Statutes Interpretation in Crim Law

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Statutes Interpretation in Crim Law Powered By Docstoc
					                                         Criminal Law Outline

INTRO TO CRIM LAW:
   - Criminal Law: aimed at punishment on behalf of the citizens, as opposed to making a private
       person whole. It’s not about satisfying V, but rather society’s need for justice. Originally grew
       out of torts, but is now statutory. Requires a higher burden of proof than civil trials (BARD).
           o Crim & civil law overlap sometimes, ex. civil commitment for rapists, punitive damages.
        th
   - 6 Amendment: Ds are entitled to a speedy, public trial, an impartial jury, to be informed
       of the nature and cause of their trial, to be confronted w/witnesses (no hearsay, can
       subpoena, get counsel).
   - 5th Amendment: right against self-incrimination.
   - 8th Amendment: no cruel and unusual punishment.
   - In most juries, unanimity of verdict is required.
   - Potential punishments:
           O Jail: where convicted offenders are sent for short term (less than a year) incarceration.
           O Prison: where convicted offenders sent for long term (more than a year) incarceration.
           O Parole: released convicts must report to an officer.
           O Probation: convicted offenders may not serve time, instead be under surveillance,
               conditions.
   - Almost all cases end in a guilty plea (the system would collapse, otherwise).
   - Our incarceration has gone up in recent years.
   - Aspects of Criminal Liability: no one is invariably required.
           o Actus reus (the forbidden act); includes omission to act.
           o Mens rea – intentionality. May be knowledge, recklessness, negligence, etc…
           o Attendant circumstances (ex. amount of drug, who was killed – a cop).
           o Result.
   - The question in appellate ct is different: could a reasonable fact-finder have ruled this way
       viewing the evidence in the light most favorable to the winning party? So, burden is higher
       for P at trial, but higher for D at appeal.
The Statutory Basis of Crim Law:
   - Rule of Lenity: construing penal statutes most favorably to D as the language and circumstances
       of application may reasonably allow. Contrast with…
   - Fair Import: reading a statute in accordance with its plain or common meaning.
   - Formalism: extracts statutes’ elements, compares the facts to these in a rigorous, piece-by-piece
       manner. See Keller.
   - Instrumentalism (aka functionalism): seeks to discern statutes’ purpose, intent, or function,
       reasoning inductively or by analogy, so the outcome depends on whether the facts are such that
       the statute was meant to apply to them.
   - Strict construction: approach followed by many juris that a crim statute is to be read narrowly,
       so as to avoid criminalizing any conduct by too-broad interpretation. Relates to the rule of lenity.
   - Crim law is statutory: if a statute can’t be read to prohibit a certain action, it’s not usually a
       crime, no matter how wrong it seems. The legislature defines what’s a crime and what’s not.
           o Statutes usually confine cts’ reasoning more narrowly v. more flexible common law.
           o However, historically our crim law originated in the UK under the common law and
               statutes today continue to use common law terminology.
           o MPC 1.05: no conduct constitutes an offense unless it’s a crime or violation under this
               code or another state statute.
           o Statutes must be read word for word, and since the law depends on relatively few words,
               there can be great disagreement re: what they mean.
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   -   Keller v. Superior Court (CA Sup Ct, 1970): jealous D purposefully beat up ex-wife, killed her
       in-utero, but very viable, fetus, but was acquitted of murder b/c the statute defined it with
       reference to a “human being.” Held that an infant is not a human being and therefore cannot be
       the subject of murder as it is defined by statute. Rule: where the language and historical intent
       of a statute are clear, that statute can’t be enlarged b/c to do so would deny Ds DP. Lays
       down the rule of lenity. Dissent looks at historical concept of quickening, definitions of “human”
       and “being,” says D knew this was murder and there’s no justice in letting him off easy.
Two Main Crime Elements: Mens Rea and Actus Reus
   - Elements of crime: requirements that the prosecution must satisfy to prove D is guilty.
            o Mens rea: the wrongful mind. Most crim statutes require mental fault on part of Ds,
                 criminal state of mind, malice aforethought, intent, etc...
            o Actus reus: the physical elements of the wrongful act, including all physical elements
                 of the crime, not just D’s act (ex. cocaine possession: it’s not just possession of a
                 powder, but what that powder is). May include all required circumstances, results,
                 and causation. May be a positive act or failure to act where there’s a duty to do so.
   - United States v. Zandi (US COA 4th Cir, 1985): two bros got a receipt and carrier’s certificate for
       a “box of presents,” for which they’d sent $3K to a bro abroad, which was searched and found to
       be opium before they got it. Held that there was sufficient evidence of constructive possession
       due to their actual possession of the shipping documents. Rule: Possession may be either actual
       or constructive, and the latter exists when D exercises or has the power to exercise dominion and
       control over the item. This can be proven by circumstantial evidence as long as any rational trier
       of fact could have found the existence of the elements (including knowledge) BARD.
   - See “Possession” for constructive possession defined.
Proof Beyond a Reasonable Doubt (BARD):
   - Knowledge: mere reasonable or substantial certainty (influenced by burden of proof in crim
       cases).
   - The burden of proof in civil cases is usually “by a preponderance of the evidence” (51%, more
       likely than not) v. crim cases where it’s “proof beyond a reasonable doubt,” b/c those crimes
       carry harsher penalties.
   - The burden of proof in a crim case forces lawmakers to define crimes carefully in order to assure
       those who should be punished can be under the laws.
   - While the jury must decide D’s guilt BARD, appellate judges must view the evidence in the light
       most favorable to the gov’t and must affirm if any rational trier of fact could’ve found proof
       BARD. Shows deference to jury system/verdict.
   - Even if a judge holds that the law would allow all elements of a crime to be satisfied, the jury
       must find that the facts fit the elements BARD.
An Overview of Crim Pro:
   - Cops believe someone has committed a crime
   - They arrest him…
   - Book him (write charges and biographical data about D in a book)…
   - Send a report of the case to the prosecutor’s office (US Atty in fed ct, DA in state ct)
   - The prosecutor considers the strength of the case, other factors in determining what charges to
       file, files a complaint against D in ct, each count stating that he committed certain acts violating
       a specified penal statute on certain dates at locations within the ct’s jurisidiction.
   - D is arraigned before a magistrate of the ct (he’s read the charges against him and asked to enter
       a plea of guilty, not guilty, not guilty by reason of insanity, nolo contendre to each charge. (D
       may be given more time to get atty if he doesn’t already have one). If he pleads guilty he’ll be
       sentenced or referred to a judge for sentencing.


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-   If he pleads not guilty, the magistrate will set a date for a preliminary hearing (unless D waives
    this right), determine bail pending that hearing. That hearing will help the magistrate determine
    whether there’s probable cause for trial against D for each count, to save him the cost of trial on
    a weak case, and to save cts’ expense of a trial unlikely to result in conviction. Prosecutor puts
    on a skeletal case (enough for probable cause, but still trying not to reveal whole case), defense
    can cross-examine witnesses. Magistrate can decide to dismiss some or all charges, to reduce
    some or all charges to lesser-included crimes, or to charge the original counts.
-   In a few states and in fed ct, the prosecutor must get an indictment from a grand jury determining
    probable cause to believe D committed such crimes based on evidence presented in secret by the
    prosecutor to a grand jury (no D counsel, no cross-examination).
-   The prosecutor then files an information in trial ct, setting out the remaining charges.
-   D is then arraigned before a trial ct judge, enters pleas on the remaining charges. If D pleads not
    guilty, judge sets date for trial, may decide re: bail pending trial.
-   Before trial, both sides may be given certain rights to discovery, though less than in civil cases.
-   D may file pretrial motions (ex. to exclude evidence).
-   Plea bargaining may occur (due to ct’s inability to give all Ds a speedy trial), whereby the
    prosecution offers to dismiss or reduce some charges or to recommend certain sentences in
    exchange for a guilty plea.
-   Parties can agree to judge trial, but most Ds press for their right to a jury trial, since they’re seen
    as being more favorable toward Ds, less jaded.
-   Voir dire (jury selection) occurs.
-   Trial: note – judge and jury aren’t required to believe anyone, including experts and the parties.
        o Both sides give opening statements.
        o Prosecution presents its case, including cross-examination.
        o When that’s over, D may move for directed verdict of acquittal on grounds that the
             evidence doesn’t show all the elements of the crimes alleged. If this fails….
        o Defense presents its case, including cross-examination.
                     Most Ds won’t take the stand b/c it will bring in evidence of prior convictions.
                     Expert testimony is no more credible than D’s as a matter of law (fact-finder must
                     determine on a case by case basis).
        o Each atty submits requested jury instructions (some standard, some atty created), judges
             decides and informs attys which will be used.
        o Judge reads jury instructions (notice the order here).
        o Closing arguments: P goes first, then D, then P is allowed final rebuttal.
-   Verdict and Sentencing:
        o If jury can’t decide, judge declares a mistrial. If jury acquits, D is free, case is over – P
             can’t appeal. If jury convicts, they’re discharged (unless it’s a death penalty case).
                     Allen charge: judge tries to harangue a hung jury into coming to a verdict.
        o A verdict leads to a judgment and sentence.
                     Special verdict: more fact based (ex. was a deadly weapon used?)
                     General verdict: determines guilt.
                     Jury nullification: jury lets D off, even though all of the elements have been
                     proven, b/c it disagrees with the law
        o Statutes control sentencing. A judge may also get a pre-sentence report about D’s
             background, recommending a sentence.
        o Judge enters judgment stating both conviction and sentence.
-   Appeal:
        o D may file notice of appeal to appellate ct overseeing trial ct, get a new (appellate) atty.
        o Appellate briefs are filed.
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          o Appellate ct sets case for oral argument, the case is argued, and submitted for decision.
              The ct may affirm, reverse (usually for retrial, but sometimes dismissal), or modify the
              previous judgment (ex. reducing sentence), based on the record (unless a writ of habeas
              corpus gets new evidence in), but is judged by a different standard (light most favorable).
          o The state can’t appeal an acquittal due to double jeopardy.
   - At many points in the criminal process, there are decision makers who have discretion to
      choose how to proceed according to their own judgment (ex. prosecutors, judges).
   - Many things serve screening functions to prevent inappropriate prosecutions: preliminary
      hearings; grand juries; P’s discretion re: charging; judge’s ongoing power to dismiss or grant
      acquittal. But the numerosity of these might diminish the perceived importance of each.
   - Key procedural points in the criminal process at which the precise definition of the crime and its
      comparison to the facts in evidence are most important:
          o The charging decision (made by the prosecuting atty).
          o The grand jury or preliminary hearing determining whether there’s probable cause to
              believe the evidence satisfies all of the elements.
          o The preparation of/attacks on the indictment or other charging instrument, which usually
              must charge each element of the crime
          o Jury instructions, which must explain all crime elements and the burden of proof
          o Legal review of the sufficiency of the evidence by directed verdict or appeal, which
              considers whether each element is proven by sufficient evidence.
                      These last two are what most of the cases involve.
The Four Traditional Factors Underlying the Criminal Sanction: (see also Sentencing Theory)
   - Deterrence: to send a message to that criminal and others
   - Incapacitation: to separate the dangerous from society so as to protect ppl from them, prevent
      criminals from committing more crimes. Death v. long term incarceration. Locking ppl up.
   - Rehabilitation: to rehabilitate criminals so that they can re-enter society. Might justify a much
      longer sentence (ex. if thief is also drug-addicted). Involves providing treatment, education.
   - Retributive justice: considers moral blameworthiness, proportionality to wrongdoing (may also
      benefit D, recommend leniency).
          o These factors may point in different directions (see Blarek).
   - Kantian Retributivism: theory that we sanction behavior b/c D deserves to be punished for
      violating society’s norms.
   - Utilitarianism: Bentham’s theory that we can use crim law to sent a message to D and others
      that the costs of violating society’s norms > the benefits (all except retributive justice fall into
      this category), interested in providing the greatest good to society rather than punishment.
   - There are dangers in over-criminalization of behavior: an overly broad law may be misused
      by selective enforcement; might remain on the books but be rarely used; might waste the
      resources of law enforcement; etc…
   - Some have argued that the only proper purpose of defining crimes is to prevent harm to others
      than the actor (ex. the Utilitarians, particularly Mill).
   - Others have argued that the paramount issue in defining crimes is the underlying public morality,
      even by acts that caused no real harm to anyone (ex. Devlin).
   - Tension b/t harm done on one hand and morality on the other, most compromise.
   - Problem that crime definition must be reasonably specific, able to be described so that crimes
      can be reliably recognized, so they don’t include broad areas of innocent or valuable actions.
   - Problem of legitimacy: prevention of some kinds of harm would require such broad, vague
      prohibitions that laws’ meanings would become unclear, may violate the Const (ex. harassment).



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   -Ex. issue of whether to criminalize not wearing a motorcycle helmet. Argument of indiv freedom
    and lack of harm to others v. state’s expenditures on such persons medical and family care and
    the unsafe message it sends, indirect toll it takes on others (those who lose family members).
  - United States v. Blarek [and Pellecchia] (USDC for E Dist NY, 1998): two Ds laundered $ for
    drug lord. Their actions were systematic, planned, yrs in duration, lucrative, and involved large
    amounts of drugs and $, but Ds were otherwise law abiding, were lured into participation before
    money laundering became a crime, were non-violent, and might be vulnerable in prison b/c they
    were lovers and one was HIV+. Held that given the circumstances, a departure from sentencing
    guidelines was appropriate. Rule: The four core purposes of criminal law sanctions should be
    considered in light of each cases individual facts and weighed against each other to determine
    whether a departure from the sanctioning guidelines is appropriate, which it is when the
    punishment doesn’t further these goals meaningfully. (Ex. of white collar Ds getting off easy).
  - The Queen v. Dudley and Stephens (Queen’s Bench Division, 1884): deals w/justification and
    excuse, defining the elements of a crime. Three men stranded at sea ate and killed a boy with
    them, and his meat sustained them ‘til they were rescued. Held that killing and eating the
    weakest member of a starving shipwrecked crew, who isn’t a threat, isn’t excused despite the
    harsh circumstances and great temptation. Rule: only recognized excuses make homicide
    justifiable, and necessity doesn’t encompass this crime as it does self-defense. Shows deterrence
    motivation. Note: Ds were found guilty, sentenced to death, then reduced to 6 mos.
HOMICIDE:
  - Murder: traditionally was defined as an unlawful killing w/malice aforethought, is now subject
    to whatever statute governs it in a given jurisdiction. No malice, no M (instead, that’s MS).
  - Malice aforethought: prerequisite for murder. Requires neither malice/hatred, nor
    aforethought (some accidental killings count if they evidence D’s “depraved heart” aka are
    particularly reckless, outrageous, or inexcusable). Can be supplied by intent.
  - Premeditated: doesn’t really mean premeditated in the legal context. No time is too short.
  - Some consider M, involuntary MS, and negligent H as shading gradually into each other on a
    continuum from serious killings to relatively less blameworthy ones (a sliding scale of
    seriousness). It goes (from most to least serious/punishable): 1st M depraved heart 2nd M
       voluntary MS involuntary MS criminally negligent H civilly negligent conduct
    (no crime, but fine).
  - Levels of liability for killing another:
        o No liability
        o Civil liability
        o Manslaughter
                    Voluntary: intent to kill, but due to sudden provocation or heat of passion.
                    Involuntary: reckless accident
        o Murder: intent to kill (only capital M 1st can get the death penalty).
  - Both recklessness and negligence require a gross departure from the RP standard.
  - Standards by which various mens rea are judged:
        o Premeditation: subjective
        o Intent: mostly subjective
        o Knowledge: partly objective
        o Recklessness: both (MPC: subjective awareness of risk, objective notion that it was
            substantial and unjustified).
        o Negligence: objective.
  - The elements of crimes, esp. mens rea and actus reus, play a crucial role.
  - The interplay among statutes, decisional law, and fact-finders is complex.


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   -  Terms of art may vary in meaning with both the State and the ct and distinctions can produce
      major differences in sentences.
   - To jurors, the ancient terminology (ex. malice aforethought) can be confusing, esp. since the
      judge will tell them that words have meanings other than what one might think. The MPC has
      abandoned these ancient formulas, and uses more direct language.
   - Different jurisdictions have different models for their homicide laws, each relying on terms of
      art to define the various degrees of the crime:
           o The Pennsylvania Pattern (used elsewhere too, WA uses simplified model): based on
              the idea that more planning evidences a worse crime, impulsive crimes are less bad
                       1st degree murder (malice aforethought & deliberate, willful, premeditated killing;
                       OR murder in attempts to commit another crime – like FM)
                            • Makes 1st degree murder depend on mens rea, reserving the most severe
                               category of crime for Ds w/most culpable mental states.
                        nd
                       2 degree murder (malice aforethought only)
                       Voluntary manslaughter (passion killing)
                       Involuntary manslaughter (misdemeanor-manslaughter or gross negligence)
                       Vehicular manslaughter (grossly negligent unlawful driving, intoxication, etc…)
           o The MPC: clearer language, simplified
                       Murder (causing death intentional or knowingly, or w/recklessness and extreme
                       indifference). There are no degrees of murder under the MPC. Rather, differences
                       in severity of crime are taken into account in sentencing.
                       Manslaughter (includes both voluntary and involuntary)
                       Negligent homicide
           o The TX Pattern (influenced by the MPC):
                       Murder (only one degree, but three ways to commit it: intentional or knowing
                       killings, killing w/intent to cause serious bodily injury, felony murder)
                       Murder w/sentence-range reduction (passion killing, not a separate offense like
                       voluntary manslaughter)
                       Involuntary manslaughter (reckless killing)
                       Criminally negligent homicide (gross negligence)
   - Why we have different degrees:
           o Historically, originally unlawful killings were capital offenses, so jurisdictions looked for
              a way to distinguish b/t the really bad ones and the not-so-bad ones.
           o Now, these levels serve to grade the serious homicidal offenses.
The Pennsylvania Pattern, Defining Levels of Homicide:
   - Once a jury finds malice aforethought (ex. finding that D intentionally killed V), all that’s
      needed to reduce from 1st to 2nd degree is that the jury finds reasonable doubt re: premeditation
      or deliberation.
   - The fact-finder’s decision controls (if a ct or jury found 2nd degree murder, the appellate ct can’t
      upgrade to 1st).
   - The manner of killing (ex. use of a weapon in a way that’s likely to kill) is usually enough to
      supply intent, but all that supplies is malice. For 1st degree murder you still need evidence of
      premeditation and deliberation, which is supposed to be something different.
   - Generally, you want jury trial unless it’s so hopeless that demanding one is pointless or so
      acquittal so clear that a judge can’t avoid it.
   - Commonwealth v. Carroll (PA Sup Ct, 1963): D, man of good character, shot his demanding,
      capricious wife in the back of the head 5 minutes after they’d fought (and she’d dozed off) when
      he remembered a nearby gun, and then disposed of the body. Analyzed under the PA pattern, it

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       held that malice is the essential element of murder. Generally the test of the sufficiency of the
       evidence is whether, accepting as true all evidence on which a jury could’ve properly based
       its verdict, it’s sufficient to prove BARD that D’s guilty of the crime charged. Also, neither
       judge nor jury need believe all or any part of the testimony of D or any witness.
   - People v. Anderson (CA Sup Ct, 1968): D brutally killed 10yo V he lived w/, tried to cover up
       crime. Evidence showed possible sexual motivation, that D chased V around throughout crime,
       post-mortem wounds. Held that for a killing w/malice aforethought to be M 1st, the intent to
       kill must be formed on a pre-existing reflection and have been the subject of actual
       deliberation or forethought as proven by facts re: 1) planning activity, 2) motive, 3) method
       that shows pre-existing reflection, or a combination of these factors. Here, there’s no
       evidence of 1 or 2, and re: 3, evidence indicates a random, non-preconceived, violent attack.
            o Dissent: the evidence supports the jury verdict that the crime was committed in attempts
               to rape V and thus is 1st degree murder. They could reasonably infer that the motive was
               sexual gratification and the duration/method of the assault could evidence premeditation.
   - People v. Perez (CA Sup Ct, 1992): involved a murder by an acquaintance inside a home
       accomplished by multiple stab wounds on a pregnant woman. Ruled that the COA can’t
       substitute it’s judgment for the jury’s if the circumstances reasonably justify those found by the
       jury. Reinterprets Anderson as merely cataloging common factors in prior cases, but its 3 factors
       aren’t necessary for finding murder, nor exclusive.
            o Dissent: relied heavily on Anderson, said there was no substantial evidence of
               forethought and reflection.
Translating the Law Into Jury Instructions:
   - Juries learn the law through jury instructions, which is part of why crime definition matters.
   - Juries almost always return general verdicts, needn’t explain their decisions. Thus, unless there’s
       been an error by the trial ct, their verdict stands regardless of misunderstood instructions.
   - Inconsistent results can arise due to differing jury understandings of crime definition.
   - The attys can explain the instructions so that juries understand them better (and to their own
       client’s advantage).
   - Criminal Jury Argument: How To Do It
            o Prosecutor’s Opening Argument: Usually goes like this
                        Thanks and praises the jury and jury system.
                        Reads, defines, explains by example the most important legal principles (only
                        those that are relevant, as not to overload them) using analogies, illustrations, and
                        defining key words.
                        Argues the evidence drawing inferences and argues credibility.
                        Puts together evidence w/the legal principles, tells the jurors the finding’s
                        warranted, avoiding overstatement or excessive emotion.
            o Defense Argument:
                        Praise again
                        Might answer a few of prosecution’s arguments briefly, but not so as to let them
                        set the stage
                        Shifts focus to their side of the story, emphasizing principle of law important to
                        the defense and w/its view of each, usually emphasizing the burden of proof
                        beyond a reasonable doubt, again using examples, stories, anecdotes to illustrate.
                        Argues the evidence, drawing inferences and making credibility arguments.
                        Gives jury the emotional basis for acquittal, using societal values as a counterpart
                        to prosecution’s argument for law enforcement.
            o Prosecutor’s Closing:
                        May answer a few of defense arguments briefly.
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                      Reiterates the most important rational argument.
                      Gives jury the value-laden (or emotional) basis for conviction.
   - People v. Conley (CA Sup Ct, 1966): jury instructions
          o If D killed V while conscious and w/malice, that’s murder.
                      If it was also willful, deliberate, w/premeditation, that’s 1st degree murder.
                      But if D’s mental capacity was so diminished that he didn’t (or there’s reasonable
                      doubt whether he) premeditate, deliberate, or form an intent to kill, that’s 2nd
                      degree murder.
          o If there was no malice due to diminished capacity, that’s manslaughter.
                      If D was roused to the heat of passion or he didn’t attain malice due to diminished
                      capacity, that’s voluntary manslaughter.
                      If D killed while unconscious as a result of voluntary intoxication and was
                      therefore unable to form specific intent to kill or harbor malice, that’s involuntary
                      manslaughter.
Voluntary Manslaughter:
   - Voluntary manslaughter (V MS): an intentional killing in the heat of passion with adequate
      cause.
          o Provocation (aka heat of passion): can negate malice, or may be considered in addition
              to malice. There can be no cooling period; restraint over time can negate provocation.
              Many think V must responsible for it; it’s not just that you’re mad – it matters at whom.
          o Adequate cause: includes serious assault/battery, sudden discovery of adultery, resistance
              of illegal arrest, injury/serious abuse of a relative. Doesn’t include minor abuse, receiving
              info about but not seeing adultery, adultery of fiancé/unmarried sex partner, words alone.
          o The MPC instead uses extreme emotional disturbance with reasonable explanation/
              excuse, a much broader, more subjective standard re: both the disturbance and the V.
          o There used to be a standard that looked at the circumstances as D believed them to be, but
              that has largely been discredited as being too broad.
   - Even if malice aforethought would otherwise be present b/c killing is intentional, PA
      pattern reduces the grade to V MS for certain killings in the heat of passion. The underlying
      theory varies: some say it’s b/c malice aforethought is absent in such cases due to passion, others
      treat passion as a kind of defense that reduces the grade.
   - But not every passion killing qualifies as V MS, some are still M. Factors considered include:
          o The adequacy/reasonableness of provocation.
          o The severity of mental disturbance such that it’d interfere w/“cool reflection” (sometimes
              RP standard)
          o Timing: was it on the spot, or done later? Latter is murder.
          o V: some cts insist it must be someone involved in creating the passion for it to be V MS.
          o The judge must submit instructions on voluntary manslaughter if the possibility is raised
              by the evidence (ex. sleeping w/D’s wife immediately prior to killing).
   - Generally, trial judge must submit jury instruction if any reasonable juror could conclude that the
      facts support the theory presented by the party requesting it.
   - In some jurisdictions, the passion element of MS negates malice, in others it’s a separate element
      coexisting w/malice, but lowering the crime’s severity.
   - Voluntary MS is only appropriate when one kills upon reasonable provocation or adequate cause
      (see Avery), based on different standards employed in different jurisdictions:
          o Categorical approach: certain categories, and those only, are sufficient to constitute legal
              provocation (ex. adultery).
          o Reasonable person (RP): the more RP’s like D, the more likely it’ll be considered V MS.
          o Battered Spouse Syndrome (BSS).
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   -  The MPC instead has only one category of MS, which can be committed either by a reckless
      killing or under the influence of extreme mental/emotional disturbance for which there’s
      reasonable explanation or excuse as evaluated by the viewpoint of one in D’s situation under the
      circumstances as he believed them (subjective).
   - In many jurisdictions, the prosecution must not only prove the killing BARD, but also must
      negate voluntary MS BARD.
   - State v. Avery (Missouri Sup Ct, 2003): D’s lover had harassed her and her BF. She knew he
      wasn’t sober, and when he returned to her BF’s home after she’d asked him to leave, looking
      mad. He threatened and quickly walked toward her, so D shot him. Held that the trial ct erred in
      failing to include instructions on V MS because the jury could’ve reasonably believed that’s
      what this was. Rule: for MS, while sudden passion isn’t established when D had ample time to
      cool down, evidence of a past relationship/conduct may be relevant to show why otherwise
      seemingly minor conduct may have caused D to kill, showing a rekindling of provocation after
      what might be thought of as a cooling period. When in doubt, cts should instruct on the lesser-
      included offense, leaving it to the jury to decide of which offense (if any) D is guilty.
   - People v. Page (IL Sup Ct, 2000): D alleged V made a same-sex sexual advance toward him,
      which caused him to kill V. Held that mere evidence of an alleged homosexual advance
      precipitating a killing does not constitute provocation as to compel voluntary MS instructions.
Depraved-Heart Murder - Malice Aforethought in Unintentional Killings:
   - Depraved-Heart Murder (2nd M): murder that’s unintentional but malice is implied b/c D
      killed V acting so recklessly as to show w/a depraved heart / extreme indifference to life. If
      D’s recklessness is less substantial, the lesser charge of involuntary MS may apply.
   - How to distinguish b/t DHM and I MS (both involve extreme recklessness):
           o Degree of risk
           o Justification for risk
           o D’s awareness of risk (v. negligence)
   - Common law recognized many kinds of implied malice, arising w/o intent to kill:
           o Depraved heart malice.
           o Assault w/intent to cause serious bodily injury, even if there was no intent to kill (idea
               that intending serious injury is guilt enough if death actually results, anything else would
               depreciate actual murders w/o significant gain in crime grading to the benefit of those
               whose intent was worth of severe condemnation anyways). See State v. Jensen. Some US
               jurisdictions don’t recognize this kind of malice, however, so it’s not enough for murder.
           o If D resisted unlawful arrest so as to kill the arresting officer, even unintentionally. See
               Donehy v. Commonwealth. But all US cases also contain facts that supply malice in
               another way and in cases where this has made the difference, US cts appear to have
               rejected this kind of malice.
           o Killings in the commission of certain felonies (aka felony murder). This is alive and well
               in the US today, and used often.
   - Commonwealth v. Malone (PA, 1946): 13yo D put gun against V’s head to play “Russian
      Poker,” pulled the trigger 3 times, the last shot fired, killed V. D said he put the bullet in the slot
      to the right of the firing chamber, didn’t think it’d go off, didn’t mean to hurt V. Held that as
      long as there was an intent to act in a manner that displays gross recklessness for which one
      might reasonably anticipate death to another is likely, intent to kill is not necessary for one to be
      found guilty of 2nd M. However, an accident that is a non-depraved result isn’t M.
   - United States v. Fleming (US COA 4th Cir, 1984): drunk D drove incredibly recklessly (way
      over the limit, veering into the oncoming lane to skirt traffic), lost control, hit and killed V. Held
      that a non-purposeful vehicular homicide can amount to murder if P can prove D intended to
      operate his car how he did w/o regard for others’ safety or lives. No intent to kill is required, if
                                                      9
      there’s depraved disregard for human life. Malice can be established by evidence of
      conduct that’s reckless, wanton, a gross deviation from RP standard.
   - Thomas v. State (NV, 2004): rejected challenge to a murder conviction based on depraved heart
      instruction, alleging that term is archaic, not rational, pejorative.
Involuntary Manslaughter and Negligent Homicide:
   - Involuntary Manslaughter (I MS): killing someone recklessly or negligently. Under PA
      pattern, unintentional killings less serious than depraved heart M can be classified as I MS.
   - Criminally negligent homicide (CNH): many states define this crime covering offenses that are
      criminally negligent rather than reckless, depending on D’s conscious mental state. Depends on
      the foreseeability, degree, and probability of risk. Generally requires greater guilt than civil tort
      negligence, a gross deviation from ordinary conduct. See Robertson.
   - Recklessness: awareness of unacceptable risk to human life.
   - Negligence: lack of such awareness in a situation where D should’ve been aware (RP standard).
          o There’s no contributory negligence in crim law.
          o Juries can refuse to believe D’s claim of ignorance, infer knowledge from circumstances.
   - MPC is much simpler, gets rid of malice and premeditation / deliberation b/c as the sole
      determinant of severity it created a false dichotomy b/c some thoughtless murders are worse than
      some planned ones (might create backwards results).
   - MPC’s “extreme mental or emotional disturbance” expands the traditional voluntary MS
      conception (no more cooling time, provocation). It also limits mens rea to purposeful, knowing,
      reckless, or negligent behavior.
          o Purposefully: it’s D’s conscious object to engage in such behavior, affect such result. D
              is either aware of or hopes for attendant circumstances.
          o Knowingly: D is aware that conduct is of a certain nature or that circumstances exist.
          o Recklessly: D consciously disregards a substantial, unjustifiable risk in a way that’s a
              gross deviation from the law-abiding person.
          o Negligently: D should know of such risk.
   - Commonwealth v. Feinberg (PA, 1969): held that D’s sale of a reformulated, more dangerous
      form of Sterno to ppl he knew were likely to try to extract the ethanol to drink it, aware that
      death was likely, constituted I MS. Rule: to sustain a MS conviction, P must present evidence
      proving D acted rashly or recklessly, showing disregard / indifference to human life /
      consequence in comparison to a reasonable person.
   - Robertson v. Commonwealth (KY Sup Ct 2002): held that where a cop fell through a gap on a
      bridge to his death while chasing D running from him, this constituted involuntary 2nd degree
      MS. Rule: it’s 2nd MS if D was aware of and consciously disregarded a substantial and
      unjustifiable risk that his conduct would result in another’s death, this disregard
      constituting a gross deviation from RP standard. It is CNH if D failed to perceive such risk.
          o Concurrence: whether fleeing arrest that results in a cop’s death alone supports 2nd MS is
              open, but here D was aware of the gap and disregarded it, and had to know V would
              follow him and thereby be at substantial, unjustified risk.
   - State v. Rivera: 2 brothers kill another man (with no apparent prior deliberation). One shot him 3
      times, the other stabbed him 6 times. Rule: When one acts with intent to cause serious bodily
      injury, he;s liable for murder, no matter if it was his act that caused the death (MPC approach).
   - Martinez v. State: D killed V, but stated he did so because V had tried to accost him and he had
      no intent to kill V, so he should only be guilty of manslaughter. D admitted he had tried to hurt
      V with the knife. Rule: A D who acts with intent to cause serious bodily injury is liable for
      murder, even if D had no intent to cause the death.
   - People v. Hall: see section on Mens Rea below. Skier case.
Felony Murder:
                                                    10
-   The felony murder rule: common law imputed malice to killing during a felony (even if it
    was an accident). A shortcut to proving M. Requires proof that the felony or D’s conduct
    caused the death (some states allow but for causation, others limit by proximate cause). Felony +
    causation of death = FM. Most states still have it but due to concerns about overbroad
    application, however, the rule has since been limited:
        o The inherently dangerous felony approach: some states (like CA) require that the
            underlying felony be inherently dangerous in the abstract (this is subjective), looking
            only at its dangerousness w/o considering D’s conduct in the individual case.
        o The dangerous act approach: requires independent proof that this individual D performed
            some act “dangerous to human life” during commission of the felony. Focuses on D’s
            conduct in the particular case.
        o Merger doctrine: most states exclude lesser degrees of H as predicate felonies (ex. MS),
            b/c otherwise every killing would be M. So, MS can’t support FM under this theory.
            Some states allow assault to be the predicate felony, others don’t.
        o The MPC doesn’t have it. They thought it inappropriate to convict for M on a lesser
            mental degree of fault. It does, however, contain a presumption of extreme indifference,
            sufficient for M, in the case of some violent felonies, but preserves this ? as a jury issue.
-   Causation and FM:
        o Cause in fact approach: sets a relatively low proof standard, b/c whenever death results
            and wouldn’t have occurred w/o the felony, this is present.
        o Proximate causation: as a result of the low proof standard for cause in fact, many states
            also require this, which places a more substantial restriction on the FM doctrine, existing
            only when there is foreseeability.
        o Causation issues become tricky when someone who’s not the V of the underlying felony
            is killed accidentally (ex. a co-felon or cop).
                     Agency approach: holds D liable only for killings committed by his co-felon,
                     who’s treated as D’s agent, and not for a killing of his co-felon by a cop, who’s
                     not D’s agent. See Sophopohone.
                     Proximate causation approach: might hold D liable for death of a co-felon on
                     grounds that it’s a foreseeable result of the cone of violence set in motion by D’s
                     participation in the underlying felony.
-   There is great debate as to whether felony murder can be based on assault. People v. Ireland
    (CA) says no, Wyman v. State (GA) says yes.
-   Cts have typically been willing to impose FM liability in cases when D’s co-felon uses an
    innocent person as a hostage or shield and someone accidentally kills that person.
-   State v. Anderson (MN Sup Ct, 2002): D brought a loaded gun to V’s house, telling V and a 3rd
    party he’d stolen it. They checked it out, remarked that it was loaded, gave it back to D. When V
    knelt to put CDs into his stereo, D pointed the gun at V’s head and it discharged. Held that felon
    in possession and possession of a stolen firearm can be legal predicates for felony murder under
    certain circumstances. Rule: even when D doesn’t commit M to further any of the underlying
    felonies, he can still be guilty of felony murder under the dangerous act approach where he has
    acted in an inherently dangerous manner in the commission of his crime. The pointing of a
    loaded, unsecured gun at another in close range qualifies.
        o Dissent: the FM doctrine is an anomaly in H law, expresses a highly artificial concept
            shouldn’t be extended beyond it’s required application. Here, the predicate offenses
            weren’t inherently dangerous and the act causing V’s death wasn’t committed in
            furtherance of the underlying felony. Traditionally, the doctrine had a critical limitation
            of requiring proof of a causal relationship b/t the predicate offense and V’s death. This
            decision gives the state unlimited discretion to apply the rule.
                                                 11
   -    People v. Hansen (1994): rejected an argument that a drive-by wasn’t felony murder b/c it
        necessitates a high probability of death and occupants could’ve been absent, b/c there’s always a
        significant likelihood they’ll be present. Held that the crime of discharging a firearm at an
        inhabited dwelling doesn’t merge w/a resulting H, will support a conviction for 2nd FM.
    - Commonwealth v. Kilburn (Mass Sup Jud ct, 2003): D wasn’t there for V’s shooting, but was
        later linked to a conspiracy to punish/discipline V. D confessed to this, but said that the gunman
        had just gone there to ‘do’ V, who never should’ve died. Held that here the merger doctrine
        didn’t prevent D’s M conviction since the armed-assault predicate felony also caused V’s death.
        Rule: under the FM doctrine, where there’s a felony separate from the acts of violence that
        constitute a necessary part of the H itself, one can be convicted of FM, even if there was another
        predicate felony that is merged. Also, the law doesn’t require D to be present or intend V’s death
        to be guilty of FM.
    - State v. Sophophone (KS Sup Ct, 2001): D and 3 others broke into a home, which the resident
        reported. Cops responded, D began to run away, was arrested. One of the others also began to
        run, a cop followed him, and when the he raised his weapon and fired, the cop did the same and
        killed him. Held that where a killing resulted from the lawful acts of a cop in attempting to
        apprehend a co-felon, D is not criminally responsible for the death of such co-felon. The
        FM doctrine doesn’t apply when the fatal act is performed by a non-felon. (Never actually
        says it adopts the agency approach).
            o Dissent: the statute doesn’t contain the limitations supposed by the majority, and nothing
                 requires the ct to adopt the agency approach. D set in motion the acts that would’ve killed
                 the cop had he not been so alert, and so should apply also to the co-felon. This is exactly
                 what the legislature had in mind when it adopted the FM rule.
    - Santana v. Kuhlman upheld the use of FM re: when one cop shot another in the course of an
        undercover drug arrest during which Santana produced a chaotic gun battle.
Criticisms and Justifications for the Felony Murder Doctrine:
    - MPC – why they didn’t include the FM rule:
            o H should only been punished when it’s done w/a state of mind that makes it reprehensible
                 and unfortunate. Lesser culpability yields lesser liability.
            o But the FM rule contradicts this by basing a M conviction not on any proven culpability
                 re: H but rather on liability for another crime, gratuitously punishing Ds.
            o Criminal punishment should be premised on more than just a probability of guilt.
            o There’s no basis for thinking that accidental Hs occur w/disproportionate frequency in
                 connection w/specified felonies.
            o We shouldn’t be able to use the severe sanctions for murder unless D acted w/extreme
                 indifference to the value of human life.
    - “The Felony-Murder Rule: A Doctrine at Constitutional Crossroads” by Roth and Sundby:
            o Despite widespread criticism, the FM rule remains in most jurisdictions.
            o It’s common law purpose is vague, maybe it was meant to more severely punish
                 incomplete / attempted felonies, which were then only misdemeanors, if a killing
                 occurred, but then this has little relevance today.
            o Modern justifications:
                         Deterrence:
                             • To deter negligent and accidental killings during commission of felonies.
                                 But how to deter an accident?
                             • Deterrent to committing dangerous felonies in the 1st place, but doubt
                                 exists that serious crimes are deterred by varying the weight of the
                                 punishment.

                                                    12
                           • Few felons may know about the rule, what punishments go w/what crimes.
                           • There is the potential to punish a D who has no subjective culpability.
                       Transferred intent / constructive malice: the rule relieves the state from the burden
                       of proving premeditation or malice, criticized as an anachronistic remnant that
                       operates to fictitiously broad unacceptably the scope of M.
                       Retribution and general culpability: a strict liability view of the rule that sees FM
                       as a distinct form of H. Justifies conviction for M simply on the basis that D
                       committed a felony and a killing occurred. Notion that the felon has shown an evil
                       mind justifying severe punishment. Focuses on the resultant harm, not the actor’s
                       mental state, in deciding appropriate punishment. Effectively eliminates mens rea
                       for a killing that occurs during a felony.
   - “In Defense of the Felony Murder Doctrine” by Crump and Crump:
          o FM as a reflection of widely shared societal attitudes. This classification is the result of a
              concern for grading offenses so as to reflect societal notions of proportionality. Idea that
              an intentionally robbery that causes death is more serious than an identical robbery that
              doesn’t. Statistics and jury studies seem to corroborate this.
          o Criticisms that focus on mens rea denigrate actus reus.
          o The rule serves the purpose of condemnation by distinguishing crimes that cause human
              deaths, thus reinforcing reverence for human life.
          o It also expresses solidarity w/crime victims.
          o Criticisms re: deterrence underestimate its complexity. It’s not true that felons may be
              ignorant of the laws or the FM rule (ex. tv). Moreover, the idea that accidental killings
              can’t be deterred is inconsistent w/the civil law penalization of negligence.
          o It provides the advantage of greater clarity.
          o The quality of justice is limited by the scarcity of our resources and the efficiency
              w/which we allocate them, and the rule has beneficial allocative consequences b/c it
              clearly defines the offense and simplifies the task of the judge and jury, promoting
              efficient administration of justice.
          o Many crimes are defined more broadly than their harmful consequences alone might
              justify (ex. drug possession).
          o Criticism that the rule may cause juries to disbelieve false claims of accident leading to
              false imprisonment are false; an accident claim need only rise to the level of reasonable
              doubt.
          o We also shouldn’t incentivize perjury by allowing an accident different status than an
              intentional killing during the commission of a felony.
          o The limiting doctrines are consistent w/the purpose of the rule b/c each in some way
              prevents application where it’s not supported by policy, but recognition of the need for
              limitation isn’t grounds for the rule’s abolition.
Homicides Analogous to Felony Murder: Unlawful-Act Manslaughter, Vehicular Homicide, and
“Resulting in Death”
   - The Unlawful Act / Misdemeanor Manslaughter Doctrine: works for misdemeanors the same
       way the FM rule works for felonies, making a killing accomplished in the commission of an
       unlawful act, not amounting to a felony, constitute involuntary MS. It is limited by:
          o Proximate cause: some jurisdictions require a strong causal connection b/t the unlawful
              act and resultant H.
          o Inherently bad / Malum in Se misdemeanors, dangerous offenses.
   - Vehicular homicide: is sometimes treated as M, sometimes as MS.



                                                    13
   - Special statutes for intoxicated-driving homicides: ex. vehicular homicide (CA), Intoxication
     MS (TX). These carry serious penalties and operate similarly to the FM rule, dispensing w/
     separate mens rea requirements.
          o Note: opponents of the FM rule are relatively silent re: intoxicated driving H laws.
  - Resulting-in-death statutes: some states have special statutes for certain felonies that define
     more aggravated crimes (or more serious sentences) if death results. Ex. child abuse resulting in
     death, CR violations that result in death.
THE ELEMENTS OF CRIMES – MENS REA AND ACTUS REUS:
  - Element: a component that, when combined w/other elements, defines a crime. These are set out
     in the charging instrument (ex. indictment) and the ct’s charge to the jury. Language determined
     by policy decisions that’s used to fine-tune statutes’ reach, excluding some actions / actors, while
     including others. Sometimes blur into each other, not all are always present:
          o A voluntary act (actus reus): the physical part of a crime; what D must do (or omitted to
              do when he had a duty to do so). Ex. murder requires D killed, arson requires he set fire
              to something. This act must also have been voluntary.
                      Prevents punishment of thought crime or a person’s physical condition. Also
                      prevents police from creating a crime (ex. putting a drunk in public).
                      MPC lists acts that are involuntary and therefore not criminal:
                           • A reflex / convulsion
                           • A bodily mov’t during unconsciousness or sleep
                           • Conduct under hypnosis
                           • A bodily mov’t not a product of D’s effort or determination, either
                              conscious or habitual.
                      Include acts done under coercion or duress (but severe duress may be a defense)
          o Circumstances: many crimes occur only in specifically described situations (ex. bribery
              of a juror, person must’ve been a juror).
          o Harm or Result: many crim laws require a specific harm to have occurred before the
              statute applies. Ex. M: a person killed, arson: a structure burned, perjury: a lie told.
          o Causation: requires D’s act actually cause that harm.
          o Mens rea: the mental requirement (loose since some elements have little to do w/D’s
              actual mental functioning). Generally broken down into:
                      Intentionally
                      Knowingly
                      Recklessly
                      With Criminal Negligence
  - Direct evidence: proves a specific element w/o needing any significant inferences (ex.
     eyewitness).
  - Circumstantial evidence: inferences must be drawn. Ex. seeing someone pick something up and
     throw it at a window and then hearing the sound of a window breaking.
  - Crimes must be stated w/specificity. Now, virtually all are contained in statutes or admin
     regulations. Each essentially applies to a small part of human activity and is constructed to
     minimize intrusion into activities that aren’t disapproved. Statutes accomplish specificity by
     listing elements of the offense (b/t 3-12).
          o Statutes requiring the state to prove a negative are difficult to prove.
  - Each element narrows a statute’s reach. The more elements the gov’t must prove, most likely
     there will be fewer ppl who can be convicted of the offense.
  - The Prosecution has the burden of proving the existence of each element of a crime BARD.
     This is a heavy burden and distinguishes crim law from civil law. The Prosecution must:

                                                   14
           o Target each specific element
           o Rigorously est. each according to the highest standard recognized in the law. Involves
               breaking down and numbering the elements (ex. intent, act, target, any other qualifiers).
                       D’s identity, the date, and jurisdiction are unexpressed elements in every case.
           o Prove ALL elements. If any element is omitted, there will be an acquittal.
           o Search for the weakest link, hardest element to prove (the defense will be).
  - Other unusual aspects of crim law:
           o Media presentations and fiction blur many ppl’s understanding of crimes.
           o “Knowing” that the elements are present isn’t the same as supplying proof beyond
               reasonable doubt of each.
           o D’s knowledge can’t be used as proof of any element, due to 5th.
           o Some statutes may seem sensible when written but are meaningless b/c an essential
               element can’t be proven beyond a reasonable doubt.
  - How crime elements influence P’s charging decision:
           o The DA has discretion re: which, if any, crim charges to bring against D.
           o Ct’s rarely 2nd guess this decision, unless D can establish it was based on some
               impermissible criterion (ex. race, gender, assertion of a const right).
           o Comparing the elements to the elements: one of the key factors determining which
               charges to pursue is whether there is / isn’t sufficient proof to meet the BARD standard
               for each element.
           o The prosecutor is both an advocate and minister of justice, has a duty to refrain from
               prosecuting charges he knows aren’t supported by probable cause, meaning he has actual
               knowledge of the fact in ?.
  - See earmarked page in written notebook for crime/criminal/V stats.
  - Commonwealth v. Milo M. (Mass, 2001): upheld the determination of delinquency for a minor
      who threatened his teacher by drawing and presenting to her a picture of himself shooting her,
      b/c the statute required only an expression combined with ability and justified apprehension (no
      actual harm). Mens rea also was present.
  - State v. Sowry (OH COA, 2004): D was arrested for disorderly conduct, resisting arrest. Initial
      pat down revealed nothing and D said he didn’t have drugs on him after being brought to jail, but
      another search revealed pot in his pocket. Rule: the conduct a prohibited act involves must be
      voluntary for criminal liability to attach. Where D’s brought to jail under arrest w/drugs on
      him, he can’t be criminally liable for knowingly conveying drugs into jail (even if he lies about
      it).
  - People v. Decina (1956): D who knows he’s prone to seizures that render him unconscious but
      keeps driving anyways can’t escape liability for killing ppl when he blacks out b/c the voluntary
      act is driving w/such knowledge (the unconsciousness and involuntariness of his later homicidal
      result is irrelevant).
Omission as Actus Reus:
  - Omission as actus reus is only punishable when failure to act breaches a legal duty to
      perform that act (ex. parent doesn’t feed baby who then starves to death). Such duty is
      generally imposed by statute. Usually also requires physical capability to act. An exception to the
      general rule in American law that imposes no affirmative duty to care or rescue.
           o For liability, one must have knowledge of the need for action (see People v. Pollack, D’s
               mom wasn’t liable to prevent abuse to her kid by her BF b/c she wasn’t aware of it).
           o Criminal responsibility may reach the failure to stop actions of 3rd parties (see People v.
               Swanson-Birabent, mom was convicted of committing a lewd act when she watched her
               boyfriend molest her daughter).


                                                   15
   -   No independent duty is necessary if liability is based on an act (v. an omission); rather, the
       criminal law actually penalizes doing the act.
    - Well-est. sources of duty on which a crime of omission (failure of duty to act) can be based:
           o A relationship such as that of parent or guardian
           o A statute defining the duty
           o A contract providing for the duty
           o A voluntary assumption of the duty
           o Causing the peril that creates the need to act (ex. hit-and-run).
    - Omission and duty are important in child abuse prosecutions b/c there are usually few witness to
       such abuse, and in many cases they’re unusable (ex. young child, parent/ guardian, other parent).
    - State v. Miranda (CT Sup Ct, 1998): 4 mo old V’s wounds, pain, and reduced food intake would
       have been noticeable. Held that where one has established a familial relationship w/V’s mom
       and kids and assumed the role of dad, considered himself V’s dad, he’s assumed under the
       common law the same legal duty to protect V from abuse as if he were V’s guardian.
           o Concurrence: there’s still a serious ? whether D had fair warning that his failure to act
               could give rise to liability, but he’ll have the opportunity to raise a DP claim on remand.
           o Dissent: the rule of law must be upheld even when confronted w/ horrific allegations. By
               superimposing on the statutes a common-law duty on the part of a person to act in order
               to protect a child from harm when that 3rd person voluntarily assumes responsibility for
               her care, welfare, and considers himself to have been a stepfather to her, the majority has
               improperly created a new crime, which is the legislature’s job.
    - Lambert v. California (1958): struck down a conviction under a municipal ordinance requiring
       convicted felons to register w/the L.A. police b/c absent proof that D had actual knowledge of a
       duty to register or probability of such knowledge, DP bars convictions for such passive conduct.
           o Note: Cases interpreting felon / sex offender registration laws generally hold that they
               comply w/Lambert by imposing crim liability only if offender knew or should’ve known
               of the legal duty to register (see Dailey).
Possession as Actus Reus:
    - Constructive possession: when D exercises, or has the power to exercise, dominion and control
       over the item (see Zandi).
    - Many crimes punish possession of an item, but many statutes anticipate the potential issue of
       omission by specifically providing that the owner commits an actus reus only if he knows about
       the contraband and doesn’t get rid of it. Even where a drug possession statute doesn’t itself
       require that D know about his possession, some cts have created a common law “unwitting”
       defense for ppl who fall into that category.
    - In certain situations the Constitution puts limits on legislatures’ capacity to define actus reus,
       including re: status crimes (ex. drug addiction).
Status Crimes and Actus Reus:
    - Status crimes: crimes of being, rather than doing (ex. homelessness, addiction, prostitution). Ds
       aren’t caught in the act.
    - There have been very few allegations that a particular offense is a status offense and therefore
       unconstitutional, and almost all such allegations have been unsuccessful. Cts usually hold that D
       stands convicted for an act rather than a status (United State v. Black re: pedophilia, United
       States v. Herandez-Landaverde re: re-entry after deportation).
    - Allegations of the unconstitutionality of habitual criminal statutes, which impose enhanced
       sentences for repeat offenders, have also generally been rejected b/c the punishment is not for a
       status but rather the sentence is merely enhanced for the most recent crime.
    - Also unsuccessful have been appeals / defenses re: compulsive gambling (see United States v.
       Davis) and alleging that drug addicts can’t be prosecuted for possession (see United States v.
                                                   16
      Moore). There have been a few successful addiction defense cases, though (see State ex rel.
      Harper v. Zegeer re: drunk in public).
   - Many states have now decriminalized public intoxication, but perhaps that has just led to
      criminal law enforcement under another name.
   - Robinson v. California (US Sup Ct, 1962): D exhibited physical characteristics of drug use,
      admitted occasional drug use. Struck down CA law making it a crim offense for one to be
      addicted to the use of narcotics. Rule: a law that imprisons persons for having an illness,
      including drug addiction, is cruel and unusual punishment in violation of 8th. Criminal
      penalties may be inflicted only if the accused has committed some act society has an interest in
      preventing.
          o Dicta: the state may properly punish the use and sale of drugs.
          o Clark’s dissent: this law must be looked at in perspective. CA has a comprehensive,
              enlightened program for the control of narcotism based on the overriding policy of
              prevention and cure. Properly construed, the statute provides treatment, not punishment.
              But even if it’s penal, brief incarceration isn’t unreasonable when applied to one who’s
              voluntarily put himself in a condition posing a serious threat to the state.
   - Powell v. Texas (US Sup Ct, 1968): shrink testified that D was a chronic alcoholic who, when
      drunk, was unable to control his behavior and had an uncontrollable compulsion to drink, that
      when D was sober he knew the difference b/t right and wrong and that his act in taking the first
      drink when he was sober was voluntary and willful. Denied chronic alcoholism as a defense to
      drunk in public charges. Held that such laws don’t constitute cruel and unusual punishment
      b/c they require the actus reus of being drunk, in public, on a specific occasion.
          o Perhaps this ruling was motivated by economic concerns about the alternative, whereby
              instead of arresting drunks the state would have to quarantine / treat them.
          o It may have also depended on the Justices’ view of alcoholics and alcoholism.
          o Fortas’ dissent: while this is more than just a status crime, it has the same defect as
              Robinson, b/c in both cases, the particular D was accused of being in a condition he had
              no capacity to change or avoid.
Circumstances as Crime Elements:
   - Criminal statutes often include “circumstances” as additional elements of a crime. These are
      based on policy decisions about the ppl / activities / situations we want to protect (ex. “at night”
      in burglary, we want ppl to be safe when sleeping).
   - Generally, the more circumstances in the statute, the fewer ppl who’re likely to violate it.
   - Commonwealth v. Noel (PA Sup Ct, 2004): D was riding a horse drunk, collided with a pickup
      truck. The statute forbade operation of a vehicle while intoxicated. Held that where a drunk
      driving statute is vague in its applicability to animal riders, it cannot be properly applied to
      an intoxicated horse-rider.
          o Dissent: DP just requires statutes contain standards so RP understands what’s forbidden.
Causation as a Crime Element:
   - “But for” causation: A universal limit on crim responsibility that D can only be convicted if he
      actually caused the harm required in the statute. Requires a link b/t D’s acts or omissions and the
      harm. Remains even if there’s another contributing agency. Some jurisdictions require only this,
      but many also require prox cause.
   - Proximate (aka policy-based, legal) causation: considers whether it’s fair to hold D criminally
      accountable for the result. Such issues often arise when D does an act and another person does a
      2nd act contributing to the result (intervening cause):
          o Independent intervening cause: one that’s not intended, or reasonably foreseeable.
              Breaks the chain of causation, alleviating D of liability for the final result.


                                                   17
        o Dependent intervening cause: sufficiently related to D’s conduct to merit holding D
            responsible for the harm, foreseeable to D, so he’s still liable.
        o D must take V as he is, so D’s still liable even if V’s pre-existing condition was involved.
-   Doctrine of concurrent causation: where each D’s conduct would’ve been sufficient to result in
    the harm, each D can be prosecuted. D’s conduct need only be a cause, not the cause. See Rivera.
-   The MPC adds a probability component.
-   Many crim statutes require the offender to have caused a particular harm or result (ex.
    murder : death, assault : fear).
-   Sometimes statutes use gradations of harm (ex. aggravated assault : serious bodily injury, assault
    : bodily injury).
-   Sometimes, however, crim statutes depend instead on risk of harm (v. actual harm), ex. reckless
    endangerment, punishing those who act so as to make certain harm a possibility
-   Some harms require no proof of harm or specific risk, usually due to regulatory concerns or b/c
    the conduct itself is so risky (ex. drunk driving).
-   Rationale for causation: notion that it’s unfair to hold someone criminally responsible for harm
    that occurred in a way unrelated to his conduct..
-   Causation is seldom contested in crim cases, b/c it’s usually obvious.
-   Most cts hold D liable despite V’s unusual vulnerability.
-   Most cases hold D responsible even when the immediate result is to a large extent the product of
    the victim’s own choice about care (see Klinger v. State re: blood transfusion / Jehovah’s
    witness). Same if family makes the decision (see State v. Pelham), V commits suicide (see
    Stephenson v. State).
-   Where the result was intended or foreseeable, but occurred in a different manner than expected
    or likely, courts generally still hold D responsible (ex. People v. Kibbe).
-   MPC 2.03: Causal Relationship b/t Conduct and Result; Divergence b/t Result Designed or
    Contemplated and Actual Result or b/t Probable and Actual Result. Retains the “but for”
    approach of the common law, but also adds a different, specific kind of prox cause approach.
        o Conduct is the direct cause when there’s both but for cause and any additional causal
            requirements.
        o When purpose or knowledge of causing a specific result is an element of a crime, this
            isn’t established if the actual result isn’t w/in the actor’s purpose / contemplation unless
            the actual result is less serious or extensive than, or similarly injurious to the injury
            contemplated.
        o When recklessness or negligence of causing a particular result is an element, it’s not
            established it the actor wasn’t aware of this risk or, re: negligence, shouldn’t have been
            aware, the actual result is less serious or extensive than, or similarly injurious to the
            injury contemplated.
        o When causation of a particular result is a material element of an offense for which
            absolute liability is imposed by law, the element isn’t established unless the actual result
            is a probable consequence of the actor’s conduct.
-   Commonwealth v. McCloskey (PA Sup Ct, 2003): D was charged w/involuntary MS for kids
    who died in drunk driving accident after leaving a party her kid hosted in their basement w/her
    knowledge. Involuntary MS requires 1) a mental state of either recklessness or gross negligence,
    2) a causal link b/t D’s conduct and V’s death. Here, D’s recklessness was sufficient. Rule: V’s
    contributory negligence isn’t a defense to a criminal charge; where D’s furnishing of alcohol
    to minors started the chain of causation leading to their death, D is liable for involuntary MS.
        o But for causation + prox cause not interrupted by intervening cause = crim liability.



                                                18
   -   Commonwealth v. Root: held that a surviving drag racer was not prox cause of his deceased
       opponent’s death b/c the deceased was supervening cause of his own death. More direct
       causation is necessary for criminal (v. tort) liability.
          o PA statute later reversed this outcome, providing that one is legally responsible for the
              conduct of his accomplice.
          o Most modern decisions disagree w/Root, holding the surviving racer responsible for the
              other’s death (see People v. Tims).



Mens Rea:
  - General mens rea (aka general intent): requires proof that D intended to perform the physical
      act proscribed by the statute; D needn’t have intended the consequences of that act. Not used in
      many modern jurisdictions and criticized for being meaningless.
  - Specific mens rea: either the mens rea required by the crim statute or, more narrowly, to a
      statutory mens rea requiring specific intent (ex. intent to kill).
  - Transferred intent: just like in tort law. Doctrine that one is guilty of intentionally killing another,
      even if he meant to hit someone else or had no idea the victim was even there. Applies also to
      crimes like arson. The rule is ordinarily applied by judicial decision, but some states incorporate
      it in specific statutes. Applies whether D intended to kill a certain person or an unspecified
      individual or group. Some decisions, however, have refused to apply it to attempted murder. May
      be used by the defense in the case of self-defense.
  - Recklessness: requires both a subjective awareness of risk and an objective notion that the risk
      was substantial and unjustified.
  - Crim negligence: almost entirely objective, convicting if D should have known of a risk (but did
      not necessarily). Both require an objectively gross deviation from the standard of care of a
      reasonable person. These categories may seem clear cut, but can blur into each other in real life.
  - Ostrich instruction: speaks to knowledge. See Jewell.
  - Strict liability crimes: don’t require proof of any particular mens rea b/c the actus reus is
      blameworthy enough. Usually for regulatory (not so serious) or public welfare offenses (can be
      serious, ex. DUI, statutory rape).
  - Cts might read mens rea into a statute, especially if it’s based on common law. Also, where:
           o There’s statutory role of construction (see MPC 2.202(3)).
           o It would otherwise violate DP, though this is rare (see Lambert).
           o D may be morally innocent.
                       These aren’t hard and fast rules (ex. for statutory rape, knowledge isn’t needed).
  - In cases of criminal negligence and recklessness, the factfinder sets the standard as well as
      decides whether that standard was violated.
  - Recklessness, crim negligence, and civil negligence all apply to ppl who’re careless.
  - Theoretically underpinned by the idea that crim law was to implement concepts of moral
      blameworthiness.
  - Has evolved over time, becoming more precise, defined mental elements for certain crimes.
  - Has significant policy implications re: statutes’ reach.
  - Sometimes statutes’ aren’t clear re: the mens rea required. Sometimes the prove mental elements
      w/o defining what they mean, which physical elements they target.
  - B/c crim laws were adopted piecemeal, over time, there are many varieties of mens rea elements.
  - Sometimes a statute describes a single mens rea element, but others may contain more than one.
  - The MPC adopts purposefulness as its highest mental element, though many states opt
      instead for intent. The MPC refers to the result or harm as the actor’s conscious object.
                                                    19
   - Sometimes intent or purpose can be difficult to prove, however, if D was aware of the
     consequences, but just didn’t care. Thus, many states do not limit murder to intentional killings,
     allowing knowledge to suffice. This may be a further problem, however, because “knowingly”
     can be difficult to define, as well.
  - In recognizing the mental states of recklessness and crim negligence, the MPC endorses the idea
     that crim law shouldn’t cover conduct that involves ordinary carelessness v. serious misconduct.
  - Many courts will allow an inference of intent or purposefulness from the probable consequences
     of the conduct to suffice.
  - United States v. Kimes (USCOA 6th Cir): ruled that where a law prohibiting assault on an officer
     doesn’t specify general or specific intent, general intent will suffice for one to be charged with
     assaulting a fed officer under the statute. Note: this issue has caused a confused split in the cts.
  - United States v. Lynch (COA 9th Cir): D found and took a skull from what turned out to be the
     remains of an Alaskan native village while deer hunting, admitted he knew it was old. Held that
     D was not guilty of violating the Archeological Resources Protection Act b/c he didn’t know this
     was an archaeological resource. Rule: the government must prove that D knows or has reason to
     know the facts that make his conduct illegal in order to be convicted.
  - People v. Hall (CO Sup Ct, 2000): D, a former ski racer, was slightly over the drinking limit, and
     skiing out of control for thrills, hit and killed V (fractured V’s skull @ thickest part). Held that
     given the circumstances, D consciously disregarded a substantial and unjustifiable risk that death
     could result. Rule: for felony reckless MS, 4 elements must exist. D must have: consciously
     disregarded; a substantial and; unjustifiable risk that he would; cause another’s death.
     Any risk of death will meet the requirement that the actor, by his conduct, risks death to another.
  - Jewell v. United States (9th Cir, 1975): approved the so-called ostrich instruction that
     knowledge could be satisfied where D was aware of a high probability and her ignorance
     was solely and entirely a result of her conscious effort to disregard the nature of what she
     was doing, with a conscious purpose to avoid the truth. Dissent: proper instruction would
     require awareness of high probability, and…
         o Lowers gov’ts burden, thereby increasing risk of wrongful conviction.
  - United States v. Sanchez-Robles (9th Cir, 1991): D drove her daughters to MX for tacos using
     friend’s van, which contained drugs and smelled like pot, but D denied any knowledge it was
     there. Held that a Jewell instruction was not appropriate here. Rule: proof of deliberate
     ignorance is required for one to be convicted of a crime that requires “knowledge.” W/o
     suspicion of a high probability of criminal activity, the deliberate ignorance theory fails;
     there’s no middle ground of conscious avoidance.
  - Morisette v. United States (1952?): involved a prosecution for the knowing conversion of gov’t
     property. Describes the history of strict liability, first noting the tradition of including culpable
     mental states in criminal offenses. Held that Congress didn’t intend to omit a requirement of
     criminal intent despite the absence of that language in the statute itself.
  - Nix v. Whiteside: ruled that D’s 6th right to counsel isn’t violated when his atty threatens to
     inform the ct if D perjures himself, and D then testifies truthfully.
THE BURDEN OF PROOF BEYOND A REASONABLE DOUBT:
  - Defining BARD:
         o Even if the ct doesn’t define reasonable doubt for the jury, opposing counsel almost
             always will. Emphasizing the burden of proof is one of D’s most important strategies.
                     The civil burden distinction: for civil cases, greater weight of evidence is enough,
                     but crim cases require proof BARD.
                     The “touchdown” analogy: for civil cases, P just has to carry ball across 50 yd
                     line, but w/crim, P must cross goal line and score a TD.


                                                   20
                     Ps often tell juries they welcome the burden and intent to meet it. They may also
                     tell jurors that the burden applies only to the elements of the offense and that it’s
                     proof beyond a reasonable doubt, not ALL doubt, that’s required.
        o Attys on both sides, and sometimes judges try to define the meaning of “reasonable
            doubt” (often in jury instructions), though many cts have held that it’s better not to
            define it, and there are cases holding that trial cts have committed reversible error by
            giving a particular jury instruction. Generally, using #s, %s, and analogies is bad.
-   Several cts have required or approved of definitions of reasonable doubt as “doubt that would
    cause a reasonable person to hesitate” (see State v. Kuhn, State v. Webster).
-   Unless D makes voluntary statements, P must provide BARD w/o using knowledge of or any
    inadmissible statements made by D b/c he’s protected by 5th. This generally means that proof
    BARD must be supplied solely by circumstantial evidence for key crime elements (ex. mens
    rea, actus reus if there’s no eye-witness).
-   An acquittal based on reasonable doubt isn’t the same as finding D factually innocent. It
    can be based on a finding that the evidence is ambiguous, proving neither guilt or innocence.
-   There are a few contexts in which Ds must prove and obtain findings of actual innocence. Ex.
    some kinds of recovery for malicious prosecution, habeas corpus or clemency.
-   The burden of proof affects the definition of crimes (their elements), can lead to odd results.
-   The BARD dilemma: it means frequent non-prosecution of factually guilty ppl, but we don’t
    want to punish those who might be innocent.
-   In some states, the BARD requirement derives from common law, however many states and the
    MPC explicitly require proof BARD.
-   In Re Winship (1970): 12yo was alleged to have stolen $112 from a pocketbook, was tried using
    a juvenile delinquency statute that only required a preponderance of the evidence. Rule: it’s a
    Constitutional requirement that each element of a crime be proved beyond a reasonable
    doubt in every state in every case. DP protects the accused against conviction except upon
    proof BARD of every fact necessary to constitute the crime with which he’s charged, and this
    applies equally to juvenile proceedings involving violation of crim law.
        o Harlan’s concurrence: crim law reflects our society’s fundamental value determination
            that it’s much worse to convict an innocent than let a guilty man go free.
-   Mullaney v. Wilbur (1975): D alleged homosexual panic after killing V. ME law provided that
    malice aforethought was an essential and indispensable element of murder, but could be rebutted
    by proof of heat of passion from D by a preponderance of the evidence (thus malice aforethought
    and heat of passion were inconsistent). Rule: you can’t shift the burden to the D to disprove
    one of the elements. The state must prove every element of an offense BARD.
-   Patterson v. New York (1977): D saw his estranged wife in a state of semi-undress w/another
    man, who he promptly shot and killed, was charged w/2nd M, which included the elements of
    intent to cause another’s death and actually causing such death. Malice aforethought wasn’t an
    element, but D could raise the affirmative defense that he’d acted under the influence of extreme
    emotional disturbance for which there was a reasonable explanation. Proof of this affirmative
    defense would reduce it to MS. Rule: if an element of a crime is re-characterized as a defense,
    the burden of proof can be shifted to D.
        o Powell’s Dissent: this should’ve been governed by Mullaney.
-   Martin v. Ohio (1987): held that a State could define self-defense as an affirmative defense and
    require D to bear the burden of proving it by a preponderance of the evidence.
-   Together, Patterson suggests that a State may be able to change an element into a defense or
    affirmative defense and Martin confirms that States have wide latitude in doing so.
-   Leland v. Oregon (1952): Ds may be required to prove insanity.


                                                 21
   -  Victor v. Nebraska (1994): summarized the constitutional requirement re defining reasonable
      doubt, upholding a charge that described it as “not a mere possible doubt,” but where after
      considering all evidence, the jurors can’t say they “feel an abiding conviction, to a moral
      certainty, of the truth of a charge.” Also, rejected an objection to contrasting reasonable doubt w/
      a mere possible doubt.
   - Cage v. Louisiana (1990): held that the court could not define reasonable doubt as giving rise “to
      a grave uncertainty… an actual substantial doubt.” Note, however, that the Ct has never held this
      language prohibited by use of counsel.
   - State v. Walker (KS Sup Ct, 2003): in gang-violence case, the judge clarified reasonable doubt as
      “such doubt as a juror is able to give a reason for.” Rule: a judge cannot instruct the jury that
      reasonable doubt “is such doubt as a juror is able to give a reason for.”
   - Paulson v. State (TX Crim. App. 2000): trial judge omitted giving a definition, despite then-
      controlling decisional law requiring specific definition, instead to overruling that case (Geesa),
      holding it was better practice to give no definition at all, thereby affirming Paulson’s conviction.
      Also rejected a “hesitate” instruction b/c this would lead a conscientious juror to never convict.
The Risk of Error:
   - Costs and benefits of BARD standard:
           o Costs: wrongful acquittals; criminals go free and commit more crimes – risk to society.
           o Benefits: fewer wrongful convictions; gov’t must thoroughly investigate.
   - Problems w/crim adjudications: incompetence, corruption, laziness, racism, lack of resources.
   - Reasons for wrongful conviction: eyewitness misidentification; unreliable or limited science;
      false confessions; forensic science fraud or misconduct; informants/snitches; poor lawyering.
   - Protections against erroneous conviction: BARD, P’s duty to furnish evidence to D that’s
      inconsistent w/guilt; D’s right to cross-examine witnesses; that lineups or photo spreads can’t be
      impermissibly suggestive; that accused has a right to counsel during a post-indictment lineup; the
      jury’s observance of witnesses’ testimony; that witnesses must testify live; judges’ power to
      grant a judgment of acquittal if the evidence is insufficient; appellate and habeas processes.
   - Alexander Volokh, “n Guilty Men:” how many guilty people should be released to save one
      innocent. Maybe our bias against punishment comes from the most famous of all judicial
      miscarriages: Christ’s crucifixion. But it’s controversial whether there’s really any relationship
      b/t high n values and high crime rates. It it’s better to let n guilty men go free than one innocent
      be executed, the real ? is “better for whom?”
   - Some argue that there’s a probability that setting n will lead to acquittal of n members of a
      favored group due to ppl’s prejudices.
   - Some argue that “only better is better” and we should thus strive for a criminal justice system
      that reliably convicts the guilty and reliably acquits the innocent.
   - Consider what happens when a jury erroneously acquits a violent killer who strikes again. What
      is the total societal cost of erroneous acquittal?
   - In some contexts, “reasonable” refers to a contextual balancing decision, in which all facts, risks,
      and potential costs must be weighed.
   - One argument against capital punishment is that the change of executing an innocent person is
      unacceptably high. (ex. Anthony Porter, who was released two days prior to his scheduled
      execution). Supporters of capital punishment, however, cite the extensive legal process required
      before conviction or sentence, plus extensive appeals and habeas corpus proceedings, the sheer
      amount of time (usually many yrs) b/t conviction and execution, the de facto higher burden of
      proof of guilt that arises w/juror – even those who are “death qualified” to sit in capital cases.
   - Many argue that erroneous conviction is worse than erroneous acquittal b/c it wrongfully
      imposes the coercive power of the State on a person (image of state run amok, Nazi Germany).
      But what about the state’s duty to prevent crime? Many criminals commit multiple crimes over
                                                   22
      time, meaning erroneous acquittals may increase crime. These two goals (avoiding erroneous
      impositions of the State’s coercive power and the state’s duty to prevent crime) conflict.
   - Erroneous conviction oppresses innocent individuals by affirmative conduct on the part of the
      State, whereas erroneous acquittal oppresses other innocent ppl by inaction on the State’s part.
   - A critical view of state inaction holds that state policy favoring erroneous acquittal results in
      uneven protection of different classes of ppl, with favored groups disproportionately free of the
      risks of either erroneous acquittal or conviction, and the costs of unredressed crime falling upon
      disfavored classes. Ex. rules of evidence in sexual assaults of women have historically leaned to
      admitting every inference favoring acquittal and excluding major categories of evidence
      supporting guilt (this has now changed); the rules of evidence and trial processes designed to
      protect the rights of adults increase the probability of erroneous acquittal for child abusers.
   - In a jury-tried case, appellate review of the sufficiency of the evidence recognizes the role of the
      jury. The standard of review is that the evidence is to be viewed in the light most favorable to the
      underlying verdict, with inferences drawn how the jury could permissibly have drawn them. It’s
      not whether the appellate ct itself would’ve ruled that way, but whether a reasonable jury could
      have ruled that way. Thus, in order to overturn, an appellate ct must conclude that no reasonable
      juror properly following the law could have ruled that way.
   - Where the matter and means of the death are unknown, the practice is to state that this was the
      case for the jury that returned the indictment, but that usually requires P call the presiding grand
      juror as a witness.
   - Stogsdill v. State (TX COA 1977): evidence against D included lug wrench, similar hairs, tire
      tracks, previous Vs. Held that the circumstances amounted to only a strong suspicion and mere
      probability of D’s participation in the gruesome offense charged couldn’t sustain a guilty
      conviction. Rule: a conviction on circumstantial evidence can’t be sustained if the
      circumstances don’t exclude every other reasonable hypothesis except that of the guilt of
      the accused, and proof amount to only a strong suspicion or mere probability is
      insufficient.
DNA Evidence:
   - DNA evidence sometimes can justify a high degree of confidence in the conclusion that both
      samples came from the same person, circumstantially placing D at scene. DNA evidence
      definitely resolves a small number of cases (ex. rape), but almost always by circumstantial
      inference. It is not completely conclusive by itself, however. Some say that it’s better for
      eliminating suspects than convicting them. Nonetheless, it remains powerful.
   - There is danger that jurors may expect DNA proof routinely, even where it doesn’t exist (“the
      CSI effect”) or won’t help solve the case.
   - Presenting it can be expensive and time-consuming. It generally requires 3 expert witnesses:
          o Collector of the unknown (and known) samples (technically doesn’t need to be expert,
              but the jurors might expect him to be).
          o Witness re: the biochemistry of DNA analysis to explain the process and result.
          o Population statistician to estimate the probability of a match to a random member of the
              population.
   - In presenting DNA evidence, Ps might employ the following probability methods:
          o The product rule: the probability of two independent events or characteristics coinciding
              is the product of their separate probabilities.
          o Bayes’ Theorem: involves an equation that can be used to update an initial probability
              estimate in response to a new piece of evidence. Complicated but can be very powerful in
              showing the cumulative weight of the evidence.
   - There is a risk of lab error w/DNA evidence.
Eyewitness Testimony:
                                                   23
   -   Eyewitness testimony: is necessary, b/c prosecution of many crimes depends on it, but it is also
       risky b/c it’s vulnerable to error in ways that the crim justice system can’t effectively minimize;
       eyewitness error is the largest single factor in wrongful convictions. Despite that, there’s
       generally a systemic bias against circumstantial evidence and in favor of eyewitness testimony.
   - It is possible that the police method of finding suspects who fit descriptions and placing them in
       lineups maximizes the likelihood of causing a misidentifications. As a result, the Sup Ct has
       decided several cases designed to reduce “impermissible suggestiveness” in lineups and photo
       spreads. But Law enforcement continues to use the same basic method nonetheless.
   - Despite the fact that psychologists can identify specific risks or factual variables that influence
       (or don’t) accuracy of eyewitness IDs, cts have been reluctant to allow routine evidence on the
       subject. They’ve typically limited it to cases in which specific circumstances give rise to
       identifiable concerns within psychological competence for fear that such evidence might A) be
       misleading or D) be difficult to limit to eyewitnesses, thereby requiring a psychologist to testify
       after every witness to reflect on his/her credibility.
   - Problems w/eyewitness testimony: memory and perception may be affected by:
           o The retention interval (rate at which person’s memory declines over time)
           o The assimilation factor (witness’ incorporation of info after event)
           o The confidence-accuracy relationship
           o Stress
           o Violence of situation
           o Selectivity of perception
           o Expectancy
           o Effect of repeated viewings
           o Cross-racial IDs.
   - On the other hand, these are social theories, not an absolute science, and the tests are generally
       run in simulated, unrealistic environments, that may not translate to the real world of crime.
       Also, expert testimony on eyewitness IDs can be unduly prejudicial when it’s framed as to
       discredit the witness.
   - Possibility that Ps will get their own experts to testify to the accuracy of eyewitness ID, which
       would lead to battle of experts. Some argue for a middle ground where eyewitnesses are used
       when they are most reliable, most needed, and ID is strongly established.
   - United States v. Smithers (US COA 6th Cir. 2000): held that the dist ct abused its discretion in
       excluding Dr. Fulero’s testimony about the accuracy of eyewitness testimony (in a bank robbery
       case) w/o first conducting a hearing to determine the issues. Rule: in determining whether expert
       testimony re: eyewitness testimony is admissible, the ct must determine whether it would be
       helpful or confusing to the jury, whether such testimony touched on the “ultimate issue” in the
       case and therefore usurped the jury’s role, whether the jury could more properly evaluate the
       reliability of eyewitness testimony through cross.
           o Dissent: the dist ct examined both sides’ briefs on the issue. The gov’t explained why the
                testimony would be unhelpful and prejudicial in this case and why cross and jury
                instructions were the better alternative here, and D didn’t appropriately counter this
                charge. Further, it looked closely at the issue of relevance. This case presents very few of
                the narrow circumstances identified by other cts in which such experts may be used (no
                issue of cross-racial ID, time-lapse, etc…).
ASSAULT, SEXUAL ASSAULT AND RELATED OFFENSES:
Assault:
   - Definition of assault varies widely from State to State. Some define a separate crime of battery,
       but many just include it in assault.


                                                     24
        o Battery: injurious or offensive touching. Some juris criminalize only attempted battery
            assaults.
        o Simple / basic assault: may include both attempted battery assaults, conduct intended to
            frighten Vs (common law definition; some states don’t formally codify it).
        o Aggravated assault: enhanced by factors like especially blameworthy mens rea (ex.
            intent to kill), use of a weapon, V’s characteristics (ex. being a cop, very young or old)
        o Other offenses ranging from threats or reckless conduct to child endangerment, covering
            gaps caused by mens rea requirements or physical elements of assault, for actions that
            may not otherwise be crimes. Also, some states criminalize menacing or threatening.
-   Assault is sometimes a specific intent crime.
-   Note that “serious bodily injury” (as required for aggravated assault) under the MPC requires
    death, permanent disfigurement, or protracted lose of use of a bodily organ. So beating someone
    up, causing serious bleeding and bruising, might just be simple assault.
-   Many jurisdictions define a crime of child endangerment, which requires only negligence.
-   Depending on the readings of subjective factors in assault-with-specific-intent-to… they may
    leave odd gaps (a la Maher).
-   MPC criminalizes conduct causing physical injury (ex. assault) using the formula “causes bodily
    injury,” but not offensive touching. But many jurisdictions do (see United States v. Bayes).
-   Consent may convert what’d otherwise be a crime into no crime at all (ex. cutting during
    surgery).
-   Smith v. United States (DC COA 1992): involved a multi-person, multi-victim robbery and a
    simple assault charge. The jury was given the standard assault instruction, which encompasses
    attempted battery assault only (no intent-to-frighten). Rule: where the jury is only instructed on
    attempted battery assault, a conviction for intent-to-frighten assault cannot stand and D must be
    acquitted. Also, D must have had the present ability of using actual violence against V.
-   State v. Boutin (Vt, 1975): D was acquitted of assault where he raised a bottle and was
    approaching V b/c he’d been stopped by constables before he got close enough to physically
    assault V.
-   People v. Williams (CA 2001): held that assault requires only a general criminal intent, only
    actual knowledge of the facts sufficient to establish that D’s act by its nature will probably and
    directly result in another’s injury.
-   United States v. Kimes (recap): COAs have split on the issue of whether the statute prohibiting
    an assault on a fed officer is a crime of general or specific intent (which comes into play when
    one is hurt while undercover). Some say that the word “forcibly” implies a requirement of
    specific intent, while others say that the statute contains no language requiring specific intent and
    Congress’ purpose was to provide broad protection against impeding a fed officer in the
    performance of his specific duties.
-   Maher v. People (Mich, 1862): D shot V in the head in attempts to kill him and was convicted of
    assault w/intent to murder, but reversed b/c he may have acted in the heat of passion, in which
    case a successful murder would’ve been voluntary MS, but specific intent to murder would’ve
    been absent, so he would’ve only been guilty of simple assault (!).
-   Adams v. Commonwealth (VA App. 2001): held that the force required for battery may be direct
    or indirect, through an object or a force (D convicted for shining a laser pointer in cop’s eyes).
-   R. v. Brown (1994): controversial British case which held that while P usually was required to
    prove lack of consent to get an assault conviction, consent was irrelevant in case involving
    charges against a group of men who privately engaged in extreme, but consensual
    sadomasochistic sexual activity (you can’t consent to something inherently injurious).
-   Guarro v. United States (D.C. Cir. 1956): found plain-clothes cop’s consent to sexual touching
    was a defense to battery charge.
                                                 25
Stalking and Harrassment:
    - Stalking and harassment statutes: attempt to reach anticipatory conduct, stop Ds before they
       assault. May be both overbroad/too vague, and especially under-inclusive, failing to criminalize
       offensive behavior.
    - D.C. Statute: criminalizes conduct w/intent to cause another emotional distress, put V in
       reasonable fear of death or bodily injury by willfully, maliciously, repeatedly following or
       harassing that person (excluding Constitutionally protected activity). Includes conduct done in
       person, by phone, in writing, directed at a specific person, which seriously alarms, annoys,
       frightens, or torments the person. Cyber-stalking added later.
Domestic Violence Legislation:
    - Victimless prosecutions: some jurisdictions prosecute regardless of V’s wish to dismiss or
       refusal to testify.
    - Mandatory arrest statutes: if cops respond to a DV complaint and have probable cause to believe
       a crime occurred, they must arrest. Takes away police discretion (though P will still have
       discretion whether to charge). Intended to enable DV prosecution where ppl are reluctant to
       testify, provide a cooling-off period, but may lead to unnecessary arrests, criminalize innocents.
    - The classic “rule of thumb” allowed husbands to physically chastise their wives as long as they
       used sticks no wider than their thumbs.
    - Assaults and other criminal violence within the context of family, romantic, or intimate
       relationships historically have been under-prosecuted, and many think they still are. Law
       enforcement officials blame reluctant witnesses (unwilling to testify or press charges); others
       blame the law’s reluctance to regulate the “private sphere” of the home and domestic life.
    - Just under 1/10th of violent crimes involve family members, and around 30% involved persons
       well-known to the victim, including non-married significant others. Thus, many jurisdictions
       have specific statutes aimed at DV, even when the conduct would already fall under another crim
       statute, in order to protect DV victims and send a message that DV won’t be tolerated.
    - Some jurisdictions have mandatory arrest and seizure laws, which are a radical departure from
       cops’ normal wide discretion.
    - Some jurisdictions make an exception to spousal privilege in DV cases.
    - Wildoner v. Borough of Ramsey (2000): NJ cop was told by both the husband (alleged perp) and
       wife (alleged V) that the crime hadn’t occurred, but there was a knife on the floor, a red mark on
       her arm, and neighbor’s report of yelling, including a threat to throw knives. The court upheld
       his arrest, saying the officer should consider V’s denial, but the totality of the circumstances
       furnished probable cause here, which triggered the mandatory arrest statute.
    - Kamen v. Egan (NJ App. Div. 1999): held the NJ DV Act inapplicable when a daughter
       committed a single act of trespass by entering her dad’s home w/o permission to visit her kids on
       non-ct ordered visitation day (shows how ppl may mis-use DV law for their own purposes).
Sexual Assault:
    - Terminology may reflect differing views of the crime and of the responsibility of the state for
       policing allegedly non-consensual sex acts:
           o Sexual Assault (SA): came from the 1970s reforms, sought to frame rape as a crime of
                violence, and frequently went beyond older laws to conduct beyond vaginal intercourse.
           o Rape: some criticize the term “sexual assault” as erroneously indicating that it only
                involves sexuality incidentally, and use this harsher term.
           o From victim to survivor.
    - The traditional definition was “carnal knowledge of a woman forcibly and against her will,”
       hiding the requirement of “utmost resistance” that was long required, and that of mens rea. SA
       law is difficult to understand, but there are now at least four overlapping factors:


                                                   26
         o Force (actus reus). May be substituted by threat or fraud. Even if there’s non-consent
             accompanied by fear, this may not always cut it w/o force. May be difficult to prove
             where force is less explicit, or where it’s apparently used by D testifies the sex was
             consensual (esp. re: acquaintance rape).
         o Resistance: some jurisdictions require this as an independent element, so even force isn’t
             enough w/o actual counter-measures on V’s behalf. Just saying “no” may not be enough.
                     Modern statutes often don’t specify resistance as such to define rape, but the
                     consent element still retains some underlying tones of resistance, and ct’s may
                     read in such a requirement, even if it’s not there.
         o Non-consent: concerns V’s subjective knowledge that she hasn’t consented, the extent of
             objective manifestations of non-consent, and D’s awareness of those.
                     This requirement is unique in crim law and may to some extent blame Vs.
         o Mens rea: D’s degree of mental culpability in failing to respond to the fact of non-
             consent. May mean that even if there was force and non-consent, D can’t be guilty unless
             P proves the required level of knowledge, recklessness, or negligence. Some jurisdictions
             require actual knowledge (making sexual assault hard to prove, esp. acquaintance rape)
             unless V has firmly brought non-consent to D’s attn. Others require that D act
             w/recklessness, some others only negligence.
                     Ex. in CA, D’s belief in V’s consent must be reasonable to acquit (so honest lack
                     of knowledge will acquit, even when it’s unreasonable). But Alaska requires
                     actual awareness of unacceptably high risk of non-consent (subjective standard).
                     Some authorities advocate treating sexual assault as a general intent crime for
                     which awareness of non-consent isn’t an issue.
                     MPC rape doesn’t expressly require any mens rea, but has a default mens rea of
                     recklessness where no other is prescribed by law.
         o The MPC places the burden on V to press charges, stating that there can be no
             prosecution w/o a prompt complaint or outcry nor on the uncorroborated testimony
             of the alleged V (thereby essentially adding two more elements: prompt outcry and
             corroboration). But it reflects old attitudes, and these requirements have been abolished in
             most juris (though have been revived in many campus-based disciplinary inquiries).
-   Sexual Assault w/aggravating circumstances: most jurisdictions make this a more serious
    class of felony than basic forcible rape, and/or make it subject to higher penalties. Such
    circumstances may include: use or display of a weapon; suffocation, strangulation, disfiguration,
    or infliction of serious physical injury to V or another during the SA; threats of such action to V
    or someone V knows; committing SA while aiding or abetting another, or while in connection w/
    a burglary. Note, however, that generally unless V is disfigured or has a bodily organ impaired
    for a protracted period, the rape isn’t aggravated, but only ordinary (see Rucker).
-   Rape shield statutes: exclude evidence of V’s sexuality. Ex. CO’s makes exceptions only where
    it relates to V’s prior or later sex w/D or evidence of specific instances of sex showing the origin
    of semen, pregnancy, disease or any similar evidence of sex, offered for the purpose of showing
    the acts charged were or weren’t committed by D.
-   Restrictions on SA prosecution at common law:
         o Resistance requirement
         o Corroboration requirement
         o V’s prior sexual history (including prior consensual sex b/t V & D, and V & others).
         o Fresh complaints (SOL).
         o Cautionary instruction (no longer exists).
         o Martial exception (no longer exists).
-   See earmarked written notes for stats.
                                                 27
-   There are possible problems that cts will interpret conduct many would consider forceful as
    consensual, and that clearly non-consensual sex may not be criminalized b/c there’s inadequate
    evidence of force (though some argue it’s implicit in non-consensual sex).
-   2 waves of rape law reform:
        o 1950s: MPC abolished “utmost” resistance, refocused from V’s non-consent to D’s
            conduct.
        o 1970s: prompted by feminist analysis of rape laws. Introduced rape-shield laws, modified
            or removed the marital rape exception, made rape statutes gender-neutral, made
            additional alterations in the substantive requirements of force and non-consent to
            facilitate convictions.
-   Kobe Bryant case: illustrates common credibility issues in rape cases, difficulty of proving non-
    consent where there’s no evidence of force, even where there are some injuries. P dismissed on
    State’s motion, but didn’t reflect doubts about the strength of the case, and was rather
    accommodating V’s wishes for dismissal.
-   “Reviving Resistance in Rape Law” by Michelle Anderson:
        o Criticizes both the majority and dissent in the MD Rusk decision.
        o Argues that cts sometimes idealize resistance so that reasonable conduct by V may
            prevent conviction for what should be Sexual Assault. But also criticizes cts that justify
            non-resistance by misguidedly advising against conduct that might provoke the attacker.
        o These mixed messages are legally counter-productive and dangerous to women;
            resistance can help women, esp. psychologically.
        o Argues that resistance shouldn’t be necessary to obtain a conviction, but should be
            sufficient. The law should value women’s verbal and physical resistance w/o penalizing
            those who – for whatever reason – don’t resist.
-   Spousal rape was not a common law crime, and this persisted initially when crim law was
    codified. Law reform efforts of the 1970s and ‘80s, however, led to virtually all jurisdictions
    abolishing the absolute rule by the ‘90s. Still, many jurisdictions retain a partial version of the
    old rule, making rape by a husband of a wife more difficult to prove than if the parties aren’t
    married or by classifying marital rape as a lesser degree of offense.
-   There’s agreement that false SA claims exist but they’re in the minority, probably around 8%.
-   Beliefs about rape and V credibility affects whether rape is investigated, charged, and
    prosecuted, and some studies indicate that jurors’ pre-existing beliefs about rape and masculine
    and feminine sexuality impact their decisions.
-   Historically, even if D had made repeated or serious sexual attacks, these were usually
    inadmissible, while V’s sexual reputation and acts were broadly admissible. But this has largely
    reversed; now evidence rules admit incidents of sexual misconduct against D (even though
    such evidence isn’t admissible for other crimes) and most states have rape shield statutes.
-   There are historical interconnections b/t SA and racism, including the disproportionately high
    prosecution and severe punishment of black men for alleged rapes of white women, and the
    inapplicability of rape laws to non-consensual sex w/slaves in “slave-breeding” economies.
-   Less than 1/3 of SAs are reported to law enforcement; about ½ of those result in arrest.
-   91% of SA Vs are female, 99% of alleged offenders are male.
-   75% of SAs involve offenders known to V.
-   Race doesn’t impact one’s statistical likelihood of being V of SA.
-   SA law has undergone pervasive change and in many jurisdictions, at least in theory, the
    substantive law puts more realistic expectations on V’s conduct at time of attack and makes Ds
    liable on lesser mens reas. Evidence is more freely admissible against D, less against S.
-   People v. Iniguez (CA, 1994): upheld D’s conviction for rape of a bride on the eve of her
    wedding by a tipsy guest while she slept in a friend’s home, even though she didn’t say anything
                                                28
       out of fear, reasoning that V didn’t know D’s propensity to violence. (Note: CA has relatively
       liberal rape laws, as compared to say PA, which is more strict).
   - Commonwealth v. Berkowitz (PA Sup Ct, 1994): V was assaulted by her boyfriend’s roommate,
       testified that he didn’t throw her on the bed, but that she said no throughout. Held that there was
       insufficient force for rape to satisfy the (relatively high) statutory requirement for rape by
       forcible compulsion that’d prevent resistance by someone of reasonable resolution. Rule: where
       V did not consent and said no, but did not actively resist D who did not use great force,
       that’s not sufficient for sexual assault (but it is indecent assault).
   - People v. Dohring (NY, 1874): held the non-consent element of rape required “utmost
       resistance” by a woman, to “the extent of her ability,” reasoning that otherwise maybe she’s not
       entirely reluctant to be having sex w/D (!).
   - Reynolds v. State (AK Sup Ct, 1983): Held that the Alaska Sexual Assault statute whereby P
       must prove D knowingly engaged in sexual intercourse and recklessly disregarded V’s lack of
       consent does not punish harmless conduct and is neither vague nor overbroad. Rule: where the
       legislature modifies an SA statute, removing resistance and force, this may still be
       constitutional by requiring a mens rea of recklessness whereby D’s are protected in
       ambiguous circumstances.
   - Director of Public Prosecutions v. Morgan (House of Lords, 1976): senior in Royal Air Force
       had juniors forcibly have sex with his resisting wife. Rule: recklessness or more was required,
       so belief in consent needn’t be reasonable in England. Note: since Morgan, UK law has
       changed, is now more like CA, requiring only negligence.
   - People v. John Z. (CA, 2003): held that initially consensual intercourse that persisted after V
       expressed an objection and attempted to stop the act was forcible rape.
   - Rucker v. State (TX Ct of Crim App, 1979): V suffered black and swollen eyes, a swollen face,
       cuts inside her lip, bruised chest and breasts, scratched and abraded butt and legs, and rash from
       poison ivy due to rape. Rule: a jury’s verdict on the element of aggravation can be upheld
       only if an implied threat of death or serious bodily injury was communicated by the
       appellant’s acts and conducts. Where there’s substantial injury, but no concussion, broken
       bones, internal injury, scarring, permanent disfigurement, or protracted loss or
       impairment of any body part, that is simple rape, not aggravated rape.
           o Douglas’ dissent: the repeated striking of V, while insisting on unwanted sex, constitutes
                a threat of more serious harm if she refuses. Seaton held that threats can be
                communicated by actions, words, or deeds. Her refusal could have escalated the force.
   - Mayes v. State (MD Spec. App. 1985): reversed a conviction for 1st Rape b/c the element of a
       “threat” of “serious physical injury” was absent where D grabbed V from behind, hit V in face
       and told V to shut up, dragged V to a wooded area, forcibly took off her clothes and raped her,
       and suffered injuries including a cut to the lip.
   - Contreras v. State (Tex. App. 1992): when the state legislature amended the statute at issue after
       Rucker, defining aggravation if D “by acts or words places V in fear that serious bodily injury
       will be imminently inflicted,” the ct began deferring more to jury findings of threats and
       expressly looking to the totality of the circumstances.
Sexual Assault Against a Child / Statutory Rape:
   - Statutory Rape: usually involves someone over 18 having sex w/ someone under 17. Is a strict
       liability crime in most states, resulting in prosecutions in which intercourse is undisputedly
       consensual and the child is nearly the age of consent w/D believing her to be of legal age.
   - Reasonable mistake of fact is sometimes a defense in a few jurisdictions, where D can establish
       an honest and reasonable mistake of fact as to V’s age. Some states require the mistake to be
       induced by a false claim by V as to V’s age, although in other states D is entitled to acquittal
       unless the mistake as to age is unreasonable.
                                                    29
   -   Some states make V’s promiscuity a defense.
   -   A few jurisdictions restrict the offense to sex w/female minors.
   -   Some jurisdictions don’t criminalize consensual sex b/t young ppl close in age.
   -   People v. Hernandez (CA, 1964): held that, absent a legislative directive to the contrary, a
       charge of statutory rape was defensible if crim intent was lacking, reversing trial ct’s refusal
       to permit D to present evidence of his reasonable belief V had reached the age of consent.
       Questioned the assumption that age alone confers sophistication sufficient to create legitimate
       consent to sex.
   - State v. Jadowski (WI Sup Ct, 2004): ruled that for statutory rape, P must only prove that D
       had sex w/V and that V was underage. Making statutory rape a strict liability crime and
       forbidding a defense of fraud or reasonable mistake about V’s age is not unconstitutional.
GENERAL DEFENSES TO CRIMES:
   - Defenses: must be raised by D. Once raised by minimally sufficient evidence, they must be
       disproved by P BARD. This burden is slight, requires no actual proof. If there’s evidence that
       any reasonable juror could believe, even if the judge doesn’t believe it, most States judges
       must instruct jurors on the defense and tell them that the burden is on P to disprove it BARD.
       If there’s no evidence of a defense, however, the jury won’t be instructed about it.
   - True defense: adds another element to the case, one that D must raise and support (D bears
       burden of production).
            o Justification defense: admits commission of offense’s elements, but argues that doing so
               wasn’t wrong in this case. Are based on societal decisions about what we find
               acceptable. Ex. self-defense, defense of property, defense of habitation, defense of others,
               law enforcement defenses, necessity. Better.
            o Excuse defenses: admits commission of offense’s elements, but argues that D wasn’t
               responsible for his actions for some reason. The conduct isn’t justified under the law,
               but is excused b/c Ds decision-making ability was impaired. Ex. insanity, some cases of
               intoxication, duress, certain types of mistakes of fact or law. Not-as-good.
   - Affirmative defenses: Depend on facts independent of the crime elements, don’t disprove
       the elements. D bears burden of production and persuasion, must convince the jury by a
       preponderance that each necessary fact is present. Under MPC, only arises where there’s
       evidence supporting it. Ex. emotional disturbance (see Patterson).
   - Offense modifications: apply to specific crimes rather than all crimes. Include special defenses
       available in many jurisdictions for preparatory crimes like attempt or conspiracy. Ex. renouncing
       the attempt or conspiracy is a defense to those crimes, but doesn’t furnish a defense to crimes
       across the board.
   - Partial defenses: may reduce a charge (ex. from M to MS). Ex. provocation, diminished capacity.
   - Extrinsic defenses (aka non-exculpatory public policy defenses): neither justifications nor
       excuses, but still may furnish a defense based on public policy. Ex. SOL, executive or diplomatic
       immunity.
Failure of Proof Defensive Theories and Rebuttals:
   - Failure-of-proof defense: not a true defense in that it doesn’t add another element, rather asserts
       that P can’t prove the elements BARD as is required. Attacks P’s evidence.
   - Rebuttal: similar to failure-of-proof defense, but involves factual testimony offered by D that
       inferentially contradicts an element (ex. alibi). D offers a new factual theory that collides w/P’s
       theory.
   - Alibi: inferentially contradicts that D committed the crime, which is an essential element that P
       must prove BARD. Only rebuts D’s guilt inferentially. Generally mere denial of presence at a
       crime scene doesn’t earn alibi instruction, but testimony establishing D’s presence at another
       specific location does.
                                                    30
            o Some cts instruct the jury about it, telling jurors that they must acquit if witnesses placing
                D away from the crime scene have created a reasonable doubt (logically, this instruction
                shouldn’t be necessary, but it counteracts the pejorative nature of the term “alibi”).
            o Many jurisdictions require D to give pre-trial notice before offering an alibi.
            o Fed Rules require the gov’t to give notice if it intends to call rebuttal witnesses to a
                noticed alibi to enable D to investigate.
            o Needn’t be fully persuasive as long as it creates reasonable doubt, which often causes a
                dilemma for D’s atty re: whether to present alibi witnesses who aren’t totally credible.
                One possible solution: put the strategic decision on the record by having D answer ?s
                from ct about the decision to omit alibi witnesses (note: this still failed in Jacobs).
    - Generally, however, rebuttals and failure of proof defenses aren’t really separate legal categories.
    - In some jurisdictions, self-defense is a defense, while insanity is an affirmative defense.
    - Note: The first element of every crime is that it was committed by D charged w/it; it is part
        of P’s burden to prove this BARD.
    - An effort to raise a reasonable doubt about any element or to introduce a contradictory theory or
        rebuttal isn’t a defense. Rather these are efforts to prevent P from carrying its burden of proof.
    - State v. Deffebaugh (KS Sup Ct, 2004): involved a statute requiring D provide notice before
        offering evidence of an alibi. Ruled that an alibi may be given even when D has failed to give
        notice of the alibi witness if P otherwise was aware of such witness and could have
        previously questioned him.
    - State v. Tutson (CT App. 2004): held that evidence that a described vehicle was in a specific
        distant location wasn’t an alibi for purposes of the notice requirement, even though the vehicle
        was identified w/D (note: KS probably would’ve ruled differently based on Deffenbaugh).
    - United States v. Llinas (1st Cir. 2004): held that documents weren’t “witnesses” and therefore
        employment records dealing w/D’s presence at work weren’t covered by the notice-of-alibi
        requirement.
    - Clinkscale v. Carter (6th Cir. 2004): although the ct denied habeas corpus, a concurring judge
        invited D to file another petition asserting that his counsel was ineffective for presenting an alibi
        that the jury was unlikely to credit.
    - Jacobs v. State (FL, 2004): granted a hearing to determine whether counsel was ineffective for
        not presenting alibi witnesses he’d noticed at the pretrial stage, even though the fact of pretrial
        notice lends itself to the conclusion that the decision may have been strategically better for D.
Justification: (see definition above)
    - Not all cts agree on whether certain defenses fall under justification, excuse, or another category.
        Ex. provocation.
    - The difference b/t justifications and excuses sometimes determines policy difference in
        treatment. If the conduct was justified, the law may be broader in exonerating D than if it’s
        merely subject to an excuse.
    - The scant info available suggests that formal defenses are generally important to the theory of
        crim law, but seldom used at trial, some defenses are almost never used, and they play only a
        minor role in the non-judicial resolution of crim cases. Self-defense leads the pack, and is only
        used in 2% of trials. The possible use of a defense had an impact in 7% of cases, almost always
        by affecting a plea agreement or leading to dismissal.
Self-Defense:
    - Self-defense: a justification defense for a proportionate response to an imminent threat.
            o A vague threat of future violence or use of excessive force may not be justified. In many
                jurisdictions the use of deadly force is restricted more than that of non-deadly force.
            o A mistaken belief in the need for it can raise it in most jurisdictions (ex. toy gun), as
                long as there was an objectively reasonable belief that the attack was real (v. an honest
                                                     31
                but unreasonable subjective belief). However, the MPC has a subjective standard,
                requiring only a subjective but honest belief in the need for self-defense, with no
                requirement of reasonableness or imminence.
   - Imperfect self defense: an unreasonable belief, not sufficient for acquittal, but sufficient to
       reduce the crime’s grade. Many states offer an incomplete defense, lessening the charge from
       M to MS, where D’s belief that she was under immediate attack is honest but unreasonable.
       Some allow for this where D provokes the initial conflict. The MPC recognizes this where the
       self-defense belief is negligent or reckless, but may not completely exonerate D.
   - The castle rule: Many jurisdictions make an exception to the retreat rule, holding that there’s no
       duty to retreat if one’s attacked in his own home. May also apply at one’s place of business.
            o If one’s attacked in his place of work by a coworker, the MPC provides that he has a duty
                to retreat before he can use deadly force in self-defense.
   - The retreat rule: while one is never required to retreat before using non-deadly force against an
       initial aggressor, some jurisdictions require retreat before using deadly force in self-defense,
       if retreat can be safely achieved.
   - The true man rule: there’s no duty to retreat if someone attacks you (in your home or wherever).
       Is the case in many Western state.
   - The aggressor rule: in many states, if D started the conflict, he can’t claim self-defense,
       unless he has completely withdrawn.
   - Most cases on self-defense turn on the issue of reasonable perception of the imminence of the
       unlawful threat of harm facing D.
   - IL statute allows such conduct to the extent that D reasonably believes it’s necessary to defend
       himself or another against such other’s imminent use of unlawful force, but only justifies force
       intended or likely to cause death or great bodily harm if he believes it’s necessary to prevent
       imminent death or great bodily harm to himself or another, or commission of a forcible felony.
   - NY’s statute allows it unless D provoked the actor w/intent to cause physical injury to another, D
       was the initial aggressor (unless he later withdrew and effectively communicated such
       withdrawl), or the force involved was the product of combat by agreement not specifically
       authorized by law. Similarly requires force to be proportionate, but notes that there’s no duty to
       retreat if D is in his own home and not the initial aggressor, or a cop (or assisting a cop), or
       reasonably believe the other person is trying to commit kidnapping, forcible rape, robbery, and
       burglary may compel use of deadly force.
   - Self-defense straddles the tension b/t allowing citizens to protect themselves and punishing those
       who unnecessarily kill/injure others.
   - Boget v. State (2002): while most self-defense cases arise in the homicide or attempted homicide
       context, the defense can also be invoked when non-deadly force is used, and is available as a
       defense to other crimes, at least those of the assaultive type.
   - People v. Goetz (NY COA, 1986): D shot 4 black youths when one asked him for $5. Ruled that
       D’s belief in the need for self-defense must be reasonable. This can be based on the
       circumstances facing D or his situation, but it still must be based on the objective reasonableness
       of the ordinary person. D was later acquitted of all but the weapons violation.
Battered Spouse Syndrome (BSS):
   - Battered Spouse Sydrome (BSS): sufferers commonly experience battering cycles, learned
       helplessness, escalation of abuse, and hyper-vigilance. May be used as a defense to crim charges.
       Such an instruction might increase D’s credibility in otherwise extreme cases. The usual
       accommodation created by the law is reduction to voluntary MS.
   - Most juris allow evidence of some subjective elements in determining who RP is and expert
       evidence to address culturally-based issues re: reasonableness of D’s belief in the need for self-
       defense (esp. when V was sleeping or unconscious when killed).
                                                   32
   -  Some critics argue against this subjective standard, while feminists argue that the RP standard is
      actually biased toward men and view reluctance to admit the defense and the perceived need for
      expert testimony is a symptom of the law’s masculine bias.
   - Evidence in BSS homicide cases usually comes mainly from D alone, and may seem dubious in
      some cases; the difficulty becomes weeding out disingenuous claims from genuine ones.
   - State v. Edwards (Missouri COA, 2001): D, 61, shot and killed her abusive husband in their store
      because she thought he was going to kill her. Held that the standard self-defense instruction
      wasn’t sufficient because it lacked a relevant subjective reasonableness specific to the syndrome.
      Rule: the pattern instruction for self-defense is inappropriate for BSS cases b/c it improperly
      applied the RP standard w/o reference to BSS, and precluded the jury from determining whether
      D was suffering from BSS and if so, whether she had a reasonable belief that she was in
      imminent danger based on what an otherwise reasonable person w/BSS would think. Shows how
      “reasonable person in D’s circumstances” should be applied.
Defense of a Third Person:
   - The law usually bases defense of another on that person’s right to self defense.
   - Generally, the modern rule is that a reasonable belief in the 3rd person’s right of self-defense,
      even if mistaken, provides a defense. Proponents of this suggest that it encourages citizens to
      help each other and counteracts ppl’s unwillingness to get involved. This is the modern trend.
   - The MPC approach is even more permissive: a subjective belief is enough.
   - Some jurisdictions have followed a more limited defense than the reasonable belief rule - the
      step into the shoes approach. Proponents of this view argue that is discourages the escalation of
      violence, encouraging ppl to investigate before exacerbating a fight.
          o People v. Young (NY, 1962): narrowly limited the right of defense of a third person,
              holding that D had no greater right to defend an arrestee than the arrestee had for himself,
              thereby rendering D’s defense invalid b/c he was mistaken about the situation.
   - Covarrubias v. State (TX COA, 2000): the man who D purported to defend was actually the
      unarmed aggressor in the fight, having attacked V and initiated a fist fight b/t them. Rule: D is
      justified in using deadly force against another to protect a third person when the latter is
      threatened by circumstance that would entitle him to protect himself, and D believes intervention
      is immediately necessary.
Defense of Property (and of Habitation):
   - The general principle is that moderate but not deadly force may be used to defend property
      in certain instances. However, the MPC allows use of deadly force to protect property:
          o In response to an attempt to dispossess the defender of his dwelling.
          o In response to an attempt to commit certain felonies involving violence against the
              defender.
   - Many States allow greater use of deadly force than the MPC does.
   - Many of the hardest cases involve poor working ppl who’re subjected to repeated burglaries and
      thefts that they content cant be prevented other than by deadly force and that literally cause the
      losses of their modest livelihoods.
   - People v. Ceballos (CA Sup Ct, 1974): D had a trap gun in his garage due to prior burglaries; it
      shot boys in an attempted burglary. Held that ppl do not have the right to use deadly devices that
      discharge in their absence in order to protect their homes. Rule: a trap gun is unjustified use of
      force even where if present D could have properly used deadly force b/c it lacks discretion
      and creates too high a risk of killing innocents.
Law Enforcement:
   - While an arrest formally fits the elements of assault, it isn’t a crime due to recognition of a law
      enforcement defense may exonerate D, usually even if it was unlawful, as long as it’s undertaken


                                                   33
       under an honest or reasonable believe in its lawfulness. In fact, most jurisdictions don’t limit the
       defense to peace officers, since citizens are allowed to make certain limited categories of arrests.
   - The common law permitted even deadly force for the arrest of a fleeing felon, at least when
       capital punishment applied to the underlying felony. The MPC, however, modified this, limiting
       such force to cases where the underlying felony involved use or threat of deadly force or where
       delayed apprehension would have created a substantial risk that the felon would’ve caused death
       or serious bodily harm.
   - Tennessee v. Garner (1985): imposed civil liability for damages pursuant to the Constitution and
       applicable civil rights statutes when a peace officer used deadly force to stop a fleeing non-
       violent felon (basically constitutionalized limits on the use of deadly force similarly to MPC).
           o But this may not govern how the State defines the law enforcement defense in its
                criminal statutes.
Necessity:
   - Necessity: a catchall, justification defense, that accounts for values that may override the
       policies underlying defined crimes. Is very fact-sensitive, and only available when the choice
       of evils is produced by nature/chance rather than human agency, and D chose the lesser evil.
       Generally the defense also requires that D’s unlawful act caused a lesser evil than the harm D
       sought to avoid in committing it and D must’ve be blameless in creating necessity.
           o Some suggest that it applies when D is driving toward help.
           o Generally denied re: homicide (see Regina v. Dudley & Stephens).
           o Some states set out the test in great detail; others just follow common law precedent.
           o Often appears re: political protesters who seek to justify civil disobedience (difficult),
                also re: prison escapes.
   - Commonwealth v. Leno (Mass Sup Jud Ct, 1993): D operated a needle exchange to try to reduce
       the spread of AIDS, defying Mass law prohibiting distribution of hypodermic needles w/o a
       prescription. Rule: the defense of necessity is limited to when D is faced w/clear and
       imminent danger (not debatable or speculative), where D can reasonably expect his action
       will effectively stop the danger, where there is no legal alternative and the Legislature
       hadn’t acted to preclude such defense by a clear and deliberate choice.
   - State v. Romano (NJ Super, 2002): allowed a defense of necessity to drunk driving where D was
       attacked and had no other reasonable alternatives available to him.
   - People v. Lovercamp (1974): recognized a necessity defense in prison escape case where D
       claimed danger in prison, but required proof of a specific threat of: immediate future death,
       forcible sexual attack, or substantial bodily injury; lack of time for, futility of, complaints to
       authorities; lack of time or opportunity for resort to cts; no use of force of violence in escape;
       immediate reporting to authorities by escapee once safety is reached.
Duress:
   - Duress: an excuse defense that arises from human agency in the form of another’s threat
       that if D doesn’t commit the crime, the other person will carry out the threat. Based on coercion.
       Some further suggest it should apply when D’s trying to escape a threat. Is sharply limited.
       MPC uses an objective standard, requiring that the coercion be enough to overcome a
       person of reasonable firmness, whereas the fed common law defense requires: immediacy,
       severity, objective justification, unavailability of escape, and sometimes prompt surrender.
   - The MPC disallows the defense of duress if D recklessly (or sometimes negligently) placed
       himself in a position in which it was probably he’d be subject to duress.
   - Ds often try to plead both necessity and duress.
   - U.S. v. Contento-Pachon (US COA 9th Cir., 1984): held that where one’s forced to be a drug
       mule on penalty of death of himself and his family, and does not tell the cops in his country for
       fear of their corruption, a duress defense should be allowed. Rule: in non-prison escape cases,
                                                    34
       where one has presented credible evidence that he acted under an immediate and well-
       grounded threat of serious bodily injury (not a vague threat of future harm), w/no
       opportunity to escape, the trial of fact should be allowed to consider a duress defense.
           o Coyle’s dissent: D was outside of the drug dealers presence on numerous occasions for
                varying lengths of time, and there’s no evidence his family was ever directly threatened
                or even aware of threats. D could’ve sought help from the authorities or fled.
   - State v. Toscano (1977): many juris categorically exclude homicidal crimes, ex. M, from being
       excused by duress, reflecting absolute respect for human life. (Note: the MPC rejects this limit).
Entrapment:
   - Entrapment: a defense based on gov’t persuasion where the gov’t has created the crime.
           o The subjective test: focuses on whether D was predisposed and the gov’t just gave him
                an opportunity, as opposed to being otherwise innocent. Asks whether gov’ts persuasion
                is strong enough to induce persons not inclined to commit the offense to commit it.
           o The objective test: acquits D regardless of predisposition if gov’t agents have acted in a
                manner likely to instigate or create an offense by employing methods of persuasion or
                inducement that create a substantial risk that such an offense will be committed by
                persons other than those who are ready to commit it. Excessive gov’t involvement.
                        MPC. Makes entrapment a true affirmative defense, meaning that D has the
                        burden of persuading the jury by a preponderance of the evidence.
           o Another approach is to find entrapment if the state supplies an ingredient necessary for
                the offense, or as including outrageous conduct by the gov’t.
   - One reason the entrapment defense is a last resort is b/c it opens up the trial to otherwise
       excluded evidence; D’s predisposition unavoidably becomes the determinative issue.
   - Cops face a dilemma b/t distinguishing “affording criminals an opportunity” from entrapment,
       esp. re: contraband offenses.
   - United States v. Poehlman (9th Cir. 2000): held that persuasion by a cop posing as the mom of
       the intended Vs had instigated and overcome D’s will, and D wasn’t predisposed to commit the
       offense, thereby entitling D to an entrapment defense. Employed a subjective test.
   - United States v. Russell: set out the prevailing, subjective view of entrapment in fed cts, which
       focuses on D’s mental state/predisposition. The key inquiry is whether: the gov’t instigated
       the offense by persuading an otherwise innocent person to commit it (defense is available),
       or whether D was predisposed to commit it and merely responded to the opportunity
       afforded by the gov’t (defense unavailable). Rule: a law enforcement officer may supply an
       important, but legal ingredient to a drug operation in order to make an arrest, but when agents’
       involvement in criminal activities goes beyond just giving an opportunity and could induce or
       instigate the commission of a crime by one not ready and willing to commit it that’s entrapment.
Insanity:
   - Determinism: is the philosophical doctrine that all facts and events, including human activity,
       result from natural forces. In crim law, it signified an approach that discounts individual
       responsibility, and instead seeks external causes – ex. poor parenting, education, or social
       conditions – to account for crim behavior.
   - Insanity: a rarely (< 1%) used excuse defense that D wasn’t sane enough to be held criminally
       liable. The MPC defines insanity liberally, as lack of a substantial capacity either to
       appreciate the wrongfulness of one’s crime or to conform one’s conduct to legal
       requirements. Some juris have narrower insanity defenses, for instance having a verdict of
       “guilty but mentally ill,” which avoids the issue of commitment and retention. Most states,
       however, mirror or modify the M’Naghten rule. Others have made insanity an affirmative
       defense, so it must be proved by D.


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          o Some states have abolished insanity as a defense: ID, UT, MT, NV. However, Finger v.
              State (NV, 2001): held NV’s statute abolishing the insanity defense unconstitutional.
   - Commitment: the usual sentence for those judged to be not guilty due to insanity.
          o Some jurisdictions provide for automatic civil commitment where D is acquitted by
              reason of insanity. Others require evaluation, but may allow commitment w/less evidence
              than needed for civil commitment (ex. preponderance of the evidence). But DP requires
              that states must release someone detained in this way who’s no longer mentally ill, even
              if his record shows a potential danger to the public.
          o The problem of commitment: it can be unfair to the insanity acquittee, or dangerous to
              the community.
          o Some states limit the max amount of time a successful acquittee may spend civilly
              committed, either by statute or at common law.
   - John Hinkleys acquittal of shooting Reagan on insanity grounds reversed the liberalizing trend of
      insanity defenses.
   - In insanity cases, ironically the more inhumane the crime, the better D’s chance of acquittal.
   - P’s dilemma: one D is found not guilty by reason of insanity, the same P who was fighting
      against an insanity defense must embrace and advocate it in order to get him committed.
   - M’Naghten (House of Lords, 1843): laid out the traditional, narrow test for insanity that has
      been followed in UK and U.S. until modern times. Held that every man is presumed to be sane
      and to establish insanity D must have a defect of reason or mind, and didn’t know the
      nature of the act or knowing the nature of the act, didn’t know it was wrong.
   - Durham v. United States (USCOA D.C. Cir, 1954): D had a long history of imprisonment and
      psychiatric hospitalization, was described as psychopathic and “of unsound mind” at the time of
      the offense, and said he was unable to form an opinion on the right-wrong issue (though a
      psychiatrist testified otherwise). Rejected M’Naghten. Rule: one should be found not guilty by
      reason of insanity where the unlawful act was the product of a mental disease or defect.
   - United States v. Freeman (USCOA, 2nd Cir, 1966): D’s heroin addiction had affected his mental
      state. Rejects both M’Naghten and Durham for the MPC test. Rule: a person isn’t responsible
      for criminal conduct if at the time, as a result of mental disease or defect, he lacks
      substantial capacity either to appreciate the wrongfulness of his conduct or to conform his
      conduct to the law’s requirements (MPC standard).
          o Note: Mere recidivism or drug addiction won’t justify acquittal under this standard.
   - Jones v. United States (1983): D was committed for longer than the max sentence for his alleged
      crime of shoplifting when found not guilty by reason of insanity. Rule: D can be confined until D
      no longer poses a danger to himself and others / regains sanity. This may be as short as 50 days if
      he’s recovered – so shorter than the period than the appropriate criminal sentence, but also may
      be for a period longer than the penalty for the offense.
          o Brennan’s dissent: an insanity acquittal shouldn’t provided a constitutionally adequate
              basis for involuntary, indefinite psychiatric commitment.
   - Kansas v. Hendricks (1997): upheld the KS Sexually Violent Predator Act, which authorized
      commitment of sexually violent ppl for periods longer than crim sentences corresponding to their
      crimes even in the absence of mental defect.
   - Kansas v. Crane (200): clarified the DP requirements for sexual predator commitments, holding
      that the Constitution required the State to prove some degree of lack of control on D’s part over
      his sexual conduct, but didn’t require total or complete lack of control.
Incompetence:
   - Constitutionally, a criminal D must be able to consult w/his atty w/a reasonable degree of
      rational understanding of what the crim trial process means. DP allows D to be required to
      prove lack of competency by the preponderance of the evidence. This is a pretty low standard.
                                                   36
           o D can be medicated into competency.
   -   If D is ruled incompetent to stand trial, it may be suspended indefinitely, and he may be
       committed (though there are constitutional limits on the duration of institutionalization if D can’t
       be restored to competency, as the nature and duration of it should bear some reasonable relation
       to the purpose for it, and if there’s no real probability of restoration of sanity, D must be civilly
       committed under separate standards or released).
    - D must also be competent to be executed (see Ford v. Wainwright).
    - The mentally retarded (theoretically) can’t be executed (see Atkins v. VA).
    - Riggins v. Nevada (1992): left the question of the constitutionality of forcible medication in
       order to make D competent to stand trial open, holding that the State might have been able to
       justify medically appropriate, involuntary treatment by establishing that it couldn’t get an
       adjudication of D’s guilt/innocence by using less intrusive means.
    - Sell v. United States (2003): held that Ds can be forcibly medicated to restore them to
       competency under proper conditions but they couldn’t be medicated indefinitely if there’s no
       hope of restoration to sanity.
Intoxication:
    - Often, intoxication can’t excuse general intent crimes, only specific intent crimes.
    - Usually a failure of proof defense, negating the mental element of an offense (particularly intent
       or knowledge, maybe premeditation or deliberation).
    - Involuntary intoxication sometimes more likely to provide the defense (but rare).
    - Some states have statutes providing that intoxication isn’t a defense, or that it can only appear at
       the penalty phase (so it can’t negate intent).
    - Intoxication may assist an insanity or diminished capacity defense, or a claim of mistake of fact.
    - MPC says that intoxication can provide a failure-of-proof defense if it creates a reasonable doubt
       about D’s mental state or voluntary action.
    - Montana v. Egelhoff (1996): showed problems of intoxication, concluding that Montana could
       permissibly exclude evidence of intoxication under DP Clause, b/c a jury might be excessively
       influenced toward discounting mens rea by intoxication evidence. Ginsburg concurred
       concluding that the statute redefined murder (intoxicated killing counts irrespective of mens rea).
       Dissent argued that denial of the opportunity to offer such evidence violated DP b/c the state had
       defined murder by reference to a specified mens rea that could be negated by intoxication.
Diminished Capacity:
    - Diminished capacity (aka diminished responsibility): a defense that applies in some states
       where D commits a crime under the influence of a mental illness or developmental
       disability falling short of the requirements of for insanity. Is often note available or
       admissible unless it’s relevant to negate specific intent.
           o Impaired mental condition, short of insanity, caused by intoxication, trauma, disease, that
                prevents one from having the mental state needed to be held responsible for crime.
           o Least controversial and most common in its failure of proof versions, most controversial
                in the rare form where it provides a partial defense to M, resulting in a MS verdict.
    - The authorities don’t make clear whether D must raise this defense w/ sufficient evidence, or
       whether P must prove mental capacity 1st.
    - May produce dysfunctional results, alleviating liability from a drunk D when a sober person
       wouldn’t have gotten off.
    - Must relate to the mental element required for the crime for the defense to work.
    - One approach treats it like provocation, so it reduces the extent of D’s culpability and therefore
       the grade of the crime (ex. from M to V MS), but few jurisdictions still go by this.
    - Some juris reject it altogether, so evidence of D’s mental illness is relevant to an insanity defense
       but not mens rea (and yet, these cts hold that voluntary intoxication can negate specific intent).
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   -  DC is also relevant to sentencing, providing a downward departure.
   -  It is often an issue in death penalty cases.
   -  United States v. Ettinger (USCOA 11th Cir, 2003): D in pretrial detention attacked a fed
      corrections officer. Rule: D can try to give psychiatric evidence to negate specific intent
      when it’s an element of the crime charged, but that’s not a defense – it instead negates an
      element of the offense.
Mistake and Ignorance as Defenses:
   - Mistake: under MPC mistake can exonerate only if it negates a material element of the crime or
      if the state of mind established by the mistake isn’t criminal, so it’s really more of a failure of
      proof theory (v. a general defense).
           o Mistake of fact: may render D not liable. A true or affirmative defense, or failure of
               proof defense where it negates an element of the crime. Ex. sugar for heroin, taking
               someone else’s coat.
                       Many factual mistakes have no effect on mens rea, but if D is mistaken in a way
                       that destroys mens rea, the mistake may prevent crim liability.
                       Reasonable mistake of fact that doesn’t negate any required mens rea sometimes
                       furnishes a true defense, if D commits the actus reus b/c of a mistake about the
                       liability facts (ex. statutory rape).
                       Some cts hold that reasonable mistake of fact can’t furnish a defense to a strict
                       liability offense.
           o Mistake of law: generally, D is still liable. Ex. thinking it’s okay to take someone else’
               coat. While ignorance of the law is generally no excuse, it is when:
                       Knowledge of the law is a required element of the crime (see Cheek)
                       Where the law is unpublished and unknown
                       Where D has reasonably relied on an authoritative interpretation of a gov’t officer
                       whose duty includes clarifying the law (see Miller)
   - Malum prohibitum: wrong because it’s prohibited.
   - Malum in se: wrong due to its inherent character.
   - In juvenile cts, age is a defense to crim responsibility, proceedings are more informal, and
      dispositions are more focused on rehabilitation (see In Re Winship).
   - State v. Sexton (NY Sup Ct, 1999): D who thought gun wasn’t loaded shot & killed V. Rule: a
      faultless or merely careless mistake may negate reckless MS, and jury instructions should focus
      on the required element of recklessness, rather than the defense of reasonable mistake.
   - Perez v. State (NM Sup Ct, 1990): 15yo V consensually slept w/ 20yo D, who thought V was 17
      based on what she and others had said. Held that while knowledge of V’s age isn’t an element of
      the offense, D should nonetheless be allowed to present a defense of mistake of fact in a statutory
      rape case where V is b/t 13-16 (very specific to the statute and legislative history).
   - People v. Cash (Mich, 1984): held that reasonable mistake of fact isn’t a defense to statutory
      rape (contrary to Perez) b/c fornication is inherently wrong.
   - Cheek v. United States (1991): trial ct erred in instructing jury not to consider D’s asserted belief
      that he was not covered by the IRS code. A mistake could negate the willfulness element. It was
      a defense for him to say he thought he didn’t have to pay taxes, but not for him to say they’re
      unconstitutional; so a good faith belief that a law doesn’t apply to you is a defense, but a good
      faith belief that it’s unconstitutional doesn’t. Pretty rare scenario.
   - Miller v. Commonwealth (VA COA, 1997): D, a convicted felon, got a muzzle-loading rifle
      based on assurances from various officials. Held: trial ct erroneously concluded that D’s PO
      wasn’t a source legally sufficient to invoke the DP Clause as a bar to his prosecution and
      conviction. Rule: where D was mistakenly given reasonable but false info by his PO that his
      behavior was not in violation of the law, and in reliance on such info in good faith partook in
                                                   38
       such behavior, he has a valid mistake of fact defense. The DP inquiry in such cases is whether
       D’s conviction is fundamentally unfair in light of the content of the info he received and its
       source, whether the info is reasonable, and whether D had good faith in acting on it based
       on the totality of the circumstances.


SENTENCING: THEORY AND PRACTICE
    - United States v. Bergman (USDC SDNY, 1976): D, a rabbi and prominent philanthropist, was
        convicted of filing fraudulent Medicaid claims. Rule: one’s previously unimpeachably high
        character might reduce his sentence for white collar crime.
    - United States v. Olis (2004): D fraudulently disguised debt for his employer, whose overvalued
        stock led to massive stockholder losses, but refused to plead out. Rule: where there are
        sentencing guides reflecting legislative intent to punish a certain crime in a certain way, an
        otherwise law-abiding citizen may receive a hefty sentence for a business indiscretion.
    - For these two: consider also when they occurred (Olis was against a backdrop of rising white
        collar crime), the Vs (the gov’t v. shareholders), the pleas (Bergman plead guilty, Olis had trial).
Utilitarianism v. Kantianism:
    - Consequentialism / Utilitarianism: philosophy testing rightness by good results. The ethics
        of producing good results. May compare costs and benefits to decide what actions are
        right/wrong. Emphasizes goodness.
            o Ex. murder is bad b/c of its results.
            o Advanced by Bentham and Mill: the good/pleasurable satisfaction is the highest value,
                dominant over other ideals of right or justice. “The greatest good for the greatest
                number.” Looks to aggregate effects (so a minority may be made unhappy to advance
                the happiness of the majority).
            o Promotes the goals of: deterrence, incapacitation, rehabilitation.
            o Vulnerable to the charge that it disadvantages already-disadvantaged minorities, and that
                it might promote confiscation of others’ property.
    - Deontology/Kantianism: philosophy testing rightness by intrinsic justice. Refuses to quantify
        benefits and costs, instead emphasizing intrinsic justice, or the rightness/wrongness of actions.
            o Ex. murder is bad b/c it’s wrong.
            o Advanced by Immanuel Kant. Idea of universal laws. All humans are valuable ends in
                themselves and shouldn’t be treated as means to others’ ends (anti-objectification).
            o Categorical Imperative: a rule that should be rigorously adhered to w/o variation and
                regardless of consequences.
            o Vulnerable to the charge that its inflexibility disallows balancing, even when losses
                overwhelm gains, and that there may be conflicting categorical imperatives.
            o Promotes retributive justice, measuring D’s individual blameworthiness.
    - Many states require enhanced minimum sentences for repeat offenders.
    - In Medieval Europe, criminal punishment generally revolved around execution or infliction of
        pain on convicted Ds, often in public, w/some use of confinement, too. Members of privileged
        classes were openly treated differently than others. Dignitary offenses against governing
        authorities were subject to severe punishment.
    - Modern sentencing philosophy has its roots in the 18th century, during the period of European
        history called “The Enlightenment,” which saw previous methods as barbaric.
    - Drawing on social K theory, Beccaria argued that wise legislators would enact crim laws and
        punishments trying to achieve the greatest happiness of the greatest #. He further argues that the
        purpose of punishments wasn’t to torment one so as to undo a crime already committed, but


                                                    39
       rather deterrence was the overriding goal and represented a humane alternative to existing
       practices. He advocated proportionality to societal harm (not necessarily blameworthiness).
   - Jeremy Bentham – utilitarian extraordinaire:
            o Hedonistic Utilitarianism: influential philosophy developed by Bentham in the late
                1700s, early 1800s, which argued that the greatest good for the greatest # is the best
                measure of right and wrong.
            o He was concerned that punishment be proportional to the crime so as to deter further
                crime and maximize aggregate resources rather than express state power or the desire for
                retributive justice.
            o Thought ppl will act rationally to maximize pleasure and minimize pain and respond to a
                system of proportional punishment.
            o Punishment shouldn’t be inflicted where it’s groundless, ineffective in preventing crime,
                too expensive, or needless (crime can be stopped w/o it).
   - Mill modified Bentham’s theory in the 1800s to argue that libertarian ideas of individual rights
       and justice were necessary to maximizing good or happiness, contended that aggregate good is
       best served by respecting personal autonomy unless it results in harm to others (though moral
       offenses don’t count as harm).
            o Other-regarding harm: can be suppressed
            o Self-regarding harm: no proper public concerns (ex. drunkenness, offenses against
                decency committed in private).
   - Gov’t intervention is valid to a Utilitarian only if it results in greater happiness, not b/c of its
       intrinsic “rightness.”
Deterrence:
   - Specific deterrence: the punished offender will be deterred from future offenses (so re:
       particular offender).
   - General deterrence: punishing one criminal increases the likelihood that others will thereby be
       influenced not to commit the same crime.
   - Deterrence theories usually seek a form of proportionality, to grade the amount of punishment to
       fit the crime.
   - Posner has drawn on Bentham’s theories to develop a Utilitarian approach to sentencing,
       focusing on the economic costs and benefits and the relationship b/t criminal activity and market
       efficiency. He concludes that for rationale actors, optimal deterrence is more likely to result
       from large punishments than from certainty of punishment. Others sharply disagree, insist
       that increasing the certainty of punishment is much more likely to deter.
   - Others argue that deterrence only works against a background of what we decide is
       blameworthy.
   - Many critics argue that punishment doesn’t deter, that most law-abiding ppl avoid crime not due
       to fear of punishment, but b/c they respect the law and authority. They point to research that
       indicates that those who tend to break the law pay no attention to it.
Incapacitation:
   - Three-strikes and you’re out laws: provide for life imprisonment upon conviction for a third
       felony. An incapacitation strategy.
   - Smart sentencing: trying to predict who’ll re-offend and focusing efforts on them.
   - James Wilson, “Selective Incapacitation:”
            o The great advantage to incapacitation is that it doesn’t require us to make any
                assumptions re: human nature (ex. deterrence works only if ppl consider the
                costs/benefits of their actions). Rather, it works by definition, its effects resulting from
                the physical restraint placed on the offender.
            o It works provided:
                                                     40
                      Some offenders are repeat offenders
                      Offenders taken off the sts aren’t immediately and totally replaced by new recruits
                      Prison doesn’t increase the post-release crim activity of the formerly incarcerated
                      sufficiently to offset the crimes prevented by their stay in prison.
           o All evidence implies that for crime reduction purposes, the most rational way to use the
              incapacitative powers of our prisons would be to do so selectively.
   - Critics argue that incapacitation is tantamount to throwing up one’s hands.
   - From a consequentialist point of view, the goal of punishment is to get results, and to that end
      incapacitation holds out the possibility of concrete results.
   - The problem of false positives: Andrew von Hirsh says that incapacitation may make ppl feel
      more secure b/c they believe criminals most likely to keep committing crimes are incarcerated –
      but if we pick the wrong ppl we may not be as safe as we feel and some ppl in jail will suffer
      unjustly. So to him, incapacitation may fail on consequentialist grounds, and moreover fail to
      accord w/retribution.
   - Critics of the false positive argument shift the ground, saying that the critical issue isn’t what
      will happen in the future but how to manage risks in the present.
   - Morris argues that, in practice, retribution helps us to know what punishments are unjust (too
      harsh, too lenient), but can’t say w/precision exactly how long a sentence is in the Kantian sense.
      Retribution properly limits but doesn’t define a just punishment. Thus, Morris argues that
      Utilitarian considerations should have free rein w/in the space defined by retributivist limits.
   - Many prosecutors’ offices attempt to identify career offenders, concentrate resources on them,
      and seek lengthy sentences that will incapacitate them.
Rehabilitation:
   - Rehabilitation: one of the sentencing models, evident in the nomenclature (ex. “correctional”
      facility). The original focus was on penitence, but it has no shifted to a medical model.
           o Facilitative rehabilitation: prisoners choose to participate in programs
           o Coercive rehabilitation: prisoners are forced to participate in programs and may not be
              released until they’re deemed rehabilitated.
   - Indeterminate sentence: instead of sentencing D to a relatively fixed term, is considerably
      broader and essentially removes the judge from the determination of sentence length and
      substituted the parole board as the real sentencing entity. Related to a medical model of crime.
   - Medical model of crime: sees criminal acts as analogous to symptoms of a disease that
      correctional experts may treat and cure. Critics often argue it’s inconsistent w/fundamental
      notions of human dignity.
   - Reform of criminals as a utilitarian goal: one way to increase the likelihood that criminals
      don’t continue engaging in criminal activity is to rehabilitate them by providing education, job-
      training, counseling, or therapy. Idea that this puts the former criminal on the path to being a
      contributing member of the community.
   - In the mid-20th century, rehabilitation appeared on its way to becoming the dominant theory of
      punishment, thanks in part to Karl Menninger.
   - Francis Allen, “The Decline of the Rehabilitative Ideal”
           o The ideal is profoundly affected by whether rehabilitation is seen as the exclusive
              justification of penal sanctions or only part of the penal strategy.
           o Two reasons for the persistence of the idea across time, culture:
                      The meanings and tendencies of the rehabilitative ideal can be grasped only when
                      considered in relation to the particular cultural contexts in which it arises.
                      The history of the ideal predates modern therapeutics.
   - Critics say rehabilitation doesn’t live up to its claim that it can change behavior, nothing works.


                                                   41
   -   Other critics have attacked the paternalistic aspects of rehabilitation that justify treatment for the
       good of the convicted criminal.
           o Idea that it allocates scarce societal resources away from other, more deserving groups
                that want them (ex. the poor, disabled), to a group that doesn’t deserve such favored
                status and might not want such benefits.
           o Criminals aren’t in the standard classes in society for which paternalistic state
                intervention is appropriate.
           o Such recasting of punishment in terms of treatment for the criminal’s good makes
                possible a kind of moral blindness that’s dangerous in itself.
   - The rehabilitative ideal has come under attack from both ends of the political spectrum: those
       who emphasized crime control argued that it wasn’t working, and those concerned w/prisoners’
       rights protested that it was unfair.
   - Rehabilitative approaches aren’t monolithic and most ppl can find at least one they embrace.
   - Rehabilitation is still alive in sentencing of youth offenders and in use of parole and probation.
Retributive Justice:
   - Retributivist in distribution: believes that purposeless suffering is unjust even when inflicted on
       convicted criminals and therefore disagrees w/Kant re: disconnecting sentencing from
       deterrence, incapacitation, and rehabilitation. But agrees w/Kant in part re: proportionality to
       blameworthiness as a limit on the distribution of sentences, using Kantian proportionality as a
       restriction on Utilitarianism, to prevent excessive or disparate sentences.
   - Kant had a rigorously retributive philosophy of sentencing. Punishment is matched to the
       crime and offender. The same harm done by the convict should be done to him. However,
       humans can’t be treated as means to someone else’s ends. Prohibits punishing someone severely
       as an example to others, but may result in harsh punishments (eye for an eye) and require
       imposition of a sentence even if it serves no Utilitarian function at all.
   - Kant’s supporters often avoid the label of “retributivism” and use the more appealing word
       “justice” to support their views, while opponents call it “revenge”
   - James Fitzjames Stephen saw retribution less as an effort to bring the scales of justice into ideal
       balance and more as an expression of society’s hatred of criminality. Idea that it prevents private
       violence / vigilantism that might otherwise occur.
   - Historically, in societies w/o state-sponsored punishment, blood feuds tend to occur resulting in
       retaliatory killings of innocents affiliated w/offenders.
   - Gregg v. Georgia: concluded that w/o retributive justice there may be vigilantism.
Combined, Additional Ideologies:
   - It’s possible to argue that Utilitarianism is really a disguised form of Kantianism. Justice is
       beneficial even to the Utilitarian, b/c it avoids hidden costs such as public rebellion against
       treatment of ppl that’s perceived as unfair.
   - It’s also possible to argue the reverse, that some kinds of deontology are distinguished forms of
       consequentialism: reckless risks to other lives are wrong b/c of the consequences.
   - The trouble w/combined views is that sometimes different views point to different solutions.
   - Utilitarian sentencing that produced overly harsh results would be self-defeating b/c it’d
       engender disrespect for law.
   - To be accepted, punishments need to reflect blameworthiness. (To that end, Utilitarianism
       sounds remarkably like Kantian retribution.)
   - The Utilitarian goal sometimes is referred to by the word “condemnation,” which makes it sound
       more functional and purposive than retribution.
   - Sociologists see the goal of punishment as the preservation of social cohesion, the common
       conscience, and community solidarity.


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   - According to Durkheim, community control is the only difference b/t vengeance and social
     cohesion, and a society that fails to achieve justice by punishing offenders will ultimately fall
     apart. Condemnation isn’t an effort to correct criminals, but rather reinforce faith in the law.
Modern Expressive, Restorative and Preventative Alternatives:
  - Restorative justice: an idealistic approach to criminal sanctioning that includes all stakeholders in
     a particular offense in a process of group decision-making on how to hand the effects of the
     crime and its significance for the future. The main goal is making amends for the offense,
     particularly the harm caused to V, rather than inflicting pain on the offender. Accountability is
     demonstrated by recognizing the wrongfulness of one’s conduct. Ex. family group conferencing,
     circle sentencing, community reparative boards, V-D mediation. Kind of like ADR for crim law.
  - Fixed sentence: for a set amount of time, ex. 2 yrs in prison.
  - Indeterminate sentence: release date isn’t established at sentencing, ex. 3-5 yrs in prison.
  - If an offender is convicted of multiple crimes, the sentencing judge will determine whether the
     sentences will be served concurrently or consecutively:
         o Concurrent sentence: one that’s served at the same time as another sentence.
         o Consecutive sentence: one that’s served after completion of another sentence.
  - Feinburg, “The Expressive Function of Punishment:” it’s not clear whether symbolic public
     condemnation helps or hinders deterrence, reform, and rehabilitation. The condemnatory aspect
     of punishment serves the useful purpose of making possible the performance of such symbolic
     functions as disavowal, non-acquiescence, vindication, and absolution.
         o Authoritative disavowal tells the world that the gov’t doesn’t condone the action being
             punished.
         o Symbolic non-acquiescence: speaking in the name of the people.
         o Vindication of the law: sometimes the state goes on record through its statutes in order to
             please its constituents, but then through official evasion and unreliable enforcement gives
             rise to doubts that the law really means what it says.
         o Absolution of others: by punishing one, the state makes clear that others are innocent.
  - Many shame sanctions are “creative sentencing” proposed not by the Prosecution, but by D as an
     alternative to incarceration.
  - Luna, “Introduction: the Utah Restorative Justice Conference:” defines restorative justice.
         o Supporters argue that increasing the severity of punishments has failed to control crime.
         o But may fail, and required deterrence and incapacitation as back-ups.
         o Critics suggest that it’ll lead to inconsistent results as different groups come up
             w/disparate sentences for similar crimes, that Ds will be pressured to waive constitutional
             rights, that it fails to satisfy the other goals of justice, that it pressures Vs to forgive
             before they’re ready, and fails to solve the problem that Ds perceive society and the
             justice system to be radically unfair.
  - Slobogin, “The Civilization of the Criminal Law:” increasing prominence of the dangerousness
     criterion as justification for confinement by the gov’t, with constraints on liberty based on
     dangerousness focusing on D’s future actions. Individual prevention should be the predominant
     goal of the criminal justice system, can be accomplished by looking at risk factors that correlate
     with anti-social behavior. The ultimate goals of risk management are specific deterrence,
     rehabilitation and incapacitation.
  - Legislatures impose sentencing ranges, but the trial judge often retains significant discretion.
  - Constitutional limits restrict legislatures’ ability to impose sentences; guidelines may restrict the
     sentencing judge; and options like incarceration, probation, and fines are set by law.
  - The American sentencing system has historically provided broad discretion. Typically, statutes
     have provided judges w/options and given little guidance in picking one, and appellate review of
     sentences has been rare. Recent trends, however, have limited this discretion.
                                                   43
   -   One important restriction on sentencing is the capacity of the criminal justice system; over ½ the
       States’ correctional systems have been declared unconstitutional, in part due to crowding.
   - Although the federal Cruel and Unusual Punishment Clause isn’t likely to lead to appellate
       reversal of lengthy sentences, occasionally a state constitution’s equivalent provision will result
       in a successful challenge (see People v. Bullock).
   - United States v. Pierce (4th Cir, 2005): a criminal sentence violates the Equal Protection Clause
       only if it reflects disparate treatment of similarly situated Ds lacking any rational basis.
   - EP challenges to sentences are rarely successful:
            o State v. Moran (Conn., 2003): shows how ct’s reluctance to second-guess the legislature
                may lead to a finding of rational basis that’s strained.
            o People v. Nguyen (CO, 1995): invalidated a statute authorizing more severe punishment
                for attempted 2nd degree assault than attempted 1st degree assault.
            o People v. Bolton (CA, 1979): overturned sentence that was based on D’s receiving
                welfare and having illegitimate children.
   - There’s no agreement re: the standards governing disproportionality.
            o Rummel v. Estelle (1980): held that the Cruel and Unusual Punishment Clause didn’t
                prohibit life imprisonment for a 3 time felony offender.
            o Solem v. Helm (1983): appeared to change course, b/c it held that the 8th Amendment was
                violated by a sentence of life w/o parole for a recidivist who’d been convicted of 3
                burglaries, false pretense, grand larceny, drunk driving, and a bad check offense.
            o Harmelin v. Michigan (1991): refused to follow Solem in upholding a sentence of life w/o
                possibility of parole (which was mandatory in that State) for possession of 672 grams of
                coke.
   - Ewing v. California (2003): D w/long criminal history was sentenced to 25 yrs-life for stealing 3
       $399 golf clubs under CA’s 3 Strikes You’re Out law. Rule: the 8th Amendment does not
       prohibit States from sentencing repeat felons to 25 yrs to life under a “Three Strikes” law.
            o Breyer’s dissent: cites Solem re: disproportionality. This is one of those rare cases where
                the punishment is grossly disproportionate to the crime.
Probation and Other Alternatives to Incarceration:
   - Probation: perhaps the most common sentence; parolees greatly outnumber the incarcerated.
       Allows for rehabilitation; despite that, is greatly distrusted by the public. May include conditions.
   - Probation conditions: conditions a probationer must adhere to. Commonly includes that he
       mustn’t violate the law again, must hold a job, support dependents, report to a PO (and
       sometimes a therapist), stay away from booze and drugs, stay in a specific area, report changed
       circumstances, not associate w/felons, avoid contact w/specific persons or specific places.
   - Suspended sentence:
            o Suspended execution: the ct imposes a prison sentence, then suspends service and
                releases the offender on probation.
            o Suspended imposition: places the offender on probation w/o imposing a sentence. If D
                then violates probation, the court then imposes a prison term.
   - Split confinement (aka shock probation): combines incarceration and probation. D serves a short
       jail term, then is released on probation, sometimes w/o knowing ahead of time that his
       incarceration will be brief. This gives D an unpleasant experience w/o long-term removal from
       his family, job. A variation is that D must spend some time, maybe weekends, in jail.
   - Restitution: compensation to V for the harm caused. Most jurisdictions authorize or require it. Is
       thought to be rehabilitative and contribute to deterrence. The amount should be set only after a
       hearing where the accused has an opportunity to contest the value of losses. Ex. burglar may be
       sentenced to repay the value of items taken.


                                                    44
-   Diversion: usually involves removing D from the criminal justice system. Can occur at various
    stages and be either very informal or very structured. Is consistent with rehabilitation, but may
    have a possible reduction in the effects of retribution, deterrence, or incapacitation. Ex. cop or
    prosecutor retrains from initiating charges if D isn’t apprehended again within the year.
-   Community service: Many jurisdictions have this as a sentencing option. It’s seen as helping
    rehabilitate Ds and provide deterrence.
-   Forfeiture: a civil alternative to a criminal sanction. Usually involves a process through which
    the gov’t takes and keeps property (ex. crime proceeds). Is usually motivated at least in part by
    non-penal purposes, though some kinds are penal in nature.
-   Many jurisdictions limit probation eligibility, denying it for certain offenses where it might not
    adequately deter, incapacitate, or do retributive justice (ex. murder, aggravated sexual assault,
    deadly-weapon crimes).
-   Though courts have wide discretion in imposing probation conditions, their authority isn’t
    unlimited, and some have been struck down as unreasonable, violating probation statutes, and/or
    unconstitutional. See United States v. Evans.
-   Generally, however, cts discretion is wide, and sentences requiring probationers to carry shaming
    signs, clean out stables, and avoid certain public locations have sometimes been upheld.
-   Public identification of sex offenders is common today.
-   When probation is revoked the ct may have multiple options, including modifying the release
    conditions rather than incarcerating D.
-   Every jurisdiction authorizes its cts to impose fines as criminal sanctions. These may serve as
    both general and specific deterrents and retributive justice, in many cases.
-   However, fines may discriminate against the poor in favor of the wealthy.
        o To that end, the Federal Sentencing Guidelines provide that the ct shall impose a fine,
            except where D is unable to pay.
        o The Scandinavian day-fine is based on the amount of $ D makes in a day.
-   People v. Meyer (IL, 1997): struck down a probation condition requiring D convicted of
    aggravated battery to post a sign in front of his home saying, “Warning! A Violent Felon Lives
    Here! Enter at Your Own Risk!”, as it was incompatible with the IL probation statute (which
    didn’t expressly recognize shaming sanctions) and as likely to have unintended consequences
    (including stigmatizing his live-in relatives).
-   Gagnon v. Scarpelli (1973): if D violates a condition of release, the ct may revoke probation,
    sending him to prison. However, probationers enjoy a conditional liberty which can’t be taken
    away w/o DP, and Ds are entitled to a hearing and has a right to counsel and to present evidence
    (though he is not entitle to grand jury review, a jury trial, or proof BARD; can be purely judicial
    review and a preponderance standard).
-   John L. v. People (2001): following the recently passed Proposition 21 – which had reduced the
    proof standard from BARD to preponderance and allowed hearsay in probation revocation
    proceedings – the ct upheld a lower ct’s order of more restrictive custody for 3 juveniles who had
    been placed on probation before the Proposition passed. This was not unconstitutionally
    retroactive b/c they had notice that the standards would apply if they violated their probation
    after Prop 21 passed.
-   State v. Curry (TN Sup Ct, 1999): D embezzler applied for pre-trial diversion, but prosecutor
    denied it. Held that where diversion is a formal program governed by statute in a jurisdiction,
    and aimed at D’s amenability to correction, a prosecutor can deny it where the criminal activity
    was calculated and took planning and thought. Rule: the circumstance of the offense and need for
    deterrence may alone justify a denial of diversion, but only if all other relevant factors about D’s
    potential for correction have also been considered.
        o Dissent: the majority denies prosecutorial discretion re: a very serious, unisolated crime.
                                                45
   -   Hudson v. United States (1997): where D received monetary penalties and occupational
       debarment due to OCC regulations and was later charged with banking violations, the Sup Ct
       denied dismissal b/c Congress’ intent was to create only a civil penalty and these monetary
       assessments weren’t so punitive as to make them crim in nature, so there was no DJ violation.
Incarceration and Semi-Incarceration:
   - Boot camps: prisons that resemble military training facilities, a recent innovation designed to
       teach young offenders discipline and accountability.
   - To that end, several semi-incarceration punishments involve deprivations of liberty, but not to
       the same extent as incarceration:
           o Home Confinement (aka House Arrest): D, usually a non-violent person w/little crim
                history, must stay at home for a certain period, and will be monitored (ex. by an anklet).
                More often used for pretrial detainees than convicted criminals.
           o Split sentences: might involve periods of incarceration followed by home confinement.
           o Halfway houses: a residential facility where offenders live when not at work or in a
                therapy or education program. Provides structure while still allowing Ds to attend to their
                jobs, other responsibilities. Many juris use these as way stations b/t prison and release.
   - Many jurisdictions and the ABA recommend that incarceration be ordered only when it’s
       absolutely necessary.
   - In practice, during the past 25 yrs, the prison population has greatly increased.
   - Mauer maintains that incarceration falls especially heavily on African-Americans and Hispanics,
       with them representing a disproportionately large amount of the prison population.
   - Usually, the trial judge imposes the prison sentence and an administrative agency, like the state
       correctional dep’t, decide in which institution it will be served. In some jurisdictions, the judge
       has the power to recommend the facility.
   - Incarceration in America is expensive, and prisons and jails are filled to capacity. It can also
       separate offenders from their families and jobs, reducing their likelihood of rehabilitation.
The Sentencing Hearing:
   - Sentencing hearing: an adversary proceeding in which both the prosecution and defense can give
       the ct info relevant to the sentencing decision.
           o May be held right after trial or later.
           o Generally less formal than a trial.
                        The defense may offer testimony from D, members of D’s family, and character
                        witnesses.
                        Allocution: D is accorded the right to personally address the judge.
                        The prosecution’s evidence may include V, who’ll describe the impact of the
                        crime, as well as witness to other crimes, character witnesses, and evidence
                        proving D’s crim record.
           o Is ordinarily conducted by a judge w/o a jury, though participation of juries is more
                common today than ever, and the Sup Ct has held that if a fact finding increases a
                sentence by a determinate amount, D has a right to have a jury make that finding. Also,
                some States give D a right to have the jury assess the sentence, instead of the judge, and
                the Sup Ct has held that there’s a right to jury sentencing in capital cases.
   - Presentence report: prepared by a probation officer and given to the ct. Includes such info as
       D’s family situation, educational and work history, physical and mental condition, financial
       status, impact of the crime on V and others.
   - Rules of crim pro usually provide protections against inaccurate info, ex. giving defense counsel
       the right to attend any interview of D and requiring that the PSR be disclosed to D and the gov’t.
   - Attys may file affidavits or similar factual docs, memos or briefs. Many fed cts decide most
       cases on the papers w/o receiving live evidence.
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   -   After a sentence is imposed, the trial ct still maintains the authority to alter it:
           o Most jurisdictions permit the judge to reduce the sentence w/in a certain period.
           o Most jurisdictions permit a ct to correct a sentence that wasn’t authorized by law.
   - Appellate review is narrowly restricted. Some cts refuse to overturn sentences unless there’s
       been abuse of discretion. The decisions tend to be fact specific. There is a trend however of
       greater appellate review.
   - State v. Reynolds (TN Crim COA, 2005): D convicted of possession of crack w/intent to
       distribute was sentenced to 15 yrs imprisonment after the judge consulted a PSR containing
       aggravating info, including prior convictions. Rule: the use of reliable hearsay is allowed at
       sentencing, and the ct must consider the PSR.
Parole:
   - Parole: an executive branch process whereby a board, usually comprised of 3+ ppl, who make an
       individual determination of the time each offender will spend in prison and the time on parole
       after release. Discretion is broad throughout the parole process.
           o Parole hearing: the offender, sometimes represented by counsel, is given a change to
                argue in favor of release.
           o Parole board: a group of three or more executive branch officials, often decides a
                prisoners actual release date, which may be moved up due to good behavior or other
                achievements.
           o Supervised release: subject to conditions like parole, but the judge (not the parole board)
                determines the duration.
           o A minority of American jurisdictions, including the fed gov’t, have abolished it. The
                usual practice is to allow slight, non-discretionary reduction of the sentence for good
                behavior, and to add to a system of supervised release.
   - Revocation of Parole: violation of a parole condition can result in revocation proceedings before
       the parole board (or sometimes the ct) and reincarceration for all or some of the unfinished term.
   - Clemency (aka pardon, commutation, reprieve, remission – depending on juris): an executive
       official’s authorization to reduce all or part of a sentence, delay implementation, or absolve the
       offender from all guilt. Some forms are seldom used. It’s relied on to correct injustices, spare
       judicial resources, recognize unique circumstances that make a change or sentence appropriate.
   - While the sentencing judge determines the sentence D could serve, in many jurisdictions the
       judge has little control over how much he will serve.
   - Correctional authorities are usually authorized to grant credit for good behavior or participation
       in rehabilitative programs.
   - Sometimes prison crowding results in sentence reductions through emergency release provisions.
   - Purely discretionary sentencing could lead to potential abuses:
           o Some judges’ reliance on illegal factors or their use of inadequate evidence.
           o At a systemic level, broad judicial discretion may mean that sentences depend more on
                idiosyncratic beliefs of judges than on actual differences b/t cases.
           o Ds and Ps can only guess at what might influence judges’ discretion difficulty figuring
                out what evidence to present.
   - Crump on “Determinate Sentencing:”
           o Some authorities counsel caution, arguing that the benefits of determinate sentencing are
                offset by the problems it may create, it might transform plea bargaining to undesirable
                forms or increase its use, give rise to substantial claims re: the violation of constitutional
                provisions, increase the cost of the adjudicatory process, change the composition of our
                jails and prisons in unpredictable ways, or deprive inmates of incentives for good
                behavior. They also argue that the sheer complexity of such systems is a drawback.


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          o Crump, however, advocates for it, as it might produce more consistent results and still
               includes some discretion.
          o It doesn’t mean that all penalties are mandatory and fixed; no system is perfectly
               mandatory, or perfectly discretionary.
          o The most determinate sort of sentencing is mandatory sentencing, though this may
               produce some ill-fitting sentences and leads to judicial fudging.
          o An alternative is the use of quasi-mandatory systems, which have limited escape vales for
               the exercise of discretion.
          o Today, most sentencing involves uncontrolled discretion.
          o There’s a range of alternatives, offering carrying control over discretion, in between.
                       Presumptive sentencing systems: there is a fixed sentence for a given situation,
                       but the judge has discretion to depart from it by stating his reasons for doing so.
                       Narrowing the range of sentence options and giving relatively unguided discretion
                       to the judge within this range.
                       The base-plus-enhancement model: authorizes an extended term of imprisonment
                       for certain crimes.
          o A good sentencing structure would be neither too mandatory nor too inflexible.
   - McDermott v. McDonald (MT Sup Ct, 2001): D was denied parole based on his failure to
      participate in a sex offender program. Rule: the requirements of due process are flexible and are
      fulfilled when a prisoner seeking parole has a chance to be heard and a written statement
      explaining why parole was denied.
   - Williams v. New York (1949): ruled that the Constitution does not restrict the view of the
      sentencing judge to the info received in open ct; he may consider other info (like a PSR).
          o Sentencing requires different processes from determining guilt or innocence.
The Federal Sentencing Guidelines:
   - Presumptive sentences: sentences that should be imposed in typical cases; most sentencing
      guidelines employ these. Departures ordinarily must be explained. Each crime is places in one of
      10+ classes of offenses, and each offender is also placed in a category (usually based on prior
      convictions), and the intersection between the two determines the sentence. The guidelines may
      influence whether a non-custodial sentence like probation should be assessed.
   - Determinate sentencing: has given rise to substantial constitutional claims, and the Sup Ct has
      invalidated mandatory application of the Federal Sentencing Guidelines. While these are
      no longer mandatory, they’re still usually determinative as advisory guidelines.
   - Prior to the fed guidelines, fed judges had great discretion in assigning sentences and the US
      Parole Board determined prisoners’ release dates. This structure was criticized b/c it:
          o Relied on a rehabilitative model that’d proved unsuccessful.
          o Facilitated sentencing disparity.
          o Produced a lack of certainty and honesty about when offenders would be released.
   - The Guideline Sentence depends upon: the offense level and the criminal history category (see
      p. 497 for how the guidelines applied to Olis as an example):
          o First, find what’s called the “Base Offense Level” for the crime of conviction.
          o Next, all other “relevant conduct” in the crime must be considered and the base offense
               level increased or decreased accordingly.
          o Then, consider Specific Offense Characteristics (ex. V’s unusual vulnerability, D’s role
               in the offense, obstruction of justice, acceptance of responsibility).
          o Then, make adjustments to the Base Offense Level
          o Then, calculate D’s Criminal History Category.
   - Despite the mathematical precision used to calculate most advisory Guidelines Sentences, the
      Guidelines also leave flexibility for Departures, which may be downward or upward (though the
                                                   48
    former are more frequent). These are advised only if the gov’t requests it, which gives D a major
    incentive to satisfy the gov’t interest in prosecuting other suspects.
-   The Guidelines also advise judges whether to use probation. A judge mustn’t assess a sentence
    below the minimum or above the max provided by Congress in the statute governing the crime.
-   Critics argue that mandatory guidelines deprive judges of necessary discretion and result
    in unduly harsh sentences and that the sentence categories contribute to prison crowding and
    decrease rehabilitation.
-   Justice Breyer was a member of the Sentencing commission and defends the Guidelines as
    helping diminish disparate sentencing and putting into place a system for sentencing research
    that could transmit to sentencing policymakers the results of judicial experience.
-   The Guidelines require the judge to use a preponderance standard in fact finding.
-   Alternatives to mandatory sentencing:
        o Jury fact finding coupled with mandatory (or quasi-mandatory) sentencing: a la Ewing v.
            California. A legislature could require indictments to include sentencing factors and set
            up sentencing trials with juries’ right after guilt determinations: the so-called “bifurcated
            hearing” model. A quasi-mandatory alternative would allow the judge to decrease the
            sentence either upon specified fact findings or by discretion.
        o Advisory (or presumptive) judge sentencing: essentially what we have, post-Booker.
        o Open discretion: the traditional model.
        o Discretion with narrowed ranges.
        o Definition of aggravated (or base-plus-enhancement) crimes: defines different crimes,
            using common sentencing factors, and specifying higher sentences for them.
-   Mistretta v. United States (1989): upheld the Federal Guidelines against a constitutional
    challenge based on unlawful delegation of sentencing authority and alleged violation of
    separation of powers.
-   United States v. Watts (1997): held that a sentencing ct may consider even conduct of which a
    jury has acquitted D if it’s part of the “Relevant Conduct.”
-   United States v. Crawford (7th Cir, 1993): the “Relevant Conduct” approach permitted the
    sentencing ct to rely on facts (additional marijuana) for which D wasn’t convicted.
-   Specht v. Patterson (1967): struck down a provision of the CO Sex Offender Act that provided
    for an enhanced sentence if the judge found, as a fact, that D was dangerous and a habitual
    offender, b/c no hearing was required, nor was any evidence other than a psychiatric report.
-   Apprendi v. New Jersey (2000): took another step that restricted judicial fact finding for
    enhanced sentences. There’s disputed evidence as to whether D’s crime was racially motivated
    or just b/c he was drunk. Involved NJ hate crimes statute allowing an extended term where a
    crime was motivated by racial hatred. Rule: other than the fact of a prior conviction, any fact
    that increases the penalty for a crime beyond the prescribed statutory maximum must be
    submitted to a jury and proved BARD.
        o O’Connor’s dissent: (correctly) predicted that the decision would cause a significant
            change in sentencing practice.
-   Blakely v. Washington (2004): expanded Apprendi, invalidating a sentence that fell within the
    statutory range, holding that the statutory maximum is the max sentence a judge may impose
    solely on the basis of the facts reflected in the jury verdict or admitted by the D (but purposely
    didn’t decide the constitutionality of the Federal Sentencing Guidelines).
-   United States v. Booker (US Sup Ct, 2005): a judge concluded by a preponderance of the
    evidence that D had possessed an additional 566 grams of crack and that he was guilty of
    obstructing justice, which mandated a sentence b/t 360 mos imprisonment and life. Rule:
    mandatory Fed Sentencing Guidelines violate the 6th Amendment in practice, but making
    them advisory solves that problem by deferring to judicial discretion. (Re-affirmed
                                                 49
      Apprendi). Sentencing judges must still take the Guidelines into account, however, and explain
      non-conforming sentences. Results in a sort of hybrid, “quasi-mandatory” system.
           o Breyer’s opinion for a different majority: concerned w/this remedy. Looks to legislative
              intent to provide certainty and fairness in sentencing. Fixes the remedy by severing and
              excising the provision making the Guidelines mandatory. Leaves the ball w/Congress’.
           o Stevens’ dissent: history doesn’t support a right to jury trial regarding sentencing facts.
              This decision risks unwieldy trials.
    - Gall v. United States (2007): below the guidelines sentence (3 yrs probation) reviewed only for
      abuse of discretion for someone who’d pulled himself out of drug ring and reformed his ways.
      Held that there’s no presumption of unreasonableness where a sentence is below the guidelines,
      giving more discretion to trial ct.
    - Kimbrough v. United States (2007): upheld below the guidelines sentence based in part on trial
      ct’s disagreement w/policy of fed guidelines that punished crack offenses much more seriously
      than powder cocaine offenses. Held that it wasn’t an abuse of discretion to disagree w/policy.
PREPARATORY CRIMES:
    - If D’s intent to harm is clear and he’s taken a sufficient step toward causing that harm, he may be
      guilty of a preparatory offense.
    - Anticipatory offenses: options for prosecution when object crime is not completed
           o Attempt
           o Solicitation
           o Conspiracy (may also be an option even if crime is completed)
           o Attempt & solicitation may merge if the crime occurs.
Attempt:
    - Attempt: an effort, even if unsuccessful, to commit a crime. D is not guilty unless P proves
      the elements of the offense, which usually include both a mens rea and actus reus.
    - Generally, the mens rea of attempt is specific intent. Thus many jurisdictions have held that
      it’s impossible to attempt a crime defined by recklessness, whereas others avoid the specific
      intent requirement by tying the mens rea for attempt to the mens rea for the object crime (so D
      need only show the degree of guilt required for the object offense). So, no attempted MS.
    - State statutes are vague re: the actus reus required, other than it must be direct (this prevents
      conviction for “thought crime and minimizes the likelihood of mistaken conviction by preventing
      the jury from inferring mens rea when it’s absent).
    - Various actus reus tests:
           o Last step necessary: everything but the crime (all necessary steps completed). Difficult.
           o Physical proximity doctrine: the overt act required for an attempt must be proximate in a
              physical sense to the completed crime.
           o Indispensable element: the attempt is incomplete if there’s any indispensable aspect of
              the criminal endeavor over which the actor hasn’t yet acquired control.
           o Probable desistance: the conduct constitutes an attempt if, in the normal course of events
              and w/o outside interference, it’s likely to result in the crime intended.
           o Abnormal step: an attempt is a step toward crime which goes beyond where normal
              citizen would think better and desist.
           o Res ipsa loquitur, unequivocality: an attempt is committed when the actor’s conduct,
              taken as a whole, manifests an intent to commit a crime.
           o Overt act (min requirement): any positive act in furtherance of the attempt is sufficient
           o Substantial step (MPC): a substantial step corroborative of D’s crim purpose (ex.
              stalking V). Many jurisdictions have adopted this to interpret vague statutory language.
    - United States v. Williamson (Navy-Marines Ct of Crim Appeals, 1995): D and V argued in the
      engine room of their destroyer, after which V left to hurt V. D went up a ladder and determined
                                                   50
      V wasn’t there. Held: the record showed insufficient factual basis for a guilty plea to attempt to
      do bodily harm. Rule: an overt act is sufficient to constitute an attempt if it goes beyond
      preparatory steps and is a direct move toward committing the offense, and it must amount
      to a substantial step corroborative of the firmness of D’s intent.
           o Welch’s dissent: the MPC requires a substantial step. We can actually determine D’s
               expectations during the critical time period – he expected to find V where he was
               looking. This took place on a small destroyer, so they must’ve been relatively close.
   - Mandujano v. United States (5th Cir., 1974): affirmed D’s conviction for attempted distribution
      of heroin where D said he could get it, took $650, then returned it b/c he said he couldn’t find his
      contact, adopting the substantial step test.
Impossibility:
   - True legal impossibility: when the object D has attempted isn’t a crime, even if completed,
      even though D thought it was (ex. drug isn’t illegal). Usually negates the crime of attempt.
   - Factual impossibility: D misperceives the facts, but if they were as he’d believed them to be,
      he could accomplish the object crime (ex. D shoots mannequin thinking it’s V). Usually not a
      defense to attempt.
   - False / Hybrid legal impossibility: uses literalism to skirt the reality that if facts were as D
      believe them, the object crime could’ve been accomplished.
   - Inherent impossibility: arguably of the factual variety and theoretically shouldn’t prevent
      conviction for attempt, but D’s incompetence is apparent and makes the attempt harmless. For
      example, trying to kill someone with a voodoo doll.
   - MPC drafters tried to eliminate the defense of impossibility by defining attempt if the
      objective would be a crime if circumstances were as D believed them to be.
   - HIV hypo: D was convicted of attempted murder for biting a corrections officer with intent to
      kill him. Held that a theoretical possibility of death was a possibility that could support attempt.
   - No attempted statutory rape under common law (because all elements must be present), but
      maybe under the MPC (where D’s knowledge doesn’t matter).
   - People v. Thousand (Mich Sup Ct, 2001): Sheriff posed as an underage girl. D had sexually
      explicit chats w/ and made repeated attempts to engage in sexual activity w/her, faxed her nude
      pics. They arranged to meet, and cops arrested him. Held: impossibility is not a defense to
      attempt in Michigan (though really this was more of a case of factual impossibility, which is no
      defense). Rule: attempt requires only that P prove an intention to commit an offense
      prohibited by law, coupled w/conduct toward the commission of that offense.
           o Kelly dissent: thinks legal impossibility is a viable defense. Cites Tinksey. Statutory
               interpretation leads to the inference that the legislature didn’t intent to punish conduct
               that a mistake of legal fact renders unprohibited.
   - People v. Jaffe (NY, 1906): Ds successfully used impossibility as a defense to the crime of
      attempted receiving of stolen property that they believed was stolen but in fact had been offered
      to them consensually by law enforcement officers as part of a sting. An example of legal
      impossibility negating liability.
Renunciation or Abandonment as a Defense to Attempt Crimes:
   - Renunciation: a defense, usually where abandonment is complete, voluntary, and harm is
      avoided. Not intended for situations where D is afraid of getting caught or is waiting for a better
      opportunity to commit the crime.
   - At early common law, once D met the legal requirements for attempt, he was guilty, regardless
      of any change of mind. Modern laws, however, generally recognized renunciation as a defense.
   - State v. Mahoney (MT, 1990): held that where D stabbed the clerk and went to rape her, but
      backed off when he saw all the blood from her wounds, that did not count as renunciation


                                                   51
        because his conduct wasn’t a manifestation of voluntary and complete renunciation of
        criminal purpose and an abandonment of criminal effort.
Solicitation:
    - Solicitation: promoting or facilitating the commission of a crime. The mens rea requirement
        is the same as the standard for attempt – D must have the purpose (specific intent) to have a
        crime committed. Under the MPC, the actus reus requirement is must less than that for attempt.
    - Using an innocent agent isn’t solicitation in some jurisdictions b/c solicitation requires that D ask
        someone else to commit a crime (ex. D tells valet to give him Porche, but it’s not his car).
    - Claxton v. State (TX Ct Crim Appeals, Houston, 2003): D arranged for biker Tiny to knock off
        her boyfriend. Used a statute almost exactly like the MPC. Rule: Proof must include
        corroboration but it’s not an “element” of the crime per se (needn’t be proven BARD).
    - People v. Thousand: over a vigorous dissent, held that there was no crime of solicitation b/c the
        statute was worded differently from the attempt statute, therefore the same facts didn’t furnish an
        impossibility defense to attempt didn’t furnish a defense to solicitation. (Also, it’s not illegal for
        a minor to have sex w/an adult, just the other way around).
Conspiracy:
    - Conspiracy: deliberately planning with others to commit an object crime. A separate offense
        from actually committing the object crime, and may be a crime even if it is unsuccessful. More
        amenable than most other offenses to law enforcement techniques like infiltration and
        communications interception. May lead to breath-taking liability. Requires:
             o Plurality: two are more people are required.
             o Agreement b/t the parties: to commit unlawful act or lawful act by unlawful means
                 (common law and some states require only this). This needn’t be expressed, can arise by
                 implication or consciously parallel conduct.
             o Intent: to enter into agreement.
             o Intent to promote the illegal object of the conspiracy. A non-criminal purpose doesn’t
                 become a crime just b/c it’s engaged in by a group of ppl.
                         Mens rea: both those intent requirements.
             o An overt act:
                         Traditionally, conspiracy doesn’t require that the overt act be independently
                         criminal; it only requires that it be in furtherance of the conspiracy.
                         Some jurisdictions, including the fed gov’t, have eliminated the overt act
                         requirement for drug conspiracies.
    - Pinkerton liability: liability for a conspiracy automatically expands the actor’s liability
        significantly; every conspirator is responsible for any reasonably foreseeable crime by co-
        conspirator in furtherance of the conspiracy (BROAD liability). See Pinkerton.
    - Wharton’s rule: an offense that requires multiple people by definition isn’t usually a
        conspiracy just b/c the necessary parties participate; if it’s an inherent part of the crime that it
        involves an interaction b/t two ppl (ex. prostitution, drug selling), that can’t also be conspiracy.
    - Knowledge of illegality isn’t enough to satisfy the classical requirements for conspiracy, and
        even intent to facilitate may not suffice; intent to participate or promote is needed.
    - There’s no federal crime of facilitation, but some States recognize the offense.
    - Under the MPC, a conspiracy with an undercover cop could be a crime b/c only the mens rea of
        the accused is determinative under a unilateral approach.
    - Under the common law, once D has joined the conspiracy, she remains liable for the crime even
        if she later disavowed it, though modern rules often change this rule, allowing a limited
        renunciation defense to conspiracy only if D actually prevents its success (it must also be a
        complete and voluntary renunciation).


                                                     52
-   Under the common law, once a D joined a conspiracy, she remained liable for the crime even if
    she later disavowed the conspiracy. Modern statutes, however, often change this rule to allow
    renunciation defenses to conspiracy, but only if D completely and voluntarily renounces the
    conspiracy and actually prevents its success.
-   The law of conspiracy also contains other consequences that may create significant advantages
    for P that aren’t available in other kinds of cases:
        o Choice of venue (and therefore, laws), b/c conspirators are often scattered.
        o Joint trials (guilt by association), which leads to wider admissibility of evidence.
        o Use of hearsay evidence: a statement made in furtherance of a conspiracy is admissible.
        o SOL is extended; doesn’t begin until conspiracy is over.
        o Pinkerton liability.
-   You needn’t have a stake in the conspiracy to be liable, it’s just one way to infer intent from
    knowledge.
-   Defenses to conspiracy:
        o Renunciation: take steps to thwart the conspiracy. A complete defense.
        o Withdrawal: disavow the conspiracy and notify co-conspirators of withdrawal. Not a
            complete defense, only cuts off liability for continuing conspiracy and co-conspirator’s
            crimes.
-   Different conspiratorial patterns:
        o Wheel: individuals all conspire w/each other.
        o Spoke: a single, central figure deals w/several co-conspirators in different conspiracies,
            but don’t conspire w/each other.
        o Wheel-and-spoke: a single, central figure deals w/several co-conspirators in different
            conspiracies, but there’s also agreement amongst the other individuals (the spokes) who
            act toward a common purpose in a single conspiracy.
        o Chain or chain-link: one person deals with a second, who deals with a third, who deals
            with a fourth.
                    Note: the difference in terms of Pinkerton liability can be significant. Sometimes
                    two separate wheel-and-spoke conspiracies share the same central figure, and this
                    can make it hard to decide where one conspiracy begins and another ends.
-   United States v. Falcone (1940): held that someone who sold sugar to a known moonshiner isn’t
    a co-conspirator w/the moonshiner. Something more than sale in the marketplace is required,
    even if the crim purpose is known.
-   Direct Sales Co. v. United States (1943): distinguished Falcone and upheld the conspiracy
    conviction of a pharmaceutical manufacturer that sold tons of morphine to a rogue dr. over 7 yrs.
-   People v. Lauria (1967): acquitted D of prostitution conspiracy where number call girls had
    used his telephone answering service and he knew of their business purpose. Suggests that
    mere knowledge can suffice if the object crime is heinous (felony-misdemeanor distinction). One
    way of proving intent to participate is by evidence of “inflated charges.”
-   People v. Roy (1967): similar facts to Lauria, but D also advised one prostitute of precautions
    she should take and introduced her to another call girl for the purpose of arranging the business,
    and opposite result: D’s conspiracy conviction was affirmed.
-   United States v. Lawrence (US COA for 7th Cir, 1992): D knowingly leased trailer to drug ring
    for meth production for $1K, covered the floor with plastic, but then backed out. Held that the
    evidence was not sufficient to support his conviction as a member of the conspiracy. Rule: to
    sustain a conspiracy conviction, there must be proof of a desire to promote success of the
    criminal object, not merely providing a space for criminal activity.



                                                53
   -   Farese v. Scherer (11th Cir, 2003): held that a client and an atty acting in the scope of client
       representation weren’t two separate persons for the purposes of the plurality requirement and
       therefore, there could be no conspiracy.
   -   State v. Pacheco (WA, 1967): reversed D’s conviction for conspiracy, holding that state law had
       retained the traditional common law bilateral approach to conspiracy, and therefore a gov’t agent
       feigning agreement w/D doesn’t constitute a conspiracy b/c no genuine agreement is reached. A
       dissent argued that if there really were abuse, D could claim an entrapment defense.
   -   Ianelli v. United States (1975): held that the Ds could properly be convicted both of the object
       crime and also of conspiracy because Congress intended this redundancy.


ACCOMPLICE LIABILITY:
  - Accomplice liability: actual aid or encouragement of crim activity, but no causation required (so
    it could be ineffective or unnecessary, ex. cheering on deaf D, getaway driver falls asleep).
  - Common law divided accomplices into a variety of categories:
         o Principals of the first degree: actually committed their offenses (ex. bank robber)
         o Principals of the second degree: aided and abetted and were present, actually or
            constructively (ex. getaway car driver).
         o Accessories before the fact: aided and abetted beforehand.
         o Accessories after the fact: provided aid after the offense was complete.
         o The trouble is that these artificial distinctions were difficult to apply and only tangentially
            related to blameworthiness. Accessories are subject to lesser potential sentences and these
            rigid categories often don’t correspond to proportional sentences.
  - Aiding and abetting: doesn’t depend on conspiracy; it’s an alternate theory separate and distinct
    from Pinkerton liability. Mere presence won’t suffice. Today the fed system criminalizes it w/o
    the common law distinctions; everyone who aids or abets becomes a principal and their
    degrees of blameworthiness are to be reflected only in different sentences.
  - The MPC rule, and some states, reject Pinkerton and its agency basis, focusing instead on
    individual guilt amongst persons legally responsible (though the drafters did include broad
    provisions elsewhere covering partial participants in crime). The MPC says that one is liable for
    a complete crime of another if he solicits, aids, or agrees or attempts to aid another while
    acting with the purpose of promoting or facilitating the commission of the offense (so you
    can be convicted for just encouraging someone to commit a crime). This meant to eliminate the
    pigeonholes of the common law and some of the odd decisions about what the crime covered.
  - MPC sets out three different ways to prove vicarious liability:
         o An affirmative act done w/intent to solicit or aid another responsible actor.
         o To use an innocent or irresponsible person
         o Failure to perform a legal duty.
  - If the principal isn’t culpable (due to justification or it wasn’t a crime), an accomplice is excused.
    But if the principal is acquitted, an accomplice can still be guilty.
  - Pinkerton v. United States (1946): D was in jail at the time of some of these crimes, but was still
    indicted w/his brother for violations of the Internal Revenue Code. Held that the substantive
    counts didn’t merge into the conspiracy count mandating only a single sentence not exceeding
    the maximum penalty provided by the conspiracy statute. Rule: D is liable for all reasonably
    foreseeable crimes committed by co-conspirators in course of and in furtherance of the
    conspiracy. Also, conspiracy does not merge into the object offense, even if it is, in fact,
    successful (commission of the substantive offense and a conspiracy to commit it are separate and
    distinct offense).


                                                   54
          o Rutledge dissent: this sets a dangerous precedent, resulting in broad vicarious liability. D
               was in jail for other crimes when some of these crimes were completed. This erroneously
               grafts broad civil liability onto criminal law.
   - Standefer v. United States (1980): D admitted authorizing payment for all 5 trips, but said they
      were purely social, not designed to influence the principal in the performance of his official
      duties. Rule: a D accused of aiding and abetting can be convicted after the named principal has
      been acquitted of the relevant offense.
   - State v. Gladstone (1970): took a narrow view of aiding and abetting, holding that Gladstone’s
      actions of telling someone where to buy pot and drawing a map there did not constitute aiding
      and abetting. One justice dissented, saying that the majority was usurping the role of the jury.
   - United States v. Medina-Roman (US COA 1st, 2004): D plead guilty to aiding and abetting her
      husband in carrying firearms re: a drug trafficking offense. Held: the trial ct erred b/c it didn’t
      inform D that aiding and abetting required knowledge the co-D was armed and facilitation of that
      act, BUT D still can’t withdraw her guilty plea b/c there’s no evidence she wouldn’t have plead
      guilty otherwise. Rule: to be guilty of aiding and abetting, D must have taken some
      affirmative action and facilitated the violation; there must be both knowledge and
      facilitation (so, a mere showing of knowledge to a practical certainty may be insufficient).
   - United States v. Luciano-Mosquera (1st Cir, 1995): a group of conspirators were found hiding
      with M-16 under a jeep. The ct acquitted one D of aiding and abetting the carrying of a firearm
      in the commission of a drug trafficking offense, b/c even if he knew about it, there was
      insufficient evidence to show he did anything to facilitate its carrying.
   - Rivera v. State: upheld an instruction that didn’t require any prior arrangement or communication
      between two men who went on to kill someone together.
Controlled Substance Crimes:
   - The Uniform Controlled Substances Act (see p. 600-603): governs many drug crimes. Defines
      drug crimes, lays out the different schedules, registration requirements, the rules that apply to
      prescriptions, penalties, registration procedures, record-keeping, and reporting by persons who
      may legally deal w/controlled substances (ex. drs and pharmacists).
   - Schedules: categories of controlled substances of differing abuse potentials related to regulatory
      provisions covering the legal handling of them.
   - Imitations: is represented to the buyer as a controlled substance, but isn’t (ex. sugar for coke).
   - Counterfeits: real controlled substances that are falsely trademarked (ex. pills marked Valium
      made by someone other than the authorized manufacturer).
   - Controlled substances statutes usually criminalize wide ranges of unauthorized dealing
      w/illicit drugs, of ascending seriousness, from possession of various quantities, to possession
      w/intent to distribute, delivery, distribution, and manufacturing. They usually also create
      crimes involving precursors needed for manufacture. Usually these statutes have increasing
      penalties for more serious conduct, more dangerous drugs, or larger amounts of drugs, and
      also usually regulate manufacturing, possession, and distribution of imitations or counterfeits.
          o Intent to deliver is necessary as a crime b/c it’s hard to catch someone in the act.
          o There are generally separate counts for different drugs.
   - There may also be situationally defined offenses (ex. delivery to a minor), as well as specially
      defined attempt, solicitation, and conspiracy offenses.
   - Prosecutors typically rely on circumstantial evidence in establishing intent to distribute
      controlled substances. For instance, possession of a large amount of a controlled substance is
      evidence of intent to distribute, while a small amount implies personal use.
   - Delivery of an imitation controlled substance under the UCSA requires at most constructive
      knowledge that the substance will be used or delivered as a controlled substance.
   - Lately there’s been a move to restrict sales of cold medicine b/c it can be used to make meth.
                                                   55
   -   Courts’ interpretive approaches to proof of possession BARD vary and cases may not be as
       simple as they look.
   - Due to the circumstances in which controlled substances are unlawfully sold and used,
       circumstantial (v. direct) evidence is often used to establish elements of possession offenses, and
       the cts make and apply law re: the inferences that may properly be drawn from indirect evidence.
   - The war on drugs has had a disproportionate effect on blacks, and there’s a sentencing double-
       standard (rehab v. incarceration).
   - A lot of violent crime is associated with the drug trade, and it’s a huge drain on our economy.
   - Morris v. Commonwealth (1999, VA App): affirmed D’s conviction for distribution to a minor
       where he told V that roofies make you feel intoxicated and gave some to her to look at and she
       took it, interpreting the word “distribute” broadly.
   - Wood v. Commonwealth (VA, 1973): found a legislative intent to give the term the broadest
       possible meaning to deliver or transfer in any actual or constructive way.
Proof of Possession Beyond a Reasonable Doubt:
   - Possession may be either exclusive or joint.
   - In some jurisdictions, conviction depends on discovery of a sufficient quantity of a drug; in
       others, any amount is enough.
   - To establish constructive possession, P must prove both that D had “dominion and control”
       over the drugs and knew of their presence and character.
   - In NY, w/certain exceptions, the presence of a firearm in a car creates a presumption of its illegal
       possession by all persons then occupying the vehicle.
   - Jurisdictions often criminalize the possession of other things considered dangerous, including
       firearms, explosives, and silencers.
   - The 2nd Amendment and cultural and political factors place limitations on criminalizing the
       possession of firearms; for instance, many places allow that firearms may be carried or used, as
       long as it’s registered, or only specific firearms may be regulated.
   - State v. Webb (IO Sup Ct, 2002): pot and paraphernalia was found in plain view in D’s apt when
       he was out, he had lots of cash but no job, previous drug conviction. Held: the evidence was
       insufficient to support convictions for drug crimes and child endangerment. Rule: where D
       hasn’t been in exclusive possession of the premises but only in joint possession, knowledge
       of the presence of the substances on the premises and ability to maintain control over them
       won’t be inferred; it must be established by proof.
           o Cady’s dissent: there was other evidence from which the jury could’ve reasonably
                concluded D had knowledge and control of the drugs & paraphernalia: their amount and
                extent, that D was unemployed and had tons of $20s, his previous drug conviction.
   - County Court of Ulster County v. Allen (1979): upheld the NY approach (the presumption of
       possession) against a constitutional attack under the DP Clause, emphasizing that a criminal
       presumption can’t be mandatory and must require the jury to find guilt BARD in the individual
       case, but that permissible presumptions or inferences are a staple of our adversary system.
   - People v. Ireland (IL App., 1976): held out the prospect that husband who moved in with pot
       dealing wife could be convicted but required strict instructions, confining jury’s inferences of his
       possession and requiring not only knowledge, but also control of the contraband by him.
TERRORISM:
   - Terrorism: to intimidate or coerce a civilian population, in order to influence the policy of
       a gov’t by intimidation or coercion or affect the conduct og a gov’t by mass destruction,
       assassination or kidnapping.
   - Section 2339B: a newer terrorism offense that makes it a crime to give material support or
       resources to a foreign terrorist organization w/knowledge of its character. Material support
       includes property, service, financial services, lodging, etc… (See Lindh, contra Sattar).
                                                    56
        o Earlier versions of 2339B covered providing material support in the form of personnel to
             a designated or active-terrorist organization, but didn’t define “personnel.” It also
             covered the providing of “training,” but didn’t define that.
        o In the Intelligence Reform and Terrorism Prevention Act of 2004, Congress amended
             2339B, defining “personnel” to include 1 or more ppl who may be or include oneself, and
             “training” as instruction or teaching designed to impart a specific skill, and added expert
             advice or assistance to material support.
-   An organization needn’t have engaged in terrorism, only to have been designated a terrorist org.
-   In some parts of the world, political violence against civilian populations is seen by some
    elements as the best alternative for social change.
-   Most crimes committed against American nationals abroad, or by foreign nationals within the
    US, are simply crimes. Foreign gov’ts normally are responsible for prosecuting them.
-   The Omnibus Diplomatic Security and Terrorism Act of 1986: primarily dealt with multi-
    national cooperation, processes for apprehending terrorists, and security for diplomatic missions.
    Also created a new crime covering assaults, homicidal attempts or conspiracies, or homicides
    committed against Americans abroad where the offense was intended to coerce, intimidate, or
    retaliate against a gov’t or civilian population.
-   The Anti-Terrorism and Effective Death Penalty Act of 1996: prohibits providing material
    support or resources to designated foreign terrorist orgs.
-   The USA-PATRIOT Act: mainly covers law enforcement tools, like surveillance and wire
    tapping, but also creates offenses of domestic terrorism and international money laundering.
-   The Homeland Security Act of 2002: brought about a long-sought-after reorganization of parts of
    more than 12 dep’ts into the Dep’t of Homeland Security.
-   The Classified Information Procedures Act of 1980 and the Foreign Intelligence Surveillance Act
    of 1998: dealt with procedural matters. CIPA requires cts to examine the relevance of requested
    info prior to discovery and provide substitute info when possible, and provides other remedies.
-   The Intelligence Reform and Terrorism Prevention Act of 2004: brought about the most
    sweeping reorganization of the fed gov’t in decades, creating the new position of Director of
    National Intelligence, facilitating info transfer, and consolidating functions of various
    intelligence groups. It also provided more procedural and law enforcement tools and refined the
    definitions of some existing terrorism crimes.
-   People’s Mojahedin Organization v. Dept. of State (1999): upheld the designation concept
    against a variety of constitutional and statutory attacks.
-   National Council of Resistance v. Dep’t. of State (D.C. Cir., 2001): held that State Department
    designations, which had been done unilaterally w/o notice or opportunity to be heard, were
    required to comply w/the Due Process Clause.
-   United States v. Lindh (USDC E Dist VA, 2002): D was U.S. citizen who fought with the
    Taliban, was prosecuted for killing a CIA agent using 2339B. Rule: lawful combatant
    immunity can only be invoked by members of armed forces who fight on behalf of a state
    and comply w/the requirements for lawful combatants. D has the burden of showing that
    the organization: is commanded by a person responsible for his subordinates, its members
    have a fixed distinctive emblem or uniform recognizable from afar, they carry arms
    openly, and conduct their operations according to the laws and customs of war. As far as
    2339, “personnel” means ppl who function as employees or quasi-employees who serve under
    the organizations control, and this term and “services” are not constitutionally overbroad.
-   United States v. Sattar (SDNY 2003): a contrast to Lindh. D was a high-ranking member of
    various designated terrorist organizations, was charged under 2339B. The lower ct held that the
    indictment was void for vagueness b/c someone of ordinary intelligence wouldn’t
    understand that using his own phone constituted providing communications equipment to
                                                57
       the person phoned and wouldn’t understand that providing personnel included carrying or
       communicating messages. However, a superceding indictment under 2339A was upheld. Held
       that 2339A is not unconstitutionally broad due to its narrower focus on traditional crimes,
       clearer reference to broad participation and higher mens rea requirement.
   -   Humanitarian Law Project v. Reno (9th Cir, 2000): held that “personnel” and “training” were
       unconstitutionally vague.
   -   Ex Parte Quirin (1942): upheld the presidential power to use military tribunals to try persons for
       violations of the laws of war and other war-related offenses.


  The President’s War Powers:
  - The Constitution makes the President the Commander-in-Chief of American armed forces, which
     gives him various diplomatic and foreign affairs powers, including the powers to compose
     military tribunals and deal with battlefield capture. The limit of this authority is unclear; the
     constitutional language is general and the cases have been few.
  - Previous Presidents have signed orders prohibiting assassination. Since 9/11, the White House
     has interpreted these policies to allow self-defense by the US and that a non-public directive
     allows American agents to attack Al Qaeda operatives worldwide.
  - The Sup Ct has refused to prohibit prosecutions based on abduction of individuals identified as
     terrorists who are then delivered to the U.S.
  - Under the War on Terrorism, the gov’t may arrest and detain a material witness for a criminal
     proceeding if it’s impracticable to secure his presence. Immigration defenses often furnish the
     basis for extended detention.
  - Federal law bans the use of tactics that rise to the level of torture to interrogate suspects or those
     who have may have information about terrorist organizations.
  - Presidents have claimed broad powers to detain both lawful combatants, who become POWs
     subject to the Geneva Conventions, as well as unlawful combatants.
  - Some predict that the hearing-like mechanism that the Ct had required would be impractical to
     satisfy and that releases of dangerous combatants would follow.
  - Hamdi v. Rumsfeld (US Sup Ct, 2004): D was captured by the Northern Alliance while fighting
     for the Taliban and engaging in armed conflict against the U.S. Upheld the authority to detain
     persons legitimately determined to be enemy combatants for the duration of hostilities. A
     citizen-detainee seeking to challenge his classification as an enemy combatant must receive
     notice of the factual basis for his classification and a fair opportunity to rebut the gov’ts
     factual assertions before a neutral decision maker. However, hearsay and a presumption in
     favor of the gov’t’s evidence may be allowed, as long as that presumption is rebuttable.
         o Suggested the possibility that its requirements could be met by a properly constituted
             military tribunal.
         o Stevens’ dissent: would’ve held D’s detention illegal w/o describing DP procedures.
         o Scalia’s dissent: argued that trial for treason in fed ct was appropriate, but the ct has met
             the emergency in an unconstitutional way.
         o Thomas’ dissent: this detention falls squarely w/in the fed gov’ts war powers, and we
             lack the expertise and capacity to second-guess that decision.
GUILTY PLEA AGREEMENTS:
  - Guilty plea: a compromise whereby D knowingly, intelligently, and voluntarily waives his
     right to a variety of constitutional rights (proof BARD; jury trial; to present evidence;
     confront witnesses; appeal). P has great discretion.
  - The real decision-makers are often D, his atty, and the prosecuting atty:
         o Often D insists on trial (often against the advice of counsel).
                                                   58
         o P can also insist on trial by refusing to settle for less than the maximum in a serious case
             or creating conditions under which D believes he’ll do better at trial.
-   Federal Rule of Criminal Procedure 11 requires the judge to cover many specific points
    w/D before accepting a guilty plea. The ct must:
         o Address D personally in open ct and ensure that D understands the crime and sentence
             range, his right to counsel and a jury trial, and other matters of law.
         o Ensure that the plea is voluntary and not the result of force, threats, or promises (minus
             the plea agreement).
         o Get disclosure of any plea agreement.
         o If the ct doesn’t follow said agreement, it must provide D a chance to withdraw the plea.
         o Confirm that there’s a factual basis for the plea.
-   Factors that influence a plea: atty’s skill; the evidence known: stakes for each side; case load
    pressure; D’s risk-aversion/tolerance; D’s innocence/guilty; D’s atty’s advice.
-   Sometimes in non-violent cases in which it’s hard to tell which of multiple Ds is most culpable,
    P will offer to settle by dismissal of other Ds if any one pleads guilty (this is allowed under
    Newman). The justification appears to be that settlement is preferable for both sides to trial and
    that Ds’ choices are likely to be affected by their relative guilt.
-   While the overwhelming majority of indictments are resolved by negotiation and
    settlement, that doesn’t mean that lawyering work isn’t needed (in fact, sometimes more is
    needed w/negotiation).
-   Some argue that judicial participation in plea bargains helps b/c it makes settlements known in
    open court, judges know about them for determining voluntariness, and the ct allows withdrawal
    if it will sentence more harshly than the bargain (these protections appear in federal, and many
    state, rules).
-   Now, under the Federal Sentencing Guidelines, acceptance of responsibility may reduce a
    Guideline Sentence, and can be shown in part by a guilty plea (contra Scott). The Guidelines also
    encourage sentencing judges to enhance sentences due to perjury at trial.
-   “Don’t Try: Civil Verdicts in a System Geared to Settlement” by Gross & Syverud:
         o The great majority of cases are settled. Despite pop culture’s portrayal of trial as the
             quintessential, dramatic instrument of justice, our justice system avoids trial at any
             reasonable cost.
         o Our rules are geared toward settlement.
         o That said, trials still have an impact. Their public visibility makes them oft studied, and
             they therefore frame the ways in which private bargaining occurs.
         o Trials aren’t representative of most litigated disputes.
         o Jury verdicts are rarely compromises; there’s a winner, and a loser.
-   US Sentencing Commission, Intro and General Application Principles:
         o Some urged the Commission not to attempt any major reforms on the plea agreement
             process b/c any radical change threatened to make the fed system unmanageable.
         o Others argued that the guidelines failed to control and limit plea agreements and left a
             loophole that undermined the guidelines’ purpose.
         o The Commission didn’t make major changes, rather issued a general policy statement
             concerning the acceptance of plea agreements.
         o They expect the guidelines will have a positive, rationalizing effect on pleas b/c:
                     They create a clear, definite expectation re: the sentence a ct will impose in the
                     event of a trial.
                     They create a norm cts can refer to in deciding whether to accept or reject a plea
                     arrangement recommendation.
-   Alternatives to our current system & their disadvantages:
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        o Higher dismissal rates. These reflect wasted intake resources, however, and some
            probably really should be adjudicated. The hardest cases (ex. rape) will likely be
            disproportionately dismissed.
        o Intake screening: the prosecutor’s office can scrutinize cases and reject them initially at a
            higher rate. But, it’s difficult to predict developments accurately when there’s only a
            police report and hard cases may get screened out.
        o More courts. However, this will be costly and may take $ from other social programs.
        o Decriminalization: libertarians propose decriminalizing drug crimes, prostitution, etc…
            But, this might lead to more crime.
        o Alternative sanctions: might be less expense for DP. But might provide less process.
        o Simpler, shorter trials: our system is the most expensive worldwide. We could use less
            complex and more open rules of evidence, informal jury charges, smaller juries, etc… to
            cut costs. But this may make ours a less credible system.
-   The internal reality of the criminal justice system is that jury trials are a scarce, previous
    resource, and settlement is the norm.
-   Some believe that disposition of a case by guilty plea or dismissal usually approximates just as
    just an outcome as jury trial, esp. given atty’s ability to predict outcomes and the precariousness
    of the system.
-   In some States, D’s waiver of jury trial must be in writing and must be approved in writing by
    the judge, and absence of a written waiver and consent will invalidate the plea even if D did
    everything orally and on the record (see Young).
-   In some jurisdictions, a plea of guilty is a trial, requiring admissible evidence proving all
    elements (see Tullos). It’s not required, however, that it all be oral or by Q&A; a written
    stipulation signed by D will usually suffice.
-   Newman v. United States (US COA D.C. Cir, 1967): ruled that to deny D a deal offered to a
    co-D indicted w/the same crimes doesn’t violate DP or EP. Permits differential treatment.
        o Bazelon’s concurrence in the affirmance only: D made no attempt to establish the reasons
            for the different treatment, so it’s impossible for him to say it’s unconstitutional.
-   People v. Henzey (1965): upheld a DA’s discretion to refuse to recommend lesser convictions for
    any of 4 Ds unless all plead guilty (even though one was her brother); this wasn’t coercion, no
    threats were made.
-   Scott v. United States (US COA D.C. Cir, 1969): sentencing judge said he might have been more
    lenient had D plead guilty, expressed his contempt that D had deliberately lied. Held: the judge’s
    consideration of D’s failure to express remorse during the sentencing hearing is error b/c it
    denied D the privilege against self-incrimination. Rule: a guilty plea by one fully aware of the
    direct consequences, including the actual value of any commitments made to him by the
    court, prosecutor, or his own counsel, must stand unless induced by threats,
    misrepresentation, or promises that, by their nature, have no proper relationship to the
    prosecutor’s business (ex. bribes). While differential sentencing (giving one who pleads guilty a
    lesser sentence than one who demands a trial) may be allowed, the court should not play a part
    in the offering of pleas.
-   Tullos v. State (TX COA, 1985): D stabbed V in the back with a scratchawl (like an ice-pick).
    When V cried out, his dad came to his aid w/a hammer, and D shot the dad. D plead to an
    indictment that alleged he’d threatened V. Held: here the evidence was insufficient to show that
    D threatened V and he’s therefore entitled to an acquittal on that charge. Rule: while generally if
    D testifies at either the guilt or punishment phase of trial and admits his guilt, he’s foreclosed
    from challenging the sufficiency of the evidence, D’s admission of guilt in his plea must
    conform to the allegations in the indictment; otherwise, he’s entitled to acquittal.


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-   Broaddus v. State (TX COA, 1985): held that where the prosecutor, D’s atty, judge, and D were
    all under the reasonable but mistaken impression that D could appeal the denial of his motion to
    suppress evidence, D’s subsequent guilty plea was rendered involuntary.
-   Young v. State (TX COA, 1983): reversed a guilty-plea conviction b/c the trial judge forgot to
    sign in the space that signified ct approval.




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