Crim Law

Wednesday, December 14, 2011 6:10 AM

Circumstantial Evidence- Evidence in which an inference is required to connect it

to a conclusion of fact. Conviction based on circumstantial evidence alone is not sufficient unless it is inconsistent with all possible hypotheses of innocence.

Jury

Nullification- occurs in a trial when a jury reaches a verdict contrary to the judge's instructions as to the law. o Ds are not entitled to an instruction to the jury on N. Sentiment must be so strong against the law that it naturally comes to the jury.

Punishment and Sentencing

Probation: There is a statute that says "except in unusual cases where the interests of justice would best be served if the person is granted probation; probation shall not be granted to any of the following persons: any person who used, or attempted to use, a deadly weapon upon a human being in connection with the perpetration of the crime of which her or she has been convicted." Sec. 1203 p.55 (statute was used to dissuade rapists, burglars, not for miss du, a shop keeper) Utilitarian: Deter, Rehabilitate, Incapacitate

Purposes of Punishment:

Stop harmful conduct Control the criminally disposed Safeguard innocent conduct Give notice that conduct is illegal Differentiate crime by seriousness

General purpose of sentencing:

Prevent crime Promote rehabilitation Prevent excessive, disproportionate, arbitrary punishmt Give fair warning of sentences for violating law Promote just, individualized treatment Define roles of those dealing with offenders Advance scientific knowledge in corrections Integrate the administration of corrections

Sentencing Factors Whether D acted out of necessity (Dudley)

Punishment others receive for like crimes (Du) Future dangerousness (Du) History of criminal conduct (Du) Effectiveness of past therapy/correction (Du) Provocation by the victim (Du) Ds criminal sophistication (Du)

The Penal Theories In Action

Queen v. Dudley and Stephens No, you cannot kill another person that has harmed you and then justify it by saying it was by necessity. The extreme necessity of hunger does not justify larceny, nor can it justify murder. Du

There is a statute that says "except in unusual cases where the interests of justice would best be served if the person is granted probation; probation shall not be granted to any of the following persons: any person who used, or attempted to use, a deadly weapon upon a human being in connection with the perpetration of the crime of which her or she has been convicted." Sec. 1203 p.55 (statute was used to dissuade rapists, burglars, not for miss du, a shop keeper)
o

However: In determining propriety of probation, must a court consider whether the crime was committed because of unusual circumstances such as provocation? D participated in the crime under circumstances of great provocation, coercion and duress. Therefore, this an unusual case that overcomes the statutory presumption against probation. Seven objectives of sentencing a D which are: Protect society To punish the defendant for com mitting a crime To encourage the defendant to lead a law-abiding life To deter others To isolate defendants so they cannot commit other crimes To secure restitution for the victim. 7. To seek uniformity in sentencing. Judge explained that because of the unusual circumstances of this case, none of these objectives would have been attained by requiring D to spend time in prison.

U.S. v. Gementera (Mail Thief) Three legitimate statutory purposes of: deterrence, protection of the public, and rehabilitation frame our analysis.

Does the sandwich board condition pass the two prong test under the Sentencing Reform Act: Whether the judge imposed the conditions for permissible purposes; and Whether the conditions are reasonably related to the purpose.

Proportionality of Punishment
Coker v. Georgia 8th amendment o A punishment is "excessive and unconstitutional if it (1) makes no measurable contribution to acceptable goals of punishment and hence is nothing more than the purposeless and needless imposition of pain and suffer; or (2) is grossly out of proportion to the severity of the crime. o Judgment should be informed by objective factors to the maximum extent. To this end, attention must be given to the public attitudes concerning a particular sentence. Cruel and unusual punishment Excessive punishment.

One of the purposes of proportionality is to make someone choose the lesser crime.
A punishment is excessive an unconstitutional if it makes no measurable contribution to acceptable goals of punishment and hence nothing more than the purposeless and needless imposition of pain and suffering or is grossly out of proportion to the severity of the crime. A punishment might fail the test on either ground. These 8th amendment judgments should not be, or appear to be, merely the subjective view of individual justices. To this end, attention must be given to the public attitudes concerning a particular sentence.

Ewing v. California Used Justice Kennedy's previous analysis of the proportionality issue: o "The 8th amendment does not require strict proportionality between crime and sentence. Rather, it forbids only extreme sentences that are 'grossly disproportionate' to the crime." Pg. 84

Previously three factors were relevant for sentencing severity

o o o

Proportionality of offense to sentence Penalty for different crimes in same jurisdiction. How would it be punished in other jurisdictions. If there is a proportionality requirement, it is very narrow (Kennedy/Souter/OConnor) No (Scalia/Rehnquist)

Is there a proportionality requirement in the 8th amendment?

Unless it is in the death area, Supreme Court is not going to apply proportionality. So as long as the state legislatures can prove a rational good reason for penalties then they are not in violation of the 8th amendment.

Principle of Legality

Commonwealth v. Mochan Can somone be convicted under a common law crime: Statute 11.01: Even though we don't have a statute specifically saying that this is an offense, we can still punish it because the MPC of the state says every offense punishable by the statutes "or common law of this Common wealth" shall continue to be an offense punishable. Ways to prevent punishing after the fact: Legislatures o Ex-post facto laws are prohibited in article 1 sections 9 and 10 Courts o Due process clause of the 5th and 14th amendments prohibit judiciary from punishing citizens without fair notice. Keeler v. Superior Court Is viable fetus considered a human under murder law? We interpret statutory crimes from the common law. If their had not been legislative history that indicates the common law definition of a human being had existed then the court could on its own make a determination. Judge can not overstep his boundaries. Violation of due process clause of the 5th and 14th amendments...prohibit judiciary from punishing citizens without fair notice. There are two insuperable obstacles to the charge of murder of an unborn, even though viable, fetus: Jursidictional: o Whether to extend liability for murder of a fetus in California is a determination solely within the province of the legislature. Courts cannot go so far as to create an offense by enlarging a statue, by inserting words or deleting words, or by giving the terms used false or unusual meanings. Consitutional: o Such a ruling could only operate prospectively without violating D's right of due process. The first essential element of due process is fair warning of the act which is made punishable as a crime. The judicial enlargement of the Penal Code now urged by the People would deny D due process of law. The requirement of fair warning is reflected in the constitutional prohibition against the enactment of ex post facto laws. An unforeseeable judicial enlargement of a criminal statue applied retroactively, operates precisely like an ex post facto law, such as the constitution forbids. In re Banks

Gives sufficient notice and it is not too broad. When language is clear and unambiguous then no judiciary construction allowed. A criminal statue must be sufficiently definite to give notice of the required conduct to be avoided and to guide the judge in its application and the lawyer in defending one charged with its violation.

City of Chicago v. Morales A statute providing penalties for criminal conduct is unconstitutionally vague if it fails to give sufficient notice regarding the type of conduct prohibited. Clearly, a law directly prohibiting intimidating conduct similar to that described by P's commission is constitutional on its face. However, that law may still be found unconstitutionally vague for two reasons: The law fails to provide the type of notice that permits ordinary persons to understand the conduct prohibited. The wording of the law encourages arbitrary and discriminatory enforcement. Requirement of notice is not met here because the order to disperse takes place before an officer knows whether the prohibited conduct has occurred, and is therefore an unjustifiable impairment of liberty if the loiterer is harmless and innocent. Also, law only establishes minimal guidelines for police officers. They may exercise absolute discretion when assessing a group of bystanders for dispersal. o Subjectively limited to the officer in assessing what is a loitering situation. Muscarello v. United States Court did research and came up with 2 uses for carry: Transport, Carry something on your person. Purpose of original statute was to deter violence during drug deals by combining drugs and guns. Want to create a disincentive to carrying weapons on you during drug deals.

Actus Reus Voluntary Acts

Criminal acts are comprised of Physical (actus reus) Mental (mens rea) Criminal statutes proscribe Certain conduct (e.g., breaking and entering) Certain results (e.g., causing death) Sometimes under certain circumstances (e.g., a child under 14 years (attendant circumstance)) MPC Sec. 2.01(1) adheres to act requirement An act, defined in Sec. 1.13(2), is A bodily movement whether voluntary or involuntary

Voluntary

Voluntary act definition: a movement of the human body that is willed or directed by the actor It is voluntary even if the result of Habit (see MPC Sec. 2.01(2)(d))

Inadvertence ...so long as he could have done differently Voluntary conduct may be coerced.
Essential for criminal responsibility, even if mens rea is not required. Strict liability does not require mens rea but does require an act Time frame may be critical, e.g., epileptic fails to take medication to prevent seizure Verbal conduct may constitute the actus reus, e.g., conspiracy

Requirement of an Act
Sec. 2.01(1) not guilty . . . unless. . . conduct . . . includes a voluntary act Sec. 2.01(1) B A or the omission of [a legally required] act of which he is physically capable. Sec. 2.01(4) B possession if knowingly procured or received or aware of control long enough to terminate his possession. Remember, most jurisdictions follow the MPC.

Involuntary Act
Involuntary acts not punished because

They cannot be deterred, say utilitarians The actor is not culpable, say retributivists Sleepwalking Seizure Unconscious Being pushed by another

Examples of involuntary movement

(E.g., ) did not Aappear intoxicated in public b/c officers took him there against his will

Conditioned Response
An actor whose conduct is the result of a conditioned response is not criminally liable Whether conduct was the result of a conditioned response is a question of fact for the jury If the judge finds there is insufficient evidence for a reasonable person to find that the conduct was a conditioned response, the issue will not be submitted to the jury (State v. Utter) MPC defines Act as voluntary or involuntary.

MPC Voluntariness
Sec. 2.01(2) The following are not voluntary acts within the meaning of this section: a reflex or convulsion bodily movement during unconsciousness or sleep conduct during hypnosis or resulting from hypnotic suggestion a bodily movement that otherwise is not a product of the effort or determination of the actor, either conscious or habitual

Omission and Legal Duty

Ordinarily, the law places no obligation on an actor to rescue another. A paramour owes no duty to his partner; therefore, his failure to summon aid to his stuporous partner who later died of an overdose was not manslaughter (People v. Beardsley)

MPC and Omission

Sec. 2.01(3) No liability for failure to act unless

(a) It is part of the definition of the offense Or (b) the duty to act is otherwise imposed by law
(a) theft by deception is committed by failing to correct a false impression which the deceiver previously created...@ (b) Parent=s duty to protect his child

Examples

Circumstances When One Has a Duty to Act

statutorily imposed duty status relationship Husband, wife Guard, prisoner Nurse, patient Parent, child contractually imposed duty voluntary assumption of care where doing so precludes others from helping creation of risk

More on Statutes
Conduct crimes: punish specific dangerous behavior Result crimes: punish unwanted outcome, e.g. the death of a person Attendant Circumstances: Both proscribed results and conduct may have attendant circumstances, a condition that must be present with the conduct or result, e.g. driving while drunk Remember, all three concepts relate to actus reus

Chapter 5 Mens Rea

Culpability Req: Actus Reus and Mens Rea, Burden then shifts to D

Evidence defendant has engaged in conduct (actus reus) with the necessary mental state (mens rea) = prima facie case. Then burden shifts to the defendant to present rebuttal evidence and defenses.

Failure of Proof

Failure of Proof. Defendant successfully rebuts the proof on any element => the state has failed to prove its case => dismiss. Defendant is free.

True Defense. State proves prima facie case => defendant will assert any defenses he has such as duress. Same result: defendant is free.

Def. of Mens Rea

Broad: Amorally culpable state of mind. Narrow: as an element, the specific state of mind expressly required in the definition of the offense. MPC refers to a culpability

First is broad: means whatever mental state is required to impose criminal liability on a person. Guilty mind is required. Second more narrow: It is the specific state of mind expressed in this statute for this crime (intentional, negligent, reckless, negligent, etc.)

Statute in Cunningham

Whosoever shall unlawfully and

maliciously administer to or cause to be administered to or taken by any other person any poison or other destructive or noxious thing, so as thereby to endanger the life of such a person, or so as thereby to inflict upon such person any grievous bodily harm,

shall be guilty of a felony.

Common Law Terms and Rules Malicous and Reckless

Malicious B does not require ill-will toward the person endangered; only, that one either l) intended to do the particular kind of harm done or 2) was reckless about whether such harm occurred. (Regina v. Cunningham) Reckless - actor foresaw the kind of harm he risked but acted nevertheless. The harm must be foreseeable.

Battery and Aggravated Battery

A person commits battery if he intentionally or knowingly without legal justification and by any means [either] o causes bodily harm to an individual or o makes physical contact of an insulting or provoking nature with the individual *a+ person who,

in committing a battery, intentionally or knowingly causes great bodily harm, or permanent disability or disfigurement

commits aggravated battery

Common Law Mens Rea for Result Offenses

When an offense is defined by result, the state must prove beyond a reasonable doubt that defendant either: o had the conscious objective to achieve the harm defined o OR was consciously aware that harm defined was practically certain to be caused by his conduct. State must show defendant intended to cause the social harm of the offense (e.g.intent to cause great bodily harm or permanent disability or disfigurement. (People v. Conley) Disability may be shown by proving victim is no longer whole such that the injured bodily portion or part no longer serves the body in the same manner

Common Law Transferred Intent

A aimed at B but missed and killed C A's intent to kill B is transferred to the homicide charge A faces in causing C's death Dressler asks, Why bother? A intended to kill a human being. Both B and C are human beings.

Common Law Natural and Probable Consequences

One intends the natural and probable consequences of his acts Presumption too strong; jury may draw inference State must prove mens rea beyond a reasonable doubt. A presumption would unconstitutionally shift the burden to defendant.

CL Inference v. Presumption

Inference. A jury may draw a conclusion that Fact A exists based on the proof that Fact B exists. Without evidence from the opposing party, the jury is still free to reject the conclusion that Fact A exists. A presumption establishes the existence of Fact A from the existence of Fact B. The opposing party then has the burden of rebutting (most presumptions are rebuttable) Without evidence from the opposing party the jury must draw the presumptive conclusion.

Mens Rea Analysis (CL and MPC)

Begin by reducing the statute to its actus reus elements

Result (e.g., causing death) Attendant circumstances (e.g., a child under 14 years) Conduct (e.g., breaking and entering)

It isnt always easy to tell when an element is a conduct, an attendant circumstance or a result
There may be more than one way to break a statute down It may depend on the issue in the case

Attendant circumstances

Nighttime in burglary Property of another in theft Female not his wife in rape Dwelling in arson Breaking and entering in burglary Taking in theft Sexual intercourse in rape Burning in arson

Conduct

CL Classifications of Crimes (General Intent and Strict Liability)

General Intent, usually

Assault Rape Kidnapping False Imprisonment Statutory rape [non-public welfare] Selling liquor to minors [public welfare offense] Speeding and some other traffic offenses [public welfare offenses] Arson (intent to destroy property) Larceny (intent to deprive) Robbery (intent to commit theft [intent to deprive owner]) Burglary (entry with purpose to commit a crime) Forgery (with purpose to defraud or injure) Theft (with purpose to deprive owner thereof) Attempt (a course of conduct planned to culminate in the commission of a crime) Solicitation (purpose of promoting commission of crime) Conspiracy (purpose of promoting commission of crime)

Strict liability

Specific Intent

MPC and Mens Rea

Sec. 2.02 B Approach is elemental: State must prove that the defendant committed each element of the offense with the particular state of mind required by the statute Replaces CL terms with four states of mind Purposely Knowingly Recklessly

Negligently 2.02(3) Culpability Required Unless Otherwise Provided. When the culpability sufficient to establish a material element of an offense is not prescribed by law, such element is established if a person acts purposely, knowingly, or recklessly with respect thereto.

MPC Purposely and Knowingly

'2.02(2)(a) Purposely B conscious objective => conduct or result; aware => attendant circumstances Purposely is very much like CL intentionally '2.02(2)(b) Knowingly B aware => conduct and circumstances; practically certain => result Knowingly is very much like CL willfully

MPC Recklessly and Negligently

'2.02(2)(c) Recklessly B consciously disregards a substantial and unjustified risk; gross deviation from the standard of conduct of a law abiding person in the actors situation '2.02(2)(d) Negligently B should be aware of a substantial and unjustifiable risk; gross deviation from the standard of care of a reasonable person in actor's situation. No specific definitions for conduct, attendant circumstances and result.

MPC Willful Blindness Doctrine

MPC 2.02(7) B The requirement of knowledge is satisfied by knowledge of high probability Compare State v. Nation: Legislature failed to adopt the MPC=s proposed expanded definition of knowingly. This means that willful blindness to a fact is NOT knowing, only actual knowledge of that fact.

Flores v. US

Predicate crimes (theft of government property, fraud, and various unlawful activities related to passports, visas and immigration) Sec. 1028A(a)(1) imposes an additional 2 year mandatory penalty for knowingly transfers, possesses, or uses, without lawful authority, a means of identification of another person. Held: government must prove BRD that one knew ID was that of another person

Common Law Strict Liability

Statutes are presumed to have a mens rea requirement State must overcome the presumption Factors to rebut the presumption

Staty crime not derived from common law Legislative policy undermined by mens rea reqmt Standard, reasonable; adherence properly expected Penalty small Conviction does not gravely besmirch ones reputation

Common Law Strict Liability: Public Welfare Doctrine

Public Welfare Doctrine: allows addl regulation (administrative) unrelated to personal guilt

Liquor laws Pure food laws Anti-narcotics laws Motor vehicle and traffic

Non-public welfare strict liability: Statutory rape no defense based on ground that actor did not know or was mistaken as to victims age (attendant circumstance); No ability to consent

Common Law Mistake of Fact

Issue: how mistake/ignorance of fact relating to an element of the offense affects criminal responsibility for the social harm Basis for allowing mistake to exculpate: Ones misperception of reality may exculpate for the harm done because, without all the correct information, the actor is deprived of the opportunity to make the correct choice. Mistake of fact is not a true defense (failure of proof) The State has the burden of persuading the trier of fact BRD that the defendant had the requisite state of mind or that his mistake did not negate the mens rea The defendant has the initial burden of producing evidence that he was mistaken (after the State makes the prima facie case)

CL Mistake of Fact: Specific Intent Offenses

CL Rule relating to mistake of fact in specific intent crimes: Defendant is not guilty of the offense if his mistake of fact negates the specific intent portion of the crime. For mistake of fact in specific intent cases when the mistake relates to general intent, courts will apply the general intent rule. Under no circumstances does mistake of fact negate criminal responsibility for strict liability offenses.

CL Mistake of Fact: General Intent Offenses

General rule: A person is not guilty of a general intent crime if his mistake of fact was reasonable, but he is guilty if the mistake was unreasonable Exceptions: Even though a mistake of fact in a general intent crime is reasonable, a defendant may still be held liable under the moral wrong doctrine or the legal wrong doctrine.

CL Mistake of Fact: Moral and Legal Wrong Doctrines

Moral Wrong Doctrine: There should be no exculpation for mistake where, if the facts had been as the actor believed them to be, his conduct would still be immoral.

Problem: Can violate legality; whose morals?

Legal Wrong Doctrine: Defendant is guilty of criminal offense X, despite a reasonable mistake of fact, if he would be guilty of a different, albeit lesser crime, Y, if the situation were as he had supposed. Under common law: if mistake of fact was such that he would be guilty of a more serious crime, had the facts be as he believed them to be, can be prosecuted for more serious crime. MPC: have to prosecute for lesser crime

Analysis of CL Factual Mistake

Is the offense general intent, specific intent, or strict liability? With specific intent offenses, does the mistake relate to the specific intent portion of the offense? If yes, does the mistake negate the specific intent element of the offense? If so, acquit. If not, treat offense as general intent crime. If general intent, was the mistake reasonable? If strict liability, mistake is never a defense.

Common Law Mistake of Law

General law: Ignorance of or mistake concerning the law excuses no one. Exceptions:

Different Law Negating Specific Intent Reasonable Reliance Doctrine Fair Notice

CL Mistake of Law: ExceptionNegating Mens Rea

Ignorance/mistake of law that negates mens rea:

Strict liability: Reasonable or not, mistake is not a defense Specific Intent: Different law mistake (reasonable or not) is a defense to specific intent offenses if it negates the specific intent General intent: Reasonable or not, mistake is not a defense

CL Mistake of Law:Exception -- Reasonable Reliance

Reasonable Reliance Doctrine: A person is excused for committing a criminal offense if, of the offense, he reasonably relied on an official statement of the law, later determined to be erroneous, obtained from a person authorized to interpret the law

Official Statement Not privately retained counsel

CL Mistake of Law:Exception Fair Notice

Fair Notice (Lambert Principle): A person who is unaware of a duly enacted and published law may successfully assert a violation of due process if the ordinance

Punished an omission Imposed a duty based on status rather than activity and Was malum prohibitum

MPC and Mistake of Fact

2.04(1)(a): A mistake of fact is a defense if it negates any required mens rea

E.g., 223.2(2) A person is guilty of theft if he unlawfully transfers immovable property of another or any interest therein with purpose to benefit himself or another not entitled thereto. Property of another attendant circumstance Mistake would negate culpability required

2.04(1)(b): A mistake of fact is a defense when it establishes a state of mind that constitutes a defense.

E.g., 230.1(1): a person commits bigamy if he contracts another marriage

o (a) unless at the time of the subsequent marriage the actor believes the prior spouse is dead

Statue explicitly creates defense based on this belief, so a mistake leading to the belief that his previous spouse is dead is a defense

MPC and Mistake of Law

2.04(1): Mistake of fact or law is a defense only when it negatives the mens rea element of the offense, but 2.02(9) says mens rea as to criminality is not an element of the offense, so mistake of law is irrelevant except

Where the definition of the crime so provides (end of 2.02(9)) Where the law has not been reasonably made available (2.04(3)(a)) Where the actor relies on an official statement

Chapter 6 Causation

Applies only to crimes that require the state to prove that the defendant caused a specific result.

Not an issue in most cases

Causation is both

Cause in fact (aka, factual cause and actual cause) And proximate cause (aka, legal cause)

Cause in fact: Did the defendant initiate forces that led to a particular prohibited result? Proximate cause: Is there sufficient connection between conduct and harm to justify punishment?

Related Concepts

Year and a Day Rule: An actor is not liable for homicide if the victims death doesnt occur within a year and a day from the actors conduct. An actor is responsible for the natural and probable consequences of his conduct.

Common Law Factual Cause

Tests:

But for Substantial Factor

But For: The harm would not have occurred when and as it did had the defendant not engaged in the conduct Substantial Factor: The defendants conduct is a cause if it is a substantial factor in producing the result Used when but-for test leads to absurd results

More on CL Factual Cause

Omissions are also causes when the actor has a legal obligation to act Concurrent causation - when two actors engage in conduct which causes a result, either of which would have caused the result alone, both are liable. Factual cause eliminates candidates for responsibility but doesnt resolve the matter of ultimate causal responsibility
If person found to be factual cause of a result he may or may not be found the proximate cause. If proximate cause then there must be factual cause. First look at factual causation and then proximate causation to see if person can be held liable.

Factual Cause under MPC 2.03(1)

Conduct causes a result when. . .

It is an antecedent but for which the result would not have occurred [factual cause] The relationship between the conduct and result satisfies any additional causal requirements [legal cause]

MPC makes it more obvious that prox. Cause is based on fairness

Conduct alone or conduct and result?

A person commits an offense if the person intentionally causes bodily injury to another.conduct and result A person commits an offense if he knowingly operates anothers vehicle without the effective consent of the owner- conduct alone A person commits an offense if he intentionally abducts another person with the intent to hold him for ransom- conduct alone A person commits an offense if he knowingly causes the penetration of the sexual organ of another person by any means without that persons permission.- conduct and result

A person commits an offense if he issues a check knowing the issuer does not have sufficient funds for payment of the check-conduct alone A person commits an offense if, with the intent to coerce a child to participate in a criminal street gang, the person causes bodily injury to the child.-conduct and result

MPC Proximate Cause

Actor's conduct is factual cause; next inquiry: was it the proximate cause Inquiry necessary only where actual result is not within the contemplation by actor Compare actual result with contemplated result
Description of result as it actually occurred Analyze actor's mental state as to the result Compare them in light of culpability required

Chapter 7 Homicide

Types of Criminal Homicide

Intentional Murder (including premeditation and capital murder) Murder with Provocation (voluntary manslaughter) Depraved Heart Murder; Intent to Inflict Grievous Bodily Injury Murder Felony-Murder Involuntary Manslaughter Negligent Homicide

Elements Common to All Criminal Homicide

Mens rea [various, depending on the grade] Actus reus

o o o

Conduct killing (i.e., conduct causing death) Attendant circumstance human being Result death

Intentional and unintentional killing

Intentional killings can be either

Murder Or manslaughter (through mitigation)

Unintentional killings can be either

Murder (through aggravation) Or manslaughter Or a lesser degree of homicide

MPC Intent

MPC: Model penal code retains the requirement of intent in Section 210.1(1)(a) defining murder as criminal homicide . . . committed purposely or knowingly. MPC says the actor must have

Had the conscious objective to cause death Or be practically certain his conduct will cause death

Issue: What is a human being?

Criminal homicide is the unjustified, unexcused killing of a human being. CL: a fetus is a human being only if born alive Modern trend: includes fetus
o o

Usually by legislature Rarely by judicial interpretation (Keeler)

MPC Sec. 210.0: human being is one who has been born and is alive TX Penal Code 1.07(26)

Defines a human being as one who is alive including an unborn child at every state of gestation from fertilization until birth Effective Sept. 1, 2003

Issue: When is one dead?

A person cannot murder someone who is already dead. When is one dead?

Traditionally, when breathing and heartbeat stop Brain death standard when physician determines
o

Theres no spontaneous respiratory or cardiac function and resuscitation attempts would be futile

Or there is an absence of spontaneous brain function [brain death] (Eulo)

Issue: How much time can pass between conduct and the result?

Early CL: death is caused by s conduct if, factual causation having been found, the V died within a year and a day of the conduct Modern trend:

Abrogate the rule Lengthen the period

MPC abrogates the rule

Intentional Murder: Intent to Kill Murder

Early CL: malice aforethought

o o

Malice is not ill will; it is intent Aforethought is not premeditation.

Premeditation is used later to indicate planning Here aforethought doesnt mean much

Intent
o o

When one desired the result (regardless of likelihood) When one knows the result is substantially likely to occur (regardless of his desires)

Intent under the Model Penal Code

MPC Sec. 210.2 (1)(a) retains intent requirement: Criminal homicide...committed purposely or knowingly MPC Sec. 2.02(2)(a) says to be purposely must
o

Have had the conscious objective to engage in the conduct or cause the result And be aware of attendant circumstances, or believe that or hope that they exist Be aware of the nature of his conduct or attendant circumstance

MPC Sec. 2.02(2)(b) says to act knowingly must

o

And be aware it is practically certain that his conduct will cause the result

State v. Guthrie

Intentional, deliberate and premeditated means the killing is done after a period of time for prior consideration It is any interval of time sufficient for the accused to be fully conscious of what he intended to do

Midgett v. State

6'2", 300#s father physically abused his 8-year-old son. The child died. intended to further abuse his son. Intent, if any, was formed during a drunken, heated rage while disciplining the child. Where the legislature did not include child abuse in first degree capital murder, the state must prove premeditation and deliberation for first degree murder no matter how heinous the facts are.

Proof of Premeditation

Genly not direct evidence Circumstantial evidence permissible

o o o o o o

No provocation by V s conduct and statements, pre- and post-crime Pre-existing ill-will between parties Continued blows after deceased had been defeated Brutality of killing Nature and number of wounds (Forrest)

State v. Forrest

Defendant shot his terminally ill father in the hospital; mercy killing Victim was helpless and had not provoked ; carried gun, had to cock it multiple times and made self-incriminating statements Under the facts, there was substantial evidence that the killing was premeditated and deliberate.

Premeditated Murder

CL: premeditation aggravates homicide to 1st degree or capital murder Deliberation-Premeditation is used to divide murder into degrees (MPC rejects.)

Premeditate: think about beforehand Deliberate: measure and evaluate facets of choices

Various interpretations of premeditate:

o o o

Split second prior to crime (Schrader, later ord by Gutherie) Elaborately planned crime (not necessary) Better:

It is any interval of time sufficient for the accused to be fully conscious of what he intended to do (Guthrie) long enough to allow a reasonable person time to subject his conduct to a second look (Morrin)

Deadly Weapon Doctrine

When A intentionally uses a deadly weapon on B and kills him, A is presumed to have intended to kill B Actually a permissive inference

Premeditation and Culpability

Does premeditation separate the more culpable from the less culpable? Arguably not

Killing child by abuse in the absence of premeditation is not 1st degree murder (Midgett) But, killing someone to prevent their further suffering is 1st degree murder (Forrest)

Premeditation under the MPC

MPC rejects premeditation Sec. 210.2(2): one degree of murder for all intentional killings

Intent required:

Purposeful Knowing

Homicide

Voluntary Manslaughter (murder with provocation) and Involuntary Manslaughter Manslaughter

Under CL, provocation mitigates intentional killing to manslaughter Rationale: passion obscures reason and renders the provoked intentional killer less blameworthy than the unprovoked one Definitions

The unlawful killing of another human being without malice (despite intent!) Intentional killing of another in the heat of passion

Manslaughter Compared with Murder

Catchall for intentional murder Intermediate form of homicide Not bad enough to be murder. Too bad to be justified and not punished at all May be graded
o o

Voluntary (intentional murder w/ provocation; or recklessness.) Involuntary (criminal negligence; or misdemeanor/manslaughter.)

Voluntary Manslaughter

Restrictions (Girouard)
o o o

Provocation must be reasonable Not sufficient time to cool off Causal connection between provocation and fatal act

Words alone are not adequate to provoke a reasonable person to kill in the heat of passion w/ some exceptions
o

If they are accompanied by conduct indicating present intent and ability to cause bodily harm In some jurisdictions, if the words informed of an event that, had he witnessed it, would be provocative (informational words vs. insulting words)

Voluntary Manslaughter and Adequate Provocation

Traditional circumstances allowed:

o o o o o

Extreme assault or battery on Mutual combat Illegal arrest of Injury or serious abuse of close relative of Sudden discovery of spouses adultery Sex between V and s sister Words of reproach, no matter how grievous Womans refusal to go out with Driving s cattle off the road

Not allowed as adequate provocation

o o o o

Adequate provocation is
o

Girouard - that which is calculated to inflame the passion of a reasonable person and cause him to act for the moment from passion rather than reason. Maher passion that might render ordinary men, of fair average disposition, liable to act rashly or without due deliberation or reflection and from passion rather than judgment.

Crucial factor: relationship between gravity of provocation and the s reaction

Misdirected Retaliation Doctrine

Most jurisdictions specify that the provocation must have come from the victim

Therefore, if saw his child being seriously injured by a reckless driver

o o

He committed manslaughter if he retaliated by killing the driver But, he committed murder if he killed someone who tried to protect the driver.

Provocation standard

To what extend, if any, should the jury, in evaluating provocation, be instructed that the reasonable man possesses the defendants specific personal characteristics (e.g, age gender, physical and psychological features, religion, sexual orientation, social and political values, etc)?

Voluntary Manslaughter & Reasonableness

Oxymoron: reasonable killer Public policy behind reasonableness requirement:

o

reduce incidence of fatal violence by not allowing short-temper to excuse loss of control

The reasonable person is an objective standard He or she is

o o o

Of average disposition Sober Of normal mental capacity

Mistake as to Provocation

Not addressed in most statutes Provocation is adequate if reasonably believes injury exists even though it does not E.g., shot suspected adulterer reasonably but incorrectly believing that he committed adultery w/ s wife. Provocation reduced crime to manslaughter.

MPC Provocation: 210.3(1)(b)

MPC differs from CL. MPC retains provocation in broader form.

Extreme mental or emotional disturbance: Murder is mitigated if is acting under influence of extreme mental or emotional disturbance for which there is a reasonable explanation Reasonableness of the explanation is determined from the viewpoint of a person in the s position under the circumstances as he believed them to be. Provision permits but does not require the finder of fact to mitigate based on EMED (Casassa) More differences between MPC and common law:

Under the MPC there are no circumstances which as a matter of law are not justification The MPC drops the time requirement; recognizes that time may increase rather than decrease the emotional disturbance. The MPC doesnt limit mitigation to situations where the actor kills the source of provocation. (No misdirected retaliation doctrine)

Provocation: Role of Judge and Jury Who Decides

Whether provocation is adequate

Formerly judges Current trend, juries Formerly judges Current trend, juries

Whether sufficient time passed for to have cooled off

MPC: Manslaughter Recklessness (Involuntary Manslaughter)

210.3(1)(a) Criminal homicide constitutes manslaughter when it is committed recklessly. Committed recklessly means a killing for which the actor

Is reckless as to causing death and Is reckless as to the victim being human.

must disregard substantial risk that a persons death might result from her conduct

Homicide

Depraved-Heart (Unintentional) Murder and Negligent Homicide

Drawing the line between murder and manslaughter An unintentional killing is murder where
o o

Defendant shows extreme indifference to human life And awareness of either

risks of the conduct or that the conduct is contrary to law

Relies on implied malice. Death was not caused intentionally

People v. Knoller

Attorneys owned Prisa Canarios that attacked and killed their neighbor Implied malice circumstances attending the killing show an abandoned and malignant heart Abandoned and malignant heart requires the state to prove defendants awareness of the risk of death to another not merely the risk of great bodily injury

Depraved Heart Murder

Yet more colorful phrases under common law

Depraved indifference Utter callousness toward the value of human life and complete and total indifference as to whether ones conduct will create the requisite risk of death of another A dont give a damn attitude

Its a jury question...unless the judge decides there isnt sufficient evidence to give it to the jury in the first instance

Intent to Inflict Grievous Bodily Injury

Intent to inflict serious bodily injury can be adequate mens rea for murder

Policy: To hold liable for deaths that occur under circumstances that involved great risk (intending serious bodily injury) Doesnt allow the to mitigate by saying, I only meant to wing him. Often included in category of depraved heart murder

MPC 210.2

Criminal homicide also constitutes murder when committed recklessly under circumstances manifesting extreme indifference to the value of human life. (CL depraved heart and intent to inflict grievous bodily injury) Such recklessness and indifference presumed if death occurs during certain crimes (CL felony murder)

Relevance of Evidence

Edited from opinion: Evidence is irrelevant if it does not logically tend to prove or disprove a fact in issue or to corroborate evidence which itself is relevant and bears on the principal issue.

Mens Rea under the MPC

Negligently: one fails to be aware of a substantial and unjustifiable risk that a result will follow, and such failure constitutes a gross deviation from the standard of care which a reasonable person would exercise in the situation Recklessly: Consciously disregards a substantial and unjustifiable risk that the material element will result from his conduct, involving a gross deviation from the standard of conduct that a law-abiding person would observe in the situation.

Lower and Greater Culpability

MPC Sec. 2.02(5) Substitutes for Negligence, Recklessness and Knowledge. When the law provides that negligence suffices to establish an element of an offense, such element also is established if a person acts purposely, knowingly or recklessly. Prejudice is a limitation

Negligent Manslaughter Unaware of Risk

State v. Hernandez

Homicide committed by drunk driver w/ stickers showing cavalier attitude about drinking and drunkenness Slogans inadmissible b/c
o o

Irrelevant to failure to be unaware of risk Prejudicial

Homicide

Felony Murder

Broadest formulation: any death occurring during the course of a felony is murder Strict liability as long as death is a consequence of the felony Vs predisposition (preexisting condition) does not cut off liability

e.g., bank teller with preexisting heart condition whose fatal heart attack is due to robbery

It is murder even though the death may have been accidental or unintended, not planned as part of the robbery, or unforeseeable

People v. Fuller

Facts: High speed chase following auto burglary resulted in death of driver of another car Californias Sec. 189 lists predicate felonies; includes burglary Reluctantly, court hold defendants conduct fits squarely within statute so felony murder applies.

Criticism of the Felony Murder Rule

Excessive punishment for the culpability. (e.g. Fuller) Doesnt deter b/c unintended acts cannot be deterred Not retributive b/c not based on appropriate culpability

In Favor of the Felony Murder Rule

Will deter negligent and accidental killings by inducing felons to take care (Baxters dissent in Howard)

Will deter predicate felony. Strict liability may deter the crime in the first place Relieves the states burden of showing intent (Howard) Demonstrated evil propensities

Limitations on FMR, a preview

Inherently dangerous felonies (usually enumerated in the statute; but see Howard) Independent felony and merger (usually enumerated felonies are independent) In furtherance of (also PC) More later

Howard Test

Inherently dangerous looks to the elements in the abstract. Whether the felony by its very nature cannot be committed without substantial risk someone will be killed. It is not judged according the particular facts of the case.

Inherently Dangerous according to Howard

The felony by its very nature cannot be committed without substantial risk someone will be killed.

Shooting at inhabited dwelling Poisoning with intent to injure Arson of a motor vehicle Grossly negligent discharge of firearm Manufacturing methamphetamines Kidnapping Reckless or malicious possession of a destructive device

Not Inherently Dangerous according to Howard

Possible to commit the felony without risk to human life

Practicing medicine without a license

False imprisonment by violence Possession of a concealable weapon by a convicted felon Possession of a sawed-off shotgun Prison escape Grand theft Conspiracy to possess methedrine Extortion Child endangerment or abuse

Comparing the Tests for Inherent Dangerousness

Facts of the Case: Broad (expands reach of FMR) Foreseeable danger to life under the facts of the particular case Abstract: Narrow: The felony must be one that is, in the abstract, inherently dangerous to human life (Howard). If it is possible to commit the felony without risk to human life, it is not inherently dangerous.

Inherently Dangerous Felonies

Underlying conviction (predicate felony) must be inherently dangerous felony Statute usually enumerates felonies but when a particular crime is not named, courts resort to common law restriction of inherently dangerous According to statutes and the common law

Robbery Burglary Arson Rape Mayhem Kidnapping Escape Sodomy (post Lawrence v. Texas?) and other sexual assaults These are not inherently dangerous felonies again according to many statutes and to the common law

Theft by deception

Forgery Embezzlement

Independent Felony People v. Smith

Held since acts constituting child abuse were an integral part of child's death, felony child abuse offense merged into the homicide and could not serve as underlying felony to support conviction for second-degree murder on a felony-murder theory

Independent Felony, Generally

Predicate felony must not be one involving personal injury (assaultive conduct) It must have a purpose other than causing bodily harm E.g., manslaughter cannot be the basis for FMR b/c the crime of manslaughter would not exist since every such death would be a felony murder might be prosecutable under depraved murder or intent to inflict grievous bodily injury but mens rea must be proven Where elements of a predicate felony are also in homicide the FMR does not apply Thus, even a felony child abuse resulting in death merges with the homicide.

Examples of Crimes that are Independent Felonies

There must be an independent felonious purpose (IFP)

Robbery: IFP is to obtain money Arson: IFP is to destroy a structure by fire Burglary: IFP is the commission of theft or another felony (Minority: unless burglar intends to commit an assault) Discharging firearm in grossly negligent manner: IFP was to scare away thieves

Examples of Crimes that are Not Independent Felonies

The purpose of the conduct was the very assault that resulted in the death

Examples:

Voluntary manslaughter Involuntary manslaughter Burglary with intent to assault (minority) Assault w/ deadly weapon Felony child abuse (Smith)

The Independent Felony requirement is another way courts limit the reach of FMR

In furtherance

In the commission or attempted commission of or In the course of and in furtherance of During isnt enough; crime must be furthered (cf early cl) Factors to determine if in furtherance of

Time Place Causal connection

Also called the res gestae requirement Killer

Defendant FMR applies Co-felon FMR usually applies Police majority, FMR n/a (agency); minority yes (prox cause theory) Victim of predicate felony Co-felon dies usu. not Police officer dies FMR applies Victim of predicate felony or bystander dies FMR applies Subsequent escape Co-felons escape Unanticipated acts by co-felon that dont further the felony, FMR n/a

Deceased (killed by one of the perpetrators)

Timing: During felony includes

Furthering the felony

Jury question Courts consider crimes as continuing even after they are complete E.g., Some jurisdictions include killing during immediate flight with no break in chain of events

Time:

Once the felon has reached a place of temporary safety, the impact of FMR ends. Accidental death occurring during the commission is not enough for felony murder The death must have be caused by an act done in furtherance of a felony. Thus,

Pilot of plane carrying 5000 # of MJ which crashed, killing a passenger, was not criminally responsible for his death under the FMR. Had he been flying low to avoid radar, the result might be different.

Agency v. Proximate Cause

Agency: FMR does not apply if the person who directly caused the death is a non-felon

Agency theory imputes one persons acts to another. Doesnt make much sense when the parties are antagonistic. Majority rule.

Proximate Causation: A felon may be held responsible for murder for a killing committed by a non-felon if the felon set in motion the acts which resulted in the victims death.

Minority.

Co-felons; Affirmative Defense

Co-felon liability: All parties liable for deviations from common plan which are foreseeable consequences of the plan Affirmative defense: In a substantial minority of states, it is a defense if wasnt the only participant, that

did not intend to kill And wasnt armed

And had no reason to believe co-felon was armed And had no reason to believe anyone intended conduct likely to cause death or injury

Misdemeanor-Manslaughter

A person is liable for involuntary manslaughter when he causes the death of another during the commission of a misdemeanor even though the actor did not act with criminal negligence necessary for involuntary manslaughter.

Hostility to FMR => limitations

Dangerous felonies Causal connection (foreseeability) In furtherance of the felony Felony independent of the homicide Killing by non-participant: agency theory

Homicide

Capital Murder Furman v. Georgia (1972)

Unfettered discretion is arbitrary and capricious Opinions striking d/p

Douglas, Marshall: discriminatory Stewart: wanton and freakish White: needless extinction of life Brennan: cruel and unusual punishment Blackmun: legislative province Rehnquist: federalism Powell: popular support; have nots tragic but not unconstitutional

Dissenters

Burger: heres how

Furman challenge was based on 8th amendment Previous challenge 14th Due Process 5-4 decision Invalidated all existing d/p statutes

Gregg v. Georgia (1976)

Declared that the d/p is not always unconstitutional Approved the new Georgia scheme

Jury guidance Bifurcated trial Appellate review mandated Proportionality review

Executions resumed

Mitigation

Woodson v. N. C. (1976)

No mandatory death penalty The states death penalty scheme must permit the defendant to introduce and must require the factfinder to consider relevant mitigating evidence.

Individualized Consideration

Lockett v. Ohio (1978) -- Sentencer must be able to consider any aspect of the defendants character or record and any of the circumstances of the offense that is mitigating Eddings v. Oklahoma (1982) -- Sentencer may not refuse to consider as a matter of law any relevant mitigating evidence.

Ring v. Arizona (US 2002)

Previous law is overruled to the extent that it permits a sentencing judge, sitting without a jury, to find statutory aggravation necessary for imposition of the d/p.

Because Arizona's enumerated aggravating factors operate as 'the functional equivalent of an element of a greater offense', the Sixth Amendment requires that they be found by a jury.

Innocence

Innocent projects bring miscarriages of justice to light Herrera v. Collins (1993) Habeas corpus is not available to test innocence claims House v. Bell (2006) Difficult standard: New reliable evidence not presented at trial to establish that it is morel likely than not that no reasonable juror would have found [him] guilty BRD

Race

McCleskey v. Kemp (1987)

EP requires to prove
o o

decision makers in his case acted w/ discriminatory purpose Legislature adopted and maintained d/p scheme because it discriminated

8th amendment not violated b/c new statute eliminated impermissible arbitrariness; sentence was not disproportionate to sentences in other murder cases

Victim Impact

Payne v. Tennesse (1991)

Victim impact evidence allowed:

o o

Evidence bearing on Vs personal characteristics Evidence bearing on emotional effects on Vs family

Is the murderer of a homeless man with no family or friends less blameworthy that the murderer of Martin Luther King?

Non-trigger persons

Tison v. Arizona (1987) : Non-triggerperson death eligible where he is a major participant in crime and acted with reckless indifference to human life

Post-Gregg Limitations on Death Eligibility

1977 -- Death is excessive for rape of an adult woman (Coker v. Georgia) [see Kennedy below] 1986 Insane persons declared ineligible for execution (Ford v. Wainwright) 1989 Executing persons with mental retardation does not violate the 8th amendment (Penry v. Lynaugh) [see Atkins below]

More Limitations

Juveniles

1988 Those who commit capital murder when they were 15 or younger are ineligible for death (Thompson v. Oklahoma) 1989 But the 8th amendment does not prohibit execution of those 16 or 17 @X they committed capital murder (Stanford v. Kentucky) See Roper v. Simmons below

Current Developments

2002 Those with mental retardation are ineligible for death (Atkins v. Virginia)

No standard ORd Penry

2005 Those under 18 @X of their capital murder are death ineligible (Roper v. Simmons) ORd Stanford 2008 death is disproportionate punishment for rape of a child (Kennedy

Public Opinion

1939 Support was 61% 1966 Low of 42% 1994 Support climbed to 80% But, given a choice, 46% prefer life w/o parole over death Also there is growing skepticism that d/p deters

Chapter 8 Rape; Sexual Assault and Gross Imposition

Common Law Rape

Elements defendant had sexual intercourse (penetration by the penis of the vulva) with a woman not his wife using physical force or the threat of force; and without her consent~

...with a woman not his wife: spousal immunity

CL: a husband who forced his wife to have sex could not be convicted of rape Justifications: consent by marriage, W is property of H, single legal existence Today Retained by most jurisdictions but trend limits or eliminates Where spousal immunity is retained, H may still be prosecuted for assault Where retained, separation or divorce destroys immunity Domestic partners may be included~

...force or the threat of force

CL rape required both force and lack of consent Force Use of force OR threatened use of force Physical force Lack of consent alone was not sufficient.~

Resistance Requirement

Resistance was necessary to establish the force element of the offense A conviction for forcible rape may not stand unless V resisted and her resistance was overcome by force or threats The resistance requirement has been confused with consent, i.e. if V didnt resist, its hard to believe she did not consent But, V was not required to resist if there was a sufficient threat of force~ How much was sufficient to show resistance? Follow natural instincts of every proud female to resist until overpowered Enough to make lack of consent evident to the male Reasonable under the circumstances~

Where threat (not force) is used, both fear and threat are required

Fear alone is not enough. Fear is subjective The defendant must have threatened. A threat is an objective act by another Compare
o

No forcible rape where female accedes to intercourse with a man simply because he is bigger and shes afraid of him. But, it is forcible rape if the male knowingly takes advantage of a females unreasonable fears

Resistance Cases

A necessary element of rape is either Actual force sufficient to overcome Vs physical resistance A reasonable threat of force making resistance unnecessary (Rusk) Whether a threat of force was implied is a jury question. (Rusk) Generalized fear of force not enough; need threat near time of sex act and for the purpose of getting sex (Alston)~

Just say no

Is simply saying no enough? Some argue men can honestly be mistaken and believe no means yes b/c our culture prompts women to make token protest so that she wont seem easy our culture believes that women find force erotic But note: women most commonly use nonverbal methods to give consent to sexual intercourse~

Resistance Cases Just Say No

Verbal resistance alone is not sufficient to prove rape w/o showing forcible compulsion. (Berkowitz) Force (with sufficient resistance) found based on that force necessary to achieve penetration (M.T.S)~

Resistance Requirement: Contemporary View

Modern rule. Resistance is generally not required b/c Increased risk to V Criminal Liability should not depend on Vs willingness to resist Abolished in a few jurisdictions by statute or judicial interpretation Other jurisdictions require less resistance (reasonable under the circumstances; nothing more than evidence of no consent) Extreme view: force requires no more force than that required for penetration~

People v. John Z (2003)

Held: It is forcible rape when, during apparently consensual intercourse, the victim expresses an objection and attempts to stop the act and the defendant forcibly continues despite the objection (time to be judged by the jury)

People v. Williams

To get the instruction there must be substantial evidence Mistake instruction:

Subjective: whether defendant honestly and in good faith, albeit mistakenly, believed the victim consented Objective: whether the mistaken belief was formed under circumstances society will tolerate as reasonable

General rule re: mistake

If a defendant has a reasonable and bona fide belief that a women voluntarily consented to have sex he does not possess the mens rea necessary for rape.

Deception

Fraud in the factum negates consent: misrepresentation about the actual act. Doctor explains he will insert instrument in vs vagina; in fact, its his penis (Minkowski). Fraud in the inducement (con artist) does not negate consent: misrepresentation that lead V to enter into conduct with false or mistaken beliefs. Doctor tells woman her disease will be cured if she has sex with a particular person (Boro)

While feminists may concede fraud in the inducement is not rape, it is still conduct that should be punished~

Fraud in the inducement

Intercourse w/ donor will cure fatal disease Intercourse with producer will make V a star Intercourse with senior partner will get V a job Intercourse w/ paramour in return for I love you~

Proving rape: ...without her consent

Trial judge may exclude relevant evidence if its probative value is outweighed by undue prejudice To determine admissibility of evidence in rape trials court weighs The interests of the rape shield laws in protecting V Against the defendants right to confront and cross- examine (Herdon) ~

Proving Rape

The problem of putting victims personal history on trial o Evidence of victims prior consensual sex with is admissible, especially claims consent on the occasion in question o Evidence of victims prior consensual sex with others may be admissible if it is relevant to consent to intercourse w/ o Connection is still sometimes assumed between sexual immorality and victims credibility ~ Rape shield statutes deny opportunity w/o good cause to cross-examine victim or offer evidence about her prior sexual conduct or reputation for chastity Justification o Rejects connection between truthfulness and chastity o Acknowledges that consent w/ one person does not make it more likely victim consented w/ another o Increase likelihood rape will be reported May violate 6th Amendment right to confront and cross- examine accuser and present evidence on his own behalf though the USSCt has upheld some rape shield statutes~

Cautionary Jury Instructions

Juries were instructed to consider Vs testimony with special care

Some court refuse to continue the assumption that alleged rape victims are less trustworthy witness than victims of other crime. They eliminate cautionary jury instructions. Cautionary jury instructions are unnecessary because defendants have other protection from wrongful conviction~

Statutory Rape

Generally statutory rape o Has no mens rea requirement o Is committed by the act of intercourse o So mistake of fact as to age is not a defense (Garnett) Public policy that supports strict liability in statutory rape is protection of society, the family and the child Another public policy statement: young people lack capacity to consent because they are too naive to understand the nature of the act and need protection from adult influences. ~

MPC Rape: 213.1(1)

Elements of Basic Rape o Sexual intercourse (broadly defined) o by a man with a woman not his wife o and one of the following by force, or by threat of serious physical harm or kidnapping to the victim or a third person or where the defendant used drugs without the knowledge of the woman to impair her ability to judge her conduct, control her conduct or resistance where the victim is unconscious or under 10 years old~ Mens rea: must act purposely, knowingly or recklessly as to each material element Basic rape (previous slide) is a 2nd degree felony First degree felony if o Victim is injured o Victim was not a voluntary social companion with a sexual history with the accused Gross sexual imposition is a 3rd degree felony~ Gross Sexual Imposition o sexual intercourse

o o

by a man with a woman not his wife and one of the following defendant compels her to submit by any threat that would prevent resistance by a woman of ordinary resolution (nonviolent threats like economic loss not allowed) or he knows she is so mentally impaired that she is incapable of appraising the nature of her conduct (but he did not cause her impairment) or he knows that she is unaware that a sexual act is being committed upon her or that she mistakenly believes the actor is her husband.~

Comparison: CL and MPC Rape

o

Similarities Retains gender specific terms Retains spousal immunity Retains corroboration requirement Special jury instruction re: victims testimony Prompt complaint requirement~

Differences o MPC expands conduct that can constitute rape o Provides degrees of rape Basic rape is 2nd degree Rape by stranger or with injury is 1st degree Lesser degree, gross sexual imposition o Focus is on s conduct, not victims lack of consent (i.e., proof of resistance not required) o Broader definition of rape includes violence directed at 3rd person , threat to kidnap, etc.~

Trend of Modern Statutory Changes

Gender neutral Broader definition of force (V is unconscious; V under influence of drugs) Broader range of sexual activity (fellatio, cunnilingus, and object rape) Rename: sexual assault or sexual criminal conduct Concept of consent is eliminated: focus on s conduct, not Vs sexual history Limits spousal immunity~

Chapter 9 Defenses

In re Winship (1970)

Due process requires the prosecutor to persuade the trier of fact beyond a reasonable doubt of every fact necessary to constitute the crime charged. Burden of pleading - starts the proceedings Burden of production - quantum of evidence that a party must present to get the issue before the fact-finder Burden of persuasion fact-finder must decide issues presented by the evidence

Burden of Proof

States Burden
In general the state must prove:

Voluntary act (or omission) by defendant The social harm prohibited by the offense (result crime) The defendants mens rea (except for strict liability crimes)(always the case except for s. liability crimes) And actual and proximate cause between the first and second elements (not necessary for non-result crimes) Even after the state meets this burden may raise
o

Defendants Burden

Failure of proof defenses state has failed to prove an essential element of the offense charged (can result in acquittal) True defenses (affirmative defense): facts that defeat conviction

Major Types of True Defenses

Justification conduct that is otherwise criminal but which under the circumstances is socially acceptable. Its the right thing to do. Excuse Although the actor has harmed society (committed a wrong), he should not be blamed or punished Specialized defenses applies specifically to certain crimes only

Extrinsic defenses raise public policy factors extrinsic to substantive criminal law doctrine See chart

Significance of Classification of Defenses

Burdens differ.
o

True defense: bears the burden of production and persuasion by preponderance of evidence Failure of proof: state bears the burden of disproving BRD a s failureof-proof claim Justification: D acquitted on self defense; so too will A be acquitted Excuse: D acquitted b/c insane; A will not

Accomplice liability may differ. E.g., A provides D with gun to kill V.

o o

Failure of Proof Defenses

State has met burden of production Defendants evidence shows failure to prove one or more elements Not true defenses because purpose is to raise reasonable doubt about the states case in chief

True Defenses

State has proven each element BRD Defendants burden to plead, produce and persuade PE Categories

Major
o o

Justifications Excuses Specialized Extrinsic

Minor
o o

Justifications (conduct was the "right thing to do")

Based on Conduct, otherwise criminal, is socially acceptable under the circumstances Example: self defense turns the otherwise criminal act of killing into conduct that is justified Focus is on the act Examples

Defense of Self Defense of Others Protection of Property including home Law Enforcement Necessity (choice of evils)

Excuses

Although the actor has harmed society, he should not be blamed or punished for reasons that relate specifically to him Example: Insane actor, juvenile. Focus is on the actor

Common excuses include

Duress (coercion) Intoxication (voluntary and involuntary) (normally not valid) Mental disorders Infancy Entrapment Consent

Specialized Defenses

Apply to specific crimes Examples

o o

Legal impossibility- applies only to attempts Abandonment- applies only to attempt and conspiracy.

Policy: Actor has satisfied all elements of the offense charged, he has not in fact caused the harm sought to be prevented by the statute defining the offense Sometimes not complete defenses, will just reduce the penalty.

Extrinsic Defenses

Raise public policy factors extrinsic to the substantive criminal law doctrine Examples
o

Statute of limitations o Forward looking society o Judicial resources Diplomatic immunity Judicial, executive and legislative immunity Incompetency to stand trial

o o o

Social interest served by the defense outweighs the utilitarian/retributive reasons for punishment

Patterson v. New York

Underscores that affirmative defenses presuppose that the state has met its burden with respect to proof on every element of the crime. If they haven't done that, then there would be no need for affirmative defense. Held: Where NYs statute required the state to prove BRD that defendant intentionally caused the death of a human being, the due process clause was not violated by placing on the defendant the burden of proving the affirmative defense of extreme emotional disturbance. Maine statute was unconstitutional because it presumed you had malice if you did the act. Allows a presumption based on the conduct and thats unconstitutional, as opposed to the NY statute where they had to prove BRD that D intentionally caused the death of another human.

Justification: a closer look

Internal structure: Trigger conditions that permit a necessary and proportional response. (focuses on the conduct instead of the person)

Triggering circumstance requisite conditions that must exist before the defense can be claimed

Necessary response act only when and to the extent necessary to protect the interest Proportional response Limits the maximum force to be used

Justification: Self Defense, General Rule

One may use force on another

If he is not an aggressor and; If he honestly and reasonably believes

it is necessary [proportionate response] to protect himself from the imminent use of unlawful force by the other.

Justification: Self Defense, Deadly Force

One may use deadly force only if he reasonably believes it is necessary to protect himself from imminent and unlawful use of deadly force. Deadly force: Force likely to cause death or grievous bodily injury regardless of the actors intention Deadly force may not be used to repel aggression if such force is unnecessary

Justification: Self Defense, the Aggressor

Aggressor is one whose affirmative unlawful act must be reasonably calculated to produce a confrontation with injurious or fatal consequences May not be the one who starts it necessarily but introduces the danger. Status can be removed (deadly and non-deadly) Aggressor may not be the one who started it: the situation is escalated by an affirmatively unlawful act reasonably calculated to bring about injury or death

Justification: Self Defense, Threat and Retreat

Threat

imminent; at once Future threat is insufficient the threat must be unlawful; compare lawful arrest

Duty to Retreat

Majority: retreat not necessary (Texas rule) Minority: must retreat Castle exception: no one must retreat from his home
o

Some add that you don't have to retreat if robber or rapist.

Also some jurisdictions: retreat from robbers/rapists not necessary

Hypotheticals: Able starts arguing with cain, cain pushes him into the barbecue pit and able dies from wounds. o Can he claim no self defense? No, Able's aggression was not force likely to cause death or serious injury. Playing touch football and one guy got angry and chased the other guy with a brick, other guy ran and got a gun then shot him. Claim self defense? o Yes, he tried to run away and guy with brick was the aggressor and posed imminent threat. Argument between two guys dating the same girl. Chased with and axe and other guy escaped and came back then shot him. o Self defense ends when imminent danger ends, so no. Through divorce, she said she would kill husband if he didn't stop being an ass, he pulls out his hammer and kills her? o No self defense because future threat is not imminent.

Guy beats other with bat, guy being beaten then shoots at him and misses, then guy struck a fatal blow with the bat? o No self defense when you generated the necessity to kill. Self defense because even though hermione was initial aggressor she then backed down so any additional threat justified it.

Justification: Self Defense, Goetz

Held: NY law recognizes the defense of justification and permits useof deadly force where the actor reasonably believes it is necessary It must be determined

That he held an honest belief That it was objectively reasonable (not subjective)

Justification: Self Defense, Reasonable Person

Majority: factfinder should hold the defendant to the standard of a reasonable person in his situation There are minority positions allowing for various degrees of subjectivization

o o o o o

Height, weight, and age Gender Knowledge of attackers reputation An experienced subway rider A prior mugging victim

Justification: Self Defense, Imperfect

Imperfect defense does not result in acquittal; it results in reduction of charge (usually, murder to manslaughter) Occurs in some jurisdictions when
o o

Actors belief, though honest, was unreasonable Actor used too much force

Besides reducing charges it can influence sentencing

Justification: MPC Self Defense Sec. 3.04(1)

Use of force on another is justified when

o o o o

The actor believes Such force is immediately necessary To protect himself against

Unlawful force by the other May not use force to resist arrest, even if it is unlawful.

Justification: MPC Self Defense, Limitations

3.04(2)
o

May not use to resist arrest (even unlawful) if the actor knows the other is a police officer There are restrictions on use to resist force by property owner the actor knows is acting under a claim of right

May not use deadly force unless actor believes necessary to protect self against:
o o

Death Serious bodily harm

Kidnapping *not under common law+ Or forcible sexual intercourse *+ (not available to common law) Actor provoked use of force against himself Or the actor knows he can retreat or surrender the property
o

May not use deadly force if:

o o

But actor need not retreat from home or workplace (not under common law) Public officer need not desist from performing duty

Justification: Self Defense, Reasonable Person

State v. Wanrow

The justification of self defense must be assessed in light of all facts and circumstances know to the defendant not limited to those known immediately prior to the killing but also includes Weslers previous incidents with children A jury instruction on self defense which uses the masculine pronoun can mislead a jury into expecting women to conduct themselves as men to in confrontive situations

Jury is going to place expectations on the woman that they would place on men which wouldn't be fair to her.

Justification: Self Defense, Issues in Abused Spouse Cases

Major issues:

Whether evidence of battered woman syndrome is admissible Whether defendant is entitled to a jury instruction on self defense

Justification: Self Defense, Abused Spouse Situations

Confrontational women kills partner during the battering incident. Jury instruction is almost always given. Non-confrontational woman kills her partner after a lull in the violence or when he is asleep. Courts are divided on whether self-defense jury instruction should be allowed. Murder for hire woman hires someone to kill her abusive partner. Self defense instruction never allowed

Justification: Self Defense, Abuse Cycle

Phase I: Tension Building: Minor Incidents Phase II: Escalation to An Acute Battering Incident Phase III: Contrition (Honeymoon) Resumption of Abuse: Cycle Repeats

Justification: Self Defense, Abuse Spouse Why Doesnt She Just Leave?

Still positively reinforced during the honeymoon phase Women tend to be the peacekeepers in relationships Adverse economic consequences More dangerous to leave than to stay Prior threats by batterer Lost self-esteem Learned helplessness or psychological paralysis

Justification: Self Defense, Characteristics of Abused Spouses

Believes the violence was her fault Inability to place the responsibility for the violence elsewhere Fears for her life and/or her childrens lives Irrational belief that the abuser is omnipresent and omniscient

Justification: Self Defense, Norman

Trial court refused jury instruction on self defense Ct. Apls. N.C. reversed conviction holding jury should have been allowed to consider self defense where

was subjected to lifetime of abuse Experts said she believed killing the victim was necessary to avoid being killed herself despite his being asleep at the time he was shot

N.C. S. Ct. reversed appellate court. Fear of death or serious bodily harm must be imminent for self defense to be available

Why try to fit women into a mans defense? Why not a battered womans defense? Justification and accomplices: If a battered woman gets help from another, the other is protected by her claim of self defense. People v Kurr

Justification: Defense of Others, Protection of Fetus

Legislative amendment criminalized causing death of a fetus State law allowed defense of others Held: defense of others includes a fetus

Justification: Defense of Others

An actor is justified in using force against another to protect a third person when

a reasonable person in the actors position would believe the third person is in immediate danger of bodily harm And force is necessary for the protection of the third person

Justification: Defense of Others, Relationships

Relationship:

Early English cases limit the defense to protection of spouse, child, parent, relative or employee or employer Modern view: No such relationship is required. Thus, one may intervene to protect friend, acquaintance, or stranger

Belief must be reasonable May not use excessive force

Justification: Defense of Others, The Mistaken Defender

Alter Ego Rule: The defenders right is co- extensive with that of the person he seeks to protect Reasonable Belief Doctrine: So long as the defender reasonably believes that the other is being unlawfully attacked, he is justified. Now the majority position

Justification: Defense of Others, MPC 3.05(1)

Use of force against another to protect a 3rd person is justified

When the actor would be justified to use such force to protect himself from a similar threat and Under circumstances the actor believes to exist, the 3rd person would be justifed in using such force and The actor believes his intervention is necessary to protect the 3rd person

Justification: Defense of Others, MPC 3.05(2)

But when the actor would have to retreat, he doesnt have to unless he can assure the complete safety of the 3rd person And when the 3rd person would have to retreat, if he knew he could assure complete safety, the actor must try to persuade him to do so before using force if the actor is sure he can obtain complete safety

Justification: Defense of Property

One may use non-deadly force against a would- be dispossessor if he reasonably believes it is necessary to prevent imminent and unlawful dispossession. Deadly force may not be used to protect property

Justification: Protection of Home, Broad Position (Common Law)

Broad: Home dweller may use deadly force if he reasonably believes it is necessary to prevent an imminent and unlawful entry of his dwelling Includes drunk neighbor w/o intent to harm

Justification: Protection of Home, MPC and Middle Position

Deadly force may be used if the actor reasonably believed

the other intends unlawful and imminent entry of the dwelling and:

the intruder intends to injure him or another or commit a felony and deadly force is necessary to repel intrusion

Justification: Protection of the Home, Narrow Position

Narrow: deadly force ok only if defendant reasonably believes

the other intends imminent and unlawful entry the intruder intends to commit a forcible felony or to kill or seriously injury an occupant Such force is necessary to prevent the intrusion

Justification: Protection of Home, Spring Guns

Definition: mechanical devices that are set off when someone opens a door to a building Common law: Spring guns are permissible where the intrusion is, in fact, such that the person, were he present, would be justified in taking the life or inflicting the bodily harm with his own hands. There is a trend against the use of mechanical devices because they operate without discretion (Cebellos)

Justification: Law Enforcement

The scope of public authority re: arrest is spelled out in the Fourth Amendment (unreasonable searches and seizures) Crime prevention felonies

Minority view: Deadly force allowed if arresting person reasonably believes the other is committing a felony and deadly force is necessary to prevent it Majority view: limits application of deadly force to forcible or atrocious felonies

Justification: Necessity, In General

When actor encounters a force or condition that requires him to choose between

violating a minor law or suffering (or allowing other to suffer) substantial harm to person or property

Justification: Necessity (Choice of Evils; Lesser Evil)

Defendant is faced w/ clear and imminent danger (not debatable or speculative) (natural event)

Imminent danger Prisoner fleeing fire

Defendant can reasonably expect his action to abate the danger

No legal alternative will abate the danger Harm caused must be less than harm avoided

d's actions have to be weighed against the harm that is reasonably foreseeable rather than the harm that actually occurred. For the fact finder.

The legislature has not acted to preclude the defense by clear and deliberate choice regarding the values at issue Clean hands

Justification: Necessity Residual Defense, Limitations-go through

all other defenses and if this is all you have left over, you use it.

A residual defense (defense of last resort) Limitations

Some jurisdictions limit to natural disasters Does not apply to homicides (Dudley and Stephens)

Mpc doesn't restrict it like this.

Use may be limited to protecting person or property. Thus, saving reputation would not qualify.

Hypos:

Herm addicted to TV, excited about Super Bowl game, hour before game tv was messed up. So he broke into his neighbors house. Can he claim necessity as defense for trespass.
o

No, not faced by an imminent danger of any sort.

A is an activist against war in Iraq, view is that everyday war threatens to kill more and more people, organized a protest to break into rotc office and steal weapons. After being charged with burglary he said he was faced with the decision to choose between the burglary or allowing the deaths in the war to happen.
o

No necessity wouldn't work because he had a legal alternative.

Dude caught on a mountain in a storm, had chance to escape but didn't use option. Broke into house
o

No because danger wasn't imminent at time he made the decision.

Damn at hill is bout to break if it breaks in one direction it will kill a bunch of people. If she blows it up it will go the other way and it will save tons of lives. She blows it up.
o

She has necessity defense because the harm she prevented was greater than the harm crated by her action. No legal alternative.

Justification: Necessity, Nelson v. State

Held: necessity was not a defense to using and damaging state equipment in an attempt to retrieve defendants truck stuck in the mud because: the evil was not dire, alternatives had been offered and the harm caused was greater than that sought to be prevented.

Justification: Necessity, MPC 3.02

Conduct is justified if:

o

If the actor believes his conduct is necessary to avoid harm to self or another If the harm to be avoided is greater than that sought to be prevented by the statute If there are no exceptions or defenses dealing with the situation It doesnt otherwise appear the legislature excluded the justification

o o

Not reckless or negligent

Justification: Necessity, MPC & CL compared

Under the MPC the defense is much broader than under the common law
o o

Imminence requirement is rejected A person does not automatically lose the defense because he was at fault in creating the situation It is a defense of general applicability

Not limited to emergencies created by natural forces Not limited to physical harm to persons or property May be used in homicide prosecutions

Justification: Necessity, Civil Disobedience

Civil disobedience: willful violation of a law, undertaken for the purpose of social or political protest.

Direct-- protesting the existence of a law by breaking that law to avoid a particular harm. Indirect -- violating a law that is not, itself, the object of protest.

Justification: Necessity, Regina v. Dudley and Stephens

Held: The homicide was not justified where three shipwrecked men killed a fourth and fed from his body to avoid starvation pending their rescue.

Excuse: Generally, Examples (focus on actor)

Duress (coercion) Intoxication (voluntary and involuntary) Mental disorders

o o o o

Competent to face trial Insanity Diminished capacity Competent to execute (capital cases only)

Infancy Entrapment: police induce defendant to commit a crime he wasnt predisposed to commit Consent

Theories supporting excuse

Utilitarian o Deterrence Moral theories o Causation: crime caused by forces outside the actor's control o Character: crime was not the result of bad character o Free Choice: crime was not committed by one who exercised free choice

Excuse: Duress, Contento-Pachon

Held:

defendant presented credible evidence that he acted under an immediate and well grounded threat of serious bodily injury, with no opportunity to escape. The issue of duress should have been decided by the jury Necessity not available as a defense because the threat was human not a natural force and he didnt act to promote the general welfare

Excuse: Duress (AKA Coercion)

Elements

Someone threatens to kill or grievously injure The actor or another Actor reasonably believes the threat was genuine Threat was imminent @X of criminal act (future threat can be an imminent threat) No other reasonable escape from the threat Clean hands

Excuse: Duress, Rationale

One who is coerced will not be deterred by the threat of criminal punishment Self preservation is hardwired The coerced person is himself a victim Punishment is not deserved because the actor did not act willingly. Doesnt lack mens rea; lacks actus reus.

Excuse and Justification: Duress and Necessity Compared

Source of danger

Necessity natural forces

o o o

Starvation Tornado Appendicitis

Duress a person

o o o

Terrorist Organized crime Kidnapper

Excuse: Duress, Homicide CL

Under the common law, duress is never a defense to homicide

May be an imperfect defense reducing murder to manslaughter May be a defense to felony-murder if it is a defense to the underlying felony

Excuse:Duress, MPC Sec. 2.09

Section 2.09

Threat of unlawful force Against actor or another Such that a person of reasonable firmness in defendants situation would yield Defendant did not recklessly put himself in that situation Defense available for any crime, including homicide

Excuse: Duress, MPC & CL compared

MPC abandons imminency requirement MPC eliminates deadly force MPC doesnt limit application to close family members MPC reasonableness requirement is made somewhat subjective by

one in actor situation allowing consideration of gender, size, etc.

MPC duress can be applied to homicides

Justification or Excuse: Escape from Intolerable Prison Conditions

Necessity or duress? Accomplice not liable under necessity. Factors to assess defendants claim

Actor faced w/ specific threat of death, forcible sexual attack or substantial bodily injury in immediate future No time for complaint or a history of futile complaints No time or opportunity to resort to courts No evidence of force or violence against prison personnel or other innocent persons in the escape Actor immediately reports to proper authorities when he reaches safety

Definitions of Intoxication

Common law: The intake of a substance affecting the actors faculties such that he is incapable of forming mens rea MPC: A disturbance of mental or physical capabilities resulting from the introduction of substances into the body

Excuse: Intoxication, Proof

Mere intake is not sufficient Evidence of intoxication

Amount consumed Time in which it was consumed Others reports of the actors conduct Odor of alcohol Blood alcohol level Actors ability to remember important facts

Excuse: Intoxication, Generally

Caused by either alcohol or drugs Voluntary: one who knows or should know what hes taking is likely to produce intoxication Involuntary: One who consumes such substances other than by choice or design:
o

Coercion

Pathological Reaction

Atypical reaction Unexpected reaction to Rx meds

Innocent mistake

Excuse: Intoxication, Involuntary

Involuntary intoxication is a defense to any crime if the actor does not have the requisite culpable state of mind It must have resulted in

Temporary insanity according to the definition of insanity in the jurisdiction Usual definition: one didnt know the difference between right or wrong or was unable to conform ones conduct

Excuse: Intoxicant, Legal Relevance

Intoxication is legally relevant

Element of an offense Impact on actus reus Impact on mens rea Impact on defense

Excuse: Intoxication as an element

Sometimes intoxication is an element of an offense E.g., Texas Criminal Code Sec. 49.05 Flying While Intoxicated

A person commits an offense if he is intoxicated while operating an aircraft

o o

Conduct: operating an aircraft Attendant circumstance: intoxicated

Excuse: Voluntary Intoxication & Mens Rea

Failure of Proof

Evidence of voluntary intoxication is not admissible to defeat mens rea in general intent crimes Evidence of voluntary intoxication may be admissible to defeat mens rea in specific intent crimes But some states prohibit admission of evidence of intoxication altogether; not due process violation

Excuse: Voluntary Intoxication, Tex. Pen. Code 8.04

(a) Voluntary intoxication does not constitute a defense to the commission of crime. (b) Evidence of temporary insanity caused by intoxication may be introduced by the actor in mitigation of the penalty attached to the offense for which he is being tried. (c) [jury charge] (d) For purposes of this section intoxication means disturbance of mental or physical capacity resulting from the introduction of any substance into the body.

Excuse: Intoxication, CL General Intent Crimes

Battery Rape Kidnapping False Imprisonment Assault

Excuse: Intoxication, CL Specific Intent Crimes

Aggravated Assault (w/ intent to commit bodily injury) Arson (fire starting w/ intent to destroy property) Larceny (intent to deprive) Robbery (intent to deprive) Burglary (entry w/ intent to commit a crime) Forgery (intent to promote commission of crime) Conspiracy ( )

Excuse: Intoxication, CL Strict Liability Crimes (intoxication irrelevant)

Statutory rape Selling liquor to minors Speeding and some other traffic offenses

Excuse: MPC, Self-Induced Intoxication

Self-induced intoxication: taking substances one knows or should know have a tendency to cause intoxication unless taken pursuant to medical advice or when one would otherwise have a defense to a crime such as duress

Excuse: Voluntary Intoxication, Impact on Defense

Voluntary Intoxication may make defenses more difficult to establish to the extent the actor had to have acted reasonably
Jurisdictions that allow intoxication as a defense on specific intent crime are being abolished.

E.g.,

Self defense (reasonably perceive danger) Voluntary manslaughter (over estimate provocation) Mistake of fact (some places require this mistake to be reasonable)

Excuse: Voluntary Intoxication & Actus Reus

Ordinarily, a claim that voluntary intoxication rendered the defendants conduct involuntary is rejected Rationale: the decision to drink is voluntary

Excuse: Voluntary Intoxication, Veach

18 USC 111(a)(1) (No specific intent)

Whoever forcibly assaults, resists, opposes, impedes, intimidates, or interferes with [a U.S. government officer or employee] while engaged in or on account of the performance of official duties...shall, where the acts constitute only simple assault, be fined [a certain amount] or imprisoned not more than one year or both.

18 USC 115(a)(1)(B)(Yes, specific intent required)

Whoever threatens to assault, kidnap, or murder, *a US law enforcement officer] with intent to impede, intimidate, or interfere with such [law enforcement officer] while engaged in the performance of official duties, or with intent to retaliate against such [law enforcement officer] on account of the performance of official duties, shall be punished as provided *elsewhere+.

Held: Voluntary or involuntary intoxication may preclude the formation of specific intent which would negate the mens rea of a specific intent crime, but it has no applicability to general intent crimes.

Excuse:Intoxication, MPC 2.08(5) Definitions

Intoxication: A disturbance of mental or physical capabilities resulting from the introduction of substance into the body Self-induced intoxication: taking substances one knows or should know have a tendency to cause intoxication unless taken pursuant to medical advice or when one would otherwise have a defense to a crime such as duress Pathological intoxication intoxication grossly excessive in degree, given the amount of intoxicant, to which the actor does not know he is susceptible. (intoxication that is unexpected)(excessive reaction)

Excuse:Intoxication, MPC Kinds of Intoxication

Three types of intoxication per Sec. 2.08(4)-(5)

Self induced Pathological Involuntary

Excuse:Intoxication, MPC Exculpation

Intoxication will exculpate

Any kind of intoxication is a defense if it negates an element of the offense (if it negates the mens rea, (i.e. specific intent)), 2.08(1) ...except for crimes requiring recklessness, 2.08(2)

And pathological intoxication and involuntary intoxication are affirmative defenses if caused by a mental condition comparable to insanity under the MPC 2.08(4)

Excuse: Insanity Compared w/ Mental Illness

An excuse that permits inquiry into a defendants capacity to know the law or exercise free will Different concepts

Mental illness: a medical diagnosis a disease or defect of the mind Insanity: a legal conclusion reached w/ aid of experts that completely or partially exonerates the defendant because of mental illness

Excuse: Insanity, Critical assumptions

Mental illness is real and beyond the control of the afflicted person It interferes with psychological functions The impairment frustrates the persons ability to understand and direct her conduct

Excuse: Insanity Mental Capacity in Context

Competence to stand trial Sanity at the time of the crime

o o

Insanity defense Diminished capacity

Mental health at time of disposition Competence to be executed (capital cases only)

Excuse: Insanity Competence to Stand Trial

Common law requires that a

o

Have the capacity to consult w/ lawyer w/ reasonable degree of rational understanding Have a rational as well as a factual understanding of the proceedings against him (Dusky v. US (US 1960))

Excuse: Insanity Raising Competence

Competency to Stand Trial may be raised

By defense, prosecution or the judge At any time, including during the trial

Excuse: Insanity Consequence of Incompetence

As a result of an incompetency finding criminal proceedings are suspended and may

be released (minor crime) or be held in mental institution until civilly committed if he is a danger to himself or others

Excuse: Insanity, Burdens in Competence to Stand Trial

It is constitutional to assume defendant is competent to stand trial Burden of persuasion on the defendant to prove insanity. Standard is POE; a higher standard of clear and convincing violates Due Process

Excuse: Insanity Forcible Medication to Stand Trial

Due Process clause of 5th Amendment allows forced medication to restore comopetence if

the treatment is medically appropriate is substantially unlikely to have side effects that may undermine the fairness of the trial and, taking account of less intrusive alternatives, is necessary significantly to further important governmental trial-related interests (Sell v. US (US 2003))

Excuse: Insanity Competence under the MPC

MPC 4.04 No person who as a result of mental disease or defect lacks capacity to understand the proceedings against him or to assist in his defense shall be tried, convicted or sentenced for the commission of an offense so long as such incapacity endures. MPC 4.05 procedure

Excuse: Insanity, Pleas

Guilty Not guilty Not guilty by reason of insanity (NGBRI) Guilty but mentally ill (GBMI)

Excuse: Insanity Burden of Proof at Trial

Prosecutors case-in-chief; must prove all elements BRD Defendant introduces evidence sufficient to raise insanity as an issue; burden POE Burden then shift to state to show that the defendant is sane BRD

Excuse: Insanity Acquittees (NGBRIs)

Disposition

Automatic commitment to psychiatric facility (period limited by maximum punishment for crime) Or Commitment after hearing for an indeterminant period Non-NGBRIs clear and convincing NGBRIs preponderance of evidence

Standard for civil commitment

Excuse: Insanity Sexually Violent Predator Statutes

Allow for involuntary commitment to mental institutions for SVOs Define

One who is
o o o o

Released after SVO conviction Incompetent to be tried for SVO An insanity acquittee Found not guilty for other reasons

And has mental abnormality or personality disorder making it likely hell commit another SVO

Excuse: Insanity Why Excuse the Insane?

Incarcerating the MI cannot deter them because the illness renders them unable to heed warnings
o

Nor general deterrence

Incarcerating the MI doesnt serve rehabilitation Punishing persons who are not morally culpable doesnt serve retribution But what about incapacitation?

Excuse: Insanity Criticism of the Defense

Dangerous Unable to verify empirically; malingering Mad or bad? MI exists along a spectrum No one is ever responsible for misconduct

Excuse: Insanity Tests for Insanity Defense

Competence (mental condition) at the time of the crime Tests

MNaghten (majority rule) Irresistible Impulse Durham MPC

Post-Hinkley, tests have gone full circle Very controversial

Excuse: Insanity MNaghten Test

An insane person doesnt know

the nature and quality of what hes done Or, if he did, he doesnt know what he was doing was wrong

Cognitive only

Almost complete impairment Moral wrong or legal wrong

Excuse: Insanity Irresistible Impulse

Adapted MNaghten test by adding volitional impairment Standard: Acted from irresistible/uncontrollable impulse AKA, policeman-at-his-elbow test

Excuse: Insanity Durham Test

Conduct is the product of mental illness But test doesnt define MI W/o more guidance for juries, experts usurp their role

Excuse: Insanity MPC Test

Lacks substantial capacity to either

o

appreciate [not just know] the criminality or wrongfulness of his conduct [cognitive prong] OR to conform his conduct to the law [volitional prong]

MPC test was once the majority. Weve now returned to MNaghten

Excuse: Insanity Texas

A defendant is not guilty of a crime by reason of insanity if

at the time of the conduct charged he as a result of severe mental disease or defect did not know that his conduct was wrong

Excuse: Insanity, Texas (contd)

There is no instruction on the meaning of know or wrong Antisocial conduct is excluded It is an affirmative defense the defendant must prove insanity by POE ...unless previously found legally insane, then the burden shifts to the state to prove sanity BRD

Excuse: Insanity MNaghten & MPC

State v. Wilson:

The meaning of wrongful A defendant would prevail under the insanity statute if, as a result of mental disease or defect, he sincerely believes that society would approve of his conduct if it shared his understanding of the circumstances underlying his action.

Excuse: Insanity Role of Experts

State first presents its case-in-chief including evidence of mens rea Presumption of sanity places burden on defendant to produce expert testimony of insanity State rebuts with its own experts

Excuse: Insanity Competence to Execute

Both the constitution and common law prohibit executing persons who are insane Whether an inmate on death row can be force medicated with psychotropic drugs to produce artificial sanity so he can be executed has not yet been decided

Excuse: Diminished Capacity

o

Allows an actors abnormal mental condition (short of insanity) to exonerate him or result in a conviction of a lesser degree Two circumstances

Failure of proof (mens rea) Partial responsibility (mitigates murder to manslaughter)

Controversial; many jurisdictions abolished it

Excuse: Diminished Capacity Clark v. Arizona

Held: The due process clause allows a state to avoid a second avenue for exploring capacity, less stringent for the defendant, by confining the

consideration of evidence of mental disease and capacity to the insanity defense

Excuse: Diminished Capacity Arguments in Support

Fills insanity defense gaps; ameliorates harshness Jury can avoid death sentence for mentally impaired murderer Jury can make more nuanced judgments about culpability Avoids anomaly of allowing voluntary intoxication to negate specific intent but not mental impairment

Excuse: Infancy Snapshot of Juvenile Crime

2.3 million arrests of persons under 18 in the U.S. 1.9 million of juveniles arrested had substance abuse and addiction involvement Nevertheless, only 68,600 juveniles received SA Rx More than 1 in 4 persons in the general population are under age 18 Juvenile minorities will experience the most growth in 1995-2015

Excuse: The Infancy Defense Common Law

Children under 7 were presumed, conclusively, to be too young to formulate the mens rea for criminal liability Children 7-14 enjoyed a rebuttable presumption Children over 14 were presumed to be able to formulate mens rea for criminal

Excuse: Infancy Juvenile & Adult Courts

Majority: The infancy defense does not apply in Juvenile Court Minority: Jurisdiction of the juvenile court over one under 14 requires clear proof that child understood the wrongfulness of the act, i.e., approves the infancy defense

Excuse: Infancy Burdens

Defendant: proof of age invokes presumption

State: produce evidence to persuade fact finder BRD that defendant knew right from wrong Today, most children are adjudicated in juvenile courts. E.g., MPC 16 yrs. old

Excuse: Infancy Rebutting the Presumption

Factors courts use to determine whether the child knew right from wrong

Nature of crime Childs age and maturity Whether the child showed a desire for secrecy Whether the child admonished the victim not to tell Any consequences attached to the conduct Acknowledgment that the act was wrong and could lead to punishment

Assisted Suicide Laws

35 state statutes explicitly prohibit AS 9 criminalize it through common law 3 abolished CL crimes; have no statute Ohio: SC held AS not criminal Virginia: civil sanction only; criminal unclear Oregon and Washington: only states with PAS statute

Oregons Death with Dignity Act

MD diagnosis

Incurable and irreversible Death w/in 6 months Voluntary Informed

Two docs must determine

Depressed referred for counseling Drug dispensed by MD to patient; MD cannot administer

New Defenses? Addiction to Drugs and Alcohol

Intoxication resulting from alcoholism or drug addiction is considered voluntary. Rationale one who voluntarily destroys his will power should not be excused

New Defenses? Addiction, Constitutional Principles

State may not punish a person for the status of being addicted to drugs or narcotics (Robinson v. California US 1962)

New Defenses? Addiction Defining Characteristics

Compulsion Continued use despite consequences Craving Distortion in cognition caused by craving

New Defenses? Addiction More Constitutional Principles

A state may punish an alcoholic for public drunkenness (Powell v. Texas US 1968)

New Defenses? Rotten Social Background Defense

One who commits a crime because of social deprivation should be acquitted because

He does not deserve condemnation We lack standing to judge him

Legitimacy ? No community bond with the largely disenfranchised poor What does one do with the fact that there is a correlation between crime and poverty?

Poverty and Mitigation of Criminal Conduct

Jolie S. Brams, Ph.D.

Poverty is Poison: A Guide to Defining and Understanding Poverty for Mitigation and Sentencing Presented to Texas Criminal Defense Lawyers Association

Poverty Alienates

Living in or near poverty has always been a form of exile, of being cut off from the larger society. But the distance between the poor and the rest of us is much greater than it was 40 years ago.To be poor in this country todayis to be an outcast in your own country.

New Defenses? Cultural Defense

Alternatives to cultural defenses

de minimus statutes prosecutorial discretion jury nullification judges sentencing discretion

Chapter Ten Inchoate Crimes

Inchoate Crimes, General Principles

Inchoate partial, incomplete; complete but imperfect Types

Attempt (and assault to the extent it is incomplete) Conspiracy Solicitation

Target offense (or substantive offense): the crime attempted, conspired or solicited

Inchoate Crimes, Look Alikes

o o

Harm need not have occurred Examples (these are not inchoate offenses)

Burglary Stalking

Possession of Burglars Tools Reckless Driving Possession of Controlled Substance with Intent to Distribute

Inchoate Crimes, Imperfect or Incomplete

o

Reasons a crime is inchoate: Complete but imperfect: Defendant shot but missed. Incomplete: Defendant was in the process off committing crime but was interrupted or changed his mind

Attempt

Attempt, General Principles

Definition: At attempt is an overt act that is done with the intent to commit a crime but that falls short of completing the crime Common Law Elements

Mens rea

With the purpose to promote or facilitate the commission of an offense And intent to commit the substantial step

Actus reus: Defendant commits an act that constitutes a substantial step toward committing the offense

Attempt,Texas Penal Code 15.01

o

Attempt: A person commits an offense if,

o o o o

With specific intent to commit an offense, He does an act Amounting to more than mere preparation That tends but fails to effect the commission of the offense intended

An offense under this section is one category lower than the offense attempted, and if the offense attempted is a state jail felony, the offense is a Class a misdemeanor.

Attempt MPC 5.01

1) One commits an attempt

o

If he acts with the kind of culpability required for the target crime And he does one of the following

He purposely engages in conduct that would be a crime if attendant circumstances were as he believed them to be Or whenresult is an elementdoes or omits to do any thing or with the belief that it will cause such a result without further conduct on his part Or commitsan act or omission constituting a substantial step

(2) Substantial step: must be strongly corroborative of the actors criminal purpose

Attempt -- Six Stage Process o First Conceives Not punishable o Second Evaluates Not punishable o Third Intends to proceed Not punishable o Fourth Prepares to commit crime Inchoate conduct (may be punished) o Fifth Commences commission Inchoate conduct (may be punished) o Sixth o Completes crime o Punishable Attempts, Grading

Attempted felony is graded as a felony but punished as a lesser offense than the target crime Grades

Capital or punishable by life: set at a specific term of years Lesser felonies: Half (or some similar formula) the maximum for the target offense

MPC grades equal to the target offense except in capital crimes

Attempt, Relation to Target Offense the Merger Doctrine

o

If an offender successfully completes the target offense, he cannot also be convicted of an attempt Attempt is a lesser included offense of the crime attempted and will merge if the prosecution proves the completed offense In most jurisdictions, aggravated assault will merge with attempted murder

Attempts Why Punish? o Deterrence?

o o o

Public safety Unfair to punish the successful and not the unsuccessful Disturbing public repose

Attempt, Mens Rea, Common Law

General rule: the mental state is the intent to commit some other crime

Intentionally (mens rea) commit the substantial step (actus reus) Do those acts with the specific intent of committing the target offense

Thus, attempts are always specific intent crimes, even when the target offense is a general intent offense

Attempt Attempted Murder

o

A finding of intent to kill is necessary for an attempted murder conviction. (Gentry) Implied malice will not support attempted murder
o o

Depraved heart murder Felony murder (Bruce)

Or intent to do grievous bodily harm

Attempt Actus Reus

o

Actus Reus: An act in furtherance of [the dual intents] which . . . goes beyond mere preparation Our task: to distinguish between mere preparation and perpetration

Tests to Distinguish Preparation from Perpetration

o

See posting on TWEN site under Course Materials

Attempt MPC Actus Reus

Substantial step test

Must have done or omitted to do something that constitutes a substantial step in a course of conduct planned to culminate in the commission of a crime

Done or omitted Substantial step Planned to culminate in commission

A substantial step is strongly corroborative of criminal purpose

Attempt MPC Examples of Sufficient Conduct

o o o o

Lying in wait, searching for victim Enticing victim to scene of planned crime Reconnoitering the crime scene Unlawfully entering a building where the defendant contemplates committing the crime Possessing tools or instruments necessary for committing the crime near the crime scene Soliciting an innocent agent to do an element of the crime

Attempt MPC Substantial Step: Reeves

Possession, near scene of planned crime, of material necessary for a crime but having no lawful purpose, amounts to a substantial step if it is strongly corroborative of the defendants purpose Having rat poison at school was sufficiently corroborative of school girls purpose to kill teacher (jury was allowed to find)

Attempt Defenses: Impossibility

o

CL

Legal Impossibility is a defense Factual impossibility is not a defense Neither hybrid legal nor factual impossibility is a defense

MPC

Comments suggest pure legal impossibility is a defense People v. Thousand (Michigan 2001)

Held: The nonexistence of a minor victim does not give rise to a viable defense to attempted distribution of obscene material to a minor. Defendants were barhopping. One danced with a woman who collapsed on the dance floor. Unknown to the three men, she had died. They took her home and had sex on the way. The fact that the intended rape victim was dead at the time the defendant engaged in sex with her does not bar conviction for attempted rape.

U.S. v. Thomas:

Attempt Defense: Impossibility Hybrid

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A hybrid is a case that can be analyzed either way, as in Thomas. Analyzed as a legal impossibility:

The action which the defendant performed *intercourse w/ corpse+ even if carried out would not constitute a crime *rape+, therefore, no attempted rape.

Analyzed as a factual impossibility:

Circumstances unknown to the actor [dead female] prevented him from bringing about the objective [rape], therefore, attempted rape.

In either event, another crime may be charged, e.g., abuse of a corpse.

Attempt Defense: Abandonment

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Early CL did not allow abandonment defense Today some allow if did not abandon b/c

He was about to be caught The crime was more difficult than anticipated Result crimes only Voluntary renunciation Complete renunciation

MPC 5.01(4) allows renunciation in some circumstances

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Also a defense to solicitation If allowed, abandonment is an affirmative defense (must prove POE) McClosky

Prison was exonerated where he cut fence to escape then changed his mind and returned Abandonment was found to be voluntary and complete b/c prisoner didnt know he had tripped the alarm

Battery, Mayhem and Assault o Battery

Intentional offensive touching or bodily injury Types

Physical attack: unlawful use of force on another willfully or in anger Offensive contact: intentional offensive touching or bodily contact

In some jurisdictions, battery is called assault

Mayhem

Permanently dismembering or disabling another Technically, an aggravated battery Felony

Assault Two kinds

Attempted battery Apprehension of battery

No attempted assault, by most views

Aggravated Assault (or Aggravated Battery)

Graded more seriously and punished more severely than simple assault An assault may be aggravated based on

Intent to commit more serious crime Particularly dangerous means Resulting harm Particular person

Proximity to Completed Offense State v. Boutin

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Evidence showed defendant and victim were in a scuffle. Defendant was 10 feet away and walking toward victim with bottle raised over his head Evidence was insufficient to support assault Under the common law, assault does not occur until the defendant is within apparent reach of the victim

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Solicitation

Solicitation involves the asking, enticing, inducing, or counseling of another to commit a crime Solicitation Elements
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Mens rea

With purpose to promote or facilitate the commission of an offense And the intent to command, request, encourage, etc. The defendant commands, requests or encourages another to commit a crime

Actus reus

The Debate
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Dangers of Solicitor

Conceives Greater intelligence Leader Hides behind others No harm until agreement => conspiracy Reluctance Thought police 1st amendment

Counter

Common Law
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At CL, it was punished as a misdemeanor Nearly all states have general statutory prohibitions on criminal solicitation Complete as soon as solicitor makes the request, regardless off whether the person solicited accepts or rejects

MPC 5.02
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Applies to all crimes Defendant-participant is included Uncommunicated requests for help committing a crime (letter never received) is a solicitation But see Cotton where solicitation conviction was reversed b/c legislature had omitted provision saying uncommunicated requests are solicitations.

Solicitation Compared with Attempt

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Attempt requires act (substantial step) but solicitation can occur much earlier in planning since it requires only an offer In solicitation, a 2nd party is recruited to participate in the crime but an attempt may be made by a single individual Attempt generally carries heavier sentences than solicitation

Conspiracy
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Solicitation ===>>> Conspiracy ===>>>

CL: does not merge MPC: merges

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Attempt ===>>> Target Offense Completed

Common Law Definition

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An agreement by two or more persons to commit a crime or to commit a lawful act in an unlawful manner (corrupt, dishonest, fradulent or immoral)

Early CL broad Today most require criminal object Early CL agreement alone sufficient Today, at least one co-conspirator must make an overt act in furtherance of the conspiracy (IFOTC). Some jurisdictions require a substantial act.

An additional actus reus requirement?

The Prosecutors Darlin

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Conspiracy and target offense can both be prosecuted Procedural advantages

Hearsay Venue

Joint trial of co-conspirators Conspirators liability for others conduct Statute of limitations begins when conspiracy ends

Earlier threshold for criminality than attempt

Purposes of the Doctrine

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Punish preparatory conduct (conspiracy as an inchoate offense) Punish conspiracy as a harm itself (conspiracy as aggravation)

Risks Presented by Group Criminality

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Group criminality carries greater risks because there is

a division of labor Pooling resources Expanded scope of potential harm Mutual encouragement Greater likelihood the agreed upon crime will be committed

The Pinkerton Doctrine

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Facts: Pinkerton brothers conspired to violate the tax code. One committed the substantive offense while the other was incarcerated A co-conspirator is liable for commission of the substantive offense IFOTC by another co-conspirator even if there is no evidence of his direct participation. A co-conspirator can relieve himself of liability for the acts of another co-conspirators acts IFOTC by withdrawing from the conspiracy

Hearsay Against Co-conspirators

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Hearsay: A statement made other than by the witness while testifying at a trial which is offered to prove the truth of the matter stated A hearsay statement made IFOTC is admissible against all conspirators. Krulewitch v. U.S. -- A statement in furtherance of co-conspirators efforts to avoid criminal punishment is not a statement in furtherance of the conspiracy to transport women across state lines for prostitution

Criticism
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Expands reach of law too much

Unjustifiable culpability for minor actors May affect exercise of First Amendment Vague

Conviction possible before commits any act at all. Punishes predominantly mental acts.

Mens Rea
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A conviction for conspiracy to commit murder cannot be support by implied malice murder. (People v. Swain) One cannot be guilty of conspiring to commit an unintentional crime because one cannot agree to commit an unintentional act. (Swain)

Suppliers
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To hold a supplier liable the state must show both knowledge of illegal use and intent to further that use. (Lauria) A supplier can be shown to have intent by

Direct evidence he intends to participate Inference of his intent to participate based on

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Special interest in the activity (acquiring a stake) When no legitimate use exists When the volume is disproportionate to legitimate demand When the nature of the crime is aggravated

MPC 5.03 Criminal Conspiracy

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A person commits conspiracy with another person, if he agrees with such person to commit or to aid in the commission of an offense [(1)] MPC requires that the object of the conspiracy be a crime [(1)] An overt act IFOTC by one of the conspirators must be alleged and proven [(5)] May be convicted of as many target offenses as were committed IFOTC whether as perpetrator or accomplice [(2)]

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CL Punishment and Grading

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Today in most jurisdictions, conspiracy is a separate substantive offense (conspirators may be tried, convicted and punished for both but note that conspiracy merges under the MPC) Conspiracies to commit felonies are felonies

MPC 5.05 Punishment and Grading

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Same grade and degree as most serious target offense (except capital and 1st degree) [(1)] Doesnt permit conviction for both the conspiracy and attempted offense or completed crime [(3)]

Actus Reus
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Commonwealth v. Azim Evidence that defendant drove the car, waited at the wheel while others mugged the victim and then drove assailants from the scene was sufficient for a fact finder to find BRD that he conspired with others to commit assault and robbery. Unpremeditated, chance encounter and an opportunistic rape cannot support a conviction for conspiracy to commit rape (Commonwealth v. Cook) Conspiracy requires an agreement prior to the commission of the crime

Bilateral or Unilateral Conspiracies

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Unilateral to support a conspiracy only one needs to agree to the commission of the offense (MPC) Bilateral traditional theory requiring actual agreement of at least two parties

Whartons Rule
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Rule: If it is impossible for a substantive offense to be committed without cooperative action, the agreement to commit the offense is not an indictable conspiracy. Examples

Bribery Adultery, Incest and Bigamy

Dueling Gambling Buying and selling contraband *

Whartons rule will not apply where there is legislative intent to the contrary The MPC doesnt recognize Whartons rule

The Gebardi Rule o A person that a particular law is intended to protect cannot be a party to a conspiracy to violate that law. Defenses
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Common law: Abandonment not a defense but single conspirator can limit liability by renouncing involvement and withdrawing from the conspiracy. Requirements may be strict:

communicate withdrawal to each co-conspirator and successfully dissuade the others When one informs co-conspirators or notifies authorities that he is terminating his association If he does this, he is not responsible for co-conspirators further acts It is an affirmative defense if the defendant successfully thwarts the success of the conspiracy under circumstances manifesting a complete and voluntary renunciation of his criminal purpose. This will avoid responsibility for the initial conspiracy as well.

MPC: Sec. 5.03(7)(c) Withdrawal.

MPC Sec. 5.03(6) Renunciation.