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3. Dudley v. Stephens
a. Killing an innocent person to prevent starvation could not be justified and
therefore constituted murder
b. Deterrence:
i. Try to set precedent that forclose others from commiting this crime
in similar situation
Origins of Criminal Law
1. Common Law
2. Criminal Statutes
3. Model Penal Code
Basic Requirements for Criminal Liability
1. Actus Reus: guilty action act, possession or omission
a. Physical or external portion of the crime
b. Components:
i. A voluntary act (or sometimes omission)
1. Bodily movement, muscular contraction: physical but not
necessarily visible which follows volition (governed by
will)
2. Common law support
3. Habit = voluntary action (product of effort/determination of
the actor)
4. Multiple personalities = voluntary
5. Involuntary = only if for one reason or another the persons
body is moving in a way that is not controlled by their mind
a. Hyponsis = not voluntary
b. Somnambulism = not voluntary
6. MPC: only need some voluntary act
a. Each state requires voluntary act?
i. Except for violations
ii. Involuntary = any conduct that is not a
product of the effort or determination of the
actor, either conscious or habitual
1. Includes hypnosis
7. Epilepsy = not voluntary, but when have knowledge,
disregard of conseuqences is culpable negligence
a. People v. Decina (N.E.2d 1956)
i. D was culpably negligent where he drove
his car knowing he was subject to epilectic
seizures
8. Martin v. State (Alabama Ct. App. 1944)
a. The D could not be properly charged with public
drunkenness where he was forcibly carried from his
home by an arresting officer
c. Willful blindness
i. Aware of high probability of existence of
fact in question, AND
ii. Takes deliberate action to avoid confirming
the fact, OR
iii. Purposely fails to investigate in order to
avoid confirmation of the fact
1. Intended Killings
a. Natural and Probable Consequences Rule
i. Forseeable consequences demonstrate intent
b. Deadly-Weapon Rule
i. Intent to kill is supposed when intentionally uses deadly weapon or
weapon directed at a vital part of human anatomy
c. Premeditation & Deliberation
i. Seized upon as distinguishing particularly bad, serious kinds of
murder
ii. Almost all states grade as first degree murder
iii. Deliberate = to measure and evaluate the major facets of a choice
or problem
1. Cool purpose, free from excitement, passion
iv. Premediate = to think about beforehand
v. Commonwealth v. Carroll (Supreme Court of Penn. 1963)
1. D was properly held guilty of first degree murder
(premeditated) for shooting his wife after an argument even
though the time frame was extremely short no time is too
short
2. Emotional impulse is not sufficient to negate intent
impossible to find intentional killing that is not
premeditated under this judge
3. Specific intent can be found from:
a. Ds words or conduct
b. Attendant circumstances and all reasonable
inferences therefrom
c. Intentional use of deadly weapon on vital part of the
body
vi. State v. Guthrie (Supreme Ct. App. West Virginia 1995)
1. Ds conviction for first degree murder could not stand
because the jury instructions were confusing in equating the
terms willful, deliberate, and premeditated
2. Premeditation requires some evidence that D considered
and weighed his decision must be some period between
formation of intent to kill and actual killing (some
opportunity for reflection, even if small)
a. Did not purposefully contemplate intent
3. In conflict w/ Pennsylvania view
2.
3.
4.
5.
6.
2. Unintended Killings
a. Criminal Negligence
i. Common Law
1. Involuntary manslaughter
2. Gross deviation from the standard of care that reasonable
people would exercise in the same situation
3. One who should be aware of risk, but is not required
gross negligence, nt ordinary
4. State v. Barnett (S.C. 1951)
a. Negligence of accused must be culpable, gross,
reckless, such a departure that it is incomptable with
proper regard for human life indifference to
consequences
ii. MPC
1. Negligent Homicide
ix.
x.
xi.
xii.
i. Minority position most states would say surviving drag racer did
cause death
1. Vicarious responsibility aided and abetted
2. Reckless and foreseeable
ii. Drag racer could not be held guilty where other racer chose to pass
a truck when coming the other way brought death upon himself
1. Made his own decision
iii. Narrow view of proximate cause (unlike tort law)
d. Commonwealth v. Antencio (Mass. 1963)
i. D could properly be found guilty of manslaughter where he
engaged in Russian Roulette
ii. More expansive than tort law decedent contributed to his own
death, but criminal law wants to avoid people who bring death
iii. Strange result because seems like a free action, but court says it
was caused by what the others were doing
1. Foreseeable
MPC:
Jury question
But-for is required (successive sufficient if it wasnt for both wouldnt)
Treats proximate cause as actors culpability
o Asks would it be fair to hold person responsible for unforeseen result and
treat the person as criminally liable for that result?
Was the actual result too remote or accidental to have a just
bearing on the actors liability or on the gravity of the offense?
o Would not allow conviction for felony murder if death was not probable
consequence of felonious conduct
o 1) Did they cause the result with the culpability required by the main
offense?
Two ways to satisfy result element if the actual result is not the purpose or
foresight of action
o If actual result differs from what is intended only in the respect that
someone else or something else was injured or affected, then causation is
satisfied
o Actual result involves the same kind of injury or harm and is not too
remote or accidental in its occurrence to have a just bearing on the
liability
3(b) whether the result was too remote or accidental to be fairly assigned to the
D
Attempt
6 stage process:
o Conceive of the idea
o Evaluate the idea
o Fully form the intention go forward
o Prepares to commit crime
1. Mens Rea
a. Requirements:
i. Must intentionally commit acts that constitute actus reus of
attempt
b.
c.
d.
e.
i. Actus Reus
1. Focus on how much has already been done rather than how
much is left
2. In incomplete attempt cases, must have done substantial
step toward carrying out intent
a. Strongly corroborative of actors purpose
3. E.g. lying in wait
4. Question = has he done something which under the
circumstances as he believes them to be is a substantial step
towards commission of the crime?
5. Watered down version of equivocality
6. United States v. Jackson (1977)
a. Ds convictions were upheld for attempted robbery
where they had masks and guns but never sat
around and did nothing.
b. Required substantial step in course of conduct
designed to accomplish criminal result, and strong
corroborative criminal purpose
c. Had moved out of prep phase
7. US v. Harper
a. Court said they were applying MPC, and creating
bill trap for robbery that would take 45-90 minutes
for technician to fix machine was equivocal.
b. Dolinko says this should come out as a substantial
step under MPC
3. Abandonment
a. Some recognize as a defense only if D voluntarily and completely
renounces criminal purpose
b. Not voluntary if motivated by unexpected resistance, absence of
instrumentality, or some other circumstance that increases likelihood of
arrest
c. Same in MPC complete defense
i. 5.01(4)
ii. abandons effort to commit crime or prevents from committing,
AND
iii. conduct manifests a complete and voluntary renunciation
d. People v. McNeal
i. No defense where D stopped rape and returned V after pleading
with him
ii. Victims unexpected resistance made the renunciation involuntary
4. Impossibility
a. Legal Impossibility (Defense)
i. Pure legal impossibility: Not guilty of attempting to commit a
crime thats not actually a crime
1. E.g. selling bootleg liquor after Prohibition is over
1. Mens Rea
a. 1) Intent to assist the primary party or render the conduct that forms the
basis for the offense AND
i. Must have PURPOSE unless in a state where knowledge is enough
for more serious crime
b. 2) intent that the primary party commit the offense mens rea for the
target crime?
i. Second element often inferred from the first in cases such as
murder, but in theft cases that require a specific intent it becomes
more relevant
ii. Must have specific intent for specific intent crimes
iii. SL crimes generally must know all the essential facts that make it
criminal?
iv. Attendant circumstances
1. Same knowledge as substantive offense requires
c. Most courts: must have purpose in unlawful undertaking, not just
knowledge
i. Unless: knowingly furbishes something and:
1. Inflated prices
2. Grossly disproportionate amount of sales from business
that was criminal
3. Provides goods or services for which no lawful purpose
4. I thought this was for conspiracy?
d. Majority allow accomplice liability when actor is reckless or negligent if
that is all that is required for the substantive offense
i. Intended to do that act encouraged, reckless mens rea in relation to
the accident
ii. Some say must want crime to take place or know it will happen so
no accomplice liability for reckless/negligence
e. Hicks v. United States (Supreme Court 1893)
i. Jury instructions were improper where they allowed to find D
guilty without finding of intent to encourage Rowe to kill
ii. Exactly what D had in mind is not clear from his action of taking
off his hat
iii. Not enough that words may have had the effect of encouraging to
kill, must have intended them to do that
f. State v. Gladstone (Supreme Court of Washington 1970)
i. D could not be held guilty of aiding and abetting the sale of
marijuana where he told the purchaser where to find the seller
ii. Required that D had true purpose to aid or encourage the
perpetrator to engage in conduct that constitutes the crime
1. Didnt really care if he succeeded disinterested party
2. Did not associate himself with the venture
g. Knowledge enough for more serious offenses?
h. In furtherance of common design ?
i. Circumstances and Results
iv.
v.
vi.
vii.
viii.
2. Actus Reus
a. Wilcox v. Jeffrey (Kings Bench Division 1951)
i. D was properly held guilty as an accomplice to an illegal jazz
concert where he reported on it favority and knew it constituted an
illegal act had the intent that it continue
b. Materiality of the Aid
i. State ex rel. Attny Gen. v. Tally, Judge
1. D was properly held guilty as accomplice to murder where
he intervened to stop the victim from getting a warning
about the killers
2. Had to show that what the judge did contributed to death by
point in physical fact even depriving of single chance of
life would be enough
a. Not necessary that it be a but-for cause, only that it
made the commission easier
3. Rule warnings must be:
a. In preconcert with killers
b. Known to killers
c. Aided killers
d. Contributed to death
c. Relationship between the parties
i. D cannot be convicted as accomplice where guilt of principal has
not been shown
ii. Feigning Primary Party
iii.
iv.
v.
vi.
vii.
a. Act = agreement to commit crime (to engage in some way at least one act
leading to the intended crime)
b. Need not be an express agreement
c. All parties need not have knowledge of every detail of the arrangement
d. Can be established through circumstantial evidence
e. Tacit agreement:
i. Interstate Circuit, Inc. v. United States
1. A tacit agreement among eight movie theatres to set prices
could be inferred where a film distributor asked all of them
not to show their films for less than 25 cents and not to
permit its first-run films to be shown on a double-bill
2. One way to show tacit agreement: parallel behavior on the
part of a number of parties on circumstances where it
would be unlikely there would be parallelism without an
agreement
f. Object of the agreement need not constitute a crime enough if corrupt,
immoral, dishonest
g. Overt Act
i. Conspiracy is complete upon formation of unlawful agreement
ii. No act in furtherance of the conspiracy need be proved
iii. In jurisdictions requiring an overt act, any act that is performed in
furtherance of the conspiracy is sufficient
1. An overt act by any party to a conspiracy is sufficient basis
to prosecute every member of the conspiracy
2. Overt act need not be illegal
h. MPC
i. Guilty of conspiracy if agree with other person(s) that they or one
or more will:
1. Engage in conduct that constitutes the crime
2. Attempt to commit the crime
3. Solicit another to commit an offense
4. Aid another person in planning or commission of the
offense or an attempt or solicitation to commit such crime
ii. Object must be a criminal offense (all but three states agree)
iii. May not be convicted of conspiracy to commit misdemeanor or
felony of third degree unless performed overt act in furtherance of
the conspiracy
iv. Must have overt act unless first and second degree felonies
v. Merge unless conspired to do an act that they did not accomplish
3. Mens Rea
a. Specific-intent offense:
i. Must intend to agree, AND
ii. Intend that the object of the agreement be achieved
b. Requires at least the same level of intent as the target crime
c. Conviction of conspiracy to commit murder cannot be made on implied
malice (must have purpose of bringing about death)
d.
e.
f.
g.
h.
i.
ii.
iii.
iv.
v.
vi.
Deadly force = likelihood of the force causing death or serious bodily injury
o If stab intending only to wound slightly, still deadly force
o Any weapon towards body
o Minor battery does not count unless person is infirm?
o MPC:
Unjustifiable unless actor believes deadly force is immediately
necessary to protect against:
Death
Serious bodily injury
Forcible rape
Kidnapping
Traditionally self-D applies to mistaken but reasonable beliefs
United States v. Peterson
o D finds guy stealing wipers, threatens them with gun, one approaches with
wrench, he kills them. No SD b/c he provoked the encounter
o Rule self-defense:
Actual or apparent threat,
Unlawful and immediate
Use of deadly force
D believed in imminent peril of death or serious bodily harm
Response necessary to save himself
Beliefs honestly entertained, AND
Objectively reasonable in light of surrounding cirucmstances
Reasonable Person Standard
o Must have reasonable belief based on appearances
Reasonable person in actors situation
Courts generally take into account the Ds relevant knowledge
about the aggressor, phsycial attritubes of all involved, and prior
experiences upon which D could provide a reasaonble basis for a
belief that another persons intentions were to harm
BWS in most jurisdicitons can submit evidence for why belief
was reasonable
o Traditionally if unreasonable belief still guilty of murder
o People v. Goetz (NY Ct. Appeals 1986)
Rejected Ds argument that the statute required only a subjective
belief that Ds actions were reasonable
Legislative intent: added reasonable to MCP provision must be
reasonable belief taking into account actual circumstances and Ds
particular situation
Hidden issue: was it reasonable for a person in Gs situation to take
into consideration the fact that he was faced with four black males?
o MPC:
Justified in using force if believes that such force is immediately
necessary to protect against exercise of unlawful force by the other
on the present occasion
Drafted in terms of actors subjective belief in need to use
force (belief need not be reasonable) but
o When the D is reckless or negligent in regard to the
facts relating to the justifiability of his conduct, the
justification defense is unaaible to him in a
Grading problem
o Prevailing view: If unreasonable belief, then murder
Somteims mitigation to voluntary manslaguther (imperfect self-D)
malice lacking
Using deadly force when non-deadly would have sufficed
Misjudging acts
Using deadly force in response to non-deadly force
Others (less common) involuntary manslaughter
o MPC: negligent homicide
1. Battered Women
a. Elements:
i. Reasonable belief
ii. Force is necessary to defend against
iii. Imminent use of unlawful force
iv. Force used is not excessive
b. Categories:
i. Confrontational homicides: cases in which the battered woman kills
her partner during a battering incident
1. Jury instruction virtually always given
2. State v. Kelly (NJ 1984)
a. Expert testimony on Ds BWS should have been
admissible for a self-D claim where D killed her
husband with a pair of scissors during one of his attacks
b. Would have helped the jury understand why she hadnt
left her husband gives Ds story credibility
ii. Nonconfrontational homicides: while asleep or in a significant lull in
violence
1. Expert testimony hhelps explain why D subjectively believed
decdent was about to kill and demonstrate objectively
reasonable to a person suffereing from BWS
2. State v. Norman (N.C. 1989)
a. No instruction on self-D where D shot her husband
while he was asleep after 25 years of abuse, trying to
flee and being tracked down, being dragged back from
social services, etc.
b. Must have reasonably believed he was about to kill her
(imminence requirement)
iii. Co-dwellers
1. Some jurisdicitons say that the assailants status as a codweller is irrelevant
a. MPC too
i. But not for coworkers
b. Implications for BWS
2. Others emphasize the shared proprerty interest of the deadly
aggressor
c. The Intitial Aggressor
i. An aggressor has no right to claim of self-defense
ii. Aggressor =
1. One whose affirmative unlawful act is reasonably calculated to
produce an affray foreboding injurious or fatal conseqeunces
a. E.g. brandishing a knife and threatening
b. Lawful aggression: cop threatening or calling someone
a jerk?
2. One who threatens unlawfully to commit a battery upon
another or who provokes a phsycial conflict by words or
actions calculated to bring about an assault
a. E.g. vicious racial epithets
b. Usually theft is not enough
c. Cant use self-D to defend criminal enterprise
3. Even if merely starts a nondeadly conflict
4. The first person to use force is not always the aggressor (e.g.
brandishing a knife is the initial aggressor)
5. Ordinarily a matter for the jury to decide
iii. To become a non-aggressor, must withdraw from conflict and
successfully communicate this fact, either expressly or impliedly to the
intended victim
iv. Deadly aggressor = person whose acts are reasonably calculated to
produce fatal consequences
1. Only way to regain right of self-D is to withdraw in good faith
from conflict and fairly communicate this fact, expressly or
impliedly to victim
v. Nondeadly aggressor
1. Some courts say when the victim of a nondeadly assault
responds with deadly force, the original aggressor immediately
regains his right of self-D
2. Others require that he retreat if available, but can resort to
deadly force if not
3. Some states say if at fault at all, cannot use self-D
vi. United States v. Peterson (DC 1973)
1. Peterson was the intial aggressor having come out of the house
with a gun pointed at decedent and issuing threats after
decedent was about to leave
Necessity
Justification defense
Affirmative Defense
Threat may be against person or property?
Traditional elements:
o Situation threatening OR perhaps, a reasonable belief of imminent harm
unless a law is broken
o D is not at fault in creating the situation
Not negligent or reckless even
o Harm to be avoided by the lawbreaking > harm caused by the lawbreaking
Ds actions should be weighed against the harm reaosnably
foreseeable at the time, not the harm that actually occurs
Whether Ds value judgment was indeed correct according by the
judge or jury
o Legislature hasnt itself preempted the balancing of harms
E.g. legislature previously weighed competing value of medical
use of marijuana against values served by prohibition and rejected
the former claim
Also requires:
o Causal relationship between action and harm to be averted (D must expect,
as a reasonable person, that his action will be effective in abating the
danger that he seeks to avoid)
o No effective legal way to avert harm
Limits:
o May not apply in homicide cases
o Some jurisdictions dont allow for protection of reputation or economic
interests (only person or property) or all?
o Some states limit defense to emergencies by natural occurences
1. Lesser Evil
Duress
Excuse not that acts were good, but that D could not have been expected to do
otherwise
Person will be acquitted except of murder
o The coercing party is liable for the actual crime
Traditional Elements:
o Another person threatened to kill or grievously injure the actor or third
party unless she committed the offense
Threat must come from human being
Breaking into a house to escape a storm is necessity, not
duress
Threat of deadly force (death or serious bodily harm)
Threat must be directed at D or family member (no property)
o The actor reasonably believed that the threat was genuine
o The threat was present, imminent, and impending at the time of the
criminal act
Threat must be operating on actors will at the time of the criminal
act
o There was no reasonable escape from the threat except through
compliance with the demands of the coercer
o The act was not at fault in exposing herself to the threat
E.g. gang membership if voluntarily put self in situation where
foreseeable will be coerced, then no good for the defense
o US v. Fleming
POW in Korea treason threatened with going to caves, not an
imminent threat
Rationale
o Under the circumstances, cant fairly blame the person because the threat
was so immense they didnt have a fair chance to abide by the law
MPC
o Elements:
Compelled to commit the offense by the use of or threat of
unlawful force by the coercer upon her or another person
Erroneous but reasonable believe okay but not for reckless
or negligent mistake in a crime requiring similar culpability
Only for bodily integrity threatened, not things
A person of reasonable firmness in her situation would have been
unable to resist the coercion
Can consider facts such as size, age, strength, health
o Defense unavialbe if recklessly placed herself in situation in which it was
probable that she would be subjected to coercion
o If negligently placed herself in this situation, then defense available for all
offense except those for which negligence suffices to establish culapbilty
o No requirement of imminent threat (factor but not an element)
o May be raised in murder prosecutions
Intoxication
When it negates the mens rea for the definition of the offense
State of unconsciousness
Fixed or settled insanity from long-term intoxication
o Mens Rea
Failure of proof claim
General-Intent Offenses
Not a defense
E.g. rape
Old view: morally blameworthy course of conduct only
required mens rea was a culpable state of mind
Today: reckless conduct
o Knowledge that he will suffer temporary
impairement
People v. Rocha (Cal. 1971)
o Assault = general intent crime, even though
recklessness is insufficient and intent to injure must
be proved
o At the time when the statute was written, attempt
included 3 definitions one was awareness of
natural and probable consequences
o Courts said a reasonable person would know that it
would cause injury
Specific-Intent Offenses
Traditional rule: defense to specific-intent crimes
o E.g. assault with intent to commit rape
o Where legislature has required a particular mental
state in the definition of the crime, intoxication is
relevant if he did not form the erequired intent
Defense in approx. 21 states
Nothing commends this distinctions
Equally drunk
Equally culpable
Mind equally cloudly
People v. Hood
o Assault in this case could be classified as either
specific or general intent crime no explicit mens
rea in statute but attempt could be regarded as
specific intent
o Court concludes these terms are not helpful
should look to whether there are sensible reasons
for permitting or disallowing the defense
o Hold it is not a defense to assault because it makes
someone more likely to act out of anger, less likely
to control urge not to injure, and large proportion of
assaults are committed by drunk people
State v. Stasio (NJ 1979)
Diminished Capacity
Definitions:
o Diminished capacity (Failure of proof) negates the mens rea element of
the crime
o Diminished responsibility (affirmative defense) does not negate any
element of the crime but mitigates Ds guilt
Only admissible if relevant to negate mens rea of crime
MPC:
o Defense to All Crimes (no concept of specific intent)
o Approx 15 states
o Effect is to acquit of crime or reduce to lesser offense
Limited Use Approach
o One approach: Only relevant for murder to mitigate degree
o More common: distinguish between specific and general intent offenses
Allow for evidence only to negate specific intent but not allowed
for general intent crimes
Almost always functions as partial defense (will be convicted of
lesser crime)
United States v. Brawner (DC Circuit 1972)
Ds evidence was relevant to negate the mental states
required by statute for first degree murder (premeditation,
deliberation) because it showed he was not capable of the
coolness and calmness of thinking over his actions
Rationale:
Dont want to allow for out-right acquittal, usually guilty of
lesser offense; insanity institutionalized
No-Defense
o Evidence only for insanity but not mens rea
o Anomoly: allow intoxication for same purpose but not abnormal mental
condition
o Clark v. Arizona (Supreme Court 2006)
Said Arizona not allowing expert testimony evidence for proof of
diminished capacity was not a violation of due process
Arizona prohibits expert testimony for mental disease evidence or
capacity evidence except for insanity defense (but allows for
observational evidence)
Grounds for concluding not a violation of due process:
Controversial character of some categories of mental
disease (evidence unreliable)
Misleading jury (jurors apt to draw inferences that go
beyond psychiatric knowledge)
Danger of according greater certainty to capacity evidence
than experts claim for it
Criticism:
We allow for psych testimony in lots of other uncertain
areas
Juries decide all kinds of questions they are unqualified to
deicde no evidence to say they are particularly misled in
these instances
Wouldnt the objections on capacity apply in insanity
defenses?
Maybe they are really worried about acquittal, but that isnt
a good argument because if the evidence shows he didnt
commit the crime then he shouldnt be confined
Contrast insanity:
o Calls for more tricky evalution of condition to assess where D was unable
to appreciate the wrongfulness of his conduct; here were just asking if he
harbored the specific intent to kill
MPC
Person does not necessarily lose the defense if he was at fault in creating the
necessitous situation
Questions:
Conspiracy
-general v. specific
Initial aggressor
Going after the first
-reignited confrontation
necessity
-situations where threat isnt about to happen, but to defend need to use force now
chained to bed not the defense of necessity, which is choice of evils
necessity doesnt apply to killing a person cant make the argument because of
arithmetic: one against one, not choosing lesser evil
Where does Stress case fall in?
What is so narrow about the fed insanity statute?