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Punishment Theories
Utilitarianism
Theory of Punishment:
Provides future benefit to society (net social gain)
Evil because it infringes on individual liberty
Justified when social benefit outweighs cost to and the state
Purposes of Punishment:
Expressive function: affirm and strengthen community moral
norms; voice social disapproval
Lawrence v. Texas: giving symbolic affirmation to what is
morally despicable behavior in a particular majority/state
General deterrence
Specific deterrence doesnt serve society in general
Incapacitation: prevent future danger to others or property
Gradation
Voluntary act doctrine
Cant deter something that people have no control over
Retributivism
Theory of Punishment:
Requires proportionality
Purposes of Punishment:
Just deserts for those engaging in criminal conduct (but we
dont criminalize all morally reprehensible activities)
Vengeance
Legality principle: concern that decision to criminalize be done by democratically accountable body that defines conduct
prospectively to give citizens fair warning as to when behavior might trigger coercive state sanctions; concern about limiting discretion
of law enforcers
Concurrence principle: must have M/R at same time as A/R (not before only; not after only)
Attendant circumstances: inclusion of relevant factual circumstances under which conduct occurs (burglary: shouldnt
break/enter what, when to specify under what circumstances the crime occurs)
Mens rea: interpret actions in light of actions knowledge, purposes and goals; mental states are critical to fully define what is
being deterred, what is dangerous and what is culpable
Causation: fair to attribute the result to the s actions, w/o intervening event
AFFIRMATIVE DEFENSES
Justification: negating wrongfulness even though objective elements of crime and mental states have been satisfied
Insanity: Addresses the question of whether there is a moral agent, committed acts but lacks moral blameworthiness
Duress: Assumes we have a moral agent, but not fair to attribute wrongful act to agent because there was coercion that
prevented him from complying with the law
Provocation: gradation
Moral culpability: fair to impose moral blame on the offender; wrongful act alone is not enough (see: insanity, duress)
Accomplice liability: more than one person can be held accountable for the wrongful act
Attempt liability: recognition that even when result hasnt occurred, an actor might show sufficient culpability and
dangerousness toward the criminal offense
TEST
Policy question: dealing with criminalization or grading decision?
Ex: abolishing provocation/EEMD
Statute-writing: include both culpability and wrongdoing elements
Lambert: unaware of new requirement that felons register with LAPD; affirmative defense allowed for s omission of failing to
register (fair warning rationale: must be aware of facts triggering duty to act) (unlike Intl Minerals being present in LA for 5 days
alone is not criminal)
Russian Roulette hypo: demonstrates extreme reckless indifference to the value of human life
Laurie Wilson
Criminal Law Outline - Arenella
Components of a Crime
Common Law
Mental State
MPC (2.02)
Mental State (M/R must go to all objective element of the crime)
Purpose: s conscious object is to do a particular act or cause a
particular result; is aware of the existence of A/C or believes/hopes
they exist
Subjective standard
Vicious will
Voluntary act: voluntary bodily movement (People v. Decina: opened up time frame to show epileptic performed voluntary act)
Possession: knowingly procured/received, when actor is aware of his control for long enough to have terminated possession
Omission: (1) there is a duty to act, (2) knows of the circumstances triggering the duty to act, (3) reasonably could perform the duty
Duty to act can arise from:
(1) Statutory/CL imposition of legal duty (homeowner/guests)
(2) Contractual (babysitter)
(3) Special relationship between and V (parent/child)
(Ex: Cmnwealth v. Konz: Wife failed to get medical assis. for diabetic husband; but V was free agent who chose not to take insulin)
(4) Because created the peril
(Ex: People v. Oliver: gave V spoon to take drugs)
(5) s voluntary assumption of duty and seclusion of V from others
(Ex: Pope v. State: took in mother/child, however mother was present; Oliver: removed V from public)
Policy concerns re: omissions:
Less culpability: usually not causally responsible in same way as positive actor
Autonomy/libertarian values: law is more interested in deterring positive acts, not s who bear no real responsibility (indiv. freedom)
Who to prosecute: as in Kitty Genovese case, with a large pool of omitters difficult to draw the line as to who to prosecute
Vagueness/fair warning/legality concern: can only charge where there is a legal duty
Why require A/R in addition to M/R
Autonomy: state cannot intervene until has acted (cant punish thoughts)
Deterrence: allow opportunity for to act, with possibility that they might be deterred before acting
Laurie Wilson
Criminal Law Outline - Arenella
Causation
Necessary cause: but for the s conduct, the result would not have occurred when it did
Sufficient cause (direct cause): but for the s conduct, the result would not have occurred when it did, and in the manner it did
Proximate cause: looks at foreseeability of the harm occurring in the manner it did
Causation is established when:
(1)
But for test: But for s criminal conduct, would the result have occurred when it did? (necessary cause test)
Rare exception: 2 people shoot a V simultaneously; they are both convicted
(2)
Intervening event: what was the intervening event? (stop here if intervening actor broke the causal chain; keep going if
intervening actor was only reck/neg as to the result (Feinberg, McFadden))
(3)
Proximate cause (foreseeability): was intervening event (particular manner of harm) a reasonably foreseeable response to s
criminal conduct? (objective analysis, do not look at s M/R going to the result)
Breaking the causal chain:
Free and knowledgeable action: breaks the causal chain (ex: Campbell: although hoped that V would use the gun, V acted intentionally)
Autonomy principle: recognizes when V is the intervening human actor and is deliberately trying to cause the result (Kevorkian, Konz)
Impaired agency: if V acted under emotional/mental distress, is not autonomy and does not break causal chain (Feinberg, Stephenson)
Omissions
Proximate cause analysis is particularly important when dealing with an omission
Atencio: failing to stop friend from playing Russian roulette that resulted in death ( showed ERI)
Welansky: failure to provide exits resulted in death in the fire ( showed ERI)
MPC Differences
Includes culpability analysis in proximate cause analysis; must have required culpability for result (for death, ERI at minimum)
If strict liability, actual result must be probably consequence of actors conduct
Case
s Criminal
Conduct
Intervening event/action
Culpability (MPC)
Acosta
High-speed
pursuit
Gross negligence of
helicopter pilot
Kibbe
s robbed V; left
him on the hwy;
called police to
notify of Vs
locat.
5th fl arson
Welansky
Failure to
maintain fire exits
Kevorkian
Assisted suicide
Vs suicide
Feinberg
Tests met
Stephenson
held V hostage;
starvation, rape
V committed suicide
Root
Dragracing
McFadden
(right)
Dragracing
Arzon
Laurie Wilson
Criminal Law Outline - Arenella
Necessity: chose to do a lesser evil, however doesnt apply if legislature weighed and made conduct illegal
Mistake of law
Failure of proof defense:
lacked M/R going to some element, or some element was not present
Terms and cases
Completed attempt: performs all acts but fails to attain the criminal goal
Inchoate attempt: punishable before reaches intended result
Incomplete attempt: Does some of the acts necessary to achieve the goal but either desists or is prevented from continuing
Legality principle: no conviction if the conduct is not a crime, even if thinks it is
Smallwood v. State: HIV rapists charged with attempted murder; however didnt have specific intent to kill (lacked M/R)
Weeks v. State: HIV inmate spit on guard yelling Ill give you AIDS; did not have know M/R result (no practical certainty of result)
Thacker v. Cmnwealth: shot into tent and missed; Not guilty because did not have purpose result (death)
McQuirter v. State: black followed white woman and was arrested for attempted rape (attempt to assault with intent to rape); should be
acquitted under MPC/CL because lacked dangerous proximity or substantial step towards rape
Rizzo: Police intervened before s found bank roll target to rob (CL acquittal (too early); MPC conviction (purpose))
Mandujano: couldnt find drugs so returned money; MPC would convict (poss); did not voluntarily renunciate
Jaffe: police sting; believed property was stolen; MPC would convict (belief that A/C was present) (ie: pickpocket hypo)
Laurie Wilson
Criminal Law Outline - Arenella
Dlugash: shot V after he was already dead; MPC would convict if had belief that A/C live person was present
Laurie Wilson
Criminal Law Outline - Arenella
Accomplice Liability
Accomplice
Acc M/R (intent to aid)
Purpose to aid Ps criminal conduct (knowing aid is
insufficient but might be enough for serious crimes: Fountain)
Protects people who sell goods used for criminal ends
(knowledge only)
MPC requires highest M/R because A/R is weak
Conscious desire of Acc to aid criminal conduct
If knowledge, require that Acc A/R be substantial assistance
Acc A/R (aid)
CL: actual physical aid or psychological encouragement
MPC: attempt to aid is sufficient (even if unsuccessful)
Both: assistance by omission, if legal duty exists
Crime Charged
Acc Has Culpability
M/R A/C (In strict liability, MPC would require this when CL likely
wouldnt, but could argue that Acc shouldnt be held to same standard as P)
M/R Result
Any independent mental state (specific intent)
Objective elements
A/R (done by P)
A/C
Result
Causation
Taylor: would likely be convicted for murder during robbery (violent crime, therefore death is foreseeable outcome)
Heinlein: Co-rapists would not be committed of one rapists murder (death isnt a foreseeable outcome of rape)
Cases:
Hicks: P killed V while watched; not guilty because his words did not show purpose M/R, even if they encouraged the P (A/R)
Gladstone: suggested P as drug source; not Acc b/c he lacked Acc M/R (purpose) (ct focuses on lack of communication btwn Acc-P, wrong)
Luparello: enlisted help of friends to beat up rival; P found and killed him; lacked Acc M/R (purpose to kill), however ct finds that is
responsible for any acts that were foreseeable from his request (once is acc to crime X, he is liable for crime Y if is it a foreseeable outcome)
Wilcox v. Jeffery: Acc listened to jazz concert; buying ticket was Acc A/R (encouragement), so was convicted
Tally: Acc sent telegram to interrupt telegram warning V; assistance convicts him in MPC/CL; however if his telegram had not been successful,
would not have been convicted in CL (must have actual assistance)
State v. McVay: told Ps to keep using defective boiler; met A/R and M/R (purpose to aid criminal conduct); met culpability (reck/neg)
Us v. Xavier: charged with aiding a felon possess a firearm; didnt know P was a felon; statute required know going to this A/C; acquitted
Dlugash: can be charged as Acc after shooting dead body; no, timing problem; physical assistance came after P shot V
Regina v. Richards: hired Acc to beat up her husband; V escaped unhurt; cant be charged with crime more serious that what actually happened
State v. Hayes: proposed that P held him rob store; P tricks and helps him; since P lacks criminal intent, cant impute to (derivative liability)
Laurie Wilson
Criminal Law Outline - Arenella
Accomplice to Attempt
Accomplice
Acc M/R
Purpose to aid Ps criminal conduct (knowing aid is
insufficient but might be enough for serious crimes:
Fountain)
Protects people who sell goods used for criminal ends
(Kn)
MPC requires highest M/R because A/R is weak
Conscious desire of Acc to aid criminal conduct
If knowledge, require that Acc A/R be substantial
assistance
Acc A/R
CL: actual physical aid or psychological encouragement
MPC: attempt to aid is sufficient (even if unsuccessful)
Both: assistance by omission, if legal duty exists
Principal
Target Crime
Culpability for criminal conduct
Any independent culpability (specific intent)
M/R A/R, A/C, Result
A/Cs
If A/Cs arent present, must show Ps belief that they exist
Attempt Crime
Att M/R
CL:
Specific intent/purpose to complete criminal conduct element
If no result, must show purpose to complete criminal conduct
MPC:
Physical proximity
Indispensable element
Probable desistance
Abnormal step
Unequivocal act
Laurie Wilson
Criminal Law Outline - Arenella
Homicide
Common Law
Definitions
Murder: unlawful killing of a human being with malice aforethought
Malice: (1) intent to kill w/o adequate provocation, (2) intent to do
grave bodily harm where death results, (3) abandoned and malignant
heart, (4) intent to commit a felony (felony murder), (5) poison or
lying in wait
MPC 210.2
Definitions
First-degree murder
Premeditated (planning, motive, manner) and deliberate
Anderson test: three stages of premeditation (two required):
Planning, motive, manner (evidence that manner showed a
preconceived design to kill)
Intent to kill (specific intent)
Carroll: said that intent could be inferred from intentional use of a
deadly weapon on a vital part of another person rejected
Felony murder
Because FMR is over-inclusive, courts limited the scope. FOP defenses,
depending on the court:
Agency limit: killing must be done in furtherance of the felony and
must be done by felon or co-felons.
Canola: Co-felon and owner killed in commission of store robbery,
however not done by
Heinlein: Rapist killed victim; all are guilty of rape but not murder
Inherently dangerous: limited to felonies; some statutes limit the list
of applicable felonies to violent crimes (burglary, rape)
Felony in abstract: Phillips: Dr. treated eye cancer committed grand
theft and patient died; Drs crime was not inherently dangerous
(looked at crime OBJ and not at result: abstract approach)
Specific facts: Stewart: Crime was child abuse but ct evaluated
subjectively (based on specific gruesome facts) and applied FMR
(specific approach: more deterrence value)
Causation: responsible for any death proximately resulting from
felony: (1) but for, and (2) proximate cause tests (reason. foresee)
Stamp: take the victim as you find him (heart attack did not break
causal chain)
Merger limitation: predicate felony must be independent of the
killing. If crime is assault/battery, then merges with the killing.
Note: Culpability of felony substitutes for normal proof
of homicide
Second-degree murder
M/R: malice
General intent (no premed or delib) and malice
Extreme reckless indifference to the value of human life (implied
malice)
Intent to inflict grievous bodily injury (implied malice)
Ex: Fleming: drunk driver lacked intent to kill but still had ERI
Ex: Malone: Russian roulette acted with ERI, resulting in highest
social harm, so would not be involuntary ms
Voluntary Manslaughter
Intent to kill with adequate provocation (mitigates murder to ms) or
Recklessness
Involuntary Manslaughter (cant be an accomplice)
Criminal/gross negligence
Should have been aware of the substantial and unjustifiable risk that
is a gross deviation from the normal standard of care (negl.)
Substantial risk: (1) probability of harm, (2) severity of harm, (3)
social utility of conduct
Objective standard
Negligent omission: Williams: couple failed to get medical assis for
Felony Murder
Committed recklessly or
Laurie Wilson
Criminal Law Outline - Arenella
rd
Misdemeanor Manslaughter
Felony murder when the crime was a misdemeanor
Provocation
actually provoked (subj)
Reasonable person in actors situation wouldve been provoked (obj)
did not cool off before the killing (subj)
Reasonable person would not have cooled off (obj)
Reasonable person can take certain characteristics into
consideration
Girouard v. State: taunted about sex ability, stabbed V 19
times words alone were not adequate provocation
Only 5 categories to get to jury: (1) extreme assault or battery
upon , (2) mutual combat, (3) s illegal arrest, (4) injury or
serious abuse of a close relative of , (5) sudden discovery of
spouses adultery (restrictive rule)
Feminist critique: male violence should not be encouraged
Maher v. People: saw wife go into woods and heard rumors;
words would be considered (broader standard)
Allows jury discretion, to apply normative standard
Lenny Hypo (provocation)
Normative standard: Dont modify reasonable person standard
with a dangerous attribute (mental retardation, short temper) because
that would destroy the normative standard
Lenny would not get provocation defense
Laurie Wilson
Criminal Law Outline - Arenella
Rape
Common Law
General intent crime: reasonable, non-negligent mistake of fact
(FOP) allowed
Rape in Rusk (MD) (old, male-centric version)
A/R: (1) sexual intercourse, (2) by force or threat of force
A/C: (1) without consent (physical or verbal resistance; most cts
require explanation for lack of physical resis), (2) not wife
M/R: (1) Purpose going to A/Rs, (2) Negligence going to
without consent
Gone w/Wind: must have force/threat; he picked her up;
however she did not appear to have fear at time of threat
MPC 213.1
Rape
A/R: sexual intercourse
A/C: (1) not wife and either (2) compels V to submit by threat
of imminent death, severe bodily injury, extreme pain or
kidnapping to be inflicted on anyone, (3) has substantially
impaired her power to appraise or control her conduct by
administering or employing, w/o Vs knowledge, intoxicants or
other means for the purpose of preventing resistance, (4)
unconscious, or (5) under 10
M/R: (1) Purpose going to A/R, (2) strict liability if V is under
10, (2) Reckless as to A/C unconsciousness
Note: MPC has no resistance requirement like CL does.
First-degree felony if:
inflicted serious bodily injury on V or another during rape OR
V was not a voluntary social companion who had previously
permitted him sexual liberties
Otherwise rape is a second-degree felony
MPC differences
Sexual intercourse not just vaginal
Rape defined in terms of males aggression, not females lack of
consent (therefore no resistance requirement)
Requires corroboration of Vs testimony
Allows reasonable mistake of age
Other examples
Cmnwealth v. Rhodes: force could be physical, moral,
psychological or intellectual (problem of line-drawing)
Evans: V coerced into having sex to save her life; Ct read in
purpose going to threat/force; acquitted
Morgan: Ct says A/R is non-consensual intercourse, which
means that intent must go to consent as well
Ascolillo: ct did not allow reasonable mistake going to consent,
so read rape as strict liability; might be over-protecting victim
and ensnaring innocent s
Alston: narrow timeframe
How active resistance bolsters Vs case:
Supports A/R (force), to overcome resistance
Supports A/C (w/o consent)
Supports s M/R of negligence going to w/o consent, because
he could have no reasonable belief
However, requirement could put women in greater harm
How lack of resistance bolsters s case:
Supports A/C (consent)
Supports M/R of negligence going to w/o consent (reasonable
belief)
Policy arguments:
Resistance requirement benefits s
Changing social norms mean that male is less the aggressive
seducer and clear consent should be required
Requiring affirmative consent can ruin normal human
interaction
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Laurie Wilson
Criminal Law Outline - Arenella
Excuse
Focuses on the actor and not the criminal act. The result
of extreme coercive situation and the actor is not a moral
agent. No reasonable person would have acted
differently.
Culpability
Failure of proof defenses
Justification (self-defense)
Failure of proof defenses
Mistake of Law
i. Fair warning
ii. Reasonable reliance
Provocation/EEMD
i. Partial affirmative defense to homicide
Failure of Proof
i. Negates an element
ii. Concurrence principle
iii. Legal or factual impossibility (if negates an element of the crime)
11
Laurie Wilson
Criminal Law Outline - Arenella
Policy
s was not wrong, because it was the least harmful option, therefore no culpability to punish
Used by jury to uphold conduct that lawmaker would have allowed, if given the opportunity
If no force or event was present, would have abided by the law
Net social gain
Common Law
MPC 3.02
Necessity defense
Necessity defense
Clear and imminent danger
Reasonable evaluation of evils (objective, not s subjective
must reasonably believe that conduct will be effective in
belief)
avoiding greater harm (causal relationship)
Actual necessity: must show that only commission of crime
No effective, legal alternative
will avoid the greater evil
cant have wrongfully placed himself in situation
Harm avoided must be greater than crime (quantitative)
Not precluded by legislative intent (for abortion clinic bombing,
If is reckless or negligent in assessing necessity, then can be
could get to jury as long as jury believes that legal abortion is
convicted of neg/reck crime (excuse)
immoral)
Precluded by legislative intent (abortion clinic bombing, assisted
suicide)
Exceptions
Some jurisdictions allow necessity only to protect people or
Differences from CL:
property
No immanency requirement
Most jurisdictions do not allow defense for homicide
Accomplice acquitted only if is justified, not excused
Utilitarians: would excuse, because homicide was for greater
does not automatically lose defense if he was at fault for
social good
creating the situation
Retributivists: may excuse for lack of choice or
Precluded by legislative intent
blameworthiness
Mistake
If mistake for purpose or knowledge crime, then defense
If mistake for negligence or reckless crime, then negligent or
reckless evaluation is sufficient to convict
Lovercamp: sets rules for prison escape
Only applicable if:
(1) Specific threat of death or rape
(2) No time to report
(3) No time to use courts
(4) No innocent people are hurt during escape
(5) turns himself into authorities as soon as he is out
Unger: raped in prison and threatened with death if he reported;
asserted necessity defense for killing V; however court does not
want to justify prison escape as a rightful, non-culpable act
Shune: indirect civil disobedience wont trigger necessity defense;
greater evil was foreign policy decision and there was a lawful
alternative to avoid greater evil (petition Congress)
12
Laurie Wilson
Criminal Law Outline - Arenella
Self-Defense
Paradox: (1) culpable perpetrator has right to life, (2) however in conflict with human intuition that they deserve it
Justification: harm must be equivalent to threat, therefore must be imminent death/serious bodily injury (proportionality)
Requirements: (1) adequate threat, (2) necessary use of defensive violence (unlike Goetz), (3) degree of force used proportionate to threat
Colorado: homeowners allowed to use lethal violence to defend against anyone breaking in to commit a felony (open season)
Common Law (objective)
MPC 3.04 (subjective)
Self-Defense
Self-Defense 3.04 (justification)
Necessity: Use of force is justified when reasonably believes
Use of force is justified when believes (subjective) force is
(objective) force is immediately necessary
necessary on the present occasion
Reasonable belief: Objective standard
To protect himself against force or threat of serious bodily injury,
Proportionality: deadly force only if deadly force by aggressor
death, kidnapping or sexual intercourse
Some states have retreat rule
Must be impossible to retreat to complete safety
cannot have provoked use of force (unless mild aggression
cannot have provoked use of force against him
leads to heightened response from V)
Subjective standard
Limitations: Not justified if:
Justification or excuse?
Resisting arrest even if arrest is unlawful
Most jurisdictions view SD as justification, therefore use an
Resisting force by someone protecting his property, unless
objective standard
is a police officer acting within his duties or his asst.
If justification, no criminal conduct to impute to Accomplice
is lawfully retaking property
believes force is necessary to protect against death/SBH
Goetz (NY)
provoked the use of force against him
Reasonable person standard used in most jurisdictions
knows he can avoid necessity of force by retreating,
Attempted murder
surrendering a thing or obeying a command he has no duty
Unreasonable SD = no defense (would be defense in MPC)
to avoid, unless he is in his home or workplace, or is a cop
s paranoia is not a subjective characteristic that would be
using justified force within his duties
considered, because it destroys the normative standard
Use of confinement: can use confinement as protective force
However s previous muggings could mean he had heightened
only if has taken all reasonable measures to terminate the
sensitivity to when a mugging was imminent
confinement as soon as he knows that he safely can
Policy
Grading purposes (psychotic person is more dangerous, so his
excuse will have to be insanity or diminished capacity)
Mistake
Some jurisdictions do not allow mistake about danger
Most jurisdictions allow for imperfect SD to mitigate to
manslaughter (require an objective, actual threat)
Most jurisdictions do not recognize imperfect SD for
attempted murder
Battered Womens Syndrome (excuse)
Used because the threat is not imminent and had possibility
for lawful alternative
Expert testimony used to educate the jury about why abused
women dont leave their abusers, why the threat is perceived by
as imminent and women do not seek lawful alternatives
Three stages: tension building, acute battering phase,
contrition, leads to learned helplessness
Jury uses testimony to assess the reasonableness of SD (s
expectation or reaction to V), but cant use directly to weaken
the reasonable person standard
Modifying the objective standard dilutes the normative standard
Subjective component: fear of imminent, unlawful aggression
Objective component: reasonable belief requirement
Paradox: learned helplessness is applied to women who werent
passive in their situations
Norman: V was sleeping when killed by abused wife; BWS
allows jury to vote their own values, believing that at some point
V forfeited the laws protection (in MPC, would have been
negligent SD, meaning negligent homicide)
Schroeder: Felon killed sleeping cellmate after V made threat to
rape him in the future; harm wasnt imminent, but was
realistic; BWS would have given excuse
Kelly: s version was that he pushed her to the ground and she
saw him rush toward her with hands raised; still a lack of deadly
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Laurie Wilson
Criminal Law Outline - Arenella
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Laurie Wilson
Criminal Law Outline - Arenella
Duress (excuse)
Common Law
Duress
Triggered by imminent threat of death or serious bodily injury
upon or s family
No reasonable opportunity to escape/avoid choice (no lawful
alternative)
Person of reasonable firmness would not have been able to resist
(objective) and could not resist (subjective)
Direct causal relation between the coercion and s crime
Unavailable if:
was reckless in placing himself in a situation where coercion
was likely to occur
Differences from MPC:
No excuse for murder
Most jurisdictions = no defense
Some jurisdictions = partial excuse to manslaughter
Some jurisdiction = available for FMR if felon was coerced
BWS problems:
No imminent threat of death or serious bodily injury (BW
couldnt have perceived threat from words, looks or earlier
threat)
Not available if BW could have escaped
Court may allow learned helplessness
MPC 2.09
Duress
Triggered by unlawful threat of physical harm (subjective)
Person of reasonable firmness would have been unable to resist
the coercion (objective)
Must be non-negligent (BWS who is negligent in how she
reacted, such as Kelly, would not get the defense because she
had the capacity not to make the mistake)
If was negligent in placing himself in situation where coercion
was likely to occur, then reckless, purporse or knowledgeable
conduct is excused
Must have human coercer (Casassa might have been situational
coercion)
No reasonable legal alternative
Unavailable if:
was reckless in placing himself in a situation where coercion
was likely to occur
Differences from CL:
No deadly force or immanency required
Physical harm only: person of reasonable firmness would not be
coerced by threat to property or reputation (normative standard)
Threat upon non-family member excuses s conduct
Applies to murder
Does not require that coercer was trying to get to do the crime
charged
Must have human coercer (Cabarga couldnt get duress defense)
Situational coercion might allow to blame their
situations/backgrounds, which lets too many people off
Policy
not culpable because he was denied a fair opportunity to comply with the law (no deterrent value)
Reasonable person would have done the same; negates moral culpability (in line with community moral norms)
s act will be imputed to the coercer as principal (vengeance satisfied)
Unger: was raped in prison under knife threat and threatened with death if he reported it; asserted duress defense, but was rejected;
court found that duress shows that has been deprived of free will, capability or ability to make a rational choice about a preferred
course of action (WRONG: duress does not show lack of free will); ct also said that duress must have human coercer, who is trying to
get to do crime he is charged with (IL requires this, but not MPC)
15
Laurie Wilson
Criminal Law Outline - Arenella
Insanity (excuse)
Mental illness that affects s emotions, reasoning ability or self-control
Common Law
MPC 4.03
Insanity
Insanity
Triggered by mental illness or defect at the time of the crime
Triggered by mental disease or defect at the time of the crime
Excusing conditions:
Excusing condition: Lacks the substantial capacity to appreciate
Cognitive prong: MNaghten test
the wrongfulness of his conduct or ability conform his conduct
cant understand the quality and nature of his actions,
in light of legal and moral norms (cognitive OR volitional)
therefore does not know theyre wrong
Volitional prong: Difficulty controlling conduct in light of
Lyons: got rid of volitional requirement because self-control cant
legal and moral norms
be measured (difficult to tell when has capacity and just didnt
Competency to stand trial: must have reasonable degree of
exercise it vs. just didnt have it); only focuses on capacity to
rational understanding to understand proceedings against him
appreciate moral significance (about whether has the capacity,
not whether exercised it)
Federal Law (Post-Hinkley)
Triggered by serious mental illness
No volitional prong; only MNaghten cognitive test
Removed volitional prong after Hinkley got the insanity defense;
also a fabrication problem with volitional requirement
Insanity is not a medcial term, it is a legal conclusion that the is not morally responsible for the wrongdoing
No objective, reasonable person component (only looking at particular )
Only defense that gives opportunity to challenge assumption that is a morally accountable actor
CA allows insanity as a full excuse if no lesser-included general intent
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Laurie Wilson
Criminal Law Outline - Arenella
MPC 2.04
Ignorance or mistake is a defense if:
Negates the M/R of any material element of the crime
Morissette: claims that knowledge goes to property of
another, and didnt have the requisite M/R for the A/C;
mistake about when property is abandoned
Freed: charged with unregistered grenade and claimed that
statute should require know M/R going to A/C unregistered; Ct
refused to read in M/R for strict liability crime
Staples: had unregistered firearm and claimed that public
welfare statute should have culpable M/R going to A/C
firearm; Ct read in know and gave a FOP defense
Regina v. Smith: destroyed the flooring, but did not realize
it was criminal conduct because he did not know it was
considered property of another
International Minerals: wanted know M/R to go to
shipping, but ct reads it going to corrosive liquids, no FOP
If commits a crime of a higher degree than he thought he was
committing, then will be held liable for the lower offense
(culpable for lower offense)
Mistake about another law (usually civil law) causes to break
a criminal law (if it negates the M/R of the crime)
Cheeks: allowed defense because tax law is confusing; fair
warning problem (ct read in willful going to duty to pay
taxes, creating a FOP defense)
Must apply to material offense of the crime:
Holloway v. US: Statute specified A/C interstate commerce only
as jurisdictional element, so cant be used as a FOP defense
Specific
Intent
General
Intent
Strict
Liability
Voluntary
Intoxication
Defense
Mistake
of Fact
Defense
Mistake
of Law
Defense
No defense
Only
reasonable
mistakes
No
defense
No
defense
No defense
No
defense
MPC 2.04(3)
Ignorance of the law can be an excuse when:
Law not published or reasonably made known to (fair warning
problem)
Lambert: unaware of new requirement that felons register
with LAPD; affirmative defense allowed for s omission of
failing to register (fair warning rationale: must be aware of
facts triggering duty to act) (unlike Intl Minerals being
present in LA for 5 days alone is not criminal)
Reasonable reliance on an official interpretation of the law:
Statute or other enactment
Judicial decision, opinion or jment
Administrative order or grant of permission
Official interpretation by the public officer/body charged by
law with responsibility for the laws interpretation,
administration or enforcement
Albertini: relied on ct determination (official
interpretation) so had valid affirmative defense
Marrero: no mistake of law, because could not rely on his
own interpretation of peace officer (however, actually
asked ct to create negl. M/R going to not a peace officer,
which would be a FOP)
Hopkins: was told by states atty that he could erect
marriage signs; depends on whether that is official statement
of the law (told at a bar, so probably not in his official
capacity)
Raley v. Ohio: Govt officials told that protests were
allowed, made statement in their official capacity
Dont want to encourage private citizens to interpret the law
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Laurie Wilson
Criminal Law Outline - Arenella
Diminished Capacity
Mens Rea Model
Evidence Rule: admit evidence to negate M/R
No M/R is FOP defense (rarely used because M/R is too easy to show)
o Because of diminished capacity, the did not form the requisite specific intent for the crime
o Can negate reckless, knowledge or purpose (not negligence, because its a normative standard and s not normal)
Limited defense or impact when properly applied by trial courts its not often that a D lacked specific intent because of diminished
capacity (can be in general a stupid person, but still had intent to kill). Not useful in this situation.
4.02 Evidence of mental disease or defect admissible if relevant to prove D did or did not have M/R
True diminished capacity (abolished) is mens rea model (not abolished) but functions like Diminished Responsibility Model (DRM).
No legislature adopted the diminished capacity defense because it is inconsistent with the grading judgments want to look at factors
besides culpability including dangerousness.
Allow evidence of mental illness at time of crime to negate M/R in practice, its DRM
Most evidence isnt logical to negate criminal intent. M/R just means limited mental state. Mental illness usually doesnt negate these
mental states.
Mens rea version of the defense wont help the insane they need a mitigating factor and a defense even though their M/R wont
necessarily be negated. So, diminished capacity instead. Cant create an affirmative defense though, because thats the legislatures job.
CA courts defined M/R. Allow in the evidence of mental illness even though he had the criminal intent. Re-wrote premeditation to say
that it couldnt be shown if had mental illness. Because the MNaghten rule is too mean to the mentally ill. CA can still use the mens
rea model. Deserve to get evidence in. Pollock case that you cant get rid of mens rea requirement. Supreme Court said it wasnt
constitutional. If legislature wants to, they can say evidence of m/r is excluded even if relevant to FOP defense.
Pohlot: tried to get partial excuse of diminished capacity, but court read 1984 statute to mean that Congress abolished diminished
capacity; had M/R, so couldnt use M/R model; court imposed insanity instead; had intent to kill but got excuse
Diminished Responsibility Model
Partial Excuse & Affirmative Defense (formally exists in UK only) Diminished Moral Culpability Rationale
Courts lack the power to adopt it because it interferes with the legislatures grading schemes Legislature already said what the
punishment should be and cant say that less culpable to lessen the punishment and go contrary to legislative intent.
DRM used to mitigate severity of crime for sane but mentally disabled offender (shows less culpability)
Allows grading in culpability of offenders; prevents execution; more thorough and individual inquiry into Ds mental capacity.
EEMD is the closest thing we have asks for evidence of mental defect or illness OR just anger, fear or powerful emotion. Usually
theres such a powerful reaction BECAUSE of the defect. EEMD must be reasonable explanation or excuse.
18
Laurie Wilson
Criminal Law Outline - Arenella
Intoxication
Common Law
Voluntary Intoxication (FOP Defense/Partial Excuse)
1. A voluntarily intoxicated D is guilty when:
MPC
2.08 Voluntary Intoxication
1. Defense if negates an element of the purpose or
knowledge crime (FOP)
2. If a reckless crime, and actor is unaware of risk that hed
have been aware of if sober, unawareness is no defense
(reckless of getting drunk is seen as = to reckless m/r)
No defense for reckless m/r crimes
* Intoxication is allowed to negate purpose and knowledge
* Intoxication does not negate reckless of negligent crimes
Note: intoxication makes negligent actors more culpable.
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Laurie Wilson
Criminal Law Outline - Arenella
Impossibility
Factual Impossibility
MPC and CL:
No Defense D does an act which would be criminal if the circumstances were as he believed them to be liable (Ds done the a/r
with the requisite m/r)
Liable only for the attempt crime since the a/c element wasnt objectively satisfied for target crime liability
20
Laurie Wilson
Criminal Law Outline - Arenella
Misdemeanor
Larceny
A/r taking and carrying away
M/r intent to permanently deprive (specific intent)
A/c property of another
No result
Receiving Stolen Property
A/r receiving
M/r knowledge as to a/c
A/c stolen property
No result
Reckless Endangerment
A/r any voluntary act
M/r recklessly
A/c another person
Result placed in danger of death or serious injury
Assault
General Intent Crime
Insanity Defense
Civil Commitment
Substantive Due Process requires state to show:
1. Person is mentally ill (must have this to respect the
individual autonomy principle hard to deprive liberty)
2. Danger to self or others
Procedural Due Process requires proof that:
1. Burden of proof on the state
2. Clear and convincing evidence
3. Adversarial trial
Criminal Punishment
Substantive Due Process requires state to show:
1. Substantive guilt based on justifications for
deprivations of liberty like Utilitarianism, Retribution,
etc.
Procedural Due Process requires that:
1. State burden of proof is beyond a reasonable doubt
2. Privilege against self incrimination
3. Adversarial trial
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