CRIMINAL LAW

I. II. III. IV. V. VI. VII. VIII.

Purposes of Punishment and Sentencing Actus Reus Mens Rea Mistake of Fact, Mistake of Law, and Strict Liability Rape Homicide Causation Justification and Excuse Defenses

I. Why Punish? Dudley and Stevens: cannibalism on ship case; temptation is never an excuse for murder; it does not equal necessity; you can kill in self-defense, but you cant kill an innocent life; you cant judge which life has more value (on the same moral plane as the innocent victim); the honorable man ought to rather die himself than kill the innocent Types of Arguments 1) ad hominem attack fallacy attacking the source 2) analogy using other scenarios to make a point (like larceny comparison in Dudley and Stevens p.137) 3) circular argument A critique that an argument tries to prove itself (Dudley and Stevens p.138) 4) deductive/inductive learning from experience. 5) deontological the end of the argument appeal to nature, the right thing to do regardless of the consequences. (Dudley and Stevens the right thing to do is die) 6) floodgate utilitarian argument a particular ruling will result in a flood of claims, crimes, etc. 7) foreshadowing the outcome giving clues as to the conclusion (Dudley and Stevens p. 137 negative argument) 8) hindsight fallacy second guessing a decision with the actual result (Dudley and Stevens p. 136) 9) legal authority Referring to nonprecedential sources of legal thought (every law professors dream) 10) precedent using (binding or persuasive) case law as authority (Dudley and Stevens p.137 Lord Hale) 11) slippery slope utilitarian argument decide a case by looking to future occurrences; each case will slide further into oblivion if you dont establish precedent with this case, you need to stop the downward slope from happening. 12) utilitarian if you dont do it, society will fall apart based upon consequences of action; try to do what is in the best interest for society (fatal consequence in Dudley and Stevens p.138) Five Purposes of Punishment 1) retribution Deontological Punishing because the defendant deserves it. 2) deterrence (specific or general) general you are being punished in order to prevent everyone else from committing this type of crime in the future. specific you are being punished so you wont commit this type of crime in the future. 3) incapacitation you are being punished in order to keep society safelock you up. 4) rehabilitation you are being punished in order to changeto become a better person. 5) equal justice you cant lessen the sentence just because you are wealthy and have done good work in the past. You must look at the crime itself and not someones personal characteristics

Purpose of Retribution  Retribution is deontological and backward looking in nature  This is the #1 reason why we think criminals should go to jail  James Fitzgerald Stephen says that it is morally right to hate criminals  Biological instinct we think criminals ought to pay a price  Michael Moore is a proponent of retribution and says that it is a basic fundamental feeling for people to feel that criminals deserve to be punished  Some say that retribution is so fundamental a feeling that the state must punish in order to satisfy societys need for vengeance  Herbert Morris the idea of benefits and burdens everyone in society has the burden of obeying the law; however, a criminal has relieved himself of the burden that obeying the law places upon oneself yet still receives the benefits of the system you have to put burden back into the equation in order to restore balance punishment is the burden that will restore the equilibrium you need to have retribution in order to keep the balance of benefits and burdens in check.  Murphy Criticized retribution by saying that people often commit crimes due to need or deprivation imposed by capitalist society (he is a Marxist), thus it is unfair for society to punish them for a crime caused by the inequality imposed by the society Purpose of Deterrence  Deterrence is utilitarian and forward looking by nature  People are rational actors and weigh the costs and benefits before doing something. They look at the risk of getting caught versus the penalties of getting caught. If the cost is too high, they deter; if the cost is low, they commit the crime (good example of these rational actors = white collar criminals)  Bentham and Posner are the proponents of the cost-benefit analysis of deterrence  Argument against cost-benefit deterrence Hypo: if you go solely by the cost-benefit analysis of deterrence, and you found money in a wallet where no one else was around, the risk of getting caught is extremely low; based on deterrence, you would steal the money this raises the question about where morality fits into the picture  Deterrence does fail sometimes recidivists commit crimes over and over again opponents of this purpose say that punishment needs to be harsher  Deterrence only works if a court decision is publicized; it has to be notorious  Andenaes says that deterrence works mostly on people who arent criminals to begin with; it works to reinforce the norms of society  Kant criticizes the deterrence argument by suggesting that it is wrong to use someone to prevent other peoples potential crimes  Gilligan criticizes deterrence on the basis that violent or emotional actors are not rational actors and dont do cost-benefit analyses when deciding whether or not to commit a crime, thus increasing the cost of committing a crime has no deterrent effect on the people who need to be deterred the most Purpose of Incapacitation  DiIulio says that modern statistics support the efficacy of incapacitation  Critics of this purpose say that prisons are maxed out and punishing someone for crimes they have not yet committed simply because they are more statistically more likely to commit crimes Purpose of Rehabilitation  Von Hirsch and Maher are strong advocates of rehabilitation

 The theory is that you keep people in jail long enough to adjust their mind to realize what he/she did wrong  The length of punishment should be how ever long it takes to achieve the rehabilitative objective  Problem: what if the person never gets well? Do you keep in jail for the rest of his/her life?  As a society, we generally dont have the confidence that rehab works  In US, the parole board serves to decide when someone has been rehabilitated in most systems, parole doesnt exist anymore  Should we factor rehab into the penal system?: 1) Yes we need to do our best to protect society and cut down on recidivism (utilitarian argument), 2) Yes though it shouldnt be the sole purpose of punishment, 3) No we are a society of scarce resources why should someone who commits a crime be able to get rehabilitated and have access to adequate job training when there are so many people who dont commit crimes that have no access to job training  Moore criticizes rehabilitation arguments by suggesting that paternalistic rehabilitation diverts scarce resources to criminals, is suspicious, and can lead to moral blindness Purpose of Equal Justice  Bergman: wealthy rabbi sentenced to 4 months in prison for defrauding insurance companies; he was already on a high pedestal with his wealth and privilege now he is being brought down to our level restoring the balance Sentencing Systems  indeterminate sentencing system: the judge has a lot of discretion; the statute gave boundaries for sentencing, but usually the gaps were very wide (i.e. from probation to 30 yrs. in prison); the judge could also decide parole measures with an indeterminate system; many critics of the indeterminate system have said that the judges were too lenient.  determinate sentencing system shift to this in recent years; sentencing guidelines are used; the possibilities for release on parole are reduced or eliminated, and the range of sentences has been greatly narrowed; this is a number-based system (i.e. type of crime = x number of years in prison); the judge is required to sentence you within the grid this has been very influential (35 states have already adopted some form of this) the main reason: the concept of equal justice take away discretion from the judge; move from rehabilitation towards retribution and incapacitation.  Federal Sentencing Guidelines created in 1984 under the newly-formed US Sentencing Commission. Sentencing categories were based on specific combinations of offense and offender characteristics. Just recently, the Supreme Court ruled that the federal determinate sentencing guidelines are unconstitutional. Judges should use the guidelines in an advisory capacity but should still have the discretion to sentence as he/she sees fit. Case Studies re: Sentencing  Chaney: an example of how the indeterminate sentencing system fails; minor punishment for a heinous rape and robbery crime; the sentence also did not effectuate the goal of community condemnation (retribution); people might think that it is okay to commit these heinous crimes (deterrence)  Jackson: indeterminate system; career criminals who persist in possessing weapons should be dealt with most severely (life in prison was permissible); concurrence said that this was too harsh and that career criminals taper off with age; we should only lock people up until they reach a harmless age.  Johnson: determinate system; ordinary family circumstances do not justify departure from the determinate method, but extraordinary circumstances may; in this case, due to the dependency of Ds four young children, the court was reluctant to penalize the children who rely solely upon D for their upbringing

 Three strikes and youre out approach upon conviction of a felony after two prior felony convictions, a D must be sentenced to life imprisonment without the possibility of parole. Many states have enacted or considered this type of legislation. SC says not inherently unconstitutional as cruel and unusual, but specific applications may be. II. Actus Reus: in order to be convicted of a crime in our system, you must have an act MPC Section 2.01 Requirement of Voluntary Act; Omission as Basis of Liability; Possession as an Act (1) a person is not guilty of an offense unless his liability is based on conduct which includes a VOLUNTARY act or the OMMISSION to perform an act of which he is physically capable. (2) The following are not voluntary acts within the meaning of this Section (and thus a defense): a) a reflex or convulsion b) a bodily movement during unconsciousness or sleep i. Regina v. Cogdon mother who killed daughter while sleep walking not culpable c) conduct during hypnosis Many courts disagree because hypnosis just makes it easier for one to do what wanted to do anyway d) a bodily movement that otherwise is not a product of the effort or determination of the actor, either conscious or habitual (habitual actions (such as habitual speeding) are not a defense) (3) Liability may not be based on an omission unaccompanied by action unless: a) the omission is expressly made sufficient by the law defining the offense; or b) the duty to act is otherwise imposed by law (4) Possession is an act if the possessor knowingly (MPC 2.02(7) says knowingly can be awareness of a high probability) procured or received the thing possessedor was aware of his control thereof for a sufficient period of time.  Words are considered to be a sufficient actus reus (cases such as treason, aiding and abetting, conspiracy, sedition, and solicitation) Fundamental Components of Actus Reus  when the action is blameworthy  when the action constitutes a harm as contemplated by the drafters of the statute in question Case Studies re: voluntary actions  Martin: a voluntary appearance is required (police cant yank D out into the street and claim he was intoxicated in a public place)  Newton: unconsciousness is a complete defense to the charge of criminal homicide (D blacked out when he shot and killed the police officer)  Involuntary actions fail to satisfy the retribution and deterrent reasons for punishment, and, thus, are not punished Bystander Indifference  You are not required by law to be a Good Samaritan. The policy behind this is protecting individual freedom (I am not responsible for you, you are not responsible for me). You shouldnt impose duties on people in all possible scenarios. It may also put Good Samaritans in dangerous positions. However, the arguments for requiring intervention are that it puts the law in line with morality and minimized the potential harm to those in peril.

 How to explain bystander indifference: pluralistic ignorance: presence of other bystanders may reduce each potential rescuers individual sense of responsibility to the imperiled and increase the probability of free-riding. People also have a fear of getting too involved and subjecting themselves to questioning by police and possibly a court. Nonetheless, bystanders face a choice of nightmares where they have to choose whether to fail to intervene and experience guilt or intervene and risk retaliation by an assailant. 5 situations in which a failure to act may constitute breach of a legal duty 1) where a statute imposes legal duty to care for another 2) where one stands in a certain status relationship to another (parent/child or spouse/spouse) 3) where one has assumed a contractual duty to care for another (daycare provider, teacher, in loco parentis) 4) where one has voluntarily assumed the care of another and so secluded the helpless person as to prevent others from rendering aid 5) where one has placed another person in peril Case Studies re: omissions  Pope: D was not obligated to protect the child since she was not the parent ofadoptive parent ofor responsible for the supervision of a minor child under 18; since the mother of the child was always present, D could not take the place of the mother even though the mother was legally insane; moral obligations do not equal legal obligations o Slippery slope - utilitarian argument because a person has no right to remove someone elses children without due process, we cannot create a legal requirement for people to intervenefor fear that we will have people intervening at every instance of a possible abuse due to their now legally required responsibility  refutation of slippery slope arguments - Good Samaritan statutes exist and the world has not ended there p. 189 German Criminal Code o Deontological Argument Her act as a Good Samaritan (taking the child and mother in) should not open her up to prosecution for events that occur incidental to that act  Jones: when there is a legal obligation, failure to provide food and necessities to a child is a sufficient actus reus. had no such legal duty.  The only main familial relationships that create a legal duty of care are parent/minor child and spouse/spouse

III. Mens Rea: in order to be convicted of a crime, you have to have a culpable mental state MPC Section 2.02 General Requirements of Culpability (1) Minimum Requirements of Culpability. Except in cases of strict liability (MPC 2.05), a person is not guilty of an offense unless he acted purposely, knowingly, or negligently, with respect to each material element of the offense. (2) Kinds of Culpability Defined. a) Purpose conscious object to engage in conduct and cause result b) Knowledge aware of conduct and circumstances; practically certain of the results (MPC 2.02(7) says awareness of high probability = knowledge) c) Recklessness aware of substantial and unjustifiable risk and consciously disregards it; this disregard involves a gross deviation from the standard of conduct of a law-abiding individual

d) Negligence should have been aware of a substantial and unjustifiable risk of the results; this disregard also involves a gross deviation from the standard of conduct i. Compare Tort Negligence (Not in MPC) (not gross) deviation from the

standard of care that a reasonable person would observe

(3) Culpability Required Unless Otherwise Provided. When the culpability sufficient to establish a material element of the offense is not prescribed by law, such element is established if a person acts purposely, knowingly, or (DEFAULT MENS REA) recklessly. (4) Prescribed Culpability Requirement Attaches to ALL Material Elements. Unless a different method is established by the statute (i.e. if the statute only says knowingly, it attaches to all the material elements of the offense)

Motive is not relevant as far as criminal conviction. It is relevant only to sentencing or showing purpose. Exception: - Hate Crimes a motive of causing fear or harm to someone based on their race, etc. - Treason purposefully aiding and abetting the enemy
MPC Section 1.13(9) Elements of an Offense (BURDEN OF PROOF ON PROSECUTION) 1) Conduct (actus reus) 2) Attendant Circumstances (stuff that fits in between conduct and result; i.e. age of victim, where crime takes place, etc.) 3) Result of conduct (outcome of actus reus) 4) Mens Rea (this must attach itself to all the other elements, except 6 and 7) 5) Negates Defense (if D has an excuse or justification for the crime, prosecution must negate that) 6) Negates defense under statute of limitations (time period between the time a crime is committed and the time that the government must file the charge) 7) Establishes jurisdiction and venue where the D can be tried y The jurisdiction is where the crime happened y The venue is the location within the jurisdiction where the crime happened MPC Section 1.13(10) Material Elements of an Offense 1) A material element is any element that relates to the harm or evil, incident to conduct, sought to be prevented by the law defining the offense or the existence of a justification or excuse for such conduct 2) A non-material element that relates to the statute of limitations jurisdiction, venue, or any other matter similarly unconnected to the elements listed in (1) Proving Mens Rea  In order to prove mens rea, you have to look at all the circumstances in the case; it will be proven by circumstantial evidence since we have to put ourselves inside Ds head.  You will always have a set of facts and a set of rules in a statute  Its up to the jury to go through the facts and the elements of mens rea that should attach to the facts.  The jury will go up the chain of mens rea (negligence, recklessness, knowledge, purpose) until it hits the level of proof. Difference between specific intent crimes and general intent crimes (Common Law including FL)  Though this is not mentioned in the MPC, its useful to know that many jurisdictions distinguish between the two types of crimes to establish different levels of culpability.

 Specific intent crime: equivalent to MPC purpose as to some objective. For instance, burglary requires that you break and enter, not simply knowingly or on purpose, but with the further objective of committing a felony inside.  General intent crime: equivalent to MPC knowing the nature of the acts performed. For instance, in looking at the above instance, the person who broke into the building would be guilty of trespass, a general intent crime; it doesnt matter whether he desired any particular further consequence.  General intent can also be used to attach reckless and negligent labels to elements of a crime, whereas specific intent can also be used to attach purpose and knowledge labels to the elements of a crime.  willful blindness (see Jewell) instructions are used in the Common Law to help the prosecution meet statutory requirements of knowledge; these are sometimes called ostrich instructions willful blindness comes into play when a D is subjectively aware of a high probability of illegal conduct (recklessness standard at minimum) and D purposely acted to avoid learning of the illegal conduct. o Under the Common Law: Willful blindness = Knowledge  MPC has no explicit provision for willful blindness, but Section 2.02(7) implicitly addresses it. o Under the MPC: Awareness of high probability = Knowledge criminals could create a low probability to avoid knowledge (five suitcases, one has drugs in it) The common law view is the majority view.

Case studies re: mens rea  Cunningham: D broke off the gas meter in someones basement, causing inhabitant of the house to suffer grave injuries; the court held that the nature of the mens rea required is that D must have intended to do the particular type of harm that was done; whether the unlawful act of releasing the fumes was malicious does not mean whether the act was wicked  Jewell: carrying marijuana across the border case; knowledge does not have to be positive deliberate ignorance and positive knowledge are equally culpable. To act knowingly is not necessarily to act only with positive knowledge, but also to act with an awareness of the high probability of the existence of the fact in question (MPC 2.02(7))  Faulkner Malicious Damage Act case; went to steal some rum; lit a match with which to see; the match caught something on fire and caused the ship to be destroyed. Key issue in

determining that was not culpable was awareness of the risk. Arson required mens rea of recklessness. He was unaware or the risk and, thus, not reckless not guilty of arson.
IV. Mistake of Fact Common Law can sometimes act as a defense from being held liable for committing a crime (the underlying facts are mistaken)  An honest, reasonable mistake is a defense when the requisite mens rea is negligence (or recklessness, knowledge, or purpose)  An honest, unreasonable mistake, without awareness of the risk, is a defense when the requisite mens rea is recklessness (or knowledge or purpose)  An honest, unreasonable mistake, with awareness of the risk, is a defense when the requisite mens rea is knowledge (or purpose)  An honest mistake even if reasonable and without awareness of the risk is not a defense when the requisite mens rea is strict liability

MPC Section 2.04 Ignorance or Mistake 1) Ignorance or mistake as to a matter of fact or law is a defense if: a) it negates the purpose, knowledge, recklessness, or negligence required to establish a material element; or b) the law provides that the state of mind established by the ignorance constitutes a defense. 2) The defense is not available if the defendant would be guilty of another offense had the situation been as he supposed. In such a case, the ignorance or mistake shall reduce the grade and degree of the offense of which he may be convicted to those of the offense of which he would have been guilty. 3) (Continued in Mistake of Law below) Case studies re: mistake of fact  Prince: mistake of age was not a defense to taking a young girl away from her parents; D was held strictly liable; matter of public policy (tender years doctrine); the act itself is wrong, so there is no need for a requisite mens rea; the mistake defense rests ultimately on Ds being able to say that he has observed the community ethic, which he could not do.  Olsen: in this case, the act of having sex with a 13-year-old girl is wrong to begin with, regardless of age; no mistake defense, even is belief was reasonable; legislative intent did not allow for a mistake defense; dissent said that when the offense carries serious sanctions and the stigma of official condemnation, liability should be reserved for persons whose blameworthiness has been established; mistake was reasonable here, and D was acting in a way no different from the way society expects a reasonable citizen to act  Mistake as to a jurisdictional element of an offense (i.e. that someone was a federal officer) is not a defense; jurisdictional element is not a material element (no mens rea required) is only there to require the necessary fact so the case is brought in the right court (Feola) Strict Liability even if you are mistaken, you do not get a defense; the nature of the crime itself makes you liable; no mens rea requirement needed (statutory rape, bigamy, adultery, etc.) MPC Section 2.05 When Culpability Requirements are Inapplicable to Violations and to Offenses Defined by Other Statutes; Effect of Absolute Liability in Reducing Grade of Offense to Violation  a violation does not equal a crime (it is below a misdemeanor; you may pay fines but will not go to jail)  the MPC allows strict liability for violations but not crimes (the requirements of culpability prescribed by Sections 2.01 and 2.02 do not apply to offenses which constitute violations, unless the requirement involved is included in the definition of the offense or the Court determines that its application is consistent with effective enforcement of the law defining the offense, or offenses defined by statutes other than the Codewhere legislative purpose is clear)  The MPC takes a very purist standpoint if you have a crime, you have to have a mens rea.  Courts dont have to interpret statutes in this way; they can determine that strict liability is appropriate. Case studies re: strict liability  Balint: lack of knowledge that Ds were selling prohibited drugs; however, manifest purpose of the statute is to require every person dealing in drugs to determine at his peril whether that which he sells comes within the realm of the statute (strict liability applied).  Dotterweich: lack of knowledge that manufacturers drug labels were in error; however, the innocent public should not have to bear the burden of knowing whether the labels are accurate; the shippers at least have an opportunity to find out about the labels before engaging in illicit commerce (strict liability applied).

 Morissette: statute made it a crime to knowingly convert government property; D thought that bomb casings had been abandoned by the government; the court said that Ds lack of knowledge should be a defense because there was a mens rea of knowledge in the statute (legislative intent was not strict liability); this crime was more like a traditional crime where the mens rea was assumed rather than a public welfare crime where the mens rea is left out altogether. Public Welfare Crimes Mens Rea is not required (strict liability) Affects a large segment of the population Misdemeanor (fines or up to 1 year in jail) without mens rea attached, it makes sense not to require a lot of jail time Regulatory offenses (malum prohibitum) these are new crimes; people wouldnt know about them without seeing the statute Offenses involving public health and safety Traditional Crimes Mens rea is assumed One-on-one crimes Felonies (more than 1 year in jail)

Immoral offenses (malum in se) people know about these crimes because they are inherently evil Stealing, Murder, and larceny are prime examples

 Staples: statute making possession of an unregistered firearm punishable by up to 10 years in prison; D claims he didnt know his weapon was capable of firing automatically; the court held that this would be a valid mistake defense; absent a clear statement from Congress that mens rea is not required, we should not apply the public welfare offense rationale to interpret any statute defining a felony offense as not including a mens rea; cant punish someone for simply having a gun (goes against lawful gun ownership); that the harshness of the penalty attached to violating this statute proves that the legislature intended for a knowledge mens rea; the court distinguished this case from the Freed case where the D was prosecuted for unlawful possession of an unregistered grenade; D was held strictly liable because he knew he had a grenade  Guminga: D was charged with violating a statute that imposes vicarious criminal liability on an employer whose employee serves alcohol to a minor. The court held that the statute violates the due process clauses of the constitution. No one can be convicted of a crime punishable by imprisonment for an act he did not commit, did not have knowledge of, or give express or implied consent to; alternative civil means can achieve the same end here (civil fines or license suspension) without the social ramifications of a criminal conviction; dissent said that vicarious liability is necessary as a deterrent so that an owner will impress upon employers that they should not sell to minors.  Strict Liability is often challenged as a constitutional violation of due process (cant convict someone of a crime without establishing a requisite mens rea) o Defenses to Strict Liability: Require refutation of the actus reus  Baker: charged with speeding, a strict liability offense, but argued that since the accelerator stuck he had no actus reus. The court said engaging the cruise control was the actus reus Mistake of Law: can sometimes act as a defense from being held liable for committing a crime (the underlying law is mistaken); much less likely to get a mistake of law defense than you are to get a mistake of fact defense MPC Section 2.04 Ignorance or Mistake (continued) (3) A belief that conduct does not legally constitute an offense is a defense to a prosecution for that offense based upon such conduct when:

a) the statute or other enactment defining the offense is not known to the actor and has not been published or otherwise reasonably made available (VERY constructive notice is sufficient) prior to the conduct alleged; or b) he acts in reasonable reliance upon an official statement of law, afterward determined to be invalid or erroneous, contained in: (i) a statute or other enactment, (ii) a judicial decision, opinion, or judgment, (iii) an administrative order or grant of permission; or (iv) an official interpretation of the public officer or body charged by law with the responsibility for the interpretation, administration, or enforcement of the law defining the offense. MPC Section 2.02(9) Culpability as to Illegality of Conduct. Neither knowledge nor recklessness nor negligence as to whether conduct constitutes an offense or as to the existence, meaning, or application of the law determining the elements of an offense is an element of such offense -- Mistake of culpability with respect to the law is not a defense; mistake of fact or law is a defense Arguments for and against allowing a mistake of law defense For:  fundamental objection is that it is simply wrong to punish someone who, in good faith reliance on the wording of a statute, believed that what he was doing was lawful  refusing to excuse even a reasonable mistake discourages investment in legal knowledge by making it hazardous for a citizen to rely on her private understanding of the law Against:  a person cant claim that they have mistaken the law simply by misconstruing the meaning of a statute  if allowed, there would be too many good faith mistake-of-law defenses and more opportunities for bad-faith individuals to have a better chance of being let off the hook for their crimes (look for loopholes in the statute slippery slope argument View Today:  courts are at a stalemate  NJ has the rule allowing you to rely on reasonable interpretation of a statute, and they are doing fine (i.e. there hasnt been an increase in the number of criminals who have gotten off as a result of a bad-faith mistake-of-law defense). contrary to the slippery slope argument Case studies re: Common Law mistake of law  Marrero: a statute expressly exempting peace officers from being held liable for possessing an unlicensed gun; D claimed he was a federal corrections officer and therefore exempt from the statute; the court held that Ds misunderstanding of the statute was not an excuse for criminal conduct; unless the mistakenly-relied-upon law was later determined to be invalid or the mistaken belief is founded upon an official statement of the law contained in a statute or other enactment, then no mistake of law defense; D made a mistake of criminal law.  Cheek: violation of statute making a person guilty of a felony who willfully attemptsto evade or defeat any tax...; D claimed that (1) he really believed that he owed no taxes under the current tax laws and (2) thought that the current tax laws were unconstitutional; he received his info from a group opposing the institution of taxation altogether; the court held that a good-faith belief does not have to be objectively reasonable in order to constitute a defense; willfulness in criminal tax cases requires that the government prove that the law imposed a duty on D, that D knew of this duty, and that he voluntarily and intentionally violated that duty; government did not prove willfulness here; however, as for the unconstitutionality argument, even if the provisions in the tax code were wrong, D cant be the one to change them or strike down their constitutionality; government did prove willfulness here; the tax violation here was considered criminal, and the court made an exception to the general notion that mistake of criminal law is not a defense (mainly because the legislature put in the word willful to allow for a defense)

10

 The terms willfully and knowingly have given rise to much controversy over whether their use requires that the D: 1) be aware of the existence of the law he is charged with violating or 2) that he only be aware of knowingly committing actions that violate the law (without necessarily knowing the meaning of the law). Courts have gone both ways; it depends on the individual circumstances of the cases.  Bryan: established that a defendant must know only that his conduct was unlawful, not which specific statute he violated.  Albertini: D was convicted of demonstrating a second time after it was ruled that demonstrations were lawful under the First Amendment; the prosecution argued that since the Supreme Court overturned the decision that D was relying on, he can be convicted for the second set of demonstrations; the court held that D was acting within his legal rights and had a due process right to do so. The US Constitution provides that it is against the law for any state to pass ex post facto laws (passing a law for the sole purpose of punishing someone who has violated it before it even became law); there is mistake of law defense when the mistake results from the Ds reasonable reliance upon an official statement of the law; to hold otherwise would be entrapment by the government  Hopkins (note case): relying on the advice of a State Attorney is not sufficient to establish a mistake of law defense under MPC 2.04(3)(b)(iv) because advice is not an official statement  Lambert: D was charged with a violation of a CA registration law which stated that it is unlawful for any convicted person to be or remain in Los Angeles for a period of more than five days without registering. D didnt know about this law. The court held that actual knowledge of the duty to register or proof of the probability of such knowledge and subsequent failure to comply are necessary before a conviction under the ordinance can stand. Engrained in our concept of due process is the requirement of notice. Even though registration laws are common, this law is unaccompanied by any real activity whatsoever the mere presence in the city is the activity. The ordinance serves no purpose other than to have a list compiled of all the convicted felons residing in a given community. The court also voiced public policy concerns in fears that facilitating the police in the establishment of a list of usual suspects would reduce the polices drive to effectively investigate, and result in more wrongful prosecutions based on circumstantial evidence. Dissent said that this type of regulatory offense works to achieve social betterment and that the court shouldnt be drawing a constitutional line between a States requirement of doing and not-doing. o Bill of Attainder: the passing of a law applying to only one person; other people do not have to comply; these types of laws are unconstitutional. (this principle is at work in the Lambert case) The Cultural Defense  Should the law afford an excuse for foreigners who violate the law by actions acceptable in their native cultures? There is a lively debate on this issue. o The basic arguments in favor of this: 1) the achievement of individualized justice for the defendant, and 2) a commitment to cultural pluralism. o The basic arguments against this: 1) the victims (almost always minorities and children) are denied the protections of the criminal law when we take into account multiculturalism and individualized justice.  The cultural defense may involve using the different culture of the defendant as evidence to rebut the existence of a particular mens rea required by the crime charged  Common Law: culture is not a criminal defense

11

V. RAPE A. Perspectives  Rape traditionally: crime of violence; modern: crime of unwanted sexual advances  Prevalence of male sexual aggression: general assumptions that there are constant pressures for sexual gratification and experience among all males and that some aggression is an expected part of the male role in sexual encounters  Harm in rape: many feminists suggest that the important harm in rape is not violence but unwanted sexual intrusion predominantly male attitudes lead to inappropriate conceptions about the amount of force necessary to constitute rape B. Statutory Frameworks  Different factors that change from state to state: age limits, penalties, degree of force/resistance required MPC Section 213.1 Rape and Related Offenses (MPC 213.2 Covers when the victim is male) 1) Rape: A male who has sexual intercourse with a female not his wife is guilty of rape if: a) he compels her to submit by force or by threat of imminent death, serious bodily injury, extreme pain or kidnapping, to be inflicted on anyone, or b) he has substantially impaired her power to appraise or control her conduct by administering or employing without her knowledge drugsfor the purpose of preventing resistance, or c) the female is unconscious, or d) the female is less than 10 years old. **Rape is a felony of the second degree unless: (i) in the course thereof the actor inflicts serious bodily injury upon anyone, or (ii) the victim was not a voluntary social companion of the actor upon the occasion of the crime and had not previously permitted him sexual liberties, in which case the offense is a felony in the first degree (VERY TRADITIONAL VIEW OF RAPE) 2) Gross Sexual Imposition: A male who has sexual intercourse with a female not his wife commits a felony of the third degree if: a) he compels her to submit by any threat that would prevent resistance by a woman or ordinary resolution, or b) he knows that she suffers from a mental diseasewhich renders her incapable of appraising the nature of her conduct, or c) he knows that she is unaware that a sexual act is being committed upon her or that she submits because she mistakenly supposed that he is her husband (STEP IN MODERN DIRECTION uses threat more generally and changed the definition of the crime to one that is less of a stigma) Traditional Crime of Rape State statutes vary slightly across jurisdictions, but in the lack of further definition one can assume they require the following elements:  sexual intercourse  by physical force or threat of force (death or serious bodily harm)  against will  without consent

12

C. Actus Reus Force:  traditionally: physical force was required; the alternative for physical force is threat of serious bodily injury or death the government proved force through resistance (whether or not there was force was usually proven by whether or not the victim resisted). In the absence of force, nonconsensual intercourse was criminal only when the victim was below a given age (statutory rape), unconscious, or mentally incompetent;  modern: most states today still require some kind of force or forcible compulsion. Why does rape require force or threat of force? 1) make sure there is lack of consent on victims part 2) prevent wrongful conviction force element is a measure of proof (physical evidence, something extreme to make conviction more solid) 3) want to distinguish the worst kind of behavior for punishment 4) distinguish between CLODS and THUGS (clods merely are not thinking and ignore what the victim is saying, think clumsy or careless thugs intentionally hurt the victim and are stigmatized as being a naturally horrible person) without force, he is not a thug 5) rape is one of the most serious crimes; to label someone as a rapist is extreme; become a social outcast as a result rape carries severe penalties; we only want to label the thugs as rapists 6) societal roles: male as the aggressor males are expected to be aggressive bright line force requirement recognizes this role also, females role as passive (no may sometimes mean yes)  Traditionally, coercion and duress were not sufficient to constitute force or threat of force. Force had to be physical, and threat of force had to be imminent. (Thompson)  Even today, courts are scared of allowing some forms of coercion and duress (i.e. coaxing someone to have sex with you by using your authority over that person - Mlinarich) to constitute a sufficient threat of force because it doesnt want to overreach and open up the floodgates for destitute widows to claim rape on this ground Is the act of sexual intercourse itself enough force to satisfy the rape element of force? o Traditional: force has to be extrinsic to the act of sexual intercourse itself; o Modern: look at the physical resistance of the victim to determine force if the victim does not consent to the act of intercourse itself, then that is enough to constitute force (M.T.S.) Resistance:  traditionally: resistance to the utmost of your ability if victim didnt resist to the utmost, there was no rape (Warren)  modern: reasonable resistance is the requirement in most states many courts have read the element of resistance into the statutes (not expressly stated). Now it is possible to prove rape without any resistance at all either through force or threat of force, which leads to fear Policy concerns regarding resistance: The entire concept of resistance to sexual assault has been called into question. The absence of resistance may not be probative on the issue of force or nonconsent. Many women actively resist, others freeze (frozen fright response). Lack of physical resistance may reflect a profound primal terror rather than consent. Also, to resist in the face of sexual violence is to risk further injury. These ideas are very controversial and are met with opposing viewpoints. Many courts (see Evans) still hold that the victims failure to resist when it was within her power to do so conveys the impression of consent regardless of her mental state; she must communicate in some objective manner her lack of consent.

13

 force resistance lack of consent  threat of force fear lack of resistance lack of consent?  The de-emphasis of the resistance element: resistance to the utmost reasonable resistance lack of resistance (in any instance, courts continue to consider resistance or its absence as highly probative on the question of whether the victim consented) Consent:  traditionally: nonconsent was proven only by physical resistance (verbal protests were considered insufficient due to the common no means yes belief);  modern: (1) verbal resistance plus some other behavior that makes unwillingness clear (a totality of circumstances approach)(MTS), (2) verbal resistance alone (no always means no), (3) verbal resistance or passivity, silence or ambivalence (anything other than affirmative permission by words or conduct), (4) the absence of verbal permission (not saying yes)  jury decides if victim consented based on the reasonable person standard o NEW JERSEYs definition of consent: p.342 Permission to the specific act of sexual penetration can be indicated either through words or through actions that, when viewed in the light of all the surrounding circumstances, would demonstrate to a reasonable person affirmative and freely-given authorization for the specific act of sexual penetration. Case Studies re: force, resistance, and consent  Warren: A man picked a girl up off her bike and took her into the woods and had sexual intercourse with her. She said nothing, nor fought back. We do not mean to suggest, however, that the complainant did in fact consent; however, she must communicate in some manner her lack of consent  Rusk: victims frozen in fear response to Ds actions was reasonably grounded in order to obviate the need for either proof of actual force on the part of the D or physical resistance on the part of the victim; dissent said that there is no evidence to support that the victim manifested her belief that Ds conduct was so abhorrent; there is no evidence at all to support the force element  Thompson Principal demands sex or no graduation. someone in a position of power demanding sex out of someone or else suffer some fate is not forcible rape because there was no imminent threat  Mlinarich (note case): D threatened to send the 14-year-old victim back to the juvenile detention home if she didnt have sex with him; the court reversed the conviction by saying that an interpretation of forcible compulsion which employs an ambiguous, generic definition of force will create the potential for a veritable parade of threats (slippery slope, floodgates argument). Dissent said that the legislature did not mean force in the limited sense to do violence to but rather in the more general sense of to constrain or compel by physical, moral, or intellectual means or by the exigencies of the circumstances. Coercion and duress would certainly fall in this expanded dictionary definition of force. o PENNSYLVANIA legislature later enacted a law delineating force as a physical, mental, emotional, or intellectual threats sufficient to prevent resistence by a person of reasonable resolution. Broad definition of force: pros and cons Pros:  morally positive  captures people who use pressure as a tactic Cons:  too slippery and broad

14

morally degrading to women (this puts into the law the assumption of continuing the stereotype of women as the weaker sex)  may not give enough notice to what illegal behavior really entails (too vague; covers too much activity)  do we trust juries and prosecutors with so much discretion?  M.T.S.: NEW JERSEY statute did not define physical force; the court held that force does not have to be accompanied with resistance; if there is no affirmative permission, the act of penetration constitutes the offense of sexual assault. NJ wanted to break away from the traditional view by eliminating the force requirement altogether. The wrong is the violation of the victims body without consent. Consent can be indicated either through words or through actions that, when viewed in the light of surrounding circumstances, would demonstrate to the reasonable person affirmative and freely-given authorization for the act of sexual penetration. This case is a huge shift in the definition of rape. o NJ: A LACK OF AFFIRMATIVE (Verbal or Conduct) PERMISSION; SILENCE = NO CONSENT o negligence mens rea as to consent (if the jury determines that was honestly and reasonably mistaken as to consent due to words or actions, then mistake defense is available) o No consent no force more than penetration necessary rape  Modern Trend in viewing rape  eliminating force element altogether  making the crime of rape sexual intercourse without consent  consent becomes the critical element (D has to prove she consented this acts as a deterrent for many men they know they better make sure she consents or they can be charged with rape) Case Studies re: DECEPTION and FRAUD  Evans: NEW YORK D posed as a psychologist and deceived the victim into having sex with him; the court said that it had to look to Ds point of view rather than the victims point of view (only D can explain his own state of mind). . The words "I could kill you. I could rape you" were ambiguous because the court could not find either forcible compulsion or threat beyond a reasonable doubt, defendant was found not guilty on the charges of rape, sodomy and unlawful imprisonment. The majority view regarding deception: no matter how horrible the deception is, if you have consent, you cant have rape. Seduction is allowable and indulged in by both sexes. The prevailing view in the country is that there can be no rape that is achieved by fraud, or trick, or stratagem. Provided there is actual consent, the nature of the act being understood, it is not rape, absent a statute, no matter how despicable the fraud. In this case, D did not resort to actual physical force and without forcible compulsion, he couldnt be convicted. (Although PA and NJs definitions of rape might have been sufficient for conviction)  Boro (note case): D told the victim that she had a fatal disease and that she could only be cured by having sex with him; the court looked at two types of fraud. In this case, the fraud was fraud in the inducement; the court noted that the legislature had already been invited to change the statutory language to account for fraud in the inducement, and since it didnt, this court would not to get in between the sexes to establish which types of lies should be enough to excuse the victims mistaken consent and convict of rape. o fraud in the inducement: if the deception relates not to the thing done but to some collateral matter (Majority view: consent induced in this manner is as effective as any other form of consent); and o fraud in the factum: if the deception causes a misunderstanding as to the fact itself (E.g. saying sexual penetration is a gynecological exam) (Majority view: no legallyrecognized consent because what happened is not that for which consent was given).

15

SPOUSAL IMPERSONATION is fraud in fact because sex with a spouse is granted a different status under the law than normal intercourse (See the Marital Exemption below)

D. Mens Rea Under the traditional view mens rea was rather moot due to the force requirement. However, movement toward the consent focused modern view requires an inquiry into the mens rea with respect to the consent. Case Studies re: mens rea and rape  Sherry: MASSACHUSETTS 3 doctors convicted of raping a woman who said that she verbally resisted; the statute says that rape has to be by force and against her will; the by force element required in MA can be proven through any resistance (including verbal); the verbal resistance must lead to lack of consent which is honest and real; the lack of consent then proves the against her will element; D tried to raise a mistake of fact defense by saying that D needed to have actual knowledge of the lack of consent; the court determines that in order for mistake of fact to be a defense, D must have acted in good faith and with reasonableness (MR level: negligence). However, since D did not ask for a negligence instruction, the court did not consider it. Massachusetts has since changed the mens rea to strict liability. o MA: Jury determines whether SILENCE or A LACK OF RESISTENCE (PHYSICAL OR VERBAL) resulted in consent. o Strict Liability (no mens rea) with respect to belief of consent (if the jury determines that the victim did not consent, then it was rape no matter the honest and reasonable belief of the )  Fischer: PENNSYLVANIA this D also tried to claim a mistake of fact defense by saying that he thought the victim consented; the court held that strict liability applies in this case; the court looked to precedent (Williams and Rhodes) to make its decision; since the legislature didnt allow for a defense, the legislature must not have wanted one and the court decided not to step in and create one; even with reference to the MPC mistake defense (2.04) and the fact that this case is a date rape case instead of a stranger rape case, the court didnt budge; it said that the lack of consent was enough to put D on notice. The court also said that if this was a case of intellectual force rather than physical (holding her hands over her head) that a mistake defense would have been available. o PA: Strict liability mens rea for defense  MAJORITY VIEW ON MENS REA FOR CONSENT: Most courts today apply a negligence standard to lack of consent. Therefore an honest and reasonable mistake as to consent is sufficient for a mistake of fact defense. Negligence standard for Mistake of Fact defense Reasonableness:  differs based on gender  what a man deems as reasonable might be different than what a woman deems as reasonable  studies have shown that many women have said no and really meant yes (fear of appearing too promiscuous prevented them from saying yes) E. A Statutory Solution? Proposed Model Statute  change rape to sexual assault (second degree felony)  An actor is guilty of sexual assaultif he uses physical force or threat of physical force to compel another person to submit to an act of sexual penetration.  Another section about the victim being less than 13 years old

16

 Another section about aggravated sexual assault being with a weapon  Lesser offense: sexual abuse (third degree felony)  An actor is guilty of sexual abuseif he commits an act of sexual penetration with another person, when he knows that he does not have the consent of the other person.  Consent = actual words or conduct indicating affirmative, freely-given permission to the act of sexual penetration  Consent is not freely given when: 1) victim is physically or mentally incapacitated, 2) victim is between 13-16 years old, actor 4 years older than victim, 3) victim is between 16-18, actor is parent or guardian or someone else with disciplinary authority, 4) victim is on probation or parole, 5) victim is threatened in a variety of ways, 6) actor is providing professional services or treatment at the time when penetration occurs, 7) victim is being misled by the actor (sexual penetration for purpose of medical treatment a la Boro), or 8) actor leads victim to believe he is someone she has been sexually intimate with before.  It appears that the mens rea is knowledge, but it is actually recklessness knowledge can be proven by recklessness whenever knowledge of a fact is requiredthe requirement of knowledge can be met by proof that, at the time of his conduct, the actor was consciously aware of a substantial and unjustifiable risk that the fact in question existed  Even if the actor was not consciously aware of the risk, he can still be convicted of violating the provision, provided that the prosecution provesa gross deviation from the standard of care that a reasonable person would observe in the actors situation (criminal negligence) Florida Statutes on Rape  termed sexual battery in FL  not a gendered crime (sexual battery can be committed upon either a woman or man)  FL grades crimes from most serious to least serious  No physical resistance required  Mistake of age is not a defense F. The Marital Exemption Marital Exemption Common Law View:  Traditional Justifications: woman as property, man cant be guilty of raping wife, protecting marital privacy, encouraging reconciliation, and marital rape is not as serious a crime as other types of rape  Modern view: there is no justification for allowing a man to rape his wife; the elimination of the marital exemption would not discourage reconciliation because if the marriage has already reached the point where intercourse is accomplished through violent means, then it is doubtful that there is anything left to reconcile; spousal rapes are often more violent and more severe than other kinds of rape. ** Many recent statutory reforms have gotten rid of the marital exemption (about half the states have abolished it entirely). When it is not in the statute, the judge can decide whether to read it into the statute or exclude it entirely. MPC View: The MPC chose to preserve the marital exemption (A man who has sexual intercourse with a female not his wife). Commentaries: marriage does imply a kind of generalized consent that distinguishes some versions of the crime of rape from parallel behavior by a husband. Husbands must be exempt from those categories of liability based not on force or coercion but on a presumed incapacity of the woman to consent (i.e. if she is underage). Also, retaining the spousal exclusion avoids an unwarranted intrusion of the penal law into the life of the family. Since there is already a crime of assault, why apply more drastic sanctions of rape to husbands who sexually assault their wives.

17

Case study re: marital exemption  Liberta: the court said there is no rational basis for distinguishing between marital rape and nonmarital rape. Rape is, simply put, a degrading and violating act no matter how you look at it; even though NY had a marital exemption clause in the statute, the legislature had expanded the definition of not married to include those people who were living apart as part of a court order (as was the case here) VI. HOMICIDE A. Introduction  homicide = the taking of a human life  criminal homicide = when the taking of a human life is a crime  Types of criminal homicide: murder (most serious) manslaughter negligent homicide vehicular homicide (least serious)  non-criminal homicide = when the taking of a human life is not a crime  Non-criminal homicide is justified when it is committed in self defense or if it is accidental  Homicide went from being common-law based to statutory based  Murder = unlawful killing with malice aforethought  Manslaughter = unlawful killing without malice aforethought  These definitions have different meanings in different jurisdictions  In CA, malice aforethought can be either express or implied express: there is manifested a deliberate intention to take away the life of a fellow creature (put in MPC terms: purpose) implied: when no considerable provocation appears or when killing shows an abandoned or malignant heart  Examples of mental states that would satisfy definition of malice aforethought an intention to cause the death of any person knowledge that the act which causes death will probably cause the death of some person an intent to commit any felony whatsoever (F/M rule) an intent to oppose by force any officer of justice Generally Accepted Definitions of Murder  intent to kill without provocation (express)  one person is killed by an act intended to kill another particular person (implied)  one person is killed by an act intended to kill, although not a particular individual (implied)  death results from the act intended to do no more than to cause grievous bodily harm (implied)  reckless with a(n) depraved (extreme) indifference to the value of human life (implied) MPC Section 210.1 Criminal Homicide (1) A person is guilty of criminal homicide if he purposely, knowingly, recklessly, or negligently causes the death of another human being (2) Criminal homicide is murder, manslaughter, or negligent homicide MPC Section 210.2 Murder

18

(1) Criminal homicide constitutes murder when: (a) it is committed purposely or knowingly; or (b) it is committed recklessly under circumstances manifesting extreme indifference to the value of human life. Such recklessness and indifference are presumed if the actor is engaged inrobbery, rape, arson, burglary, kidnapping, or felonious escape (2) Murder is a felony in the first degree MPC Section 210.3 Manslaughter (1) Criminal homicide constitutes manslaughter when: (a) it is committed recklessly; or (b) a homicide which would otherwise be murder is committed under the influence of extreme mental or emotional disturbance for which there is a reasonable explanation or excuse. The reasonableness of such explanation or excuse shall be determined from the viewpoint of a person in the actors situation under the circumstances as he believes them to be. (See Casassa for EED and REE factors) (2) Manslaughter is a felony in the second degree MPC Section 210.4 Negligent Homicide (1) Criminal homicide constitutes negligent homicide when it is committed negligently (2) Negligent homicide is a felony in the third degree Examples of State Homicide Statutes (see pp. 390-94) CA: Murder is defined, malice is defined, murder is broken down into various degrees, manslaughter is defined and broken down into degrees (voluntary, involuntary, and vehicular) PA: Criminal homicide is defined, murder is defined and broken down into degrees, voluntary and involuntary manslaughter is defined, causing suicide as criminal homicide NY: Homicide is defined, criminally negligent homicide is defined, degrees of manslaughter are defined, degrees of murder are defined B. Legislative Grading of Intended Killings 1. The Premeditation-Deliberation Formula Common Law View of premeditation  Instant (Broad view) (see Carroll)  Non-instant requires some period of formation between intent to kill and killing (see Guthrie) MPC view of premeditation  no mention of premeditation at all  murder is committed either purposely or knowingly Case Studies re: premeditation  Carroll: PA case; D killed his wife after a series of heated arguments; he had earlier placed a gun by the bedside and killed her while she was asleep; the court held that whether or not the premeditation and the killing were within a brief interval of time or a long interval is immaterial if the killing was deliberate and premeditated. D remembered the gun, deliberately took it down, and deliberately fired two shots this is enough to establish deliberate, premeditated murder. The court decided not to reduce Ds conviction from first to second degree murder since permitting a blind or irresistible impulse to excuse or justify a murder would be dangerous for society.

19

 According to Carroll, premeditation can be an instant before the murder (broad view all killings can be premeditated); erases distinction between first and second degree murder  Guthrie: WV case; victims were verbally harassing D in a restaurant; D had many psychological problems and ended up stabbing one of the victims; the court held that premeditation requires some period between the formation of the intent to kill and the actual killing. The killing has to be by prior calculation and design; there was no premeditation in this case  Guthrie approach: premeditation must be thought out in advance of the killing; a time lapse is necessary; more of a bright line between first and second degree murder  Elements of CAs premeditation test ad hoc approach  the relationship of the D and victim and its condition at the time of the homicide  whether D planned the killing based on the weapon used or the place where the killing occurred (planning activity)  presence of a reason or motive to deliberately take life (evidence regarding the nature or manner of the killing)  Anderson (note case): CA case; D repeatedly stabbed the 10-year-old daughter of the woman with whom he was living; the court held that the manner of killing suggested an explosion of violence rather than a premeditated plan to kill (the 3rd prong of the test fails) ** Today there is a trend for harsher punishment for premeditated murder elements of both retribution and deterrence 2. Provocation MPC approach to provocation (See Casassa)  no direct mention of provocation  acted under influence of extreme mental or emotional disturbance for which there is reasonable explanation or excuse  REE determined from the viewpoint of a person (objective) in the actors situation (subjective) under the circumstances as he believes them to be (subjective) o NY (and the MPC)s definition of manslaughter is more relaxed than the

Common Law view as seen in Michigan  No provocation requirement  No cooling time  Pure excuse defense
Traditional Common Law approach (See Girourd) Murder is reduced to manslaughter if:  no malice aforethought  Judge decides whether facts fall within legally sufficient provocation category (a reasonable person would have been enraged) o WORDS ALONE ARE NOT ENOUGH

o o o o o

Assault/Battery Mutual Combat Defendants illegal arrest Injury of close relative Sudden discovery of spouses adultery (in the act of fornication)

 Act from a sudden heat of passion  no cooling time (Judge decides whether an ordinary reasonable person could have cooled of as a matter of law)

20

Modern Common Law approach Murder is reduced to manslaughter if:  no malice aforethought  legally sufficient provocation (jury question of whether a reasonable person would have been enraged) Words alone are enough for legally sufficient provocation  act from a sudden heat of passion (subjective)  no cooling time (jury question)  Reasonableness (jury question) (objectively reasonable from the s subjective situation) In determining the Actors situation the jury may consider: Yes: - Inherent characteristics going to nature of provocation - Race, age, religion, ethnicity of the actor Maybe: No: Temperment Moral values Political values Racism Gender Mental illness Age & Gender to temperament

Explanations for Provocation Defense  as a partial justification: the victim has done something to deserve the D acting in the way he did retribution the victim loses the moral high ground  rebuttal to this: the victims immoral conduct did not jeopardize the life of D or of anyone else she doesnt deserve to die  as a partial excuse: D was just giving in to the frailty and weaknesses of human nature humans sometimes act out; its in our nature  rebuttal to this: even when someone is enraged, it is still very rare for a human being to resort to homicide  one partial excuse theory: the greater the provocation = the less does the Ds succumbing serve to differentiate his character from the provoker; the less the provocation = the more basis there is for ascribing the Ds action to an extraordinary susceptibility to intense passion  based on the above: the provocation element justification; the heat of passion element excuse  the more that a D was justified or excused, the less we feel that D needs to be punished for his crime  deterrence: could be argued either way proponent: could work to prevent people from acting out in the first place (keep their rage in check); opponent: wont work because acting out of the heat of passion cant be foreseen Examples of adequate provocation  sexual infidelity courts that permit this as provocation usually restrict the defense to situations where the D suddenly discovers sexual intercourse taking place  homosexual advances some courts have allowed Ds to raise a defense when they kill in response to unwelcome homosexual advances

21

Cooling Time  too long a lapse of time between provocation and act of killing = no provocation defense  a few courts (but not that many) will acknowledge rekindling event immediately preceding the homicide had rekindled the earlier provocation Victims other than the provoker  if D expects the victim to be the provoker, and he turns out to be mistaken, then he can still get a manslaughter defense in NJ (Mauricio p. 414), but most jurisdictions say that such a mistaken killing is murder  if D kills an innocent bystander, who might get in his way, courts have typically held that no provocation defense is available Defendants who elicit provocation  courts are split some think that provocation defense should still be decided by the jury when a D first provokes the victim, the victim strikes back, and D then kills the victim (other think this is ridiculous) Case studies re: provocation defense  Girouard: D stabbed his wife after she verbally assaulted him; the court held that words alone are not sufficient to establish adequate provocation; for provocation to be adequate, it must be calculated to inflame the passion of a reasonable person and cause the person to act for the moment from passion rather than reason  Maher: D followed his wife and lover from the woods into a saloon; on his way in, someone told him that they were having an affair; D then killed his wifes lover; the court held that the jury could have found that the act was committed in the heat of passion after sufficient provocation (applying reasonableness standard again). Dissent said the provocation needs to be in the presence of the person committing the homicide. Passion engendered by mere suspicion is not enough.  Casassa: D was upset because the victim had stopped dating him because she had not fallen in love with him; he waited for her in her apartment and killed her when she got home; under common law, D would have no defense (no provocation, adequate cooling time); however, this court takes MPC approach and looks at the issue of extreme emotional disturbance (an outgrowth of heat of passion); the court said that the defense of EED has two principal components 1) D must have acted under the influence of EED and 2) there must have been a reasonable explanation or excuseto be determined from the viewpoint of a person in the Ds situation as the D believed them to be. The first component is subjective; the second combines both objective and subjective elements. The jury should evaluate it. In this case, Ds EED was so peculiar to him that the murder was a result of Ds malevolence rather than his EED  EED does not require provocation; its purely subjective  How is in the actors situation defined (MPC approach adding a subjective element to an objective reasonableness standard)  some personal handicaps and external circumstances (i.e. extreme grief, traumatic injury, etc.) must be taken into account; idiosyncratic moral values are not taken into account  in between these two extremes there is a gray area as to what to look at  age and gender = yes  culture and religion = no  battered womens syndrome = maybe (courts are split)  mental disorders = typically no  temperament = no

22

 Englands approach: does not restrict the kinds of acts that could amount to provocation; the special circumstances (subjective) approach has now been abandoned; talks about what society expects not much mention of personal circumstances and reasonableness C. Legislative Gradings of Unintended Killings 1. The Creation of Homicidal Risk Unintentional homicide: reckless or negligent mens rea a. Distinguishing Civil and Criminal Liability Three factors to distinguish liability 1) awareness of risk MPC recklessness consciously disregards 2) degree of risk (or probability of harm) MPC recklessness or negligence substantial risk 3) gravity of harm MPC recklessness or negligence gross deviation  high awareness of risk + high degree of risk + great potential for harm = recklessness with extreme indifference to the value of human life = manslaughter conviction  The MPC captures all three factors required for a manslaughter conviction  Early American common law only required mere negligence for criminal liability; that evolved into negligence that was gross, culpable, or reckless such a departure from what would be the conduct of an ordinarily prudent or careful man as to be incompatible with a proper regard for human life  However, its important to note that in criminal cases, the deceaseds contributory negligence is never an affirmative defense. Case studies re: criminal liability  Welansky: a fire broke out in Ds nightclub, and many people died because all the exits were blocked; the court said that wanton or reckless conduct is necessary for a charge of involuntary manslaughter; the essence of wanton or reckless conduct is intentional conduct, where there is a duty to act, which involves a high degree of likelihood that substantial harm will result to another. The difference between this and negligence is the difference in degree of risk and the voluntary taking of that risk. In this case, there was a high degree of risk and a great potential for harm, since more people were in danger.  Parrish (note case): Ds husband was chasing her with a machine gun; in trying to save her life, she got into an accident, killing the victim; the court held that even though she created the risk, she was justified in doing so; recklessness requires a substantial and unjustifiable risk. b. Objective v. Subjective Standards of Liability  Defending Objective Standard: a general standard of conduct for the community is in the interest of safety for everyone  Opposing the Objective Standard: we all make negligent mistakes; its hard to see how justice requires mistakes to be punished; deterrence wont work if you didnt know you did something wrong; we should judge the actors choices (i.e. what the actor has chosen to care about and to perceive); these choices give the individuals conduct a distinct moral meaning.  Defending Subjective Standard: Sometimes Ds are unable to meet an objective standard of liability. Before punishing someone criminally for negligence, you should ask two questions: 1) did the accused fail to take those precautions which any reasonable man with normal capacities would in the circumstances have taken? 2) could the accused, given his physical and mental

23

capacities, have taken those precautions? Even if the first answer is yes, you can still escape liability if the second answer is no. Case study re: standards of liability  Williams: Ds failed to supply their sick infant with necessary medical attention, and he died as a result; under the statute applied, simple or ordinary negligence was all that was required to convict for involuntary manslaughter; there was sufficient evidence to show that the failure to obtain medical care was simple negligence; treatment two weeks before the baby died would have saved his life (proximate cause was established) c. The Line Between Manslaughter and Murder MPC Murder v. Manslaughter  murder death results from recklessness + depraved indifference to the value of human life  manslaughter death results from mere recklessness  it should be left up to the jury to determine the degree of recklessness needed for a murder conviction  when death results, failing to act is equal to acting for purposes of determining the degree of homicide Case studies re: murder v. manslaughter  Malone: Russian roulette case; D killed the victim, even though he says that the gun was not supposed to go off; the court noted that malice was necessary for murder at common law; in this case, D committed an act of gross recklessness for which he must have reasonably anticipated that death to another was likely to result. This shows a wickedness of disposition, which is enough to establish malice in this case. The fact that D had no motive does not matter. There was a 60% chance that the victim would be struck, so that is enough to affirm the murder conviction. The gun probably misfired, so the court is taking a public policy stance (kids shouldnt play with guns).  Fleming: D was drunk, speeding down the wrong lane of the highway, when he crashed into another car, killing the victim; the court determined that malice may be established by evidence of conduct which is reckless and wanton and a gross deviation from a reasonable standard of carein such a nature that you are aware of a serious risk of death or serious bodily harm. The court upheld the murder conviction because in the average drunk driving homicide, the D is usually reckless merely by being on the road and attempting to do the same things that a normal driver would do. In this case, however, in addition to being drunk, the D drove in a manner that could be taken to indicate depraved disregard of human life.  MPC Section 2.08(2) Intoxication: when the mens rea requirement is recklessness, voluntary drunkenness can be substituted for the mens rea; if the actor is unaware of the risk, that unawareness is immaterial (public demands this rule for safety concerns)  in most jurisdictions, egregiously dangerous driving can support a murder conviction; however, the MPC makes clear that inadvertent risk creation, however extravagant and unjustified, cannot be punished as murder 2. The Felony-Murder Rule a. The Basic Doctrine Felony-murder rule: If defendants felony is the legal cause of the victims death. Defendant is guilty of murder. (He has malice aforethought) Serne

24

Arguments for and against the felony-murder rule For:  deterrence arguments: 1) deter people from committing the underlying felony itself, 2) deter people from engaging in dangerous conduct while committing a felony (not necessarily prevent the felony, but get felons to be more careful)  retribution argument: person is already doing something wrong (i.e. the felony), so they deserve to be punished for all consequences of that wrong Against:  we have worked so hard in the criminal law to establish various grades of mens rea; the felonymurder rule wipes out the mens rea requirement; its fine to punish someone for the felony they commit, but its unreasonable to punish someone for something that happens during the felony that the felon did not know about; it adds nothing to the security of human life people are not going to be deterred from killing negligently or accidentally.  Its unfair to convict someone of murder if that person did not have reckless plus extreme indifference mens rea  Punishment is not proportional to the wrongdoing Causation Requirement  In order for the felony-murder rule to apply, the prosecution still must establish that the Ds conduct caused the death (actual cause and proximate cause see next section on causation) MPC view (210.2)  addresses the idea of the felony-murder rule with the language that a is guilty of murder if: o the actor is engaged, or is an accomplice in the commission of, or an attempt to commitrobbery, rape, or deviate sexual intercourse by force or by threat of force, arson, burglary, kidnapping, or felonious escape.  The MPC hasnt eliminated the mens rea requirement like many felony-murder statutes have you can presume recklessness plus extreme indifference if death results from the actors commission of one of the felonies listed this is a rebuttable presumption though (jury doesnt have to buy it). Jurisdictional Felony-Murder Rules:  most jurisdictions have some kind of felony-murder rule in place; they feel like it is so entrenched in common law that they cant eliminate it o Minority:  Non-Traditional Common Law: MI contradicted the states statutory felonymurder rule by requiring mens rea to attribute guilt. No felony murder rule. Used as a grading device for mens rea  MPC: (see above) only recognized as a rebuttable presumption. Some states define in their statutes the exact crimes that are included (MPC adopts this approach) o Traditional Common Law: No Causation not limited to foreseeable deaths any death that occurs in the commission of a felony trigger the felony murder rule o Modern Common Law: (NJ + RI)  Inherently dangerous: abstract approach and statutory crimes incur the felonymurder rule  Merger: Independent felonious purpose test  Causation: Proximate cause w/ co-felon exception o Alternate Modern Common Law: (FL)  Agency theory with legal cause

25

Constitutional Issues  is the felony-murder rule unconstitutional?  Some argue that it is because it violates the constitutional amendment on cruel and unusual punishment convicting of murder without proving malice aforethought Misdemeanor-Manslaughter Rule  counterpart to the felony-murder rule  a misdemeanor resulting in death can provide a basis for an involuntary manslaughter conviction without proof or recklessness or negligence  causation is the only element to prove  some courts restrict the doctrine to malum in se misdemeanors  some courts limit the doctrine to misdemeanors that rise to the level of criminal negligence or that are designed to protect human safety Case studies re: felony murder doctrine  Serne: D burned his own house down, and his two sons died in the fire; he was convicted for felony-murder; in this case, the court said that the rule ought to be narrowed; it says that any act known to be dangerous to life and likely in itself to cause death, done for the purpose of committing a felony which causes death, should be murder; however, what D did in this case wasnt inherently dangerous. The evidence isnt conclusive that he started the fire in the first place.  Stamp (note case): as long as the homicide is the direct causal result of the robbery, the felonymurder rule applies; also, the felon must take the victim as he finds him (eggshell skull rule)  Aaron (note case): the court abolished the felony-murder rule by interpreting the statute as meaning any murder not any death (minority view) b. The Inherently Dangerous Felony Limitation  Only felonies that are inherently dangerous to human life can support the application of the felony-murder rule  Note that if a felony is listed in the statute, there is no way to get around it it is automatically considered inherently dangerous Does felony qualify for felony-murder? - In statute? If yes, done felony-murder rule applies o If no, then Is the felony inherently dangerous? If no, done. no felony-murder  If yes (inherently dangerous), then Is there an independent felonious purpose? y If no, the crimes merge there is no felony-murder rule or underlying felony, and the must prove the requisite mens rea for murder o Burglary Exception If one commits burglary with intent to assault an individual and the individual dies no merger and the felony murder rule applies  CA rejects this under its ad hoc approach an merges the crimes y If yes, there is no merger did the himself do the killing o If yes, felony-murder rule applies o In no, causation issue: (continued onto next page)  Proximate cause jurisdict. legal cause (AC+PC) y liability for felony-murder = any death proximately resulting from the unlawful

26

activity. The test under the proximate cause theory is foreseeability Agency theory legal cause w/ agency limitation y liability for felony-murder = the killing must have been done by the D, by an accomplice, or someone acting in furtherance of the felony Proximate cause w/ co-felon exception legal cause w/ co-felon exception y precludes liability if the victim is a co-felon; does not preclude liability if the victim is an innocent bystander

SEE CAUSATION Test for determining if a felony is inherently dangerous Inherently dangerous limitation is a limitation on the felony-murder doctrine, used by courts to reign in the felony-murder doctrine (since the courts dont like how the felony-murder doctrine conflicts with culpability requirements)  fact-specific approach Viewed in the circumstances of the case at hand, was the crime dangerous? (subjective) o Generally, this test finds felonies to be inherently dangerous (since someone has usually died when it is invoked) o Problems: will always result in a murder conviction; mens rea would never be applied; floodgates  abstract approach Does the commission of the felonious crime itself require dangerous circumstances? (objective) o Generally, this test finds felonies to be not inherently dangerous o Phillips court used this method due to CAs hostility toward the felony murder rule Case Studies re: inherently dangerous felonies  Phillips: D was not trained to treat a childs cancerous eye, but he did so anyway, and the child died; underlying felony is theft (since he charged parents for the bogus treatment); grand medical theft is normally not an inherently dangerous felony; the court applies the abstract approach here; on retrial, D was convicted anyway because the jury found malice.  Stewart: D was hooked on drugs and failed to care for her infant for several days, resulting in the infants death; underlying felony was wrongfully permitting the child to be a habitual sufferer; the court adopted the fact-specific approach and affirmed Ds conviction of murder c. The Merger Doctrine  If the felony and the homicide have merged, then there is no extra felony committed, and the result would be a normal murder conviction. The felony-murder rule can only serve its purpose when it is applied to a felony independent of the homicide. This is called the independent felonious purpose test.  Felony-Murder = homicide resulting from conduct for an independent felonious purpose.  Merger Doctrine = homicide resulting from a single course of conduct with a single purpose (also called the integral part test)

27

Application of the independent felonious purpose test  rape purpose is intercourse without consent; not a method of killing; if death results from the rape, it would meet the independent felonious purpose test, and be excluded from the merger doctrine (included in felony-murder)  robbery purpose is to take property; this would also be excluded from the merger doctrine; however, if your purpose is to assault someone during the robbery, then this would be included in the merger doctrine (except in CA) Case studies re: merger doctrine  Smith: in this case, child abuse by way of beating (rather than neglect) does merge with the resulting homicide; there is no other purpose here other than death  Hansen (note case): the court threw out the integral part and independent felonious purpose tests and said that all inherently dangerous felonies should serve as a predicate for felonymurder as long as this didnt open up the floodgates or subvert legislative intent d. Killing not in furtherance of a felony  Can a person be responsible for a murder if it was committed by someone else? At early common law, the answer would be no  This brings in issues of causation  Two theories of causation for felony-murder: agency theory liability for felony-murder = the killing must have been done by the D, by an accomplice, or someone acting in furtherance of the felony; proximate cause theory -- liability for felony-murder = any death proximately resulting from the unlawful activity. The test under the proximate cause theory is foreseeability Application of agency and proximate cause theories  who does the killing? Agency: felony-murder will only apply if the killing is done by a co-felon or someone acting in furtherance of the felony. Proximate cause: anyone could do the killing as long as it is within the foreseeable scope of the commission of the felony  Common law: agency theory favored; restrict felony-murder liability  Modern trend: more states are increasingly adopting the proximate cause theory and expanding felony-murder liability  Majority view: proximate cause theory with co-felon exception; the common-law rules governing causation and the availability of statutory affirmative defenses (however, assumption of the risk is never available as a defense in criminal cases) provide adequate boundaries to felony-murder liability Case Studies re: causation and felony-murder  Canola: NJ case; classic robbery resulting in murder case; co-felon and store owner killed each other; D did not kill anyone; this court rejected the proximate cause theory and adopted the agency theory. It said that this view is consistent with the modern trend to narrow felonymurder; you shouldnt have to resort to tort concepts of proximate cause and foreseeability  In response to the holding of the Canola case, NJ adopted a new statute based on proximate cause; this statute said any person causes the death of any other person other than one of the participants. This can be called a proximate cause theory with a co-felon exception (precludes liability if the victim is a co-felon; does not preclude liability if the victim is an innocent bystander)  Why felons should not be held liable for death of co-felon: 1) its unfair to hold the felon liable for a homicide that was justified in the first place (i.e. if a police officer kills the co-felon in the line of duty), 2) Felony-murder is designed to protect the innocent public; however, if there is no

28

action, premeditation, etc. on the part of the innocent felon, why should he be held below the standard of innocent public?  On the flip side: deterrence; holding felons liable for their co-felons death, even when the felon was not the perpetrator, prevents felons from committing the types of felony where someone is likely to get killed VII. A. Causation Common Law Causal Test: The higher the mens rea of the intervener, the more likely Ds conduct was not foreseeable Duty and Emergency are IHA exceptions in general for all mens rea comparisons with an IHA Purpose, knowledge, and felony-murder are all equal mens rea for the purposes of the IHA test First: Actual (But For) Cause Second: Proximate Cause A. Foreseeable ALWAYS (the first part of the test) necessary for establishing proximate cause a. Can be argued in two ways: i. Expansive foreseeable that death would occur in general (See Acosta) ii. Restrictive foreseeable that death would occur in the manner it did (Warner-Lambert) If the did the killing himself, stop here. If there was an Intervening Human Actor continue below: B. Intervening Human Actor (IHA) a. IF: EQUAL HIGH MENS REA - Defendant has purpose or knowledge mens rea (or felony-murder) and the IHA has the same i. RULE: IHA breaks causal chain 1. EXCEPTIONS: when IHA lacks volition a. Duty b. Necessity (e.g. self defense) (Kern) c. Duress d. Pursuant to an Emergency (with the intent to kill required above) e. Instinctive action from a wound causing mental irresponsibility (see Rex v. Valade below) f. Stephenson Doctrine (see Stephenson below) says defendants conduct rendered victim mentally irresponsible g. IHA is insane b. IF: UNEQUAL MENS REA - Defendant and IHA have different Mens Rea i. RULE: Comparison of the two Mens Reas 1. IHAs mens rea is higher than the Defendants, breaks causal chain a. Often, the higher the mens rea of the IHA, the lower the foreseeability of the IHAs actions. Therefore, these cases could be attacked on from a foreseeability basis as well. 2. IHAs mens rea is lower than defendants, doesnt break the causal chain

29

a. Watch out for the medical malpractice case in which an IHAs mens rea is lower, but the IHAs action was not foreseeable and there is no need to go beyond the foreseeability factor to a comparison of the IHAs mens rea to the defendants. A doctors normal malpractice is foreseeable but gross malpractice is not. As in Stewart complications due additional procedures unrelated to the wounds inflicted are not foreseeable. c. IF: EQUAL LOWER MENS REA - Defendant and the IHA have the same mens rea but lesser than purpose or knowledge, courts divide (D usually liable but is fact specific) 1. See Root/Lewis below for IHA breaking causal chain 2. See McFadden/Attencio below for IHA not breaking causal chain a. Either approach could be correct depending on the jurisdiction (Feinberg) 1. Foreseeability and Coincidence Two Types of Causation  actual cause (but-for test) can be more than one actual cause, as long as Ds conduct is one of them  proximate cause (foreseeability test) Exceptions to standard causation tests  Exception to the but-for test concurrent cause two people are substantial factors in the resulting crime, and thus are both liable (i.e. two people want to kill X; one guy pulls out a gun, the other a knife; one guy shoots X at the exact same time that the other guy stabbed X both liable)  Exceptions to the foreseeability test o preceding cause take your victim as you find him (eggshell skull rule). Foreseeability doesnt matter. You are liable for anything that happens to the victim, regardless of preexisting conditions o intervening human actor could act to break the causal chain transferred intent -You injure or kill A but intended to injure or kill B; B got in your way or you accidentally hit him instead of A; you are still liable for the crime intended upon A Notes on Foreseeability  the more specifically you view the event (the specific way in which the victim(s) died) = the less foreseeable it is  the more generally you view the event (that death would occur) = the more foreseeable it is MPC Section 2.03 Causation: 1) Conduct is the cause of the result when: a) but-for which the result in question would not have occurred (actual cause) b) . 2) When purposely or knowingly causing a particular result is an element of an offense, the element is not established if the actual result is not within the purpose or the contemplation of the actor unless (mens rea defined) a) the actual result differs from that designeda different person or different property is injured. (transferred intent); or

30

b) the actual result involves the same kind of injury or harm as designed or contemplated and is not too remote or accidental in its occurrence. 3) When recklessly or negligently causing a particular result is an element of an offense, the element is not established if the actual result is not within the risk of which the actor is aware or, in the case of negligence, of which he should be aware unless: a) see a above b) see b above 4) When causing a particular result is a material element of an offense for which absolute liability is imposed by law, the element is not established unless the actual result is a probable consequence of the actors conduct Notes on MPC  MPC completely abandons the idea of foreseeability  It only addresses the risk of harm, not what the objective person would foresee  MPC has not influenced any jurisdiction all jurisdictions use foreseeability to some degree  MPC does not include language about subsequent human intervention Purpose of Causation  retributive the concept of causation is inextricably bound up with the entire complex of blaming; there is moral responsibility for those harms we cause Case studies re: foreseeability  Acosta: Ds fleeing from crime scene led to high-speed chase in which two helicopters crashed, killing three people; the court said that the but for test was met; it also INCORRECTLY said that the foreseeability test was met because the crash was an ordinary consequence of a high speed chase (foreseeable that some kind of accident would occur; dont have to predict the exact harm). Dissent said that this was not foreseeable. When one looks at recklessness one assesses foreseeability subjectively. The pilots were not in the zone of danger.  Arzon: D set fire to a couch, and the fire spread to the entire building; when the fireman came to the scene, another unrelated fire broke out, trapping him in the building and resulting in his death; Ds act placed the deceased in a position where he was particularly vulnerable to the separate and independent fire. It was foreseeable that firemen would respond to the situation, thus exposing them to life-threatening danger. (See also the pursuant to an emergency exception)  Foreseeability is easily argued both ways. Depends on whether you define the harm in an expansive or restrictive way  Warner-Lambert (note case): employees killed at an explosion at a chewing gum factory; Ds had used explosive substances in its manufacturing processes; however, the court held that there was no proof that Ds failure to do anything about the potentially explosive substances was a direct cause of the explosion; no one can prove the triggering function of the explosion (narrow)  Deitch: (note case) employee died as a result of blocked fire escape; the cause of the fire was never discovered, but Ds created unsafe conditions in the warehouse; this was a foreseeable intervening cause (broad)  Stewart defendant charged with murder after he stabbed the victim who went to the doctor for treatment of his wounds and underwent surgery to fix a hernia and died. Not enough to support homicide conviction since the victim most likely would have survived if not for the hernia operation.The prosecution must prove causation beyond a reasonable doubt (that death did not result from a reason that could be attributed to the defendant), therefore if the relationship is too tenuous (due to attenuating events or time) then there is no actual causation (not sufficiently direct)  Medical malpractice cases: many courts find the initial assailant liable for the victims death even when significant medical error contributes to the result; courts disagree about the extent to which

31

subsequent medical mistakes may bear on the initial assailants liability. However, GROSS malpractice is not foreseeable. 2. Subsequent Human Actions a. Subsequent Human Actions Intended to Produce the Result  Common law: homicide does not include suicide  However, assisted suicide is a more controversial topic Notes on Assisted Suicide  Majority View: one who successfully urges or assists another to commit suicide is not guilty of murder, as long as the deceased was mentally responsible for her actions; most states also reject manslaughter or negligent homicide convictions  MPC View: Section 210.5(1) Causing Suicide permits convicting a person of criminal homicide for causing another to take his life but only if he purposely causes such suicide by force, duress, or deception.; Section 210.5(2) Assisting Suicide separate offense; it is a felony, punishable at the same level as manslaughter, to purposely aid or solicit another to commit suicide  One who recklessly or negligently provides the means to commit suicide to someone who is in an impaired mental state can be convicted of a lesser degree of homicide Passive Involvement in Suicide  strong notion of individual autonomy and free will the decision to take ones own life is an autonomous decision  also preserves the Ds right to freedom of action, so Ds will not be held liable for people who ultimately choose to end their life ** Intervening suicide must be voluntary. An example of an involuntary human action include duress or momentary emergency leading to victims mental irresponsibility Case studies re: suicide as an intervening action  Campbell: and victim were drinking heavily. was angry with the victim for having had sex with his wife. encouraged the victim to kill himself, but the victim said he did not have a gun with which to do it. gave victim his gun with 5 shells and left. Victim shot and killed himself. Defendants hope that the victim would kill himself falls short of the required intention for a charge of murder. Even though both causation tests were met, the victim chose to take his own life, so D could not be held liable due to the action of an IHA.  Kevorkian: D hooked up women to his suicide machine and aided in their suicides; the court held that that only where the D has taken an active role in the actual death of the victim can he be held liable; it is not enough to simply provide the means by which a person commits suicide; the voluntary actions of the victims broke the causal chain. Dissent said that providing the means to commit suicide should be enough to convict of murder allowing Ds to escape liability in these instances are putting the most vulnerable members of society (i.e. elderly, ill, chronically depressed) at risk.  Stephenson: D kidnapped a woman and tried to rape her; she bought poison to try and kill herself; she gets really sick and eventually dies; the court decides that the victim was mentally irresponsible; it said that when suicide follows a wound inflicted by the D, his act is homicidal, if the deceased was rendered irresponsible. After abducting the victim, his control over her was absolute and complete. The court even stretched this further by saying that when the victim swallowed the poison, she was subject to the passion, desire, and will of the D (was foreseeable).

32

Problem with this decision: could open floodgates. D was held liable even though the predominant motive for her suicide was not to escape further assault but rather to escape the shame of what had already been done to her. o Stephenson doctrine why is this case arguably weaker than the Valade case. The time elapsed before her taking the poison was far longer than the victim in Valade. Also the majority of her wounds were inflicted mentally. The court suggested that this was the outer bound of exception from IHA causal connection based on inflicted injury

b. Subsequent Actions that Recklessly Risk the Result Case studies re: reckless suicide  Root: drag racing case where the victim sped in front of Ds car and got killed when he collided with another car; the court held that D was not the direct cause of the victims death. The victims action broke the causal chain (See IHA Rule 3 above). The victim made the final, ultimate decision that caused his death; it was volitional with elements of free will and autonomy. No need to look at proximate cause. Dissent said that D was part and parcel of the event, so his recklessness was a substantial factor in the accident, and he should be held liable.  McFadden: another drag racing case; this time both an innocent girl and the victim died; the court held that it is not too harsh to apply the tort concept of proximate cause to this case. Proximate cause is based on the concept of foreseeability, and this along with the requirement of recklessness will prevent the possibility of harsh or unjust results in involuntary manslaughter cases.  Atencio: Russian roulette case; both the victim and Ds participated in the game; the court held that the risk participation was sufficient to hold Ds liable for the victims death; the victims actions did not break the normal causal chain because they were all acting in the same manner and all participating; mutual encouragement in a joint enterprise  Lewis: another Russian roulette case; however in this case, D showed the victim what to do and then left the room; the court held that liability was precluded because the free will of the victim can be seen as an intervening cause which breaks the chain of causation. Because D was not in the room and not participating, the victim made the final overt act to fire the gun.  Kern: Defendants assaulted several black men whose vehicles had broken down. One of the men tried to escape the defendants by crossing a highway and was struck and killed while crossing. The victim had no reasonable choice but to escape across the highway so his choice can not break the defendants causal connection It was foreseeable that the chased person might attempt to escape by crossing the street. The defendants mens rea toward the incident is knowledge or purpose. The IHA victims mens rea was less than knowledge since his evasion was justified. The IHA negligent drivers mens rea was negligence. IHAs mens rea lower than defendants IHA rule 2 above does not break causal chain  Feinberg The abuse of the sterno by skid-row drunks was foreseeable. The store owner was reckless in selling the sterno to skid row drunks. The drunks were reckless in drinking the sterno. The defendant and the drunks have equal, lesser mens rea Look to IHA rule 3 above. o Pro-defendant argument the decedents acted independently in their own volition o Pro-prosecution argument the decedents were addicts and were therefore acting without volition

33

VIII. Justification Defenses negates culpability even when all the elements of the offense are present and have been proven Ds actions are morally justified and acceptable A. Self-Defense Two Kinds of Self Defense 1) the use of force to protect oneself 2) the use of deadly force to protect oneself Elements of Deadly Force  threat of deadly force  actual or apparent  unlawful and immediate  belief that he was in imminent peril of death or serious bodily harm  response was necessary to save himself  belief has to be objectively reasonable in light of the surrounding circumstances **Note: at common law, if the actor was unreasonable, he would not get the defense (negligence standard applied) MPC Section 3.04 Use of Force in Self-Protection Use of Force Justifiable for Protection of the Person: the use of force is justifiable when the actor believes that such force is immediately necessary for the purpose of protecting himself against the use of unlawful force Limitations on Justifying Necessity for Use of Force: (b) the use of deadly force is not justifiable unless the actor believes that such force is necessary to protect himself against death, serious bodily harm, kidnapping, or sexual intercourse compelled by force or threat; nor is it justifiable if: (i) the actor, with the purpose of causing death or serious bodily harm, provoked the use of force against himself in the same encounter; or (ii) the actor knows that he can avoid the necessity of using such force with complete safety by retreating.except that the actor is not obliged to retreat from his dwelling. MPC Section 3.09(2) When the actor believes that the use of force upon or toward the person of another is necessarybut the actor is reckless or negligent in having such belief or in acquiring or failing to acquire any knowledge or belief which is material to the justifiability of his use of force, the justification affordedis unavailable in a prosecution for an offense for which recklessness or negligencesuffices to establish culpability. MPC Section 3.09(3) When the actor is justified in using forcebut he recklessly or negligently injures or creates a risk of injury to innocent persons, the justification is unavailable. Notes on MPC View  MPC view on self-defense was not adopted in any jurisdiction  By leaving reasonableness out of the 3.04(2)(b) belief language, the drafters of the MPC probably meant that belief should be viewed subjectively  3.09(2) provides the objective element by punishing the actor for an honest, but unreasonable mistake (negligence) or an honest, but unreasonable mistake with awareness of the risk (recklessess).  Under the MPC (and common law), you need an actual belief of imminent harm before you can invoke self-defense  Also under the MPC, you do not get the defense if you kill an innocent bystander

34

Case Study re: self-defense and deadly force  Goetz: when D was approached by 4 black kids in a subway car, he shot them; he claimed that they were trying to rob him, so he did it out of self-defense; tense racial issues in this case; the main question was whether Ds actions were reasonable; the court held that the NY legislature intended for this part of the statute to be read objectively. Just because something is read objectively, also, does not mean that you have to ignore characteristics and prior experiences of a given actor (subjectivity creeping in). Reasonableness must be based on the circumstances facing a D in his situation. The court said no self defense, and the jury nullified the indictment  What does in his situation mean in re: Goetz: Ds diminutive size, his history of being mugged several times before, the fact that the situation was confined to a subway car, and the fact that he was outnumbered = take all of this into account; however, the court will not take Ds underlying racism into account; public policy cant allow the perpetuation of racism; its against social morality  Reasonable racist? -- racists sometimes claim that their beliefs are reasonable since the typical American believes that blacks propensity toward violence justifies a quicker and more forceful response when a suspected assailant is black; however, the majority view is that reasonable beliefs do not = typical beliefs; evidence that creates unfair prejudice should be excluded from consideration  The Goetz outcome could have been due to jury nullification the jury probably didnt follow the law; relied on sympathy only; we tolerate jury nullification in our system because there is nothing we can do to prevent it 1. Exceptions to the Right of Self-Defense a. The Duty to Retreat Duty to retreat under common law, you have a duty to retreat if you have the ability to do so; standing your ground and using deadly force is not a defense; the duty to retreat only arises when you feel like you have to use deadly force in order to save yourself from death or serious bodily harm. If you are faced with just ordinary force, you can stand your ground. MPC View  you only have the duty to retreat if you know that you can retreat to complete safety General Exception  castle doctrine no duty to retreat from ones own home Arguments for and against duty to retreat For:  dont need to needlessly waste a life when you can retreat and spare your own Against:  should be able to stand your ground and not be a coward **Today, courts are split on the issue. Different views on initial aggressor problem Majority/Common Law View: self-defense is available only to the person who is free from fault hard to get defense (initial aggressor loses his right to self-defense)

35

Minority View: the aggressor can regain his right to self-defense if he is met by an excessive, lifethreatening response, provided that he then exhausts every reasonable means to escape such danger other than the use of deadly force easier to get defense MPC: takes an even narrower view than the minority view; says that an initial aggressor can get the defense unless he enters into the encounter with the purpose or knowledge of causing death or serious bodily harm by provoking the use of force against himself easiest to get defense Case Studies re: duty to retreat  Abbott: after a fight broke out between neighbors, D ended up injuring the victims with a hatchet that he had wrested from one of the victims control; D was not the initial aggressor; the court reversed the conviction because the instructions on retreat were ambiguous.  Peterson: D provoked a conflict with the victim; when D went inside to get a gun, the victim started to leave; D came back outside and told the victim not to move; the victim approached D with a lug wrench; D shot and killed the victim; the court said that self-defense may not be claimed by one who deliberately places himself in a position where he has reason to believe his presence would provoke trouble; also, words are not enough to make someone an initial aggressor; you also need unlawful physical force; had D retreated and the victim still came at him, D would have regained his right to self defense. B. Other Justification Defenses (Necessity)  Justification defenses are typically looked at on a case-by-case basis  Necessity is never a defense to homicide under the majority common law view MPC v. NY Penal Code on Necessity  Majority View: NY Penal Code Conduct which would otherwise constitute an offense is justifiable and not criminal whensuch conduct is necessary as an emergency measure to avoid an imminent public or private injury which is about to occur by reason of a situation occasioned or developed through no fault of the actor, and which is of such gravity thatthe desirability and urgency of avoiding such injury clearly outweigh the desirability of avoiding the injury sought to be prevented by the statute. o Conduct that is Necessary as an emergency measure o to avoid imminent public or private injury o about to occurthrough no fault of the actor o and results in the lesser of two evils o The actor must honestly (subjectively) believe that he is committing the lesser of two evils, and this belief must be objectively reasonable o Perhaps a legislative intent issue in the Minority  Minority View: MPC (more lenient): Section 3.02 Justification Generally: Choice of Evils (1) Conduct which the actor believes to be necessary to avoid a harm or evil to himself or to another is justifiable, provided that: (a) the harm or evil sought to be avoided by such conduct is greater (determined by the jury) than that sought to be prevented by the law defining the offense charged; and (b) neither the Code nor other law defining the offense provides exceptions or defenses dealing with the specific situation involved; and (c) a legislative purpose to exclude the justification claimed does not otherwise plainly appear. (2) When the actor was reckless or negligent in bringing about the situation requiring a choice of harm or evils or in appraising the necessity of his conduct, the justification afforded by this section is unavailable in a prosecution for any offense for which recklessness or negligence suffices to establish culpability. o The actor believes the action is necessary o To action is the lesser of two evils

36

The Code or other law defining the offense do not provide exceptions dealing with the specific situation, and the legislative purpose to exclude a necessity defense does not appear If the actor was reckless or negligent in causing the situation or in forming his belief as to the necessity of the action, then the actor can still be charged with an offense for which recklessness or negligence, respectively, is sufficient

Case studies re: necessity defense  Unger: D was convicted of escaping from prison; he claimed that he had to in order to avoid being raped and tortured by inmates; this court said that under the facts and circumstances, D would get the defense here. He was forced to choose between two admitted evils by the situation which arose from actual and threatened acts. Defendant was without blame in causing situation. Defendant reasonably believed conduct was necessary to avoid public or private injury greater than injury which might result from own conduct. Defendant believed it himself (subjective) and his belief was objectively reasonable. Dissent said that unless narrowly circumscribed, the availability of the necessity defense would open up the floodgates for prison escapees trying to justify their acts. Its in societys best interests to confine the necessity defense to the Lovercamp factors.  Lovercamp factors referred to in dissent: 1) prisoner was faced with a specific threat of death or substantial bodily injury, 2) there was no time for a complaint to the authorities, 3) there was no time to resort to the courts, 4) there was no evidence of force or violence used towards prison personnel, and 5) the prisoner immediately reported to the proper authorities when he had attained a position of safety.  Note: most courts would apply the Lovercamp factors and keep the defense very restricted  Leno (note case): Since people couldnt get needles without a prescription, Ds ran a needleexchange program in an effort to combat the spread of AIDS. The court held that Ds could not get the necessity defense. The Legislature wanted to control the distribution of drug-related paraphernalia. Even though Ds were trying to do this in good-faith, the court would not subvert legislative intent on the issue.  Hutchins (note case): D cultivated marijuana so he could eat it, in an attempt to combat a serious disease with horrible symptoms. The court held that D could not get the necessity defense. When balancing the evils, the court said that the alleviation of Ds medical symptoms would not clearly outweigh the potential harm to the public if they allowed cultivation of marijuana. The Legislature also has an overriding interest in regulating this activity. Dissent: should make exceptions in limited circumstances; humanitarian and compassionate reasons; this wouldnt have a negative impact on the enforcement of drug laws.  Classic necessity hypo: flood could kill 1,000 people or 4 people; you have the power to choose; if you choose to divert the flood to kill the 4 people instead of the 1,000, what is the result? In favor of necessity defense utilitarian argument; ought to justify your actions if you choose to take the 4 over the 1000 Against the necessity defense -- deontological argument; always wrong to choose which life to take; Gods will is higher than our actions. Excuse Defenses occur when the law allows a defense to a wrongful action because the actor has displayed some disability in capacity to know or to choose, which renders the person either free of blame or subject to less blame. Three categories of excuse 1) involuntary actions the person had no control over his bodily movements (i.e. physical compulsion, external force being applied, epileptic seizures, etc.) No Actus Reus 2) deficient but reasonable actions power to choose but that choice is so constrained that an ordinary person could not be expected to choose otherwise

37

a) Cognitive deficiency lack of knowledge (mistake, accident) b) Volitional deficiency lack of will (duress; yielding to a threat) 3) irresponsible actions the person could not have been expected to act otherwise, given the persons inadequate capacities for making rational judgments (i.e. infancy and insanity) A. Duress Common Law Elements of Duress 1) coercion source has to be another person; the purpose of the perpetrator is to force the D to do something (this is different then a necessity defense, when the source of harm can be natural instead of another person) 2) imminence serious bodily harm or death 3) threat against a third party concern for the well-being of another (usually close family member) suffices 4) person of ordinary fortitude would give in to the threat 5) cant take an innocent life (does not excuse the killing of an innocent person) 6) [some jurisdictions require you to choose to between the lesser of the two harms, placing duress in a subset of necessity] 7) If at least negligent in getting into a situation, then you loose the defense. ** Note: common law duress is a very narrow defense is only asserted rarely MPC View on Duress Section 2.09 Duress (1) it is an affirmative defense (MPC written before Supreme Court ruled that affirmative defenses were unconstitutional in most cases) that the actor engaged in the conduct charged to constitute an offense because he was coerced to do so by the use of, or a threat to use, unlawful force against his person or the person of another, which a person of reasonable firmness in his situation would have been unable to resist. (2) The defense provided in this Section is unavailable if the actor recklessly placed himself in a situation in which it was probable that he would be subjected to duress. The defense is also unavailable if he was negligent in placing himself in such a situation, whenever negligence suffices to establish culpability. ** (3) It is not a defense that a woman acted on the command of her husband, unless she acted under such coercion as would establish a defense under this Section. (4) If conduct is justifiable under Section 3.02, it supercedes this Section. ** MPC 2.09(2) - If hes reckless, then he looses the defense for any offense. If hes negligent, then he looses the defense only for an offense for which the requisite mens rea is negligence. Differences between MPC/NJ and common law views of duress  omission of imminence from MPC  omission of serious bodily harm or death in MPC (only need unlawful force)  MPC version is much broader than common law  MPC allows a duress defense for murder (even NJ doesnt go this far; NJ allows duress to reduce a murder crime to manslaughter) common law does not  MPC still opposes individualizing too much the standard of reasonable firmness that a D must meet Necessity and Duress compared  source of peril if threat was from another person = duress; if from anything else = necessity

38

 MPC allows the choice-of-evils justification defense regardless of the source of peril; it only allows the duress defense if the source of peril arose from the do-it-or-else command of another person Examples of bars to the duress defense  gang membership where a D voluntarily, and with knowledge of its nature, joined a criminal organization or gang which he knew might bring pressure on him to commit an offense and was an active member when he was put under such pressure, he cant claim a duress defense  mistaken threats common law rule requires the D to have a well-grounded fear Case studies re: duress  Toscano: NJ case; D was convicted for defrauding insurance companies; he claimed that him and his wifes lives were threatened by the mob; he says he was acting under duress; the court rejected the common law view of duress and adopted the MPC version, so serious bodily injury and imminence were rejected; D got the defense  Fleming: D was charged with giving out propaganda against the US involvement in the Korean War; he claimed that he acted under duress (would had to have endured tortuous activities otherwise); the court denied the duress defense by saying that acting on the mere assertion of threats was not enough to satisfy the imminence requirement

39