substantive crime he
                             intended but also for any other offense that was a
                             ―natural and probable consequence‖ of the crime
                             intended.
                                  i. This is another form of ―bump-up‖ strict
                                     liability: a person is held liable for a very
                                     serious crime with only a negligence mens rea
                         b. Distinguished from Pinkerton liability
                                  i. The natural and probable consequences
                                     doctrine expands liability, but Pinkerton
                                     liability is even broader.
                                 ii. Pinkerton liability extends to all those who are
                                     members of the conspiracy: a person is
                                     criminally liable for ANY crime committed by
                                     a co-conspirator no matter how foreseeable.
                                iii. Natural and Probable liability only extends
                                     those crimes that might reasonably be foreseen
                                     as a consequence of the underlying act.
                         c. Examples
                                  i. See People v. Luparello in which a defendant
                                     who asked his friends to compel information
                                     about the location of a former lover from that
                                     lover‘s good friend, was convicted as an
                                     accomplice to murder when the defendant‘s
                                     friends shot and killed the informant.
                                 ii. See Roy v. United States in which defendant,
                                     convicted as an accomplice for illegally
                                     attempting to sell a handgun, was also
                                     convicted of armed robbery when the seller
                                     robbed the buyer.
      c. Mens Rea: Attendant Circumstances
            i. Two options for accomplice liability vis-à-vis the attendant
               circumstances of the underlying crime
                   1. Let the mens rea for the substantive crime control
                         a. Example: A encourages B to have sexual intercourse
                             with C. It is later determined that C is underage. B is



BDF                                                                               48
                                guilty of statute rape. A is an accomplice to the
                                statutory rape (strict liability)
                     2. make knowledge of all the attendant circumstances the
                        requisite mens rea
                            a. See United States v. Xavier in which court holds that a
                                defendant who helped his brother acquire a handgun
                                that was then used to shoot one of their mutual
                                enemies could not be convicted for wrongfully aiding
                                and abetting possession of a firearm by a convicted
                                felon because he did not have knowledge of his
                                brother‘s status as a felon.
             ii. The Model Penal Code ―waffles‖
                     1. leaves it up to the jurisdiction—adopts an agnostic position
       d. Mens Rea: results
              i. General Rule: accomplice liability follows if
                     1. the putative accomplice has the purpose to assist the
                        principal in the conduct that forms the basis of the offense.
                     2. the putative accomplice has the mental state—intent,
                        recklessness or negligence—required for commission of the
                        substantive offense.
             ii. Negligence/Recklessness
                     1. Accomplice liability follows if the putative accomplice has
                        the purpose to assist the principal in the conduct
                     2. the putative accomplice is negligent or reckless as to the
                        results of that conduct
                     3. See State v. McVay in which the owner of a steamship may be
                        charged as an accomplice for negligently commanding his
                        employees to fire up a steam boiler when this causes the
                        boiler to explode and kill three people.
                     4. See People v. Russel in which defendant who engaged in a
                        running gun battle in the middle of a housing development
                        was convicted as an accomplice in the reckless murder of a
                        high school principal caught in the cross-fire even though it
                        could not be determined who had fired the bullet that
                        actually caused the death.
  V.   Accomplice Liability: Actus Reus
       a. General Rule: an accomplice must actually assist in the commission of an
          offense, but the accomplice does not need to be a ―but for‖ cause of the
          offense.
              i. Once it has been determined that an accomplice assisted in the
                 commission of the offense any aid, no matter how trivial, suffices
                 for criminal liability
       b. Complicity by omission


BDF                                                                                49
               i. A person may be convicted as an accomplice if they have a duty to
                  act and fail to do so with the purpose of aiding the principal
                  commit a crime.
              ii. Example: in many jurisdictions a mother may be convicted as an
                  accomplice of child abuse for failing to protect her child.
        c. Examples
               i. See Wilcox v. Jeffrey in which court confirmed conviction for the
                  crime of unlawfully aiding and abetting jazz musician Coleman
                  Hawkins‘s performance of a concert—in violation of English law—
                  when the defendant paid to attend the concert, approved of the
                  performance, and published an article about it in his magazine.
              ii. See State ex re. Attorney General v. Tally, Judge in which court
                  confirmed conviction of judge tally as accomplice in the murder of
                  one Ross who had seduced his sister-in-law, when the judge found
                  a letter warning Ross of the impending attack on the latter‘s life at
                  the local post-office and the judge then told the telegraph operator
                  not to deliver the message.
  VI.   Accomplice Liability: Relationship between the parties
        a. General Principles
               i. Accomplice liability is derivative liability—under the law in most
                  states, you cannot be an accomplice if the principal did not commit
                  a crime.
                      1. BUT note that the MPC extends accomplice liability to
                          attempts to aid.
              ii. Acquittal of the principal does NOT imply that a crime was not
                  committed. The putative accomplice may still be charged and
                  convicted.
        b. Mens Rea differentials
               i. The ―feigning principal‖
                      1. If the principal did not have the mens rea for the crime, then
                          there can be no accomplice liability
                              a. See State v. Hayes in which defendant who assisted in
                                 the robbery of a convenience store was not convicted
                                 as an accomplice when the principal, a relative of the
                                 convenience store‘s owners, set up a plan to rob the
                                 convenience store but warned the owners ahead of
                                 time in order to seek out the defendant‘s arrest.
              ii. May the accomplice be convicted of a more serious offense than
                  primary party?
                      1. See Regina v. Richards where court holds that wife may not be
                          convicted as accomplice to more serious crime of assault and
                          battery when the principals only committed the crime of
                          simple assault.


BDF                                                                                 50
                              a. Wife has greater mens rea, but lesser crime is
                                  committed. Commentators divided over how this
                                  should be decided.
                              b. Morse would convict based on the culpability for the
                                  greater crime.
         c. Exculpation by justification and excuse
                i. General rule:
                       1. Justification: no liability ensues when a putative accomplice
                          assists in the commission of a ―criminal‖ act that is later
                          deemed to be justified
                       2. Excuse: accomplice liability ensues when a putative
                          accomplice assists in the commission of a crime for which
                          the principal has an excuse—excuses are personal in nature.
               ii. See Taylor v. Commonwealth in which defendant was convicted as an
                   accomplice in kidnapping when she assisted her boyfriend, the
                   father of the child, in his successful effort to take the child from his
                   ex-girlfriend. (the court classified boyfriend‘s status as father as an
                   excuse rather than a justification)
              iii. See Vaden v. State in which court confirmed conviction of pilot who
                   flew undercover agent on hunting trip in which agent illegally shot
                   several foxes. (court reasoned that excuse was personal to the
                   agent)
         d. ―Non-proxyable crimes‖ and the innocent instrumentality rule
                i. Some crimes, by definition, can only be committed by a person
                   with a certain status. What if the principal doesn‘t have the status
                   but uses an innocent instrumentality?
               ii. Example: rape
                       1. requires that D have sexual intercourse with a woman not
                          his wife.
                       2. D coerces X to rape his wife. D, by definition, cannot be
                          convicted of rape so he can‘t be an accomplice.
                       3. Some courts handle this by convicted D as an accomplice to
                          rape rather than as a principal in the first degree
  VII.   Defenses to Accomplice Liability
         a. Legislative immunity
                i. When a statute is created to protect a certain group, members of
                   that group cannot be convicted as accomplices in a crime against
                   the group.
               ii. Example: statutory rape. A female may not be convicted as
                   accomplice in her own statutory rape.
         b. Abandonment




BDF                                                                                     51
                  i. A person who begins to aid in an offense but then abandons the
                     effort and takes positive steps to neutralize the assistance will not
                     be convicted as an accomplice.
   VIII. The Model Penal Code36
Characteristic/Element         Model Penal Code              Common Law
Innocent instrumentality       One is guilty of the crime if Same
                               he uses an innocent
                               instrumentality to complete
                               the crime
Pinkerton Liability            Rejected by the Model Accepted in all jurisdictions
                               Penal Code

36   SECTION 2.06. LIABILITY FOR CONDUCT OF ANOTHER; COMPLICITY

      (1) A person is guilty of an offense if it is committed by his own conduct or by the conduct of
          another person for which he is legally accountable, or both.
      (2) A person is legally accountable for the conduct of another person when:
              a. Acting with the kind of culpability that is sufficient for the commission of the offense, he
                   causes an innocent or irresponsible person to engage in such conduct; or
              b. He is made accountable for the conduct of such other person by the Code or by the law
                   defining the offense; or
              c. He is an accomplice of such other person in the commission of the offense.
      (3) A person is an accomplice of another person in the commission of the offense if:
              a. With the purpose of promoting or facilitating the commission of the offense, he
                         i. Solicits such other person to commit it; or
                        ii. Aids or agrees or attempts to aid such other person in planning or committing it;
                            or
                       iii. Having a legal duty to prevent the offense, fails to make property effort so to do;
                            or
              b. His conduct is expressly declared by law to establish his complicity
      (4) When causing a particular result is an element of an offense, an accomplice in the conduct
          causing such result is an accomplice in the commission of that offense, if he acts with the kind of
          culpability, if any, with respect to that result that is sufficient for the commission of the offense.
      (5) A person who is legally incapable of committing a particular offense himself may be guilty
          thereof if it is committed by the conduct of another person for which he is legally accountable,
          unless such liability is inconsistent with the purpose of the provision establishing his incapacity.
      (6) Unless otherwise provided by the Code or by the law defining the offense, a person is not an
          accomplice in an offense committed by another person if:
              a. He is a victim of that offense; or
              b. The offense is so defined that his conduct is inevitably incident to its commission; or
              c. He terminates his complicity prior to the commission of the offense and
                         i. Wholly deprives it of effectiveness in the commission of the offense; or
                        ii. Gives timely warning to the law enforcement authorities or otherwise makes
                            proper effort to prevent the commission of the offense.
      (7) An accomplice may be convicted on proof of the commission of the offense and of his complicity
          therein, though the person claimed to have committed the offense has not been prosecuted or
          convicted or has been convicted of a different offense or degree of offense or has an immunity to
          prosecution or conviction or has been acquitted.



BDF                                                                                                          52
Agreement to aid          A      defendant      is   an    An agreement to aid is
                          accomplice if he agrees to       sufficient for accomplice
                          aid the principal in the         liability  only   if the
                          commission of the offense        agreement serves as an
                          even if the defendant does       encouragement    to  the
                          not follow through on the        principal.
                          agreement
Attempts to Aid           A defendant may be held          The defendant‘s conduct
                          accountable        as      an    does not need to be a but
                          accomplice of the principal      for cause, but must, in fact,
                          if he attempts to aid, even if   assist in the commission of
                          the attempt is ineffectual       the offense (even if trivial)

                          NOTE: A defendant who
                          attempts to aid is guilty of
                          an attempt under MPC
                          §5.01 even if the principal is
                          unsuccessful.
Knowing facilitation      Rejected by the Model Accepted                  in      some
                          Penal Code                     jurisdictions     (for   major
                                                         crimes).
Recklessness/negligence   A     defendant       is   an Same
                          accomplice to a risk-
                          creation crime if he was an
                          accomplice to the conduct
                          that causes the result and
                          acted       recklessly     or
                          negligently with regard to
                          the result.

                          NOTE: This allows the
                          code to compensate for its
                          lack of a felony murder
                          provision. So long as the
                          defendant aids in the
                          conduct that leads to death,
                          he may be an accomplice in
                          that death (though it will be
                          risky killing rather than full
                          murder)
Attendant Circumstances   MPC ―waffles‖ and leaves Two options: make mens
                          it to each jurisdiction        rea for substantive crime
                                                         control or use knowledge


BDF                                                                                  53
                                                                     for all elements.
Natural  and    Probable Rejected by                     the   Model Accepted fixture    of the
Consequences Doctrine    Penal Code                                  common law.


RAPE

       I.      Policy Concerns and Guiding Principals
               a. Development of the law
                       i. Social norms
                             1. Rape is very sensitive to social norms and attitudes.
                                     a. Example: various opinions on what might constitute
                                        consent.
                             2. male aggression
                                     a. are men expected to be aggressive in sexual
                                        encounters?
                             3. Laws must protect women without reinforcing stereotypes
                                 or patronizing women.37
               b. Interests of the affected parties
                       i. Nature of the harm
                             1. Violence
                                     a. If this is so, then rape is not fundamentally different
                                        from assault.
                             2. Personal autonomy
                             3. Emotional harm
                                     a. Perhaps our society holds sexual freedom in
                                        particularly high regard. If this it he case, we might
                                        be able to end the harm simply by desanctifying sex.
                      ii. Guiding principles:
                             1. What harm is the law designed to prevent?
                                     a. If rape considered a crime of violence, then the force
                                        element is the focus of the analysis
                                     b. If rape is considered a crime against personal
                                        autonomy, then consent is the focus of the analysis.
                             2. How far should liability be extended?
                                     a. How much should the state interfere with personal
                                        relations?
                                     b. What interests of the male are you trying to protect by
                                        narrowing liability?


37   See debate between Susan Estrich and Vivian Berger in Kadish, p. 332-33.



BDF                                                                                          54
  II.    Statutory Frameworks and reform
         a. Gendered language
                 i. Common law: rape could only be committed by a man against a
                    woman
                ii. Modern Trend: statutes are gender-neutral
         b. The Force requirement
                 i. Common law: required victim to resist ―to the utomost‖
                ii. Modern trend: No requirement for resistance (though allowed as
                    evidence of non-consent
         c. Marital immunity
                 i. Common law: husband, by definition, could not rape wife.
                ii. Modern trend: no marital immunity
  III.   Actus Reus
         a. The Force Element
                 i. Resistance
                       1. resistance was required at common law. While no longer
                           required in many statutes, the vast majority of states
                           continue to consider it highly probative evidence of a lack of
                           consent
                       2. Examples of traditional force/resistance requirements
                              a. See State v. Alston in which North Carolina court
                                  overturned defendant‘s conviction of rape despite
                                  defendant‘s past acts of violence and his threats to
                                  disfigure victim‘s face because the victim did not
                                  resist.
                              b. See People v. Warren in which court overturned
                                  defendant‘s rape conviction when defendant grabbed
                                  woman biking along reservoir and carried her into
                                  the forest for sexual intercourse but the victim did not
                                  attempt to flee, fight back or scream.
                ii. Threat
                       1. threats of bodily injury
                              a. Some states grade the severity of the offense by the
                                  seriousness of the bodily injury threatened.
                              b. Reasonableness
                                       i. Many states require that a victim‘s fear be
                                          reasonable
                                      ii. See State v. Rusk where court held that victim‘s
                                          fear of bodily harm must be objectively
                                          reasonable in order to sustain a defendant‘s
                                          conviction (and then held that this was a
                                          question for a jury).
                       2. non-physical threats


BDF                                                                                    55
                          a. General rule: non-physical threats are not ―force‖
                              under most state statutes sufficient to convict a
                              defendant of rape.
                                   i. See Commonwealth v. Thompson in which court
                                      overturned principal‘s conviction of rape when
                                      principal threatened student with non-
                                      graduation if she did not have sex with him.
                                  ii. See Commonwealth v. Mlinarich in which court
                                      overturned defendant‘s rape conviction when
                                      defendant had threatened victim with return to
                                      juvenile detention home if she refused to have
                                      sex with him.
                          b. Expanded definitions of force
                                   i. See Commonwealth v. Rhodes in which court held
                                      that ―forcible compulsion‖ connoted physical,
                                      moral psychological or intellectual force.
                   3. Rape by Offer
                          a. The offer/threat distinction will depend on one‘s
                              politics and their belief in the effects and normative
                              influence of various social factors.
                          b. General rule: making extremely coercive offers in
                              return for sex is not rape (i.e., offering an extremely
                              poor woman shelter and food).
           iii. Lack of force requirement
                   1. In states that have abolished the force requirement, either
                      statutorily or through the case law, the consent element is
                      the crucial one distinguishing between lawful and unlawful
                      conduct.
      b. The Consent Element
             i. Deception
                   1. Fraud in the factum
                          a. General rule: having sexual intercourse with a
                              woman who does not believe she is having sexual
                              intercourse is rape
                                   i. Example: gynecologist who says he will use an
                                      instrument but instead uses his penis.
                   2. Fraud in the inducement
                          a. General rule: seduction is not criminal. It is not rape
                              if a person makes a material misrepresentation.
                          b. Examples
                                   i. See People v. Evans in which court overturned
                                      conviction of defendant who posed as a
                                      psychologist and then claimed to have had a


BDF                                                                               56
                                      traumatic experience with a past lover in order
                                      to gain the confidences of a young college
                                      student
                                  ii. See Boro v. Superior Court in which court
                                      overturned conviction of defendant who
                                      convinced victim that she would die unless she
                                      received medicine delivered vaginally by the
                                      defendant‘s penis.
                            c. Policy concerns
                                   i. What interest of the male is protected? Why
                                      should receiving a woman‘s consent through
                                      fraudulent means be any less culpable than
                                      receiving property through fraudulent means?
              ii. Signaling
                      1. In jurisdictions with no force requirement it becomes
                          essential that there be some way to determine when a
                          woman is consenting.
                      2. See State in the interest of M.T.S. where New Jersey Supreme
                          court effectively eliminates force requirement and instead
                          requires that consent, determined according to a
                          reasonableness standard, be affirmative and freely given.
                      3. without clear signals, mens rea issues become more
                          problematic.
                              a. See Commonwealth v. Sherry; State v. Fischer, infra.
             iii. Incompetent, unconscious, underage victims
                      1. a crime at common law and in virtually all jurisdictions.
  IV.   Mens Rea
        a. Mens Rea: Consent
               i. Recklessness
                      1. MPC
                      2. See Regina v. Morgan in which court overturned defendant‘s
                          conviction of rape even though defendant‘s mistake as to the
                          fact of consent was unreasonable.
              ii. Strict Liability
                      1. See Commonwealth v. Sherry in which a group of doctors who
                          escorted victim to their home and were under the reasonable
                          belief that she had consented were nevertheless convicted of
                          rape.
                      2. See Commonwealth v. Fischer in which defendant‘s rape
                          conviction was confirmed when defendant had engaged in
                          ―rough sex‖ with the victim only a few hours before a
                          second sexual encounter in which the defendant locked the
                          door, held the victim‘s arms above her head and inserted his


BDF                                                                                57
                                 penis into her mouth but the victim said she did not want to
                                 continue.
                    iii. Reasonable mistake of fact: negligence standard
                             1. This is the law in most jurisdictions
                             2. Concerns
                                     a. Negligence standard increases deterrence
                                     b. BUT what is ―reasonable‖? This is a very elusive
                                         standard that may vary significantly between men
                                         and women.
              b. Intoxication
                      i. The Model Penal Code imposes ―bump-up‖ strict liability for
                         negligence.
                     ii. This is usually handled by a specific provision in a statute making
                         it rape if the victim is incapacitated by alcohol.
      V.      The Model Penal Code38
              a. The MPC has not been influential. Retains the gendered language and
                 force requirements.


HOMICIDE




38   SECTION 213.1. RAPE AND RELATED OFFENSES

      (1) Rape. A male who has sexual intercourse with a female not his wife is guilty of rape if:
               a. He compels her to submit by force or by threat of imminent death, serious bodily injury,
                  extreme pain or kidnapping, to be inflicted on anyone; or
               b. He has substantially impaired her power to appraise or control her conduct by
                  administering or employing without her knowledge drugs, intoxicants or other means
                  for the purpose of preventing resistance; or
               c. The female is unconscious; or
               d. The female is less than 10 years old
           Rape is a felony of the second degree unless (i) in the course thereof the actor inflicts seriously
          bodily injury upon anyone, or (ii) the victim was not a voluntary social companion of the actor
          upon the occasion of the crime and had not previously permitted him sexual liberties, in which
          cases the offense is a felony of the first degree. Sexual intercourse includes intercourse per os or
          per anum, with some penetration however slight; emission is not required
      (2) Gross Sexual Imposition. A male who has sexual intercourse with a female not his wife commits a
          felony of the third degree if:
               a. He compels her to submit by any threat that would prevent resistance by a woman or
                  ordinary resolution; or
               b. He knows that she suffers from a mental disease or defect which renders her incapable of
                  appraising the nature of her conduct; or
               c. He knows that she is unaware that a sexual act is being committed upon her or that she
                  submits because she mistakenly supposes that he is her husband.



BDF                                                                                                        58
  I.    Homicide, Generally
        a. Grading
                i. The main issue in homicide statutes is how severely certain types of
                   murder should be punished.
               ii. How culpable is the defendant?
              iii. How dangerous is the defendant?
        b. The four ―tracks‖ of homicide
                i. Intent-to-kill
               ii. Risky killing
              iii. Grievous Bodily Harm
              iv. Unlawful act (felony murder)
        c. ―Malice Aforethought‖
                i. In the Common Law, murder was a homicide committed with
                   ―malice aforethought.‖ This phrase is a legal term of art that does
                   not conform with common meaning.
               ii. ―Malice‖
                       1. As the term has developed, a person kills with ―malice‖ if he
                          has a mens rea necessary for the crime of murder:
                              a. Intention to kill (intent-to-kill murder)
                              b. The intent to inflict grievous bodily harm
                              c. An extremely reckless (a lot^3) disregard for human
                                  life
                              d. The intention to commit a felony during which a
                                  death results.
              iii. ―Aforethought‖
                       1. This word is completely superfluous to the definition of
                          murder. Unless a statute modifies the common law by
                          requiring proof of premeditation, a spur of the moment
                          killing can constitute murder.
        d. Elements
                i. A ―killing act‖
               ii. Committed with ―malice aforethought‖ (mens rea) that
              iii. Causes (actual and proximate)
              iv. The death of another human being.
  II.   Intent-to Kill Murder Track
        a. The ―Pennsylvania Model‖—Murder in degrees
                i. In 1794 Pennsylvania became the first state to modify the common
                   law by dividing the crime of homicide into degrees. This has since
                   become a common feature of American criminal law.
        b. First Degree Murder: Intent + ―willful, deliberate, premeditated‖ (WDP)
                i. The Collapse of the WDP formula
                       1. In Commonwealth v. Carrol the Supreme Court of
                          Pennsylvania held that the statutory language differentiating


BDF                                                                                 59
                   first from second-degree murder on the basis of whether is
                   was premeditated does NOT require a moment of time in
                   which a defendant stops to reflect on his action. Rather, ―no
                   time is too short for a wicked man to frame in his mind the
                   scheme of murder.‖
               2. In States that follow the Carrol approach, there is no
                   difference between first and second degree murder despite
                   the statutory language—the act and the premeditation
                   collapse together.
       ii. WDP: meaningful distinctions between First and Second Degree
           murder
               1. Many states actually give significance to the WDP formula,
                   meaningfully differentiating between First and Second
                   Degree murder.
                       a. See State v. Guthrie in which the Supreme Court of
                           Appeals of West Virginia held that statutory language
                           differentiating first from second degree murder on
                           the basis of whether it was ‗premeditated‘ requires a
                           moment of time in which the defendant stops to
                           reflect on his action
               2. ―Willful‖
                       a. in the context of murder, ―willful‖ simply means
                           intent to kill
               3. ―Deliberate‖
                       a. Dressler: ―The better view is that deliberate—as in ‗to
                           deliberate‘—means ―to measure and evaluate the
                           major facets of a choice or problem.‖
                       b. Presupposes a ―cool purpose‖ (so called ―cold-
                           blooded‖ murder)
               4. ―Premeditated‖
                       a. Dressler: ―To ‗premeditate‘ means ‗to think about
                           beforehand.‘‖
      iii. Proof of WDP
               1. three categories of evidence indicating premeditation:
                       a. planning activity
                       b. facts about the defendant‘s prior relationship or
                           history with the victim which might indicate a motive
                           to kill
                       c. evidence regarding the nature or manner of the
                           killing which indicate a deliberate intention to kill
                           according to a preconceived design.
      iv. How much ―premeditation‖—how much time is required—for
           first-degree murder?


BDF                                                                           60
                   1. In People v. Anderson the Supreme Court of California held
                       that a defendant could not be convicted of first degree
                       murder due to lack of evidence of premeditation even
                       though the defendant had savagely stabbed his victim over
                       60 times.
                   2. Dressler: ―No specific period of time is required, but the
                       essence of the term is preserved by requiring proof that the
                       killer had time not only to form the intent, but also to turn
                       the matter over in her mind and to give the matter at least a
                       second thought.‖
            v. Purpose of WDP formula
                   1. In jurisdictions that distinguish between first and second
                       degree murder, the view is that one who acts ―cold-
                       bloodedly‖ or after careful planning is more dangerous and
                       more culpable that someone who kills on impulse
           vi. Criticism of WDP formula
                   1. Premeditated murders are not always more culpable
                           a. They may indicate a tortured conscience rather than a
                               cold-blooded killer.
                           b. They may elevate so-called ―mercy killings‖ to first
                               degree murder (son who pulls the plug on his father‘s
                               life    support    after   careful,    soul-wrenching
                               deliberation).
                   2. Lack of premeditation does not mean that a defendant is less
                       culpable
                           a. For example, in People v. Anderson, the defendant
                               committed a truly savage crime, stabbing a ten-year-
                               old girl 60 times.
                                    i. Samuel Pillsbury: ―Anderson suggests that
                                       what premeditation misses is the moral
                                       importance of the motive for homicide.‖
      c. Voluntary Manslaughter: Provocation and the ―Heat of Passion Defense‖
             i. Manslaughter, Generally
                   1. This is another type of voluntary intentional murder
                   2. Involves intent + adequate provocation
                   3. provocation is an element of the crime that must be proven
                       by the prosecution, but insofar as it mitigates the severity of
                       the crime, it functions as a kind of affirmative defense. In
                       fact, New York has actually made it an official affirmative
                       defense.
            ii. Legally Adequate provocation: Common Law




BDF                                                                                61
              1. At common law, words were not enough to constitute
                 adequate provocation. The defense was limited to situations
                 involving
                    a. Extreme assault or battery upon the defendant
                    b. Mutual combat
                    c. Defendant‘s illegal arrest
                    d. Injury or serious abuse of a close relative of the
                         defendant‘s
                    e. The sudden discovery of a spouse‘s adulterous
                         relationship.
              2. In State v. Guthrie the Court of Appeals of Maryland held
                 that a defendant‘s crime may not lowered from murder to
                 manslaughter when the defendant was provoked only by
                 the words of the victim.
      iii. Legally Adequate Provocation: Modern doctrine
              1. The modern rule is that words alone may constitute
                 sufficient provocation to mitigate criminal homicide from
                 murder to manslaughter
                    a. See Maher v. People where court held that defendant‘s
                         crime may be mitigated from assault with intent to
                         kill to assault and battery when the defendant was
                         provoked by a third party who informed him that his
                         wife was involved in an adulterous relationship with
                         the victim.
              2. General Rule: The modern rule is that a provocation is
                 adequate if it is sufficient to invoke the passions of a
                 “reasonable person.”
                    a. Cooling off period: the provocation defense involves
                         a sudden heat of passion. Traditionally, this has been
                         applied rather strictly.
              3. The ―Reasonable Person‖ and the provocation defense:
                 subjective or objective?
                    a. The modern trend has been to subjectivize the
                         ―reasonable person‖ standard, but there is also a
                         reaction against this.
                    b. The Model Penal Code approach—EED
                              i. The Model Penal Code approach is that
                                 provocation may be found if the defendant
                                 acted under the influence of an extreme
                                 emotional disturbance, to be determined ―from
                                 the viewpoint of a person in the actor‘s
                                 situation under the circumstances as he
                                 believes them to be.‖


BDF                                                                         62
            ii. See People v. Casassa in which New York Court
                of Appeals, relying on the Model Penal Code,
                held that the defendant was not entitled to an
                affirmative defense for extreme emotional
                disturbance because the extreme emotional
                disturbance of the particular defendant was
                not objectively reasonable.
           iii. Two-Step MPC analysis
                    1. Did the defendant act under extreme
                       emotional distress for which there is a
                       reasonable explanation? If so,
                    2. the reasonableness of the explanation
                       should be made ―from the viewpoint of
                       a person in the actor‘s situation under
                       the circumstances as he believes them to
                       be.‖
      c. Two-step analysis: Smith and Holley
             i. Was the provocation adequate, from the
                subjective perspective of the defendant? (the
                gravity of the provocation) [subjective
                standard]
            ii. Was the actor‟s loss of self control objectively
                reasonable from the point of view of a person
                to like age and gender? (the level of self-
                control) [objective standard, with age and
                gender]
           iii. In Attorney General for Jersey v. Holley the Privy
                Council abandoned complete subjectivization
                of the provocation defense, holding that §3 of
                the 1957 Homicide Act should not be
                interpreted to mean that it was reasonable
                from the point of view of the individual,
                idiosyncratic defendant but rather from an
                objective standard that takes into account only
                the age and gender of the defendant.
      d. Cultural differences as adequate provocation
             i. In People v. Dong Lu Chen a trial court held that
                a defendant who had killed his wife because
                she refused to have sex with him and had
                admitted to seeing other men was entitled to a
                provocation defense based on evidence
                indicating that such statements would




BDF                                                            63
                               constitute adequate provocation to a normal
                               Chinese male.
                                   1. Dressler: ―…decisions of this sort bring
                                       the law dangerously close to a slippery
                                       slope. In an understandable, even
                                       commendable, effort to take cognizance
                                       of cultural disparities in our multi-
                                       cultural society, and thus to be fair to
                                       persons who are not fully integrated
                                       into dominant culture, the law runs the
                                       risk of trivializing the normative anti-
                                       killing message of the criminal law by
                                       permitting juries to evaluate provoked
                                       killed on the basis of values generally
                                       considered abhorrent in American
                                       society.‖
                    e. ―Battered women‖
                            i. Some courts have allowed the defendant‘s
                               status as a ―battered woman‖ to be evaluated
                               in determining the gravity of the provocation.
             4. Professor Morse: ―Guilty but partially responsible‖ defense
      iv. Purpose/Critiques of the Provocation ―defense.‖
             1. The generally stated purpose of the defense is to take
                account of the ―frailties human nature.‖
                    a. The idea is not that ―reasonable people kill‖ but that
                        people may kill in the heat of passion—they are not as
                        culpable because they have not brought their full
                        rationality to bear
             2. Hebert Wechsler: ―Provocation…must be estimated by the
                probability that the [provocative] circumstances would affect
                most men in like fashion.‖
             3. Criticism of defense
                    a. Professor Morse: ―We cheapen both life and our
                        conception of responsibility by maintaining the
                        provocation/passion mitigation.‖
       v. Provocation ―defense:‖ Justification or excuse?
             1. Provocation as justification
                    a. Under this view, the provoker is partially responsible
                        for the homicide because he roused the violent
                        impulse in the attacker, who was entitled to retaliate.
                    b. See Rex v. Scriva in which a court held that no
                        provocation defense was available when the victim—
                        a bystander who stepped in to prevent the defendant


BDF                                                                         64
                              from attacking an automobile driver who had just
                              knocked over his daughter—was not the provoker.
                                  i. This result may rely on the provocation as
                                     justification rationale—the defendant was not
                                     justified in killing the bystander because the
                                     bystander had not been the provoker
                          c. See Regina v. Johnson in which court refused to give a
                              provocation instruction to the jury when the
                              defendant had himself excited the provocative
                              conduct
                                  i. This can also be seen as relying on
                                     ―provocation as justification‖ logic—it is no
                                     longer justified when someone brings the
                                     provocation upon himself through his own
                                     conduct.
                    2. Provocation as excuse
                          a. Under this view, the defendant is guilty of the crime
                              (which is unjustifiable) but is partially excusable
                              because of the provocation.
                          b. This is the traditional view of the defense—
                              provocation as a concession to the frailties of human
                              nature
      d. Professor Morse: ―Guilty, but only partially responsible‖ defense
             i. First-Degree Murder and the WDP formula
                    1. Example: The Wolf case.
                          a. Facts: Defendant, Wolf, planned to kidnap a woman
                              and bring her back to his home. However, his mother
                              lived in his home and he was afraid she would foil his
                              plan. So, to carry out his other plan, he killed his
                              mother.
                          b. Held: Defendant could not be found guilty of first-
                              degree murder unless he had ―maturely and
                              meaningfully‖ reflected on the seriousness of the
                              conduct
                                  i. This was part of an ongoing project by
                                     California court to develop a diminished
                                     rationality defense for first-degree murder
                                     (though the case was later overturned by the
                                     legislature).
            ii. Manslaughter and EED
                    1. Morse believes that the MPC was unwittingly trying to
                       develop a guilty but only partially responsible defense. The
                       subjectivization of the provocation to take into account


BDF                                                                              65
                            mental irrationalities that do not rise to the level of insanity
                            is a diminished rationality standard
                         2. To qualify for the defense the person must not be
                            responsible for putting himself in a particular state
                                a. Either the person has no duty to manage the state; or
                                b. There is a duty to manage the state, but the person is
                                    incapable of doing so.
                         3. Example: mental disorder
                                a. Here, the person is not responsible for the condition.
                                b. BUT the person has a duty to manage characteristics
                                    that might make him dangerous.
                                c. Sometimes it can be managed (drugs and therapy) but
                                    other times a person is incapable of managing the
                                    state (in which case—civil commitment might be
                                    appropriate)
                         4. Example: Hot temper
                                a. Here the person is not responsible for the condition
                                    But there is a duty to manage this condition and
                                    everyone is capable of doing so.
   III.    The Risky Killing Track
           a. General Framework for analysis
                  i. How much risk is involved? (was it enough risk to warrant
                     criminal liability and if so, how much liability)
                 ii. What was the mental state vis-à-vis the risk?
                             Common Law                    MPC
(Depraved Heart) Murder      “Depraved Heart”              Risk: evil
                             Risk: A lot^3 (evil)          Mental state: Recklessness
                             Mental State: Recklessness
Voluntary Manslaughter       Risk: “gross negligence”      Risk: substantial and
                             Mental State: Recklessness unjustifiable (gross
                                                           deviation)
                                                           Mental State: Recklessness
Involuntary Manslaughter     Risk: a lot^2                 Risk: substantial and
                             Mental State: negligence      unjustifiable
                                                           Mental state: negligence

          b. How Much Risk?
               i. Criminal v. Civil Liability
                     1. To reach the level of criminal liability, the risk created must
                        be even more than ―gross negligence.‖ Morse calls it a lot^3.
                        Often, it will require a case-by-case analysis by an attorney,
                        distinguishing between those cases with more/less risk than
                        the case under consideration.



BDF                                                                                      66
              2. In Commonwealth v. Welansky the Massachusetts Supreme
                   Judicial Court held that the defendant—the owner of a
                   nightclub who did not maintain its emergency exists, take
                   steps to prevent overcrowding, prohibit flammable
                   decorations or provide appropriate means to egress—could
                   be convicted of involuntary manslaughter when a fire
                   started by an employee while the defendant was in the
                   hospital caused the death of many of the nightclub‘s patrons.
              3. State v. Barnet: ―It is generally held that the negligence of the
                   accused must be ‗culpable,‘ ‗gross,‘ or ‗reckless,‘ that is the
                   conduct of the accused must be such a departure from what
                   would be the conduct of an ordinarily prudent or careful
                   man under the same circumstances as to be incompatible
                   with a proper regard for human life or conduct amounting
                   to an indifference to consequences. Of course , under all the
                   authorities the conduct of the accused must be judged in
                   light of the potential dangers involved in the lawful act
                   being performed.‖
              4. Andrews v. Director of Public Prosecutions: ―Whatever epithet
                   may be used and whether an epithet be used or not, in order
                   to establish criminal liability the facts must be such that, in
                   the opinion of the jury, the negligence of the accused went
                   beyond a mere matter of compensation between subjects and
                   showed such disregard for the life and safety of others as to
                   amount to a crime against the State and conduct deserving
                   of punishment.‖
       ii. Contributory negligence
              1. Contributory negligence is never a defense.
              2. BUT, normal rules of causation apply—the prosecution must
                   show that the death is a proximate cause of the defendant‘s
                   conduct (see infra, p. 36)
      iii. Justification of the risk or excusable risk
              1. The risk taken must be ―unjustifiable.‖
              2. in determine the lack of reasonable care two factors must be
                   considered
                       a. the magnitude of the risk
                       b. the importance of the object to be attained by the
                          dangerous form of the activity
              3. See Parrish v. State. Here, the defendant was a man who
                   threatened to kill is ex-wife with a bayonet. The man
                   followed his ex-wife through the streets of Jacksonville in a
                   high-speed chase. In her attempt to escape the woman



BDF                                                                            67
                      drove through a stop sign at a high rate of speed, struck
                      another car and died of the injuries.
                          a. Assuming the ex-wife had lived, could she be held for
                              manslaughter?
                          b. Factors to consider
                                   i. The probability that she would have died
                                      without her creation of risk.
                                  ii. The actual amount of risk created by the ex-
                                      wife
                                 iii. Where the risk of death to the ex-wife is certain
                                      and the risk to the others low, the justification
                                      becomes greater.
                  4. Excused risk
                          a. Taking Parrish as an example, the argument here
                              would be that the ex-wife was not thinking rationally
                              of the risk because of the intense fear of death.
                          b. Morse would consider a ―guilty but partially
                              responsible‖ defense.
      c. Mens Rea vis-à-vis the risk
            i. Subjective or Objective standard?
                  1. Objective: An objective standard determines liability on the
                      basis of general norms or proper and reasonable behavior.
                      This is the standard endorsed by the criminal law.
                          a. Support for objective standard
                                   i. Justice Holmes: one purpose of the criminal
                                      law is to establish a general standard, or at
                                      least negative limits, of conduct for the
                                      community in the interest of the safety of all.
                  2. Subjective: a subjective standard takes into account the
                      individual characteristics of the actor
                          a. Support for subjective standard
                                   i. Some people are born feckless: it is hard to see
                                      how justice requires mistakes to be punished.
                                      You cannot deter inadvertence
                                  ii. What if a person cannot conform to an
                                      objective standard?
                                          1. H.L.A. Hart: ―If our conditions of
                                             liability  are    invariant    and     not
                                             flexible…if they are not adjusted to the
                                             capacities of the accused, then some
                                             individuals will be held liable for
                                             negligence though they could not have



BDF                                                                                 68
                                        helped their failure to comply with the
                                        standard.‖
                           iii. The Model Penal Code defines negligence in
                                such a way as to take into account the ―actor‘s
                                situation‖
              3. See State v. Williams where court held that a couple could be
                 convicted of manslaughter for negligently failing to supply
                 their 17-month-old child with medical care when the failure
                 to supply medical care was the actual and proximate cause
                 of the death
                     a. Morse: one way to defend the Williams‘ conduct is to
                        say that, for various reasons, people may be incapable
                        of meeting the reasonable person standard. You
                        could say that in the Williams‘ circumstance they
                        were so worried about losing their child they could
                        not think rationally and were, consequently, unable to
                        meet a reasonable person standard.
       ii. Should awareness be required?
              1. True negligence as sufficient for criminal liability—the MPC
                     a. ―moral defect can properly be imputed to instances
                        where the defendant acts out of insensitivity to the
                        interests of other people, and not merely out of an
                        intellectual failure to grasp them.‖
                     b. Stephen Pillsbury
                             i. Culpability should depend on the defendant‘s
                                reasons for perceptive failure, not on the
                                failure itself.
      iii. ―Depraved Heart‖ Murder v. Manslaughter
              1. General principle—“depraved heart” murder
                     a. ―Malice Aforethought‖ is implied if a person‘s
                        conduct manifests and extreme indifference to human
                        life. In state that separate murder into degrees, this is
                        second-degree murder.
                     b. Amount of Risk?
                             i. Must be so much risk that it constitutes an
                                extreme indifference to the value of human life
                                (you have created an ―evil‖ level of risk)
                     c. Mens Rea
                             i. Recklessness
              2. See Commonwealth v. Malone in which defendant was
                 convicted of second-degree murder for playing ―Russian
                 poker‖ with his friend, when the defendant fired a gun—
                 with a bullet randomly distributed among the six


BDF                                                                           69
                          cylinders—three times, killing his friend with the third pull
                          of the trigger
                       3. See Commonwealth v. Fleming where court held that an
                          extremely intoxicated defendant could be convicted of
                          second-degree murder for causing the death of a motorist
                          after driving on a busy, winding highway at extremely fast
                          speeds in the wrong lane.
                              a. In this case, the MPC‘s ―bump up‖ strict liability for
                                  negligence involving intoxication provided the
                                  necessary mens rea for conviction.
        d. Significance of results
                i. There is no crime of ―attempted reckless murder.‖ In most cases,
                   attempt is a crime of purpose. Why should this be the case? See
                   supra, p. 33-34
  IV.   Grievous Bodily Harm Track
        a. Common Law
                i. ―malice aforethought‖ is implied if a person intends to cause
                   grievous bodily harm to another, but death results.
               ii. In states that ―degree‖ murder, this is almost always second-degree
                   murder.
              iii. Definition of ―grievous bodily harm‖
                       1. Dressler: ―grievous bodily injury…is such injury as is grave
                          and not trivial, and gives rise to apprehensions of danger to
                          life, health, or limb.‖
              iv. Morse: Analytically, this should not be an independent track of
                   murder. It should be a straightforward application of doctrine
                   under the risky killing track.
                       1. If the definition of ―serious bodily harm‖ is sufficiently
                          broad, this track essentially creates ―bump up strict liability‖
                          for people who intend to injure but not kill.
  V.    Unlawful Act (Felony Murder) track
        a. Black-Letter Rule
                i. Elements of Felony Murder
                       1. Felony (and its constituent elements including requisite mens
                          rea)
                       2. Death
                       3. Causation
               ii. Classical formulation
                       1. Dressler: ―The classic formulation of the felony-murder
                          doctrine declares that one is guilty of murder if a death
                          results from conduct during the commission or attempted
                          commission of any felony.‖



BDF                                                                                    70
                     2. See Regina v. Serne in which England‘s Central Criminal
                        Court held that a defendant who committed arson could also
                        be held for felony murder when the arson led to the death of
                        two young boys.
                     3. See People v. Stamp in which Court held that defendants
                        could be convicted of felony murder when, during the
                        commission of a robbery, one of their victims had a heart
                        attack.
      b. Rationale of the Felony Murder Rule
             i. Note: This is extremely important. Morse points out that the
                 modern felony murder doctrine consists primarily of limitations to
                 the general rule. We should always ask what these limitations are
                 trying to achieve.
            ii. Deterrence
                     1. Deter the underlying felony
                            a. This is not very persuasive. Involves only marginal
                                deterrence. If you want to deter the underlying
                                felony you should increase the criminal penalty for it.
                            b. Even if there is some added deterrent value it is
                                bought at the cost of fairness (in the form of a strict-
                                liability rule).
                     2. Deter careless felonization (or encourage careful felonizing).
                            a. Enhanced risk of liability will encourage the felon to
                                commit the crime more carefully so as to avoid death.
      c. Criticism of the Felony Murder Rule
             i. T.B. Macaulay: ―it would be less capricious, and therefore a more
                 salutary course, to provide that every fiftieth or every hundredth
                 thief selected by lot should be hanged, than to provide that every
                 thief should be hanged who, while engaged in stealing, should
                 meet with an unforeseen misfortune such as might have befallen
                 the most virtuous man while performing the most virtuous action.‖
            ii. George Fletcher: The Felony Murder rule violates ―a basic principle
                 of just punishment.          Punishment must be proportional to
                 wrongdoing….American law achieves a balance of advantage
                 between defense and prosecution by bestowing extraordinary
                 procedural protections on the accused and yet compensating the
                 prosecution with rules of strict liability, felony-murder, conspiracy
                 and vicarious liability…what the [American] law of procedure
                 grants the accused, the law of substance takes away.‖
      d. Causation and Felony Murder
             i. While the prosecutor does not need to show that the defendant had
                 an independent mens rea vis-à-vis the death (just the mens rea to



BDF                                                                                  71
                commit the felony) the prosecution must still show that the
                defendant caused the death under normal causation principles.
            ii. See People v. Stamp in which court held that defendants could be
                convicted of felony murder when, during the commission of a
                robbery, one of their victims had a heart attack. While the heart
                attack was not foreseeable, traditional principles of legal cause
                (defendant takes victim as he finds him) allowed for conviction.
      e. Limitations on Felony Murder
             i. Abolition
                    1. In People v. Aron the Michigan Supreme Court interpreted
                       the felony murder statute to mean that when an
                       independent murder (proven by the prosecution BRD) is
                       committed in the course of a felony, it is ―bumped-up‖ to
                       first-degree murder.
            ii. Inherently Dangerous Felony Limitation
                    1. Inherently dangerous in the abstract
                           a. Rule: the felony murder rule will only apply if the
                               felony committed is one that is ―inherently
                               dangerous‖ in the abstract. Sometimes, the statute
                               will note specific felonies that meet this criterion.
                           b. See People v. Phillips in which court refused to hold
                               defendant for felony murder when the defendant, a
                               chiropractor, had fraudulently convinced the parents
                               of an eight-year-old child with aggressive ocular
                               cancer to follow an alternative form of treatment that
                               allowed the cancer to kill the child. The court
                               concluded that fraud was not inherently dangerous in
                               the abstract.
                           c. See People v. Satchell in which court held that
                               possession of a sawed-off shotgun by a convicted
                               felon was not an inherently dangerous felony eligible
                               for application of the felony-murder rule.
                           d. Note: This approach to the felony murder limitation
                               is not in accord with the underlying purpose of the
                               felony murder doctrine.         It will not encourage
                               defendants engaged in the ―abstractly dangerous‖
                               felonies to behave carefully.
                    2. Dangerous as committed
                           a. Rule: The felony murder rule will only apply if the
                               felony, as committed, is inherently dangerous.
                           b. See People v. Stewart in which court held that
                               defendant who went on a ―crack binge‖ and did not
                               care for her infant could be convicted of felony


BDF                                                                               72
                                   murder arising from the underlying felony of
                                   wrongfully permitting a child to be a habitual sufferer
                                   because the underlying felony was inherently
                                   dangerous as committed.
                         3. Special case of drug distribution
                               a. Cases are in flux. Some say that drug distribution is
                                   ―inherently dangerous,‖ others say no.
                               b. Morse: The question to ask is whether this is driven
                                   by drug war ideology or a sober look at the actual
                                   dangerousness of the crime.
                 iii. The Merger Doctrine
                         1. Rule
                               a. Dressler formulation: the merger doctrine says that
                                   ―the felony murder rule only applies if the predicate
                                   felony is independent of, or collateral to, the
                                   homicide. If the felony is not independent, then the
                                   felony ―merges‖ with the homicide and cannot serve
                                   as the basis for a felony-murder conviction.‖
                         2. Purpose
                               a. To prevent unfair ―bootstrap‖ reasoning from
                                   prosecutors.
                               b. If you are homicidal to begin with—if the felony
                                   ―merges‖—then there would be no deterrent function
                                   to an independent felony murder conviction
                         3. Rise and Fall of the Doctrine in California
                               a. In People v. Ireland the court held that a second-degree
                                   felony murder instruction could not be properly
                                   given when it was based upon a felony which is an
                                   integral part of the homicide and which the evidence
                                   produced by the prosecution shows to be an offense
                                   included in fact within the offense charged. The case
                                   involved      assault    with   a    deadly     weapon
                                   (husband/wife dispute)
                               b. In People v. Wilson the court held that when the
                                   specific intent element of the crime of burglary
                                   involves assault with a deadly weapon, the felony
                                   murder rule cannot be applied.
                               c. In People v. Burton the court held that armed robbery
                                   was not independent of a homicide39 and refined the


 The defense had argued that because armed robbery necessarily includes an assault with a deadly
39

weapon, it was an integral part of the homicide.



BDF                                                                                          73
                merger doctrine. It concluded that ―even if the felony
                was included within the facts of the homicide and
                was integral thereto, a further inquiry was required to
                determine if the homicide resulted ‗from conduct for
                an independent felonious purpose‘ as opposed to a
                ‗single course of conduct with a single purpose.‘
                     i. Note: here the court seems to apply a
                        ―dangerous as committed‖ rationale at odds
                        with its approach in cases involving the
                        ―inherently dangerous felony‖ limitation
                        (where it applies a ―dangerous in the abstract‖
                        rationale).
            d. In People v. Smith the court held that felony child
                abuse could not serve as the underlying felony to
                support a felony-murder conviction when the child
                abuse involved a vicious assault on the child.
            e. In People v. Hansen the Court held that the felony
                murder could apply when the underlying felony was
                discharge of a firearm at an inhabited building. The
                court rejected the ―integral part of the homicide‖ test
                of Ireland and the ―independent purpose‖ test of
                Burton. The court concluded that felonies that look
                dangerous in the abstract and lead to murder are
                eligible for felony murder
      4. Special cases: Burglary
            a. In People v. Wilson California held that when the
                specific intent element of the crime of burglary
                involves assault with a deadly weapon, the felony
                murder rule cannot be applied—the burglary merges
                with the murder.
            b. But the New York Court of Appeals has concluded
                that burglary based on an intent to assault will
                support a felony-murder conviction even though a
                similar assault would NOT support a felony murder
                charge in the absence of entry into a dwelling.
                     i. This conclusion is supported by the argument
                        that ―the likelihood that the assault will
                        culminate in a homicide is significantly
                        increased by the situs of the assault.‖
                    ii. That is, the court here is hoping to deter the
                        underlying felony (not encourage that it take
                        place safely—after all, how can you encourage
                        a purpose crime to take place safely?)


BDF                                                                 74
             iv. The ―killings not in furtherance‖ of the felony limitation
                    1. General framework

                             VICTIM
                         F            NF
                                 Easiest case for FM
      F


KILLER
           Hardest case for FM

      NF




                     2. General rule
                           a. The felony murder rule only applies if the killing
                               actually took place in furtherance of the underlying
                               felony.
                     3. Agency Rule
                           a. The murder must have been committed by an agent
                               of the felon or the actual felon.
                           b. This precludes a felony murder conviction for a felon
                               whose co-felon is shot by a putative victim.
                           c. See State v. Canola in which court held that Agency
                               rule was proper rule regarding felony murder
                               convictions because it avoided extension of the rule.
                               The court concluded that a defendant who had
                               committed armed robbery could not be convicted of
                               felony murder when one of his co-felons was short by
                               the store‘s owner.
                     4. Proximate Cause rule
                           a. The felon or co-felons are responsible for any killing
                               that can be reasonably foreseen as arising out of the
                               underlying felony.
                     5. Note on Agency v. Proximate Cause: The proximate cause
                        rule serves the underlying rationale of the felony murder
                        doctrine by encouraging safe felonization.
                           a. But note that the agency rule limits the reach of
                               Felony murder and may thus be favored by
                               opponents of the felony murder rule.


BDF                                                                              75
                            6. ―Personal frolics‖
                                  a. What constitutes in the furtherance?
                                          i. In United States v. Heinlein the court held that
                                             the murder of a rape victim by a rapist could
                                             not be attributed to his fellow co-rapists
                                             because it was outside the common purpose of
                                             the co-rapists
                            7. Nature of the victim
                                  a. In some jurisdictions, liability for felony murder must
                                      be based on the death of a non-felon.
                                  b. In these jurisdictions the distinction is based on the
                                      idea that the death of a felon is justified.
                            8. The ―Provocative Act‖ Doctrine
                                  a. If the felon commits a felony in a particularly
                                      provocative manner, he may be convicted of second
                                      degree ―depraved heart‖ murder for the death of a co-
                                      felon even in an agency jurisdiction.
                                  b. In this situation, felony murder does not apply, but
                                      the level of risk created by the felon, through his
                                      provocative acts, is so high as to constitute the
                                      reckless disregard for human life that implies the
                                      ―malice aforethought‖ necessary for a second-degree
                                      murder conviction.
                                  c. See Taylor v. Superior Court in which Supreme Court
                                      of California upheld second-degree murder
                                      conviction of defendant whose provocative behavior
                                      during an armed robbery led to the death of his co-
                                      defendant at the hands of one of the store owners.
       VI.     Model Penal Code and Murder40
               a. First-Degree Murder
                      i. The Model Penal Code treats purpose and knowledge killing as
                         murder. There is no WDP formula.
                     ii. There is ―intent to commit grievous bodily harm‖ track in the
                         model penal code. Any crime under this state of mind would

40   Section 210.2 MURDER
       (1) Except as provided in section 210.3(1)(b) [EED], criminal homicide constitutes murder when:
               a. It is committed purposely or knowingly; or
               b. It is committed recklessly under circumstances manifesting extreme indifference to the
                   value of human life. Such recklessness and indifference are presumed if the actor is
                   engaged or is an accomplice in the commission of, or an attempt to commit, or flight after
                   committing or attempting to commit robbery, rape or deviate sexual intercourse by force
                   or threat of force, arson, burglary, kidnapping, or felonious escape.‖
       (2) Murder is a felony of the first degree.



BDF                                                                                                       76
                constitute extreme recklessness (murder) or reckless or negligent
                homicide.
      b. Felony-Murder rule
             i. The MPC rejects felony murder, replacing it with a rebuttable
                presumption that if the defendant has committed an enumerated
                felony, the jury may conclude that the defendant had a reckless
                disregard for human life.
            ii. This requires the prosecutor to carry the burden of proving, after
                the presumption has been rebutted, that the defendant‘s conduct
                was sufficiently risky to constitute ―depraved heart‖ murder.
      c. Model Penal Code: EED and Manslaughter
             i. Subjective portion of defense
                    1. The reasonableness of the actual state of EED need not
                        involve ―a state of mind so far from the norm as to be
                        characteristic of a mental illness.‖
            ii. Objective portion of defense
                    1. the reasonableness of the explanation or excuse for the EED is
                        an objective standard. The question is whether there is a
                        reasonable explanation or excuse for the EED that caused the
                        actor to kill.
                    2. even this is partially subjectivized: the explanation or excuse
                        is to be considered from the viepoint of a person ―in the
                        actor‘s situation under the circumstances as he believes them
                        to be.‖
           iii. The MPC EED defense is much broader than the common law
                defense.
                    1. a provocative act is not required—just an EED
                    2. even if there is a provocation, it does not need to involve one
                        of the common law situations.
                    3. words alone can constitute provocation.
                    4. there is no rigid cooling off rule.
      d. Risky Killing
             i. Under the MPC, the risk must be ―substantial and unjustifiable‖
                and such that it constitutes a ―gross deviation‖ from the standard
                of conduct of a reasonable person.
            ii. Under the MPC the difference between ―depraved heart murder‖
                and criminal negligence rests entirely on the mens rea—the amount
                of risk created is the same in both cases.
                    1. the risk taking behavior is subjectivized: even if the
                        reasonable person would not have been aware of the risk,
                        but YOU were, you are guilty of negligent homicide.




BDF                                                                                77
ATTEMPT

  I.   Policy concerns and Critiques: Why Punish Attempt?
       a. Inchoate crime, generally
               i. General question:        When should conduct be sufficient for
                  criminalization?
       b. Deterrence
               i. The penalty for the completed crime should be enough deterrence.
              ii. It can be argued that penalizing attempt adds a marginal level of
                  deterrence—people will be held even if they fail
       c. Culpability
               i. Agents who attempt to commit a crime are as morally culpable and
                  deserving of punishment as those who successfully commit a
                  crime—the results should not matter
       d. Harm of Attempt
               i. Risk Creation
                      1. Professor Feinberg argues that we all owe each other a
                          certain duty of repose. Violating this duty is a harm.
              ii. Social anxiety
             iii. As a general matter, the harm principle becomes a less tenable
                  justification for attempt liability as you push punishment for
                  attempt farther back from the actual act.
       e. Punishment
               i. At common law, attempt was a misdemeanor.
              ii. The modern trend is to punish attempt at a reduced factor of the
                  punishment for the completed crime.
                      1. Is this an exception to the harm principle? Do results matter?
       f. Should results matter?
               i. Public legitimacy
                      1. results matter because of the public‘s intuitive feeling that
                          they should matter. Any system of criminal law that didn‘t
                          take results into account would be seen as illegitimate.
              ii. Moral ―Luck‖
                      1. H.L.A. Hart: ―There seems no good reason for adopting a
                          misassimilation as a principle or to stigmatize as pedantic
                          the refusal to recognize that the difference made by ―bad
                          fortune‖ and ―good luck‖ to the outcome of the very same
                          act justifies punishing the one and not the other.
             iii. MPC—Comment to §5.05
                      1. ―To the extent that sentencing depends upon the antisocial
                          disposition of the actor and the demonstrated need for
                          corrective sanction, there is likely to be little difference in the



BDF                                                                                       78
                        gravity of the required measures depending on the
                        consummation or the failure of the plan.‖
             iv. Morse—The Ravishing Pink Flamingo
                     1. Suppose your neighbor has a ravishing pink flamingo. You
                        know they‘ve left for vacation so, desiring the pink flamingo,
                        you go over to the neighbor‘s lawn, steal the flamingo and
                        put it in your garage. Later the next morning you have a fit
                        of conscience and put it back. Are you guilty of theft? Yes
                        because there is no excusing condition.
                     2. Assume now that a camera is running. Watching the
                        camera, you see someone move to the flamingo and then
                        pull back at the last minute. Attempt?
                            a. With last-act attempts there is no significant
                                difference     in    the    actor‘s     culpability    or
                                dangerousness—they should be held for attempt.
  II.   Mens Rea
        a. General Rule
               i. Attempt is a specific intent crime—it requires true purpose.
                     1. See Smallwood v. State in which court held that man with HIV
                        could not be found guilty of attempted murder and assault
                        with intent to murder after having unprotected sex with
                        several victims because ―it [could not] be fairly concluded
                        that death by AIDS was sufficiently probable to support an
                        inference that Smallwood intended to kill his victims in the
                        absence of other evidence indicative of an intent to kill.‖
              ii. Rationale
                     1. Linguistic
                            a. ―Attempt‖ means to try to accomplish something—
                                you cannot be said to try if you don‘t intend to
                                succeed.
                            b. Counter-argument
                                    i. To the extent that this is just linguistic, we can
                                       substitute language. We could call it ―inchoate
                                       murder‖ instead of attempt.
                     2. Utilitarian
                            a. Justice Holmes: ―The importance of the intent is not to
                                show that the act was wicked but that it was likely to
                                be followed by hurtful consequences.‖
                            b. Counter-argument
                                    i. Risk-creation can often be worse—can create
                                       greater risk of harm—than purpose.
                     3. Moral



BDF                                                                                   79
                             a. One who intends to commit a criminal harm does a
                                greater moral wrong than someone who does
                                something with only a reckless or negligent mens rea.
                             b. Counter-argument
                                     i. If this is really this rationale, we could simply
                                         grade attempts by mens rea just as we do
                                         substantive crimes
                                    ii. We don‘t‘ always treat purpose as more
                                         culpable. For example, the MPC imposes
                                         recklessness as a default if no mens rea is
                                         specified.
            iii. Morse: Attempted Inchoate Crime
                     1. Would allow attempt liability for recklessness.
                     2. Example: People v. Thomas in which defendant fired three
                         shots at a man he believed to be a fleeing rapist. The man
                         was convicted of attempted reckless manslaughter.
                     3. As in any other case of attempt, those who have created risk
                         have done everything necessary to commit the crime (except
                         results). This would not expand liability in driving cases
                         because
                             a. The defendant would still have to create immense risk
                                (i.e., Fleming or drag racing)
                             b. Such a doctrine would incentivize much safer driving.
                     4. Reckless liability is a lottery crime under current doctrine.
                         We should instead be fairer and punish the act (even
                         without consequences)
      b. Strict Liability crimes
              i. In principle, specific intent should not be required when the object
                 crime imposes strict liability.
             ii. John Smith: ―If crimes of…strict liability are necessary and valid
                 instruments of policy, then there is no reason for not applying this
                 same policy in the case of attempts.‖
      c. Attempted Felony Murder
              i. Nature of the problem: someone is grievously injured during the
                 course of a felony. Can the felons be convicted of attempted felony
                 murder if the person survives?
                     1. most states have rejected this idea.
      d. Attempted Manslaughter
              i. Risky killing track
                     1. American criminal law does not recognize attempt liability
                         for risk-creation crimes. The specific intent requirement
                         precludes attempt liability for negligent homicide and
                         manslaughter.


BDF                                                                                   80
                        2. NOTE: Morse disagrees with this and would create such a
                           crime.
                ii. Intent-to-Kill track
                        1. American criminal law does recognize attempted
                           manslaughter in provocation cases (i.e., someone is
                           provoked and attempts to kill but fails).
         e. Attendant Circumstances
                 i. Two Options
                        1. Charge attemptors for acting with the kind of culpability
                           required by the substantive crime attempted.
                        2. require true purpose (true knowledge for attendant
                           circumstances).
                ii. The Model Penal Code choose option one: attemptors are liable
                    according to the culpability required by the underlying substantive
                    criminal statute.
               iii. Attempted Statutory Rape
                        1. See Commonwealth v. Dunne in which defendant was
                           convicted of assault with intent to commit statutory rape
                           when the victim was only 15 years old but defendant was
                           unaware of her age.
                        2. This is supported by underlying policy purpose of strict
                           liability for statutory rape.
  III.   Actus Reus
         a. Generally
                 i. One of the major concerns of attempt liability is drawing a line
                    between noncriminal preparation and criminal attempt.
                ii. Policy considerations
                        1. police intervention
                               a. the farther back from the ―last act doctrine‖ you go,
                                   the easier it is for police to intervene to stop a crime
                                   from taking place.
                               b. On the other hand, if attempt liability becomes too
                                   broad you may improperly arrest innocent persons or
                                   those who would later have had second thoughts.
                        2. Rule of Law concerns
                               a. The line between preparation and attempt should not
                                   be vague
                        3. Harm Principle
                               a. If the harm of attempt comes from social anxiety, we
                                   want to stop behavior before it becomes threatening
                                   enough to arouse anxiety.
                        4. Retributivist/culpability



BDF                                                                                     81
                           a. Simply want an act that allows officials to identify
                              culpable mens rea of actor.
      b. Preparation v. Attempt
             i. Two primary foci
                   1. Focus on how much remains to be done before the crime is
                       committed
                   2. focus on how much has already occurred
            ii. Factors to consider
                   1. whether the act in question appears to be dangerously close
                       to causing a tangible harm
                   2. the seriousness of the threatened harm
                   3. the strength of the evidence of the actor‘s mens rea
      c. ―Proximity‖ tests
             i. General
                   1. These tests focus on how much remains to be done—how
                       objectively dangerous the person is.
            ii. Last-Act Doctrine
                   1. Under this test, a criminal attempt only occurs when the
                       person performs all of the acts that the person believes are
                       necessary to commit the target offense.
                   2. Policy objectives served by the test
                           a. Indicates clear culpability
                           b. Provides a bright-line rule
                   3. Criticism
                           a. Prevents effective police intervention
                           b. An actor‘s dangerousness can be shown before they
                              have reached the last act.
                   4. See King v. Barker in which Court rejects the last act test for
                       attempt liability, instead pointing out that the dividing line
                       between attempt and preparation is unclear.
           iii. ―Dangerous Proximity‖ test
                   1. Under this test the line between preparation and attempt is
                       ―between those acts which are remote and those which are
                       proximate and near to the consummation…as said by Justice
                       Holmes, ‗there must be dangerous proximity to success.‘‖
                   2. Policy objectives served by test
                           a. Prevents punishment for thoughts alone and/or
                              punishment of the innocent.
                           b. More flexible than last-act test.
                   3. Criticism
                           a. Vague: how certain does the completion have to be?
                           b. Professor Williams: ―One is led to ask whether there
                              is any real need for the requirement of proximity in


BDF                                                                               82
                             the law of attempt. Quite apart from this requirement
                             it must be proved beyond reasonable doubt that the
                             accused intended to commit the crime…and that he
                             did some act towards committing it.‖
                  4. See People v. Rizzo in which court overturns defendants‘
                      conviction for attempted robbery even though it was clear
                      that defendants had intended to commit the crime because
                      the defendants could not find their robbery victim and were
                      not sufficiently close to completion.
           iv. Indispensable Element Test
                  1. Dressler: Under this test courts ―emphasize any
                      indispensable aspect of the criminal endeavor over which
                      the actor has not yet acquired control.‖
                  2. Policy objectives served by test
                         a. Provides clear rule
                         b. Allows for effective intervention by police
                  3. Criticism
                         a. The test is arbitrary—simply acquiring an
                             indispensable element of a crime does not indicate a
                             culpable mens rea (i.e., purchasing a handgun)
      d. ―Intent Corroborative‖ tests
             i. General
                  1. These tests focus on how much further the defendant has to
                      go before committing the crime (rather than on how far he
                      has already gone) and typically push the line farther back
                      from completion.
                  2. These tests also focus more on the agent‘s subjective
                      blameworthiness
                  3. Policy objectives served
                         a. Effective police intervention
                         b. Punishment focused on culpability (retributive goal)
                  4. criticism
                         a. These tests may inadvertently punish those who had
                             thoughts about committing a crime but would not
                             have done so.
            ii. Model Penal Code
                  1. §5.01(1)c): actor must do something that is a ―substantial
                      step‖ towards the commission of the crime‖
                         a. §5.01(2): substantial step is one that
                                  i. strongly corroborates the actor‘s purpose
                                 ii. provides recurrent factual circumstances in
                                     which the actor‘s conduct is not insufficient as
                                     a matter of law (i.e., lying in wait)


BDF                                                                               83
                     2. See United States v. Jackson in which Court, applying a statute
                        based on the MPC, upheld defendant‘s conviction for
                        attempted bank robbery on the grounds that the evidence
                        indicated that the defendants had taken a substantial step
                        (reconnoitering, acquiring bank job paraphernalia) that was
                        strongly corroborative of their criminal intent.
            iii. Probable desistance test
                     1. This test focuses on whether ―actor…reached a point where
                        it was unlikely that he would have voluntarily desisted from
                        his effort to commit the crime.‖
      e. Hybrid tests: Unequivocality (res ipsa loquitor)
              i. General
                     1. This test focuses on how clearly the act indicates intent,
                        rather than on how far the defendant has gone or has to go.
                     2. Dressler: Under this test ―an attempt occurs when a person‘s
                        conduct, standing alone, unambiguously manifests her
                        criminal intent.‖
             ii. Proximity element
                     1. The test might be said to get at manifest danger, just as the
                        ―dangerous proximity‖ test.
            iii. Intent corroborative element
                     1. focus is on the culpability of the actor.
            iv. Policy objectives served by test
                     1. reserves criminal liability for those who manifest criminality
                        and cause social apprehension
             v. Criticism
                     1. Allows for effectuation of racism
                            a. See McQuirter v. State in which court holds that jury
                                may take into account defendant‘s race in
                                determining whether he intended to rape a white
                                woman.
                     2. impractical
                            a. The ―flammable hay‖ hypothetical
                                    i. A man walks up to a haystack with a lighted
                                       match. Is he about to commit arson, or light a
                                       pipe in his other hand? (we can‘t tell if act is
                                       equivocal until a later act occurs).
      f. Intent Corroborative v. Proximity tests: examples
              i. See United States v. Harper in which conviction of defendant who
                 ―jammed‖ an ATM and then laid in wait for ATM repair man was
                 overturned because the robbery stage of the crime had not been
                 reached—the ATM repair man would not have arrived for another
                 hour.


BDF                                                                                 84
                        1. Under an intent corroborative test, conviction would be
                            upheld (lying in wait).
                        2. Under a proximity test, conviction is overturned.
                ii. See United States v. Mandujano in which defendant who attempted,
                    several times, to procure drugs for undercover cop was convicted
                    for attempt to distribute heroin.
                        1. Under intent corroborative test, it is clear that Mandujano
                            intended to distribute and he should be convicted.
                        2. Under proximity test, Mandujano never had inventory and
                            so could not have attempted to distribute it.
  IV.   Solicitation
        a. Solicitation as attempt
                 i. Majority rule: attempt is a crime of purpose. A solicitor cannot be
                    guilty of attempt because she does not have the purpose to commit
                    the offense personally.
                ii. Minority rules
                        1. solicitation may constitute an attempt when it is proximate
                            to the target offense
                        2. Solicitation may constitute a punishable attempt if its
                            represents a ―substantial step‖ under the circumstances
        b. Solicitation as substantive crime
                 i. General
                        1. Dressler: ―Solicitation occurs when a person invites,
                            requests, commands, hires or encourages another to engage
                            in conduct constituting any felony, or a misdemeanor
                            relating to obstruction of justice or breach of the peace.
                ii. Mens Rea
                        1. Solicitation is a specific intent crime (a crime of purpose)
               iii. Actus Reus
                        1. The actus reus consists of inviting, requesting, hiring,
                            commanding or encouraging the illegal conduct.
  V.    Other Substantive Crimes of Preparation
        a. Burglary
                 i. Under the common law, a person apprehended while breaking into
                    a dwelling with the intent to commit a felony could not be guilty of
                    attempt because he would not have reached the scene of the felony.
                    Making burglary a substantive crime fixed this gap.
        b. Assault
                 i. Assault is an inchoate crime—an attempted battery
                ii. ―Attempted‖ assault
                        1. This would constitute an attempt to commit an attempt! It is
                            generally not recognized
        c. Stalking


BDF                                                                                  85
                             i. Stalking causes a harm: intense emotional disturbance
                            ii. These statutes criminalize ―menacing‖ conduct: harassment,
                                terrorist threats and torment.
                           iii. These statutes have withstood constitutional vagueness attacks.
           VI.        The Model Penal Code
                      a. Guiding principle
                             i. ―The proper focus of attention is the actor‘s disposition.‖
                      b. Elements
                             i. The purpose to commit the target offense
                            ii. Conduct constituting a ―substantial step‖ towards the commission
                                of the target offense.
                                    1. This broadens the scope of attempt liability
                                    2. an act is not a substantial step unless it ―strongly
                                        corroborates‖ the defendant‘s criminal purpose (this can be
                                        considered from all of the surrounding circumstances—it is
                                        not a res ipsa loquitor test).
                              ATTEMPT UNDER THE COMMON LAW
Thinking                                                                   Doing------------------------------>
Same mens rea as       P Proximity Test              Probable       Unequivo Last Act           Abandonm
target offense         r                             Desistanc cal Act                          ent        not
                       e                             e                                          permitted
+/-                    p
Intent to:             a Close in space and Law                     Clearly    Beyond                             T
    1. do       the    r time or set forces in abiding              manifests defendant‘                          a
                       a motion with high person                                                                  r
       same act                                                     criminal   s control
                       ti probability                                                                             g
    2. accomplish                               of would            purpose
                       o completion                                                                               e
       the same                                      have
                       n                                                                                          t
       result                                        broken off
    3. know the
       same
       circumstan                                                                                                 C
       ces as the                                                                                                 r
                    C
       target                                                                                                     i
                    r
       crime                                                                                                      m
                    i
                          ATTEMPT UNDER THE MODEL PENAL CODE                                                      e
                    m
Culpability         i     Substantial Step                                                  Abandonment
                    n                                                                       permitted if
Same culpability a        ―strongly                                                            1. voluntary
as target crime     l     corroborates‖                                                           renunciat
                          criminal purpose                                                        ion
+/-                   T                                                                        2. complete
Purposefully          h                                                                           renunciat
engages          in                                                                               ion


        BDF                                                                                                86
conduct            r
                   e
+/-                s
Purposefully       h
causes results or o
believes    result l
will ensue         d

+/-
Same culpability
toward
circumstances as
target offense

            VII.    Defenses: Abandonment
                    a. Policy Concerns
                           i. Those who argue for a large gap between attempt liability and
                              mere preparation argue that this provides time for repentance or
                              second thoughts on the part of the defendant.
                    b. Threshold of criminality
                           i. Once a defendant has crossed the threshold into criminality, the
                              opportunity for abandonment/repentance is lost
                          ii. The law has traditionally denied a defense of abandonment
                              because doing so would defeat the purpose of inchoate criminality.
                         iii. This encourages laws the place the threshold for criminality very
                              near the last act.
                    c. Abandonment as complete defense
                           i. Some states allow abandonment but only if it occurs under
                              circumstances manifesting a voluntary and complete renunciation
                              of the criminal purpose. (i.e., abandonment is not due to fear of
                              getting caught, lack of opportunity, etc.)
            VIII.   Defenses: Impossibility
                    a. General issue
                           i. In these cases, the defendant has the requisite mens rea and has
                              done everything she can to commit the offense, but the desired
                              outcome is impossible. The general question is should a person be
                              convicted for an attempt that cannot succeed?
                    b. General Rules
                           i. Factual impossibility is not a defense.
                                  1. Dressler: ―‗factual impossibility‘ exists when a person‘s
                                     intended end constitutes a crime, but she fails to
                                     consummate the offense because of attendant circumstances
                                     unknown to her or outside her control.‖


          BDF                                                                                87
                    2. Examples:
                            a. Pickpocket putting hand into empty pocket
                            b. Pulling the trigger of an unloaded gun aimed at a
                               present person.
                    3. Had the circumstances been as the actors believed them to
                        be or hoped that they were, the crime would have been
                        consummated.
            ii. Legal impossibility is a complete defense.
                    1. Dressler: ―…legal impossibility arises ‗when the law does
                        not proscribe the goal that the defendant sought to
                        achieve.‘‖
      c. Test
             i. What did the defendant intend to do?
            ii. Was what the defendant intended to do a violation of criminal law?
                    1. If it was not a violation of the criminal law, then it was
                        legally impossible and the person cannot be convicted of
                        attempt.
           iii. Some add an intent corroborative test to make sure that seemingly
                innocuous acts are not unjustly punished. For example, a professor
                at the faculty club believes he has forgotten his umbrella but just
                takes one from the closet. It turns out that the umbrella is his own.
                He intended to commit a crime and committed an act, but it looks
                innocuous. It would be impossible to convict him—the solution is
                to require an act that strongly corroborates the crime (a statement
                as he is taking the umbrella that he intends to steal it).
      d. Factual Impossibility v. Legal Impossibility: Examples
             i. In People v. Jaffe the New York Court of Appeals held that a
                defendant who had received unstolen property with the belief that
                it was stolen was entitled to a complete defense on the grounds of
                legal impossibility.
            ii. In United States v. Berrigan the Third Circuit held that a priest who
                attempted to smuggle letters out of a prison under the belief that
                the warden had not consented to their being taken out of the
                prison could not be convicted of attempting to smuggle letters out
                of the prison because the warden was aware of the letters and had,
                in fact, consented.
                    1. MORSE: these are incorrect. The defendant tried to do
                        something illegal. The fact that the legal status of the item
                        was not as he intended should not exculpate.
                    2. Dressler characterizes these as cases of ―hybrid legal
                        impossibility‖: it is a factual mistake about the legal status of
                        an item. “Ultimately any case of hybrid legal impossibility
                        may reasonably be characterized as factual impossibility.”


BDF                                                                                   88
            iii. In People v. Oviedo the Fifth Circuit held that a defendant who
                 attempted to sell an undercover agent procaine hydrochloride (a
                 substance that tests positive as heroin in a field test) could not be
                 convicted of attempt to distribute heroin because it could not be
                 proven that he actually intended to sell heroin rather than procaine
                 hydrochloride.
                      1. Here the court demanded that the objective acts performed
                         indicate a guilty mens rea.
      e. Mr. Fact v. Mr. Law
              i. Hunting Season is 10/1 to 11/30
                      1. Mr. Fact believes it is September 15. He intends to hunt on
                         September 15. This is a clear case of factual impossibility.
                         This looks innocuous (so off the hook in Oviedo) but is really
                         not.
                      2. Mr. Law: Believes it is October 15. He intends to hunt on
                         October 15 but believes it is out of season.
                      3. THE DIFFERENCE BETWEEN THESE TWO THINGS IS
                         NOT ONE OF BLAMEWORTHINESS BUT OF LEGALITY.
             ii. It is always in season
                      1. Mr. X believes it is 10/15. Believes it is out of season.
                      2. This is also a case of true impossibility because there is no
                         crime type at all on the books.
      f. ―Inherent‖ impossibility
              i. Inherent factual impossibility may be a defense. It applies when
                 the method used to commit the crime is one ―that a reasonable
                 person would view as completely inappropriate to the objectives
                 sought.‖
                      1. See Attorney General v. Sillem in which court held that
                         defendant could not convicted for attempt to kill victim
                         through witchcraft.
                      2. Morse: These people should be held to the extent that they
                         are not excused by mental abnormality (in which case their
                         proven dangerousness may suggest a need for civil
                         confinement) because they have manifested a culpable intent
                         to commit a criminal act.
      g. Model Penal Code
              i. The Model Penal Code abolishes ―hybrid‖ legal impossibility in
                 §5.01(1). A person is guilty of attempt if the circumstance are as he
                 believes or intends them to be.
                      1. See People v. Dlugash in which the New York Court of
                         Appeals held that a defendant who fired five shots into the
                         body of a victim who had been shot a few minutes earlier
                         could be convicted of attempted murder because a murder


BDF                                                                                 89
                         would have been convicted had the circumstances been as
                         he believed them to be (had the victim still been alive).


CONSPIRACY

  I.    General
        a. Basic definition
                i. Dressler: ―A Common Law conspiracy is an agreement between
                   two or more persons to commit a criminal act or series of criminal
                   acts, or to accomplish a legal act by unlawful means.‖
  II.   Policy Goals and Concerns
        a. Purpose/rationale
                i. Inchoate crime
                       1. Provides a chance for police intervention and the prevention
                           of crime.
                       2. See generally, supra, p. 77-78
               ii. Group dangers
                       1. conspiracy increases the likelihood that a crime will be
                           committed
                       2. conspiracy increases the likelihood that other crimes, not the
                           object of the conspiracy, will be committed.
                       3. conspiracy increases the possibility for complex and even
                           more dangerous and serious crimes than could be completed
                           alone.
        b. Criticism
                i. Inchoate crime
                       1. Conspiracy punishes non-criminal activity
                       2. In extreme forms, it essentially punishes for culpable
                           thoughts.
               ii. Broad scope/vagueness
                       1. This allows it to be used as a powerful tool for prosecutors to
                           suppress inchoate conduct they consider dangerous or even
                           just morally undesirable.
              iii. Harm principle
                       1. Violates the harm principle—agents are punished even if no
                           physical harm has been committed
              iv. Abuse
                       1. Historically used to suppress controversial activity like labor
                           strikes and public dissent.
                       2. Used by prosecutors as a catch-all to hold defendants who
                           might not otherwise be convicted.



BDF                                                                                   90
                        3. Prosecutors abuse procedural advantages to inflict onerous
                            burdens on poor defendants.
                v. Largely unnecessary
                        1. Defendants could often be sufficiently punished using other
                            legal tools and doctrines.
  III.   Collateral Consequences of Conspiracy charge
         a. The Hearsay exception
                 i. Hearsay defined
                        1. Dressler: ―‗Hearsay evidence‘ is evidence of a statement
                            made other than by a witness while testifying at the hearing,
                            which is offered to prove the truth of the matter stated.‖
                ii. An out-of-court statement of a conspirator made while
                    participating in the conspiracy may be introduced in evidence
                    against co-conspirators.
                        1. See Krulewitch v. United States in which the Supreme Court
                            refused to expand the hearsay exception to allow a statement
                            made regarding a matter that was not in furtherance of the
                            alleged conspiracy charged.
               iii. Rationale
                        1. agency principle: a defendant who has authorized another
                            to carry out an act or to speak on some joint end, is
                            responsible for what that agent later says or does.
         b. Procedural burdens
                 i. Venue
                        1. Because a conspiracy may involve dozens of defendants
                            located across the country, a charge of conspiracy may allow
                            the prosecution to bring charges thousands of miles away
                            from the defendant‘s home.
                ii. Joint trials
                        1. A charge of conspiracy allows the prosecution to try
                            defendants together, which may ease a conviction by
                            imputing the jury‘s perceived guilt of a co-conspirator onto
                            the defendant.
         c. ―Pinkerton liability‖
                 i. See supra, p. 42.
                ii. The ―double whammy‖
                        1. when two are more people are co-conspirators they are held
                            for the substantive crime of conspiracy AND
                        2. for any object crime that was a reasonably foreseeable
                            consequence of the underlying conspiratorial purpose.
         d. Criminalization of non-criminal conduct




BDF                                                                                   91
               i. At common law, an agreement became punishable as a conspiracy
                  if the objectives were unlawful OR if the agreement contemplated a
                  lawful objective by unlawful means.
              ii. In some jurisdictions, conspiracy statutes have been interpreted to
                  punish agreement to commit objectives that are unlawful but not
                  criminal.
        e. Level of punishment
               i. Common law
                      1. at common law, a conspiracy to commit a felony or a
                          misdemeanor was a misdemeanor.
              ii. Modern trend
                      1. Most fix the punishment for conspiracy at some term less
                          than that provided for the object crime.
             iii. MPC §505(1)
                      1. The MPC grades conspiracy to commit any crime other than
                          a felony of the first degree at the same level as the object of
                          the conspiracy (see attempt).
             iv. Punishment when the target offense is committed
                      1. The traditional view permits separate punishments, with
                          consecutive sentences, for the object crime AND for the
                          conspiracy to commit it.
                      2. MPC §1.01(1)(b)
                              a. The MPC provides that a person may not be
                                 convicted and punished for both conspiracy and the
                                 object of the conspiracy or an attempt to commit the
                                 target offense UNLESS the prosecution proves that
                                 the conspiratorial agreement involves the commission
                                 of additional offenses not yet completed or attempted.
  IV.   Actus Reus
        a. General
               i. The actus reus in conspiracy consists of the act of agreement to
                  commit an unlawful act.
              ii. An express act of agreement does not need to be proved; tacit
                  agreement is acceptable.
             iii. An agreement can exist even if all of the parties to the agreement
                  do not know the details of the arrangement but only know its
                  general nature.
        b. Conspiracy as agreement v. Conspiracy as group
               i. The term ―conspiracy‖ refers to the substantive crime NOT to the
                  group that intends to commit the unlawful acts.




BDF                                                                                   92
                 ii. This means that one who joins a group of conspirators doesn‘t
                     necessarily become a co-conspirator—the person must agree to
                     commit the unlawful act that is the purpose of the conspiracy.41
           c. Other Requirements and indications of actus reus
                  i. ―Conscious parallelism‖
                        1. Situation
                                a. A ―conscious parallelism‖ situation exists when all of
                                   the actors understand that if the other actors
                                   concerned act in the same manner all of the actors
                                   stand to gain AND each knows that the other actors
                                   are aware of such a situation. As such, there isn‘t
                                   conscious agreement, just an understanding of group
                                   dynamics and incentives.
                        2. This can be compared to ―willful blindness‖ as a culpable
                            mens rea (see supra, p. 17-18).
                        3. See Interstate Circuit v. United States in which the Supreme
                            Court found that two dominant theater chains acting in
                            concert to increase movie prices had violated the Sherman
                            Act by forming an unlawful conspiracy even though no
                            evidence of an actual agreement had been presented.
                 ii. Tacit understanding
                        1. A conspiracy may exist even if there is no communication
                            and no express agreement provided that there is a tacit
                            agreement reached without communication.
                        2. See United States v. Alvarez in which an en banc panel of the
                            Fifth Circuit upheld conviction of defendant for conspiracy
                            to import 110,000 pounds of marijuana, even though it had
                            not been proven than defendant knew the details of the
                            conspiracy. The court held that ―the government was not
                            required to prove that Alvarez had knowledge of all the
                            details of the conspiracy or each of its members, provided
                            that [the] prosecution established his knowledge of the
                            essentials of the conspiracy. Nor can defendant escape
                            criminal responsibility on the grounds that he did not join
                            the conspiracy until well after its inception, or because he
                            plays only a minor role in the total scheme.‖
                                a. Compare to Attempt liability (see supra, p. 78)
                                       i. Alvarez not guilty of attempt



41So, for example, in the urban riot example in Kadish, p. 697-98, the two passersby who join the four
conspirators are NOT co-conspirators with the original four.



BDF                                                                                                93
                                          1. Under a proximity test, the plane to
                                             deliver the drugs would have had to
                                             have arrived.
                                          2. Under an intent-corroborative test,
                                             loading a washing machine for the drug
                                             dealers earlier in the day is not strongly
                                             corroborative.
            iii. Over Act
                    1. At common law, no overt act in furtherance of the
                        conspiracy was required.
                    2. Many jurisdictions require an ―over act‖ in furtherance of
                        the conspiracy
                            a. The over act need not itself be criminal in nature.
                            b. An overt act by any member of the conspiracy is
                               enough.
                    3. Some states require a substantial overt act—an act that
                        constitutes a ―substantial step‖ in the commission of the
                        intended crime.
                    4. Rational of overt act requirement
                            a. Manifests that an actual conspiracy is at work,
                               preventing punishment for mere thoughts.
       d. Independent Acts not in furtherance of the conspiracy
  V.   Mens Rea
       a. General
              i. Conspiracy, like attempt, is a specific intent crime. It requires
                 purpose.
             ii. Two elements
                    1. intent to agree
                    2. intent that the object of the agreement be achieved.
       b. Knowing facilitation
              i. Some jurisdictions will allow an inference of purpose based on
                 knowing facilitation of a crime (though most require purpose).
             ii. Factors to consider
                    1. the facilitation of the possession of a ―highly unusual
                        instrumentality‖ (i.e., specialized tools to break into a safe).
                    2. the seriousness/dangerousness of the crime (compare to
                        United States v. Fountain, infra p. 46).
                    3. Grossly inflated profits (―a stake in the outcome‖)
                    4. Whether the good or service provided has a legitimate
                        independent purpose
            iii. See People v. Lauria in which court reversed conviction of phone
                 service operator for conspiracy to commit prostitution when service
                 operator was aware that prostitutes used his service but did not


BDF                                                                                  94
                  charge a premium such service, the service had an independent
                  legitimate purpose and the service operator had no stake in the
                  commission of the crime of prostitution.
             iv. Hypothetical (See Kadish, p. 710)
                      1. Z wants to use L‘s house to cook methamphetamine, which
                         creates a high risk for explosions and serious damage. L
                         agrees to accept $1,000 to lease the house to Z for one day. Z
                         never finds all of the necessary equipment and never cooks
                         the meth. Is L guilty of conspiracy to cook meth?
                             a. Morse: Counterfactual test
                                     i. Would L have been unhappy had
                                        methamphetamine not been cooked in his
                                        home?
                                    ii. NO. He wanted the money. Did not have a
                                        true purpose to cook meth.
                             b. If Z had actually cooked the meth, L may have been
                                held as an accomplice.
        c. Attendant circumstances
               i. ―Jurisdictional facts‖
                      1. A mistake of fact concerning a status element used solely for
                         the purposes of jurisdiction is not a defense
                             a. See United States v. Feola in which Supreme Court held
                                that defendants could be convicted of conspiracy to
                                assault a federal officer even though they were
                                unaware of the victim‘s status as a federal officer
                                because that status was merely jurisdictional.
              ii. Aggravating factors
                      1. Example: conspiracy to sell drugs when the conspirators are
                         unaware that they are in a school zone.
                      2. many jurisdictions will impose strict liability when the crime
                         is malum in se.
             iii. Status elements
                      1. Example: Is it possible to conspire to commit statutory rape
                         when the conspirators are unaware of the victim‘s age?
                      2. MPC leaves it up to the individual jurisdictions
                      3. logical problem: how can you agree to do something of
                         which you are unaware?
  VI.   Conspiracy and structure
        a. Traditional conspiracy
               i. Traditionally, conspiracy requires an agreement with another to
                  commit a crime.
        b. ―Unilateral‘ conspiracy



BDF                                                                                 95
                i. The MPC, and jurisdictions influenced by it, focuses on the
                   culpability of the actor whose liability is at issue. A person is guilty
                   if he alone agrees to commit the crime (the other person need not
                   agree)
               ii. Criticism
                       1. Undermines purpose of conspiracy liability—no ―group
                           danger‖ when only one person is guilty.
                       2. allows for abuse by law enforcement—they can obtain
                           convictions simply by encouraging someone else to agree
                           with them to commit a crime!
  VII.   Defenses
         a. Duration of conspiracy (statute of limitations)
                i. Traditional rule
                       1. A conspiracy is in effect until its objectives have been
                           achieved or abandoned.
               ii. Most recent decisions have refused to infer that an implicit
                   agreement to cover up a crime is inherent in every conspiracy.
                       1. See United States v. Krulewitch in which the Supreme Court
                           refused to recognized an uncharged implied conspiracy to
                           cover up and prevent detection of the underlying crime.
         b. Abandonment
                i. The crime of conspiracy is formed once an agreement is reached
                   (and in some jurisdictions, an overt act committed). Once
                   committed, the crime can not be ―abandoned.‖
               ii. But withdrawal from the conspiracy starts the clock running on the
                   statute of limitations AND abandonment may allow the defendant
                   to avoid liability for subsequent crimes committed in furtherance of
                   the felony.
                       1. Courts traditionally require that the defendant take
                           ―affirmative action‖ to announce their withdrawal.
                       2. Some jurisdictions requires announcement of withdrawal
                           and action to thwart the conspiracy (renunciation).
         c. Renunciation
                i. Common law
                       1. at common law, renunciation of the conspiracy was not a
                           defense—you could not ―undo‖ the substantive crime
                           (conspiracy) once it had been committed.
               ii. Modern trend
                       1. Most states follow the MPC principle: a defense is allowed
                           but only if the circumstances manifest renunciation of the
                           criminal purpose AND the actor succeeds in preventing the
                           commission of the criminal objective.



BDF                                                                                     96
   VIII.  Model Penal Code
          a. Definition §5.03(1)
                 i. ―A person is guilty of conspiracy with another person or persons to
                    commit a crime if with the purpose of promoting or facilitating its
                    commission he
                        1. agrees with such other person or persons that they or one of
                            more of them will engage in conduct that constitutes such
                            crime or an attempt to commit such crime; or
                        2. agrees to aid such other person or persons in the planning or
                            commission of such crime or of an attempt or solicitation to
                            commit such crime.‖
          b. Actus Reus
                 i. Four types of agreement qualify under MPC
                        1. agreement to commit an offense
                        2. attempt to an offense (unilateral conspiracy)
                        3. solicit another to commit an offense
                        4. aid another person in the planning or commission of the
                            offense.
                ii. The object of the criminal agreement must be criminal.
               iii. An overt act is required if the specific intent crime is a
                    misdemeanor or third degree felony. No overt act is required for
                    serious crimes.
          c. Mens Rea
                 i. Requires purpose
                ii. Attendant Circumstances
                        1. left to the individual jurisdictions.
          d. Unilateral conspiracy
                 i. The MPC allows for conviction of ―unilateral‖ conspiracy. As long
                    as the individual defendant agreed, he may be convicted.
          e. Model Penal Code and Common Law compared
                            COMMON LAW                        MODEL PENAL CODE
Rationale                   Inchoate crime and group Treated              solely    as    an
                            liability                         inchoate crime
Nature of act               ―unlawful act‖ may be object Only a criminal act may be
                            of conspiracy                     the object of the conspiracy
Overt act                   No overt act required             Overt act required except
                                                              for first and second-degree
                                                              felonies
Merger                      Does not merge with the Merges with the target
                            target offense                    offense    unless     criminal
                                                              objectives go beyond the
                                                              particular offense
Material elements           Purpose required for all Purpose                required     for


BDF                                                                                      97
                          material elements          conduct and result elements.
                                                     MPC is unclear about mens
                                                     rea    on      circumstance
                                                     elements
Pinkerton rule            Pinkerton rule accepted    Pinkerton rule rejected;
                                                     accomplice liability possible
Abandonment               No abandonment             Abandonment permitted if
                                                     complete renunciation of
                                                     crime
Withdrawal                Withdrawal from conspiracy Withdrawal              from
                          permitted                  conspiracy permitted.




JUSTIFICATIONS & EXCUSES: General framework

   I.    Justification v. Excuse
         a. Justification
                 i. Dresser: ―A justification defense is one that defines conduct
                     ‗otherwise criminal, which under the circumstances is socially
                     acceptable and which deserves neither criminal liability nor even
                     censure.‖
         b. Excuse
                 i. Dressler: ―An excuse defense is ‗in the nature of a claim that
                     although the actor has harmed society, [he] should not be blamed
                     or punished for causing that harm.‖
   II.   Why the distinction matters
         a. The moral function of criminal law
                 i. The criminal law seeks to punish morally culpable actors. In a very
                     general way, society seeks to vindicate its moral values through the
                     criminal law.
                         1. when an actor is justified, society views the action as non-
                             culpable. The actor has behaved in a way that is socially
                             acceptable.
                         2. when an actor is merely excused society views the underlying
                             action as culpable, but is willing to abstain from punishment
                             because the actor was somehow incapable of meeting the
                             moral standard (i.e., was insane, duress, etc.)
         b. Accomplice liability
                 i. There is no accomplice liability for assisting a principal who is
                     justified.




BDF                                                                                    98
               ii. An accomplice who assists in a criminal act for which the actor is
                   later excused may still be held liable for the criminal action unless
                   the accomplice has an independent excuse
              iii. See supra, p. 50
         c. Universality v. Individuality
                i. Generally speaking, justifications are universal—they apply
                   broadly to many different possible situations—while excuses apply
                   only to an individual on a case-by-case basis.
  III.   Morse‘s Philosophy
         a. Metaphysical foundations
                i. ―Free Will‖ in the sense of libertarian, contra-causal freedom is
                   implausible. Moreover, free will is not a foundation of criminal
                   responsibility.
               ii. Determinism
                       1. ―Hard‖ determinism
                              a. Hard determinism is the notion that there is no free
                                 will—everything is caused by the underlying physical
                                 nature of the universe.
                              b. This view is incompatible with the very notion of a
                                 criminal law. Here, there can be no such thing as
                                 ―responsibility.‖
                       2. ―Soft‖ determinism (compatabilism)
                              a. Compatabilism avers that we live as epiphenomena in
                                 the universe, but that human beings act for reasons
                                 within that framework.
                              b. This view recognizes that human beings are thinking,
                                 reasoning creatures who act for motives. They are not
                                 ―caused‖ by mechanical brain functions, etc.
         b. The ―fundamental psycholegal error‖
                i. Defined
                       1. The fundamental psycholegal error occurs when someone
                          believes that, once they have identified an external cause for
                          a behavior, they have identified an excusing condition for
                          the behavior.
                       2. Causation is not a defense!
                              a. Just because you can identify a ―syndrome‖ that is a
                                 partial cause of an event does not mean that you are
                                 entitled to an excuse.
                              b. Morse refers to this as ―the lure of mechanisms.‖
               ii. Example:
                       1. Premenstrual dysphoric disorder (PMDD)




BDF                                                                                  99
                           a. Women in the late luteal phase of their premenstrual
                              cycle are much more likely to commit crime (the
                              statistical correlation is VERY high).
                           b. Women with PMDD are more emotional—it tends to
                              be much harder for them to bring full reason to bear.
                              Does this mean that a woman with PMDD is entitled
                              to a defense?
                           c. NO. The fact that there is a causal connection
                              between PMDD and the crime is not an excusing
                              condition.
             iii. Metaphysics
                    1. Once again, Morse adopts a compatabilist position. If one
                       accepts the determinist view that all action is causal, then
                       you completely undermine the criminal law, which is based
                       on notions of fault and responsibility.
             iv. Doctrinal applications
                    1. Lack of rational capacity defenses
                           a. Infancy
                           b. Legal insanity (cognitive)
                           c. Diminished Capacity
                    2. Compulsion/Coercion/‖Hard Choice‖
                           a. Duress
                           b. Legal insanity (control)
                    3. In each of the doctrinal areas listed above, the law presumes
                       an intentional actor. We explain the behavior in terms of
                       reasons and then we ask what the reasons were. The cause of
                       those reasons is not part of the story.


JUSTIFICATION: Self Defense

  I.   Generally
       a. Purpose
              i. Utilitarian grounds
                    1. ―Balance of Evils‖ or necessity
                            a. society seeks to encourage behavior that results in a
                               net positive. We believe that it is better that the
                               unlawful aggressor should die than the innocent
                               victim.
                    2. Deterrence
                            a. Rules of self-defense that allow a victim to fight back
                               will make crimes of violence riskier
             ii. Deontological theories


BDF                                                                               100
                     1. ―Forfeiture‖ theory
                             a. a killing is justified because the aggressor, by his
                                threatening to kill another, forfeits his right to life
                     2. Physical Security as natural right
                             a. Threatening to kill another breaches the implicit
                                contract between autonomous agents and constitutes
                                an act of ―war‖ for which the other person may
                                retaliate.
        b. Two major frameworks
               i. ―Don‘t Tread on me‖—the individualistic perspective
                     1. The individual should be the center of analysis and society
                         should give wide latitude to the individual need for self-
                         preservation and autonomy (i.e., the ―true man‖ rule)
              ii. Social Balance—the communitarian perspective
                     1. Net social utility should be the center of analysis. Society
                         should creates rules that lead to maximum number of lives
                         saved. (i.e., the retreat rule)
        c. Elements
               i. ―The law of self defense is a law of necessity.‖
              ii. Elements
                     1. A threat (actual or apparent)
                     2. of the imminent or immediate
                     3. use of deadly force
                     4. that places the defendant in imminent peril of death or
                         serious bodily harm
                     5. justifies the use of deadly force in self-defense so long as the
                         defender honestly believes all of the above elements have
                         been met and is objectively reasonable in those beliefs.
  II.   Necessity
        a. Imminence
               i. The general rule is that the threat of death or grievous bodily
                  harm must be imminent before one can be justified in using
                  deadly force in self-defense.
              ii. Expanded scope: BWS and Morse‘s ―no reasonable alternative‖
                  standard
                     1. Some women have sought a justification defense for killing
                         their long-term abusers while the abusers are sleeping or
                         otherwise non-threatening on the grounds that this is the
                         only time in which self-defense could be exercised.
                             a. See State v. Norman in which Supreme Court of North
                                Carolina affirmed the conviction of defendant who
                                had killed her husband—an extremely abusive man—
                                while he slept.


BDF                                                                                 101
              2. Other situations have presented the issue of whether to
                 expand the imminence requirement
                     a. See State v. Schroeder in which court refused to grant
                         self-defense justification to prison inmate who killed a
                         cell-mate in his sleep after the cell-mate had promised
                         to rape him that evening.
                     b. See Jahnke v. State in which court refused to grant self-
                         defense justification to 16 year old boy who carried
                         out a plan to kill his abusive father when he returned
                         home from work.
      iii. Four possible ways to treat the imminence requirement.
              1. An objective imminence standard
                     a. The imminence requirement exists to assure society
                         that the use of deadly force was really necessary. But
                         the rule is too strict. Their may be situations in which
                         there exists no reasonable alternative—no way to
                         escape the serial abuse—but where the threat of a
                         specific harm is not imminent.
                     b. Morse would allow a justification defense if the
                         defendant able to prove that there was no reasonable
                         alternative.
              2. A subjective imminence standard
                     a. This would allow the jury to consider evidence about
                         whether the victim subjectively believed that harm
                         was imminent (and to let the defendant subjectively
                         define that term).
                     b. Morse: This sounds more like an excuse theory.
              3. Duress
                     a. This could perhaps be treated as a generic ―hard
                         choice‖ situation leading to a duress excuse theory.
                     b. But to grant an excuse theory is to impose moral
                         blame on the victim of domestic abuse. Morse wants
                         situations like the one described in Norman to be
                         justified.
              4. The person is guilty unless the threat is truly imminent
                 (traditional rule)
      iv. ―Contract‖ killings
              1. If we are willing to widen the imminence requirement to
                 allow a claim of self-defense to battered women who kill
                 their abusers while they are incapacitated, do we allow a
                 justification defense to a woman who contracts for the
                 killing of her husband/abuser?



BDF                                                                          102
                              a. If we say that the abused woman is justified in her use
                                 of self-defense, then someone who comes to her aid to
                                 repel the abuse is likewise justified.
                              b. But if the women is merely excused then the one who
                                 aids her gets no defense.
         b. Motive
                i. An individual who uses deadly force in self-defense may not
                   invoke a justification defense if he was unaware of the threat of
                   deadly harm and instead killed for an illicit reason.
               ii. Problem:
                       1. Imagine that you want to kill someone. You walk up to
                          them with a gun, not knowing that, in fact, your victim also
                          intends to kill you and was only minutes away from pulling
                          the trigger. Are you justified
                              a. From a ―bird‘s eye‖ perspective, it looks justified (not
                                  knowing subjective intentions of actors).
                              b. Morse: the answer here is that culpability should be
                                  based on ex-ante mens rea of the actor.
              iii. The innocent aggressor
                       1. If an individual threatens you with deadly force but is
                          innocent in doing so because of a mental incapacity or other
                          reason, it is generally accepted that you are justified in using
                          deadly force to repel the attack.
                              a. This is because the underlying threat from the non-
                                  responsible agent is wrongful, even if society would
                                  provide an excuse.
         c. MPC §3.04(1)
                i. The MPC allows the use of deadly force only when such force is
                   ―immediately necessary‖ for the purpose of self-defense
  III.   Proportionality
         a. Deadly force
                i. The use of deadly force to repel an attack must be necessary. The
                   kinds of threat that justify the use of deadly force are very narrow
                       1. the threat must be likely to cause death or serious bodily
                          harm.
         b. MPC §3.04(2)(b)
                i. The Model Penal Code limits the use of deadly force to cases where
                   the threatened danger is ―death, serious bodily harm, kidnapping
                   or sexual intercourse compelled by force or threat.‖
  IV.    Reasonable Belief
         a. General Rule
                i. The general rule is that the defendant must honestly
                   (subjectively) believe that the elements of the defense have been


BDF                                                                                   103
                met and the use of deadly force in self-defense must be
                objectively reasonable.
                   1. An unreasonable (negligent) use of deadly force in self-
                       defense results in a murder conviction! (in most
                       jurisdictions). See infra, ―imperfect self-defense.‖
                   2. The law has rejected wholesale subjectivization of the
                       reasonableness standard, but is in a state of flux. Often, the
                       law will allow the jury to consider the ―reasonable person in
                       the actor‘s situation.‖
            ii. Morse‘s perspective
                   1. Morse would treat reasonable mistakes and accidents as
                       justifications rather than excuses because ex-ante, society
                       merely expects individuals to act with as much care as they
                       are capable of exercising. Anytime someone is acting
                       carefully, there is no violation of a norm—no wrong—and
                       hence, no grounds for excuse. Instead, the actor is justified
                       because he or she has acted just as society would expect.
      b. Arguments for subjective rule
             i. Individualization
                   1. Subjectivization is attractive in situations in which the
                       defendant has peculiar reasons for believing that he or she is
                       in imminent danger of attack. For example, cases involving
                       serious and prolonged child abuse.
            ii. NOTE: the more you subjectivize the reasonableness standard, the
                more you begin to make self-defense an excuse theory.
                   1. Many of these subjectivizations want to take into account the
                       emotional state of the defendant at the time. The argument,
                       in effect, is that the defendant was so scared he wasn‘t
                       thinking straight, or that for some other reason, the
                       defendant‘s mental process was abnormal. (compare to EED
                       in provocation/passion defense).
                   2. See, infra, ―battered women and other ‗syndromes‘‖
      c. ―qualified‖ objectivity
             i. The modern trend is to allow jurors to use a standard of ―the
                reasonable person in the actor‘s situation‖
                   1. factors typically considered as part of the situation
                           a. the relative physiological differences between the
                               victim and the attackers
                           b. defendant‘s prior knowledge of the attackers
                           c. prior experience that would give the defendant a
                               reasonable basis for belief in an imminent attack
            ii. In People v. Goetz the New York Court of Appeals held that the
                reasonableness standard for self-defense was objective, but that a


BDF                                                                              104
                the jury should evaluate reasonableness in light of the
                circumstances facing the defendant in his particular situation.
                More specifically, the defendant could consider relevant
                information about his attackers (their size and physical attributes)
                and prior experiences that might lead the defendant to believe he
                was under attack.
           iii. Demographics and reasonableness
                    1. Assume, arguendo, that young black males are more likely
                        to commit crime. May an individual take this into account
                        when deciding whether it is reasonable to use deadly force?
                            a. This very controversial issue is left with the jury.
                    2. Social-Balance perspective
                            a. Jody D. Armour: ―The flaw in the Reasonable Racist‘s
                                self-defense claim lies in his primary assumption that
                                the sole objective of criminal law is to punish those
                                who deviate from statistically defined norms. For
                                even if the ‗typical‘ American believes that blacks‘
                                ‗propensity‘ toward violence justified a quicker and
                                more forceful response when a suspected assailant is
                                black, this fact is legally significant only if the law
                                defines reasonable beliefs as typical beliefs.       The
                                reasonableness inquiry, however, extends beyond
                                typicality to consider the social interests implicated in
                                a given situation.‖
           iv. Morse‘s view
                    1. It is a fair assumption that the youths on the train wanted to
                        menace Goetz. We can say, as a general matter, that
                        individuals in society have a duty not to menace one
                        another. This becomes a balance of evil and ―aggressor
                        forfeit‖ justification.
      d. ―Imperfect self-defense‖
             i. An unreasonable appraisal of the need to use self-defense
                negates a justification defense and results in a prosecution for
                murder.
            ii. Some jurisdictions, however, have created mitigating doctrines in
                this situation
                    1. Some will grant an ―imperfect self-defense‖ claim and
                        classify the crime as voluntary manslaughter.
                            a. A small number of jurisdictions classify it as
                                involuntary manslaughter.
      e. Battered Women and Other ―Syndromes‖
             i. General



BDF                                                                                  105
                  1. How should the law treat women in abusive relationships
                      who kill abusers during the course of the abuse?
                  2. How should the law treat individuals who have gone
                      through traumatic experiences that may cause them to
                      overreact to certain provocations?
           ii. Battered Women‘s Syndrome as evidentiary element
                  1. BWS as evidence of abuse
                          a. Some states have dealt with the problem of BWS by
                             allowing defendants to introduce expert evidence
                             describing why a woman in an abusive relationship
                             would not leave—the evidence is there to help prove
                             that the abuse was, in fact taking place (it rebuts a
                             jury assumption that the abuse could not have been
                             that bad if the woman did not leave).
                                  i. See State v. Kelly in which the New Jersey
                                     Supreme Court allowed expert evidence
                                     regarding battered woman‘s syndrome for the
                                     purpose of showing why the defendant would
                                     not leave a relationship even if it was
                                     incredibly abusive.
          iii. Subjectivization of the reasonableness standard
                  1. As the reasonableness standard becomes more subjective, it
                      becomes more of an excuse and less of a justification. What
                      is being argued is that the abuse leads a person to perceive
                      events in an irrational way—that the person does not fully
                      understand their actions.
                  2. Morse:        the reasonableness standard should not be
                      subjectivized in these situations.
                          a. Morse argues that there are often reasonable
                             alternatives to killing (i.e., shelters, law enforcement,
                             etc.) but that women don‘t advantage of them because
                             of the severe depression that is really mistakenly
                             categorized as an independent syndrome (BWS).
                          b. The reason women‘s rights advocates would like a
                             justification rather than an excuse is because they
                             want the vindicating power of law behind a woman‘s
                             decision to kill her attacker. They don‘t want to be
                             excused—with its normative judgment that the action
                             is wrong—they want to be justified.
                          c. Morse would create a ―guilty but only partially
                             responsible‖ defense.
      f. MPC
            i. Imperfect self defense §3.09(2)


BDF                                                                               106
                     1. The MPC analyzes these situations as a risky killing. It
                        would allow the defendant to be tried for reckless or
                        negligent killing (depending on his mens rea regarding the
                        need to use self defense) but would not allow the defendant
                        to be tried for murder.
  V.   Limitations to Defense
       a. Risk of injury to others
              i. Excuse theory
                     1. In some jurisdictions, a defendant who uses justifiable
                        deadly force in self defense, but kills an innocent bystander
                        may be excused for the killing of the innocent.
                     2. The excuse theory here is that someone in a situation
                        involving imminent risk of deadly harm is probably not
                        thinking clearly (fight or flight reaction—limbic, rather and
                        rational reaction)
             ii. Recklessness
                     1. In some jurisdictions, if a defendant is reckless in their use of
                        deadly force in self defense, the defendant may be held
                        guilty of manslaughter for the death of the innocent
                        bystander.
            iii. Model Penal Code §3.09(3)
                     1. Justification defense is unavailable for the death of innocent
                        bystanders caused as a result of negligent or reckless use of
                        deadly force to repel the aggression.
       b. The Retreat rule
              i. The ―retreat rule‖ states that an individual may not use deadly
                 force to repel an attack if they can do so with complete safety.
                     1. See State v. Abbott in which court held that man attacked
                        with knife by neighbor had a duty to retreat and hence could
                        not claim a defense of justification when he used deadly
                        force to repel the attack.
                     2. Arguments in favor of retreat rule
                            a. Social balance/utilitarian positive
             ii. Many jurisdictions have no such rule—they allow a justification
                 defense if an individual uses deadly force to repel an attack, even if
                 there is the possibility of retreat.
                     1. Arguments in favor of ―true man‖ rule
                            a. Individualism
                            b. The law should not demand that ―right‖ give in to
                                ―wrong.‖
                            c. The retreat rule may actually increase the threat of
                                death by emboldening attackers or making it easier
                                for them to succeed by killing a fleeing victim


BDF                                                                                  107
            iii. The ―castle‖ exception
                    1. Even in jurisdictions that have adopted the retreat rule
                        provide that there is no duty to retreat when the defendant
                        is attacked in his own home.
                    2. Support for exception
                            a. Protects sanctity of the home
                            b. The defendant should not be required to retreat any
                                further than the home
                    3. Co-occupants
                            a. Mandating retreat may adversely affect women who
                                are victims of domestic violence.
            iv. The Model Penal Code §3.04(2)(b)(ii)
                    1. The Model Penal Code favors the retreat rule
                            a. A person may use deadly force only if he ―knows that
                                he can avoid the necessity of using such force with
                                complete safety by retreating.‖
                            b. The code adopts the ―castle‖ exception
                                     i. Exceptions to the exception
                                           1. if actor was initial aggressor must
                                              retreat
                                           2. even if not the aggressor, must retreat
                                              from coworker at place of work.
      c. Initial aggression
              i. General
                    1. In order to receive a justification defense, the defendant
                        must not have been the aggressor.
                            a. Dressler: ―aggressor may be defined as one whose
                                ‗affirmative unlawful act [is] reasonably calculated to
                                produce an affray foreboding injurious or fatal
                                consequences.‘‖
                    2. A person may be an aggressor even if their initial aggression
                        is nondeadly—it just needs to be unlawful.
                    3. a person entitled to act provocatively (i.e., policy officer) is
                        not an initial aggressor
                    4. the issue of whether a defendant lost the right to self defense
                        and when is often a matter for the jury.
                    5. See United States v. Peterson in which the Court held that a
                        defendant who started a verbal exchange with individuals
                        stealing the windshield wipers from his car, left, returned
                        with a gun and then fired at one of the individuals stealing
                        his windshield wipers when the individual came toward
                        him with a tire wrench could not claim a justification
                        defense.


BDF                                                                                108
               ii. Response of non-lethal aggressor
                       1. Kadish: Most jurisdictions deny a justification defense to
                           initial non-lethal aggressors even if the victim of their initial
                           aggressions responds in a lethal manner.
                       2. Dressler: ―most courts provide that when the victim of a
                           nondeadly assault responds with deadly force, the original
                           aggressor immediately regains his right of self-defense.
         d. MPC §3.04
                i. The code prohibits the use of deadly force by a person who ―with
                   the purpose of causing death or serious bodily injury, provoked the
                   use of force against himself in the same encounter.‖
               ii. This means that an aggressor who unlawfully starts a nonlethal
                   conflict does not lose his right to self-defense.
              iii. If an individual initiates a conflict with the purpose of creating a
                   deadly affray, then the individual cannot receive a justification
                   defense.
         e. MPC §3.11(2)
                i. Simply brandishing a weapons to create apprehension of use of
                   deadly force does not constitute ―deadly force‖
  VI.    Defense of others
         a. General Rule
                i. Majority rule: An intervenor‘s use of force in defense of another is
                   justified only if the person being attacked would have been
                   justified in using deadly force to repel the attack. The intervenor
                   may claim justification so long as the intervenor‘s appraisal of the
                   situation is objectively reasonable
                       1. This is the view of the MPC §3.05
               ii. Minority rule: An intervenor‘s use of force in self-defense of
                   another is justified if the person being attacked would have been
                   justified in using deadly force to repel the attack. The intervenor
                   may not claim justification even if his appraisal of the situation is
                   reasonable, should the situation not be as he proposed.
                       1. The minority rule provides a disincentive to intervene,
                           because it places more risk on the intervenor.
  VII.   Defense of Property
         a. General Rule
                i. Dressler: ―a person in possession of real or personal property is
                   justified in using nondeadly force against a would-be dispossessor
                   if he reasonably believes that such force is necessary to prevent
                   imminent, unlawful dispossession of the property. Once a person
                   is dispossessed, the right to use force is extinguished.




BDF                                                                                     109
            ii. If the person you are justified in using nondeadly force against
                responds with lethal force, you then may become justified in using
                deadly force.
      b. ―Spring-guns‖ and booby traps
             i. General rule
                    1. Dressler: ―At common law, a mechanical device may be used
                       ‗where the intrusion is, in fact, such that the person, were he
                       present, would be justified in taking the life or inflicting
                       bodily harm with his own hands.‖
                    2. See People v. Ceballos in which court holds that defendant
                       whose spring gun severely injured a 15-year-old boy
                       attempting to burglarize his home was convicted of assault
                       with a deadly weapon after the court determined that, had
                       he been present, he would not have been entitled to a
                       justification defense.
            ii. Habitation
                    1. As noted above, many states have widened the
                       circumstances in which a defendant is determined to be
                       justified in the use of deadly force with regard to intrusions
                       on the home. This expands the allowance for use of spring-
                       guns or other mechanical devices.
                    2. In Ceballos the court narrowed the ability to use force,
                       concluding that while force may sometimes be used to repel
                       an intruder, it would have to be determined on a case-by-
                       case basis—the person defending his habitation must try to
                       estimate the specific intent of the burglar.
      c. Defense of Property as excuse theory
             i. If an individual steals an item of incredibly emotional value, may
                an individual seek an excuse on the grounds that they were not
                thinking straight?
            ii. Probably not. It would be very difficult to prove that the defendant
                placed such subjective value in the item as to be rendered irrational
                by dispossession.
      d. Model Penal Code
             i. The Model Penal Code prohibits the use of deadly force in defense
                of property unless
                    1. the person is in danger of being dispossessed of his dwelling
                    2. the person is trying to prevent a serious property crime
                           a. arson, burglary, robbery, or other felonious intent
                           b. the force is immediately necessary
                           c. and either
                                   i. that the intruder previously used or threatened
                                      to use deadly force against him or another


BDF                                                                               110
                                       ii. the use of nondeadly force would expose the
                                           defender to or another innocent person to
                                           substantial danger §3.06(3)(d)(ii)
                                              1. Note that this particular exception is
                                                  broader than the one articulated by the
                                                  court in Ceballos.
                 ii. A person may use non-deadly force upon another to prevent or
                     terminate an entry or trespass upon land, or to prevent the carrying
                     away of personal property if he believes that three conditions exist
                        1. the other‘s person‘s interference with the property is
                            unlawful
                        2. the intrusion affects the person‘s property
                        3. nondeadly force is immediately necessary.
                iii. A person may use non-deadly force to recapture property if
                        1. he believes that he or the person for whom he is acting was
                            unlawfully dispossessed
                        2. and either
                               a. the force is used immediately after dispossession
                               b. even if it was not immediate, he believes that the
                                   other person has no claim of right to possession.
  VIII.   Resistance to Arrest
          a. General Rule
                  i. Misdemeanors
                        1. An officer, acting under legal right to arrest a misdemeanant,
                            may use all the force that is reasonably necessary to
                            accomplish the arrest but may not kill or inflict grievous
                            bodily harm.
                        2. If the defendant resists a lawful arrest, the officer may repel
                            the resistance with such force as is necessary to make the
                            arrest and is justified in using deadly force if necessary to
                            protect himself from death or seriously bodily injury.
                        3. See Durham v. States in which court held that Game Warden
                            who fired at defendant who resisted arrest by hitting
                            warden with a wooden oar may have been justified in using
                            deadly force. The court remanded for consideration by a
                            jury.
                 ii. Felonies
                        1. It is a violation of the 4th Amendment prohibition against
                            unreasonable seizure for a police officer to use deadly force
                            to stop a fleeing felon unless the suspect is dangerous or
                            there is reason to believe he has committed a crime
                            involving the infliction of serious physical harm AND the



BDF                                                                                   111
                         use of deadly force is necessary to make the arrest or prevent
                         escape.
                             a. See Tennessee v. Gardner
                      2. As a general ―trend‖ law enforcement may only use deadly
                         force when the threat of death is at stake.
               iii. Model Penal Code
                      1. The Model Penal Code permits the use of deadly force only
                         in cases of escape from lawful custody.
                      2. A police officer may use nondeadly force to apprehend a
                         fleeing suspect.


JUSTIFICATION: Necessity (balance of evils)

  I.     Generally
         a. The necessity principle is a residual. It is meant to cover situations in
            which society justifies what would otherwise be a criminal act but for
            which there is no other specific doctrine.
  II.    Purpose
         a. Utilitarian argument
                 i. The ―balance of evils‖ defense encourages decisions that will
                    maximize social utility in terms of lives saved and harm avoided.
         b. Retributive argument
                 i. Inspection of the criteria for fault should involve an attitudinal
                    disregard of the victim by the defendant. In these cases, the
                    attitudinal disregard is justified. There is no fault in the traditional
                    sense.
         c. Criticism of balance of evils defense
                 i. Slippery slope
                        1. some are worried that the defense—a vague residual—will
                           lead to a slippery slope in which society grants ever more
                           justifications.
  III.   Criteria
         a. The ―balance of evils‖ must be positive in order to receive a justification
            defense.
         b. Factors to consider in the balance of evils
                 i. Creation of the situation
                        1. In some jurisdictions (i.e., New York), a necessity defense is
                           unavailable if the defendant was involved in creating the
                           situation that gave rise to the necessity.
                               a. Criticism: such a rule creates no incentive to mitigate
                                   harms once inflicted.



BDF                                                                                     112
              2. The Model Penal Code grants a necessity defense for actions
                 committed to stop a greater evil even if the situation was
                 originally created by the defendant
                    a. Example: defendant starts a fire that might consume
                         a small town. Defendant could claim necessity
                         defense for destroying a house to create a fire-break,
                         but not for the initial fire.
       ii. Appraisal of the situation (mistake of fact)
              1. When seeking a necessity defense, the defendant must show
                 that his appraisal of the situation warranting the necessity
                 was objectively reasonable. If the defendant was negligent,
                 the defense will not be granted.
                    a. Actual harm
                             i. Dressler: ―…the issue is not whether the
                                defendant believes he made the right choice, but
                                rather ‗whether the defendant‘s value
                                judgment was [in fact] correct‘ as determine by
                                the judge or jury.‖
              2. Role of judge
                    a. Some jurisdictions, afraid of jury nullification, will not
                         allow this question to get the jury. Instead, the judge
                         must decide as a matter of law whether the situation
                         was one in which the defendant could reasonable
                         have concluded that the situation necessitated the
                         otherwise culpable action.
      iii. Balance
              1. The net gains from the act must be positive
              2. Reasonable foreseeability
                    a. Dressler: ―in balancing the harms, the defendant‘s
                         actions ‗should be weighed against the harm
                         reasonable foreseeable at the time, rather than the
                         harm that actually occurs.‖
              3. Legislative balancing
                    a. In some cases, the legislature will have already clearly
                         stated its view of where the balance in a particular
                         situation lies.
                             i. See Commonwealth v. Leno in which court holds
                                that defendant who distributed needles
                                without a prescription was not eligible for a
                                necessity defense because the legislature had
                                already clearly determined that a needle
                                distribution program was contrary to the
                                public interest.


BDF                                                                          113
                                     ii. See Commonwealth v. Hutchins in which refused
                                         to grant necessity defense to cultivator of
                                         marijuana for medical purposes, arguing that
                                         doing so would be contrary to the public
                                         interest.
             iv. Clear and imminent danger
                      1. There must be no effective legal way to avert the harm.
                             a. See civil disobedience, infra, p. 110
  IV.   Necessity situations
        a. Escape
               i. Generally
                      1. The general question here is when should society justify a
                         criminal‘s decision to escape from prison on account of
                         allegations of abuse?
              ii. Necessity
                      1. The harms to be weighed here are the harms to the guards
                         and other inmates versus the harm the prisoner is fleeing
                         from.
                      2. Courts will often consider the wider ―social harm‖ of
                         decreased discipline in prisons.
             iii. The Lovercamp criteria
                      1. the prisoner is faced with a specific threat of death, forcible
                         sexual attack or substantial bodily injury in the immediate
                         future
                      2. there is no time for a complaint to the authorities or there
                         exists a history of futile complaints which make any result
                         from such complaints illusory
                      3. there is no time or opportunity to resort to courts
                      4. there is no evidence of force or violence used towards prison
                         personnel or other ‗innocent‘ persons in the escape
                      5. the prisoner immediately reports to the proper authorities
                         when he has attained a position of safety from the
                         immediate threat.
             iv. Courts are split on whether these criteria should simply be part of a
                  multi-factor test or strict elements of a necessity defense that
                  involves an escape from prison
                      1. See People v. Unger in which court invokes the Lovercamp
                         criteria to evaluate a prisoner‘s necessity justification
                         defense, but treats each of the criteria as factors rather than
                         as strict elements of law.
              v. Escape under an excuse theory




BDF                                                                                 114
                     1. A situation in which a prisoner must either submit to rape or
                        death or choose to flea from the prison in violation of the
                        law is a ―hard choice‖ situation (Morse: compare to Norman).
       b. Civil Disobedience
              i. Generally
                     1. When the government takes action that one is opposed to,
                        there are essentially four options
                            a. exit
                            b. civil disobedience
                            c. armed rebellion
                            d. political process
                     2. In most cases, the availability of the political process makes
                        civil disobedience non-justified; there is a reasonable
                        alternative to the disobedience.
             ii. Indirect v. Direct civil disobedience
                     1. Some judges have distinguished between direct and indirect
                        civil disobedience. Judges have held that indirect civil
                        disobedience is never justified because the lawful political
                        process is a reasonable alternative
  V.   Limitations
       a. Harm to innocent life
              i. In many jurisdictions, a necessity defense is unavailable if it
                 involves the killing of an innocent person
                     1. In Regina v. Dudley and Stevens the court held that the
                        defendant was guilty of murdering a fellow sailor in order to
                        eat him while stranded on the high seas thousands of miles
                        from the nearest shipping lane.
             ii. The Model Penal Code justifies the taking of innocent life if doing
                 so will, on balance, save more lives.
       b. Torture
              i. Can a defendant claim a necessity defense for torturing a third
                 party when he believes that doing so will save many lives?
                     1. See Public Committee Against Torture v. State of Israel in which
                        Israeli Supreme Court refuses to grant a blanket necessity
                        defense to Israeli authorities who use torture to extract
                        information for the purpose of preventing acts of terrorism.
                        Rather a necessity defense may be invoked by defendant
                        after the fact to be considered on a case-by-case basis.
       c. Natural Causes
              i. Some jurisdictions will only grant a necessity defense in the case of
                 a situations arising from natural causes
       d. Protection of person and property



BDF                                                                                 115
                  i. Some jurisdictions limit the defense to protection of person and
                     property; defense of reputation or economic interests does not
                     qualify.
   VI.      The Model Penal Code v. New York

                                  MPC                             New York
Creation of the situation         Defense is available even if    The defense is unavoidable
                                  the actor created the initial   if the actor was at fault in
                                  harm to be avoided (unless      creating the original harm
                                  the offense is one for
                                  recklessness or negligence)
Appraisal                         If the actor is reckless or     The desirability of the
                                  negligent, then the defense     action is judged ―according
                                  is unavailable                  to ordinary standards of
                                                                  intelligence and morality.‖
Balance                           The    balance    is     not    ―the        necessity   and
                                  committed     to     private    justifiability     of  such
                                  judgment of the actor—a         conduct may not rest upon
                                  matter to be considered at      considerations pertaining
                                  trial.                          only to the morality and
                                                                  advisability        of   the
                                                                  statute…‖
Imminence                         No imminence requirement        Must be ―an emergency
                                  so long as there is no          measure to avoid an
                                  reasonable alternative and      imminent…injury.‖
                                  the evil may occur in the
                                  future.



EXCUSES: duress

   I.       Necessity v. Duress
                                  Balance of Evils Positive       Balance of Evils Negative
Human Actor                       Necessity (MPC)                 Duress (excuse)

                                  Duress (C/L justification)
                                  _________________               __________________
                                  Examples:                       Examples

                                  * ―punch v or I‘ll kill you     * ―Run over 2 or I‘ll kill
                                                                  you‖



BDF                                                                                       116
                            * ―kill one v or I‘ll kill
                            three‖

Non-Human Actor             Necessity                       No        defense    (most
                                                            jurisdictions)

                                                            Duress      (excuse,   few
                                                            jurisdictions [e.g. Brown
                                                            Commission])
                            ___________________             ____________________
                            Examples                        Examples

                            * Brakes fail. 3 in car, 1 in Brakes fail. 1 in car, two in
                            road                          road.

                            * Burn farm         or   fire
                            consumes town

         a. In each of these cases, the defendant has acted intentionally. The question
            is whether or not the person should be excused for the action. In ―hard
            choice‖ situations in which there is a net social gain, we sometimes are
            willing to say that the action was justified.
  II.    Generally
         a. Narrowness of defense
                i. Duress is extremely narrow as a defense. In order to qualify, the
                   defendant must have been threatened with death or grievous
                   bodily harm and the defendant must not have killed an innocent
                   third party. In this situation, the gap between the threat and what
                   was done will almost always be positive (necessity defense). A true
                   excuse—a situation in which the balance of evils is negative—thus
                   fits into the narrow gap between the threat (death or grievous
                   bodily harm) and an action by the defendant that does not result in
                   death or grievous bodily harm to a third person.
  III.   Purpose
         a. Utilitarian arguments
                i. In support of duress defense
                       1. When a person is being coerced, they cannot be deterred
                       2. It is the coercing part, and not the one being coerced, that
                           needs to be incapacitated
               ii. Against duress defense
                       1. undermines the moral clarity of the law and invites fraud (it
                           is at the moment when the temptation to break the law is
                           strongest that the law should be most forceful).


BDF                                                                                117
        b. Retributive arguments
                i. A coerced actor does not deserve to be blamed and punished.
               ii. The idea here is that, though the defendant has acted voluntarily,
                   the defendant has not had a fair opportunity to exercise her
                   judgment.
                      1. Dressler: ―Choice-making opportunities are unfair when the
                           alternative to committing an offense is so awful that ‗judges
                           are not prepared to affirm that they…could comply with [the
                           law] if their turn to face the problem should arise.‘‖
  IV.   Elements
        a. Another person threatened to kill or grievously injure the actor or a third
           party
                i. The threat must come from another person.
               ii. Criticism
                      1. is it really possible to distinguish between threats of death or
                           grievous bodily injury inspired by other people as opposed
                           to nature?
                      2. Morse: the MPC‘s rationalization is ―arglebargle.‖ Just
                           because no one can be blamed in punished when nature is
                           the threat is no reason to preclude a duress defense.
        b. The actor reasonably believed that the threat was genuine
                i. Common law
                      1. There is no clear rule. Morse suggests that the traditional
                           mistake-of-fact rules would apply here.
               ii. Model Penal Code
                      1. If you are reckless or negligent in appraising the threat, you
                           are exculpated so long as the crime is one of purpose or
                           knowledge.
        c. The threat was ―present, imminent and impending‖ at the time of the
           criminal act
                i. Many jurisdictions, influenced by the Model Penal Code, treat
                   imminence of the harm as a persuasive factor rather than as a strict
                   element of the defense.
               ii. The traditional common law doctrine treats imminence as a
                   prerequisite to the defense
              iii. Examples
                      1. See United States v. Fleming in which court of military justice
                           holds that army officer who prepared propaganda for the
                           North Korean government in the Korean War was not
                           entitled to a duress defense when he was threatened with
                           imprisonment in extremely septic hillside caves. The court
                           held that the threat of exile—though perhaps resulting in



BDF                                                                                  118
                       death—was a situation in which the ―danger of death was
                       problematical and remote
                   2. But See United States v. Contento-Pachon in which court
                       allowed Colombian defendant to admit evidence indicating
                       that Colombian drug lords had threatened to kill his family
                       unless he agreed to smuggle drugs into the United States.
                           a. See also Regina v. Ruiz in which Ontario Court of
                               Appeals held that denying a Bulgarian immigrant‘s
                               duress defense—a claim that a Bulgarian criminal had
                               threatened to kill her moth if she would not import
                               heroin into the United States—was a violation of the
                               Canadian Charter of Rights and Freedoms because if
                               the defendant‘s story was believed then the threat left
                               no realistic alternative even if it was not imminent.
      d. The threatened injury or crime must induce ―such a fear as a man of
         ordinary fortitude and courage might justly yield to.‖
             i. Objective v. subjective standard
                   1. Morse:       this excuse has a normative component—an
                       expressive function in that we expect people to follow the
                       law unless the situation is truly terrible. This requires an
                       objective standard.
                   2. Subjective standard
                           a. Some jurisdictions, under the influence of the Model
                               Penal Code, have worked to subjectivize the standard.
                           b. Morse: No reason to subjectivize the standard. Those
                               who can‘t meet an objective standard, should get
                               argue for an excuse based on legal insanity or argue
                               for a necessity justification.
            ii. Battered Women‘s Syndrome
                   1. Courts almost uniformly admit evidence of battered
                       women‘s syndrome on a self-defense claim.
                   2. Courts are more likely to admit the evidence on the question
                       of subjective imminence than they are on the reasonableness
                       of the decision to kill.
                   3. See supra, p. 62, 97.
      e. The actor was not at fault in exposing herself to the threat
             i. General rule
                   1. A defendant is not entitled to a duress defense if he is at
                       fault for creating the ―hard choice‖ situation
            ii. Gang membership
                   1. Regina v. Sharp: Where a defendant ―voluntarily, and with
                       knowledge of its nature, joins a criminal organization or
                       gang which he knew might bring pressure on him to commit


BDF                                                                               119
                            an offense and was an eactive member when he was put
                            under such pressure, he cannot avail himself of the defense
                            of duress.‖
                                a. BUT ―if…the nature of the criminal enterprise is such
                                    that the defendant has no reason to suspect he will be
                                    forcibly prevented from withdrawing, and if trouble
                                    materializes unexpectedly, the defense remains
                                    available.‖
           f. See United States v. Toscano in which New Jersey Supreme Court held that
              a defendant coerced into preparing fraudulent insurance claims after
              being threatened over a period of time was entitled to have his duress
              claim presented to the jury
    V.     Provocation/Passion v. Duress
           a. Provocation/passion is essentially a diminished capacity defense.
           b. Duress is different for two reasons
                   i. Duress involves a human being acting for reasons
                  ii. Duress does not involve an irrationality theory
                 iii. Duress covers ―hard choice‖ situations
    VI.    Model Penal Code
                               Common Law                     Model Penal Code
Well-founded fear              Fear of the threat must be Fear must be reasonable to
                               objectively reasonable.        a     person     ―in     the
                                                              defendant‘s situation‖
Appraisal of threat            Unclear.        Morse says Reckless        or     negligent
                               mistake of fact doctrine appraisal ok so long as
                               would apply.                   crime is one of purpose or
                                                              knowledge
Threat from a human The threat must come from Same
being                          a human being. If from a
                               force of nature, then
                               perhaps a necessity defense
Imminence                      Threat must be truly No imminence requirement
                               imminent
Seriously bodily harm or                                      ―unlawful force‖—model
death                                                         penal code would allow
                                                              threats of minor physical
                                                              harm
To defendant or close Duress only allowed if Same
relative of defendant          threat is to the defendant or
                               defendant‘s close family
Not of the defendant‟s If of the defendant‘s own Duress defense unavailable
own making                     making, then defense is not if defendant was reckless in
                               available                      placing himself in the


BDF                                                                                   120
                                                     situation (or negligence if
                                                     negligence is the mens rea
                                                     of the crime)
Taking of innocent life Taking of innocent life Duress defense possible
limitation              never acceptable even if all
                        other elements of duress
                        met


EXCUSE: Legal Insanity

   I.    General
         a. Legal insanity is NOT a psychological, medical or scientific question. It
            is a LEGAL question.
         b. Beware the fundamental psycholegal error (see supra, p. 95)
   II.   Procedural Issues
         a. Pleas
                 i. Supreme Court has held that it is unconstitutional to extract a plea
                    agreement from an incompetent defendant.
                ii. Insanity can be negotiated through a plea agreement with a
                    defendant who was insane at the time of the crime, but is
                    competent.
         b. Competence to stand trial/ competence for sentencing
                 i. Incompetence standard
                        1. Dressler: ―A person is incompetent if, during the
                           proceedings, she: (1) lacks the capacity to consult with her
                           attorney ‗with a reasonable degree of rational
                           understanding‘; or (2) lacks a ‗rational as well as factual
                           understanding of the proceedings‘ against her.‖
                ii. Forced administration of drugs
                        1. The Supreme Court has held that a defendant can be forced
                           to take psychotropic drugs to restore competence for trial
                           and for sentencing
         c. Competence in prison
                 i. If a defendant becomes incompetent while serving her term, they
                    may be moved to a hospital but only after providing for a hearing
                    that conforms with the requirements of due process (Vitek v. Jones)
         d. Competence for execution
                 i. An incompetent defendant may not be executed (Ford v. Wainright)
                ii. There is a circuit split over whether a defendant may be restored to
                    competence through forced medication for execution.
         e. Burden of production



BDF                                                                                 121
                 i. Defendant bears the burden of production. In many states, the
                    defendant must notify the prosecution is she intends to offer an
                    insanity defense.
                ii. There is no Fifth Amendment right to refuse to speak to a
                    prosecutor‘s mental health expert.
         f. Burden of proof
                 i. As an affirmative defense, the state may place the burden wherever
                    it wants. Most states place the burden on the defendant and
                    impose a ―clear and convincing‖ standard.
                ii. Some states require the government to prove that the defendant is
                    sane beyond a reasonable doubt after the defendant has produced
                    evidence indicating insanity
                        1. See State v. Green in which court holds that prosecutor failed
                            to prove that defendant was sane beyond a reasonable
                            doubt.
         g. Expert witnesses
                 i. The Supreme Court has held that a defendant is entitled to a state-
                    provided psychiatric expert if he wishes to present an insanity
                    defense.
         h. Jury Instructions
                 i. The Supreme Court has held that a judge does not need to inform
                    the jury that a defendant declared legally insane will still be
                    incarcerated in a medical facility
         i. Length of sentence
                 i. The Supreme Court has held that a defendant acquitted by reason
                    of legal insanity may be hospitalized for as long as the non-
                    responsibility and the risk of danger are linked.
  III.   Purpose
         a. Utilitarian arguments
                 i. A person who does not know what they are doing or who cannot
                    control her conduct is un-deterrable
                ii. There is no need to stigmatize and blame when incapacitation can
                    take the form of placement in a mental hospital.
               iii. Rehabilitation is more likely to occur if the mentally ill can be
                    separated from prison system and place instead in a hospital.
         b. Deontological arguments
                 i. It is unfair (and immoral) to blame and punish someone who was
                    not responsible for his or her actions. To hold otherwise is to
                    undermine a central premise of the criminal law (human capacity
                    for responsible action)
                ii. Blaming the mentally ill is akin to blaming those with AIDS or
                    genetic disorders—it is blaming the sick.
               iii. Dressler syllogism:


BDF                                                                                  122
                               1. ―Just punishment is dependent on moral desert; moral
                                   desert is dependent on moral responsibility for one‘s actions;
                                   and more responsibility for one‘s actions is dependent on the
                                   essential attributes of personhood, namely rationality and
                                   self-control‖
               c. See The King v. Porter in which court explains rationale behind insanity
                  defense.42
       IV.     Criticisms
               a. Morse: illegitimate/unpersuasive criticisms
                        i. Defendants acquitted by defense get away with murder
                               1. if the defense is morally and consequentially appropriate
                                   then the defendant did not ―get away‖ with anything
                                   because society recognizes that the defendant was non-
                                   culpable.
                       ii. The legal insanity defense leads to inaccurate verdicts
                               1. this is an argument against all legal doctrines (more and less)
                      iii. Historical accident
                               1. Norval Morris has argued that the defense developed
                                   because common law judges allowed psychiatric evidence to
                                   negate mens rea—an act that eventually evolved into a full-
                                   fledged defense. (Morse disputes this history)
                               2. Morse: this isn‘t an argument on the merits. The defense‘s
                                   historical pedigree is largely irrelevant.
                      iv. Resource diversion
                               1. focusing on the legal insanity defense diverts attention from
                                   the mental health needs of prisoners
                               2. Morse: it is unlikely that legislatures are going to care either
                                   way
                       v. Legal insanity cases have a ―circus atmosphere‖
                               1. This is no different than in other heavily publicized cases
                      vi. The defense is invoked so rarely that it isn‘t worth the effort
                               1. the same argument could be made for duress
                     vii. it‘s a rich person‘s defense
                               1. so are all defenses. Plus, while an indigent defendant does
                                   not have resources for several experts, public defenders are
                                   likely to have considerable expertise in insanity cases.
                               2. This is not an argument against the defense—it is an
                                   argument for more resources.
                    viii. The defendant will be incarcerated anyways. The defense is
                           irrelevant

42   Kadish, p. 880-81.



BDF                                                                                           123
                     1. The blaming and stigmatizing function of the law are just as
                         important. The legal insanity defense has an expressive
                         function—tells society that we believe that the defendant is
                         non-responsible.
            ix. It is too hard to figure our insane mental states retrospectively
                     1. The law does this in every criminal case (mens rea)
                     2. distinguishing between sanity/insanity is easier than
                         distinguishing      among     the     other    mental     states
                         (purpose/knowledge/recklessness/negligence)
       b. Morse: legitimate criticisms
              i. Consquentialist criticisms
                     1. The law can still deter those who are mentally ill in many
                         cases
                     2. Abolishing the defense would eliminate its strategic use
                     3. Criminal imprisonment is a more certain form of
                         incapacitation
             ii. Deontological arguments (fairness argument)
                     1. Norval Morris: Statistically, those who come from poor
                         backgrounds are more likely to commit crime.                The
                         correlation between mental illness and crime is much lower.
                         If it is not fair to blame the mentally ill, why is it fair to
                         blame the poor.
                     2. Morse:      this is the fundamental psycholegal error—a
                         category mistake.
  V.   Cognitive tests
       a. General
              i. The cognitive tests are rationality tests. The are premised on the
                 assumption that one who cannot recognize the nature of their
                 activities or is unable to comprehend their normative impact is not
                 responsible.
       b. Types of cognitive tests
              i. M‘Naghten test
                     1. In M’Naghten’s Case the British House of Lords concluded
                         that a defense of legal insanity is available only if defendant
                         can show that
                     2. ―at the time of the committing of the act, the party accused
                         was laboring under such a defect of reason, form disease of
                         mind, as not to know the nature and quality of the act he was
                         doing; or
                     3. if he did know it, that he did not know he was doing what
                         was wrong‖
             ii. The first prong of the Model Penal Code test (§4.01(1))



BDF                                                                                  124
                    1. ―A person is not responsible for criminal conduct if at the
                       time of such conduct as a result of mental disease or defect
                       he lacks substantial capacity…to appreciate the criminality
                       (wrongfulness) of his conduct‖
      c. Legal or Moral Knowledge?
             i. Legal Knowledge
                    1. Some states provide an insanity defense so long as the
                       defendant was aware that she was acting contrary to the
                       law.
                           a. Note: Ignorance of the law is no excuse. (see supra, p.
                              24)
                    2. This rule reinforces the deterrent value of the law. Even if
                       an agent cannot understand morality, they should be held
                       responsible if they can understand a legal command.
                    3. See State v. Crenshaw in which court upheld jury instructions
                       stating that ―the terms right and wrong refers to knowledge
                       of a person at the time of the crime of committing an act that
                       he was acting contrary to law.‖
            ii. Moral Knowledge
                    1. Some states provide that an insanity defense is available
                       when the defendant is unaware that his actions are morally
                       wrong.
                    2. This rule makes more sense if the insanity defense is going
                       to be based on notions of right and wrong (though law and
                       morality often overlap [i.e., murder])
                    3. ―Deific Decree‖
                           a. Some states hold that when a defendant believes she
                              is acting on the direct command of God, the person
                              may be declared legally insane even if the defendant
                              has an understanding of morality.
           iii. See Blake v. United States in which the Fifth Circuit Court of Appeals
                replaced the word ―criminality‖ with ―wrongfulness,‖ concluding
                that the broader term ―would include the case where the
                perpetrator appreciated that his conduct was criminal but, because
                of a delusion, believed it to be morally justified.‖
      d. Scaling of knowledge requirement
             i. The Model Penal Code allows a legal insanity defense if the
                defendant lacks substantial capacity to appreciate the criminality of
                the conduct.
            ii. The M’Naghten test is exceedingly narrow. Either the defendant
                knows or does not know. It does not recognize degrees of mental
                incapacity



BDF                                                                               125
              iii. See Blake v. United States in which Fifth Circuit Court of Appeals
                   adopted Model Penal Code language widening the availability of
                   the insanity defense on the ground that current understanding of
                   mental illness is open to debate and should be left to the jury.
  VI.    Control Tests
         a. General
                i. This test is concerned not with the rationality of the actor but with
                   the actor‘s ability to control himself
               ii. Many jurisdictions have abolished this category of legal insanity
                   defense because of a belief that it is easier to diagnose cognitive
                   problems (or conversely, that impulse control problems are harder
                   to diagnose)
                       1. See United States v. Lyons in which the Fifth Circuit Court of
                          Appeals abolishes the control test because of evidence
                          indicating that there is no firm psychiatric basis for the
                          defense.‖
         b. Critiques
                i. These cases involve a ―hard choice‖ situation. Compare to Kansas
                   v. Hendricks, infra, p. 4
               ii. Morse: would consider ―diachronous responsibility.‖
              iii. The Supreme Court has avoided constitutionalizing the control test.
                       1. In Powell v. Texas the Supreme Court rejected the claim that
                          prohibiting a legal insanity defense for a chronic alcoholic
                          was a violation of substantive due process.
         c. Types
                i. ―Irresistible Impulse‖ test
               ii. The Second Prong of the Model Penal Code Test (4.01(1))
                       1. ―A person is not responsible for criminal conduct if at the
                          time of such conduct as a result of mental disease or defect
                          he lacks substantial capacity…to conform his conduct to the
                          requirements of the law.‖
  VII.   Mental Disorder requirement
         a. General
                i. Purpose
                       1. Some argue that the mental disorder requirement exists to
                          provide an objective guarantee that a person has some sort
                          of rationality disorder.
               ii. The disorder requirement is a legal and not a medical requirement.
                       1. See State v. Guido in which court reversed defendant‘s
                          conviction after the prosecutor had accused the defense of
                          perpetrating a fraud on the court for offering an insanity
                          defense based on the testimony of psychiatric experts who
                          had at first determined that the defendant had no mental


BDF                                                                                 126
                       disease but who had later changed their diagnosis. The
                       court concluded that the question of mental disease was ―an
                       ethical one, the answer to which lies beyond scientific truth.‖
      b. Psycopathy
             i. Definition
                    1. Genuine psychopaths are incapable of expressing empathy.
                        They have no conscience and, as a result, have no
                        understanding of moral right and wrong.
            ii. General rule
                    1. The general rule is that psychopaths cannot seek an excuse
                        based on legal insanity.
                    2. Supporters of the rule point out that these individuals are
                        still deterrable—they still understand that illegal activity
                        will result in a prison sentence (or death penalty)
                    3. This is the approach of the Model Penal Code.
           iii. Criticism of general rule
                    1. If psychopaths are morally irrational, then the purpose of the
                        legal insanity defense is not served by a psychopathy
                        exception.
      c. New ―syndromes‖
             i. Many new ―syndromes‖ (i.e. ―battered women‘s syndrome‖) are
                often described for the purposes of getting an excuse on the basis of
                legal insanity.
            ii. Often, these ―syndromes‖ do not meet the requirements for legal
                insanity. But some jurisdictions will allow syndrome evidence to
                support another defense or to negate mens rea.
      d. Rotten Social Background
             i. General
                    1. Beware the fundamental psycholegal error! Causation is
                        NOT an excuse.
                    2. None of these arguments meet the requirements for an
                        excuse (irrationality or non-responsibility)
            ii. Compulsion
                    1. There is no reason to believe the poor people are compelled to
                        commit crime because they are poor.
                    2. In situations in which the poor must choose between
                        committing a crime and human life (i.e., theft of food to
                        prevent starvation) the necessity defense provides a
                        justification
           iii. Insanity/diminish capacity
                    1. There is no reason to believe that being poor leads to
                        insanity or somehow diminishes rational capacity
           iv. Subculture defenses


BDF                                                                               127
                          1. mens rea negation
                                 a. It is doubtful that evidence of a subculture will negate
                                     mens rea. Despite a cultural difference, can usually be
                                     shown that defendant intended to commit crime or
                                     was reckless, etc.
                          2. Qualified objectivity
                                 a. Subjectivization of rationality standards distorts the
                                     criminal law.
                          3. Civil disobedience
                                 a. This would be a justification defense and is not
                                     recognized so long as there is a political alternative
                          4. pure ignorance
                                 a. ignorance of the law is no excuse.
                 v. ―payment in advance‖
                          1. This argument asserts that criminal defender from rotten
                             social backgrounds have already paid for their desert.
                          2. Morse: this is not a responsibility arguments. This is simply
                             an argument about appropriate punishment (compare to
                             United States v. Bergman)
                vi. Social Forfeit
                          1. This argument avers that society can be so unjust in its
                             distribution of goods that society loses its moral authority to
                             punish, especially when that unjust distribution is a cause of
                             the crime.
                          2. Morse: Even if this is true, our society hasn‘t reached this
                             extreme.
  VIII.   Alternatives to Legal Insanity defense
          a. Mens Rea approach
                  i. Some states have abolished the legal insanity defense. Instead, they
                     allow testimony regarding mental influence only to rebut the prima
                     facie case (to attack mens rea)
                 ii. Problems with this approach
                          1. Legally insane defendants will often meet the narrow mens
                             rea requirements. They will have purpose or knowledge, it
                             will just be for strange reasons.
          b. ―Guilty, but mentally ill‖
                  i. Under a ―Guilty, but mentally ill‖ conviction, the defendant
                     receives the same sentence she would have if she had been found
                     just plain guilty.
                 ii. There is no expression of diminished responsibility. The judge may
                     still sentence for the full term.
                iii. Morse considers this a fraud designed to prevent jurors from
                     selecting a ―not guilty by reason of insanity‖ verdict.


BDF                                                                                     128
EXCUSES: Automatism

  I.    Automatism as an excusing affirmative defense
        a. The dominant approach in the United States is to hold that a defendant
           may elect to plead insanity, automatism or both.
        b. Two types
               i. Sane automatism
                      1. A sane automatism defense is a ―no act‖ defense in which
                          the state has placed the burden of proof on the defendant.
              ii. Insane automatism
                      1. When categorized an insane automatism, a defendant is
                          incarcerated in a mental hospital just as would a legally
                          insane defendant.
                      2. Criticism
                              a. Incarcerating an individual who committed their
                                 crime while in an automatistic state serves no purpose
                                 because these individuals are not generally
                                 considered to be continuously dangerous.
             iii. The criteria used to distinguish between these two types is unclear
        c. Purpose of affirmative defense
               i. Fills a gap in the criminal justice system
                      1. an individual who is not legally insane, but not responsible
                          needs no incarceration.
                      2. the criminal justice system should not compel a defendant to
                          either plead guilty or not guilty by reason of insanity in
                          these situations
              ii. The purpose of legal insanity defense is to provide rehabilitative
                  treatment. That makes little sense in these cases.
  II.   Automatism and actus reus
        a. See infra, p. 8-13
        b. ―Actish‖ situations
               i. These situations in involve an individual who acts in a state of
                  altered or ―non‖ consciousness. (See People v. Newton, infra, p. 10).
              ii. The dominant approach in the United States is to treat these as
                  situations involving no act—a negation of the prima facie case‘s
                  actus reus requirement.
             iii. See McClain v. State in which court held that defendant should be
                  permitted to introduce evidence indicating that a lack of sleep
                  resulted in automatism was admissible on the question of actus
                  reus.




BDF                                                                                129
EXCUSES: Diminished Capacity

  I.    General
        a. Dressler: ―The term ‗diminished capacity‘ is used and misused by courts
           and commentators alike to describe two categories (mens rea and partial
           responsibility) of circumstances in which an actor‘s abnormal mental
           condition, short of insanity, will occasionally exonerate him or, more
           often, result in his conviction of a less serious crime or degree of crime
           than the original charge.‖
        b. Framework for analysis
                i. Always ask which type of diminished capacity defense is being
                   argued
  II.   Mens Rea Variant
        a. General
                i. The mens rea variant of the diminished capacity ―defense‖ isn‘t
                   really an affirmative defense at all. Instead, it simply means that
                   the state allow psychiatric testimony to rebut the prosecution‘s
                   prima facie case—to cast reasonable doubt on the mens rea element.
               ii. The Model Penal Code allows such evidence when it is logically
                   relevant to the question of mens rea. (Note that this is a much
                   broader rule of evidence than currently accepted in any
                   jurisdiction)
              iii. See United States v. Brawner in which the D.C. Circuit holds that
                   expert testimony of a defendant‘s abnormal mental condition for
                   the purposes of negating mens rea.
        b. Criticism
                i. The evidence is unreliable
                       1. This may be true but our legal system regularly admits it in
                          other circumstances and when the stakes involve blame and
                          punishment, a defendant should be able to present any
                          evidence that might exculpate.
               ii. Public safety
                       1. Someone who uses this evidence and negates the mens rea
                          will be acquitted, but may still be dangerous.
                              a. This may be the case, but that is because of a gap in
                                 our criminal justice system that needs to be filled.
                              b. This is a real worry that explains why most
                                 jurisdictions have limitations.
        c. Rationale
                i. United States v. Brawner: Neither logic nor justice can tolerate a
                   jurisprudence…such that one defendant can property argue tat his
                   voluntary drunkenness removed his capacity to form the specific



BDF                                                                               130
                    intent but another defendant in inhibited from a submission of his
                    contention that an abnormal mental condition, for which he was in
                    no way responsible, negated his capacity to form a specific intent,
                    even though the condition did not exonerate him from criminal
                    responsibility.‖
                ii. Morse: the fear of letting the dangerous go free is overstated.
                    Evidence of mental abnormality will rarely negate the narrow issue
                    of mens rea.
         d. Diminished Capacity v. Intoxication
         e. Limitations
                 i. Murder limitation
                        1. Some jurisdictions will allow expert testimony on cognitive
                           capacity only in murder cases.
                ii. Specific intent limitation
                        1. Some jurisdictions will allow expert testimony negating
                           mens rea only on the question of specific intent.
                        2. Rationale
                               a. Such a rule allows the state to incarcerate the
                                   defendant for the general intent crime, mitigating the
                                   worry that expert testimony will let a dangerous
                                   individual go free.
  III.   Partial Responsibility Variant
         a. General
                 i. This version of the diminished capacity defense is an actual
                    affirmative defense.
         b. Rationale
                 i. Diminished responsibility
                        1. A person who does not meet the state‘s definition of
                           insanity, but who suffers from mental abnormality, is less
                           blameworthy, and therefore less deserving of punishment,
                           than a killer who acts with a normal state of mind.
                ii. Gap in legal justice system
                        1. The narrowness of the insanity defense does not allow the
                           criminal justice system to take into account other mentally
                           abnormal defendants. The current system works in extreme
                           bright lines: either someone is acquitted or they are guilty,
                           with a very narrow category of guilty but legally insane.
         c. Criticism
                 i. Institutional competence
                        1. If the defense is going to be created, it must be done by the
                           legislature—the court is not authorized to create new
                           affirmative defenses.



BDF                                                                                  131
                      2. Even if a court did create a partial responsibility defense, it
                          might feel that it was infringing on the legal insanity
                          doctrine.
               ii. Obscures the legal insanity defense
                      1. A partially responsible defense would make the insanity
                          defense even murkier, forcing juries to distinguish between
                          gradations of mental illness. It also risks magnifying the
                          ―cliff effects‖ of the current doctrine—creating a defense for
                          those who meet a certain threshold but no defense for those
                          unfortunate to be just normal enough.
              iii. Evidentiary problems
                      1. Some argue that psychiatric evidence isn‘t accurate enough
                          to make the fine-grain distinctions this defense would
                          require.
                      2. Morse: This is a worry, but the federal rules of evidence
                          already contain ways to solve the problem.
        d. Doctrinal and Institutional Expressions
                i. Provocation/Passion
               ii. EED
              iii. Sentencing mitigation
  IV.   Constitutionality: Clark v. Arizona
        a. Confusion
                i. Morse points out that courts often confuse the mens rea and partial
                   responsibility variants of diminished capacity.
               ii. The court does this in Clark—Clark‘s claim is that it is unfair to
                   deny the admission of evidence that might prove his guilt (mens rea
                   variant). The court replies by saying Arizona has no diminished
                   capacity defense (partial responsibility variant).
        b. In Clark v. Arizona the Supreme Court held that an Arizona law limiting
           the admissibility of expert testimony on mental abnormality to the narrow
           question of legal insanity was not an unconstitutional violation of a
           defendant‘s right to substantive due process.
                i. Morse: While the court makes some good arguments, none
                   outweigh Clark‘s fairness claim.
               ii. Argument One: allowing expert testimony would undermine
                   Arizona‘s policy creating a presumption of sanity
                      1. But Arizona could maintain its presumption. It is another
                          thing entirely to say that the presumption can never be
                          questions (then it becomes an unassailable premise of the
                          trial)
              iii. Argument Two: State‘s can exclude probative and relevant
                   evidence so long as they have a good reason to do so (The Egelhoff
                   argument)


BDF                                                                                 132
                     1. But this is also true in situations where expert testimony is
                         allowed.      The situation could be helped by simply
                         prohibiting the expert witnesses from giving a diagnosis.
              iv. Argument Three: Jurors are likely to believe that a defendant is
                  legally insane if evidence of mental abnormality is presented
                     1. This is the fundamental psycholegal error (in juror form).
                         The ―lure of mechanisms.‖
                     2. This is remedied by the adversarial process.

EXCUSES: The Proportionality Principle

  I.    Utilitarianism and proportionality
        a. General principle
                i. Utilitarian philosophers believe that punishment should be just
                   enough to satisfy crime prevention goals.
               ii. Jeremy Bentham‘s ―five rules‖
                       1. The punishment must not be less than is required to
                          outweigh the potential for profit to the criminal of
                          committing the offense.
                       2. ―the greater the mischief of the offense, the greater is the
                          expense, which it may be worth while to be at, in the way of
                          punishment.‖
                       3. ―when two offenses come in competition, the punishment
                          for the greater offense must be sufficient to induce a man to
                          prefer the less.‖
                       4. ―The punishment should be adjusted in such manner to each
                          particular offence, that for every part of the mischief there
                          may be a motive to restrain the offender from giving birth to
                          it.‖
                       5. ―The punishment ought in not case to be more than what is
                          necessary to bring it into conformity with the rules here
                          given‖
        b. General deterrence
                i. Very dangerous crimes should be punished more severely than less
                   dangerous crimes, but not because of the dangerousness of the
                   offense. Instead, a utilitarian would impose punishment in
                   proportion to the crimes overall harm on the community—this may
                   necessitate oscillating levels of punishment over time.
               ii. A utilitarian will also consider the degree to which the conduct can
                   be deterred.
        c. Specific deterrence
                i. A utilitarian would inflict punishment only to the extent that it is
                   necessary to prevent the individual from committing future acts


BDF                                                                                133
                    more painful to society than the punishment inflicted on the
                    individual.
         d. Deontological criticism
                 i. A utilitarian would justify inflicting punishment out of proportion
                    to culpability for the purposes of maximizing social utility. A
                    deontologist would find this to be morally reprehensible.
                        1. This is, of course, relatively subjective.
  II.    Retributivism and proportionality
         a. Retributivists argue that punishment should be in proportion to the
            defendant‘s desert.        According to Dressler, ―Punishment must be
            proportional to the offense committed, taking into consideration both the
            harm caused and the wrongdoer‘s degree of moral desert for having
            caused it.‖
  III.   What are the limits on punishment?
         a. In Ewing v. California the Supreme Court upheld the constitutionality of
            California‘s ―three strikes‖ policy, confirming a defendant‘s sentence of
            25-years-to-life for the crime of stealing three golf clubs.
                 i. A plurality of the justices in Ewing argued that the Eight
                    Amendment contains a narrow proportionality principle that
                    applies to prison sentences.
                ii. Two justices argued that the Eight Amendment contains no
                    proportionality principle for sentences to a term of years in prison.
                    Instead, the Eight Amendment only prevents different types of
                    punishment.
               iii. Four dissenting justices argued that the Eight Amendment contains
                    a proportionality principle. These justices would defer to the
                    legislature unless a prison sentence passes a certain threshold.
                    After that, the justices would inquire into the punishment imposed
                    for a similar crime in other areas of the country to determine what
                    would be a proportionate sentence.
         b. Criticism
                 i. Posner‘s concurrence in Jackson: such a long sentence is inefficient
                    because it incapacitates an individual well past the age in which
                    most people commit crimes.
                ii. Political process argument
                        1. The political process does not adequately take into account
                            the interests of criminal defendants/prisoners. The court
                            should step in—should not defer—in order to protect
                            prisoners from abusive laws.




BDF                                                                                  134

				
DOCUMENT INFO