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com Spring 2010 Professor Yanhah Criminal Law Kadish 8th

I. FUNDAMENTALS OF JUST PUNISHMENT

Components of Just Punishment Act omission + duty Voluntariness choice, capacity to choose sleepwalking Fault mens rea, culpability (P, K, R, N) Wrongdoing violation of criminal statute Causation (but for, proximate) Non Excuse Concurrence of above components, in one plausible time period MPC Jurisdiction State has burden of proving culpability level (P,K,R,N) of each element of offense in order to establish liability 2.02(1) Fill the mens rea for each element based on 2.02(3) but just once in the exam mention 2.02(4) Required level of Proof is beyond a reasonable doubt 1.12(1) ELEMENTS OF THE CRIME Prosecution 2.02(3) says if no Culpability is given for an element then R This is the default rule under MPC (not (4) because if we make everything P it will be impossible to ever convict anyone of a crime 2.02(3) should be the dominant rule b/c it follows consistently from 2.02(1) Exam we are to be a 2.02(3) jurisdiction ~Acted Voluntary per 2.01(1) A person is not guilty of an offense unless his liability is based on conduct that includes a voluntary act or the omission to perform an act of which he is physically capable. Can time frame back to find the voluntary action. Was in concurrent time frame ~You omitted to Act and you were required to by a law 3)(b) if you created the distress 2.01(3)(a) you had a Legal Duty to perform Relationship parents, marriage Statute imposes duty to care for another Contract Lifeguards, nursing homes Voluntary Assumption of Care isolates helpless guy and prevents others from helping him, taking sick guy into your home Defense 2.02(4) says you need to prove for all elements the mens rea that is mentioned If P is given for one element, you must prove P for all elements

Act was Not Voluntary per 2.01(2) Infancy, Insanity, Involuntary (reflexive, unconscious, involuntary intoxication, asleep, convulsive) One way to argue involuntary, if it is not listed in (2), is to say I lacked a capacity to choose There may have been an omission but there was no legal duty to act. Even if there was a moral duty, I am not guilty of a crime. You need to prove culpability for every element of the crime per 2.02(1). If any element is missing, you cant convict me.

PURPOSE, KNOWLEDGE, RECKLESSNESS, NEGLIGENE defined in 2.02(2) Prosecution Defense ~Purpose- it is his conscious objective or desire for conduct and result, he is aware, believes or hopes for circumstances It is his objective to engage in this behavior and cause this reasult -No Purpose to cause death, until condition is met there is no Conditional Purpose- 2.02(6) requirement of purpose intent to kill (car jacking case) satisfied by conditional purpose ~Knowledge- awareness for conduct and circumstances and -No Knowledge- He did not know he was carrying drugs (1/3 awareness of practical certainty for results chance which is not high probability) -Knowledge high probability is knowledge 2.02(7) -Legality- criminalize acts not persons

Downloaded From OutlineDepot.com -not just math, relative to surrounding circumstances and ordinary course of events -this covers willful blindness and ignorance ~Recklessness- hes aware of risk (foresaw) but disregarded it -he consciously disregards an (objectively) substantial and unjustifiable risk that the material element will result from his action; a gross deviation from the standard of conduct a reasonable person in the situation would observe -Objective- doesnt matter what he thinks, jury decides whether substantial risk ~Negligence- He should have foreseen the risk -he should be aware of a substantial and unjustifiable risk that the material element exists or will result from his conduct. The risk must be of the nature that his failure to perceive it, considering the nature and purposes of his conduct and the circumstances known to him, involves a gross deviation from the standard of care a reasonable person in his situation would observe (ie. pulling off gas meter) Subjective- whether he saw his actions as substantial risk? GGFB If he didnt see the risk then no Recklessness Negligence should not be basis for criminal liability, legality expo facto law making jury decides reasonable person after + no notice - Criminal Negligence requires gross deviation from the standard of conduct law abiding person would have acted

ABSOLUTE LIABILITY CRIMES (criminal liability without fault) Prosecution Defense ~MPC 2.05 Absolute Liability no PKRN required MPC 2.02(1) Minimum requirements of No mens rea was supplied and it is a prohibition law so this Culpability must be PKRN for each material element is a strict liability crime of the crime, cant have crime w/o mens rea -Absolute liability OK in public welfare, regulatory, MPC 2.02(3) if fault level is not specified in legislative intent statute default fault level is >R, must have at least recklessness for criminal liability Unless there is a clear legislative intent, this is not a strict liability crime and needs mental states (morisette) ~Misdemeanor crimes are usually strict liability crimes Strict liability violates the rules of legality not just (traffic violations) and there is legislative intent for statutory punishment rape to be strict liability ~Strict liability is the most effective and efficient way of Always argue that MPC 2.02 says that in order to be guilty ensuring compliance with minor regulatory legislation and of the crime you need to have a mens rea with respect to prevention of crimes that are morally reprehensible. each material element of the crime. PKRN You need to prove fault in order to justify punishment ~No Voluntariness P must prove for all Absolute liability crimes ~D was negligent, he should have foreseen Negligence is irrelevant in Absolute Liability b/c no need to prove mens rea stop bolstering case Causation would be determined by asking whether the actual ~No Causation- my acts did not cause the event result was a probably consequence of the actors conduct LEGAL CAUSATION This will always be an issue when there is a bizarre sequence of events. Prosecution Defense ~But for your actions, the injury would not have occurredNo but for -regardless of my actions injury would still 2.03(1)(a) have occurred

Downloaded From OutlineDepot.com ~Proximate Cause- MPC crime close enough to the act. Not too remote, not too accidental, has just bearing on actors liability, same kind of result or harm as contemplated If no legal causation with but for and proximate cause argue for change of law to use Foreseeability as criteria. Was THIS result foreseeable? ~He was Negligent and so there is causation No Proximate Cause under 2.03 Not sufficiently direct cause (Some death was foreseeable but not THIS one. -helicopter w/ car chase) Causal chain is outside the zone of fairness This was highly extraordinary result Too remote or accidental Negligence is fault issue, causation is different. fact that you established negligence does not carry legal causation with it because difference between some result of harm and this result of harm ~There was an Intervening Human Agent IHA that broke the chain of causation, free agents exercising free will. Regardless of PKRN if IHA break chain causation and no proximate cause (assisted suicide deceased is IHA) Dont use foreseeability for criminal law b/c legality issues, no warning, no specificity, judge made law Multiple description problem- many ways to describe harm causing event. THIS RESULT depends on how you characterize ~Result was Different Person Property Harm or Injury than contemplated -The results are not foreseeable and they are too bizarre so there is no proximate cause and if you find proximate cause then I can argue a legality issue ~Causation Unknown- If we arent sure what really caused the injury, then there is a legal causation issue and cant be foreseeable b/c dont know what THIS result is

Dont use Intervening Human Actor Doctrine b/c no free will when manipulating person to act Exceptions: Emotional Incapacity, Duty of Police (involuntary actions b/c have duty to act) ~Intervening agents actions are foreseeable if push dorks too hard it is foreseeable that they will kill themselves

The actual result differed from what you intended only in that it injured a different party, what you intended was more serious, it was the same kind of injury-2.03(3) and (4)

MPC does not use Transferred Intent Must prove Fault and Causation to determine Criminal Liability Causation Proximate Cause This Result (death) Foreseeable Fault Negligence Some Result (death) Foreseeable ISSUES OF LEGALITY Value (Ds argument) rationality law Countervailing principles (Ps argument) No judge made law Perspicacity in law making Separation of powers But Necessity of interpretation No retrospective law-making Avoids temptation to tailor Ex post facto clause But adjudicative determination of norms Notice and opportunity Confidence to act; coordination Due process clauses But general application requires broad terms Specificity (no vague statutes) Avoids abuse in enforcement Due Process and 1st Amendment: overbreadth But public safety, exigent circumstances Acts not persons Generality in law 8th Amendment (cruel and unusual punishment) But fault is sometimes a matter of character

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II. HOMICIDE
Homicide 210-page 1076 ___Cause death ___Of a human being MURDER Prosecution Defense ~ You committed Murder -homicide committed Purposely Lack of Voluntariness or Knowingly 210.2(1)(a) Ex. if sleepwalking, act lack volition ~Murder was Premeditated No time is too short to premeditate every murder has premeditation; no distinction between 1st and 2nd degree murder leaves jury to decide what degree it is - life and death decisions at whim of the jury (legality problems) Rigid Requirements for premeditation to MPC- NO Premeditation Requirement for murder. constitute premeditation and 1st degree, there must Legality, moral, under inclusive issue w/ premeditation be planning activity, motive, preconceived design (Anderson girl butchering no pre-med so no1st degree. very tough on guy who unplugs wife, but lets evil Premed not doing job b/c not punishing the worst crimes murderer get 2nd degree harshest) ~Though MPC does not mention premeditation; instead specifies which types of killing is murder creating a more objective measure of Fault 210.2(1)(b) The heinous killer and Mercy killer will both be guilty of murder in 1st degree; however, sentencing is different. Heavier sentence (death?) if murder was especially heinous 210.6(3)(h) Lighter sentence if D has moral justification for his conduct 210.6(4)(d) Murder- Homicide committed Recklessly under Felony Murder Defenses circumstances manifesting Extreme Indifference to the value Legality problem because did not show mens reaof human life Reckless with Extreme Indifference is violates Constitution- presumes malice. Violates 8th automatically assumed in cases under the Felony Murder Amendment of cruel and unusual punishment because Rule punishment is not proportional to the crime. Death that occurs in furtherance of a Felony is Murder This is rebuttable presumption and I was not acting No PKNR (intentional states) is necessary because with extreme indifference it is strict liability crime surrounding Felony murder does not include assault- the felony circumstances make it murder must have an independent purpose from the killing. If If death occurs during certain specific crimes, it is assault were allowed every killing would be a felony presumed to be murder reckless with extreme murder indifference to human life Specific Crimes- robbery, rape or deviate sex by threat of force, arson, burglary, kidnapping, felonious escape -MPC specifically defines which felonies apply -MPC does not use in furtherance of and instead uses engaged in -MPC leaves assault off list of specific felony crimes ~It was an NOT an Inherently Dangerous Felony ~In furtherance of Issue- death must occur during the furtherance of the crime and not the thwarting ~Independent Purpose Issue

Downloaded From OutlineDepot.com Exceptions to Agency Rule -Shield Rule If felon uses someone as a human shield, and cops kill the person, it is felony murder -Ad Hoc Proximate Cause When court doesnt like the outcome of agency rule, goes with proximate cause Proximate Cause Rule Any foreseeable death caused by felony is felony murder a cop accidentally kills bystander felony murder Jurisdictions Do NOT have to adopt the Agency or Proximate Cause rules. Agency Rule murder must be committed by the felon or an accomplice in furtherance of the crime for felony murder to apply (not a cop trying to stop the crime)

Exceptions to Proximate Cause Rule Co-felon Exception if co-felon dies, not felony murder the co-felon assumed the risk of dying, and who cares hes a bad guy! Justifiable Homicide Cop kills the co-felon

MANSLAUGHTER ~210.3-ManslaughterProvocation- crime should be mitigated from murder to -Recklessly OR manslaughter -Purposely or Knowingly BUT under the influence of Under 210.3(1)(b) a homicide is moved from extreme mental or emotional disturbance (EMED) for murder to manslaughter if it is committed under which there is a reasonable explanation or excuse. The extreme mental or emotional distress. The reasonableness of such explanation/excuse shall be reasonableness is evaluated subjectively determined from the viewpoint of a person in the actors On the basis of intent, this homicide is a murder. situation under the circumstances as he believes them to But we think that there is more to some murders be - 210.2(1)(b) (MPC Provocation) than just the intent, and these further, nonintentional, objective considerations make this Words alone are not enough to constitute homicide manslaughter rather than a murder. provocation. It must be in the heat of the moment with no cooling 210.3(1)(b) applies a subjective standard rather than time. reasonable Provocation has a reasonableness standard that you have not met. The reasonableness applies to the EMED condition not the conduct. He voluntarily got drunk-2.08(2)-time frame back ~I was NOT acting Voluntarily Drunk-could not form mens rea-not extreme reckless because he could not consciously disregard a risk NEGLIGENT HOMICIDE ~210.4 Negligent Homicide You were Unaware of the Risk but you Should Have Been -D not able to meet objective reasonable person standard -The risk must be of such a nature that the actors failure to this is unjust punishment perceive it, considering the nature and purpose of his conduct and the circumstances known to him, involves a -Diminished Capacity-I didnt know that I was killing a gross deviation from the standard of care that a reasonable human. Negates the mens rea for that element. person would observe in the actors situation CAUSING OR AIDING SUICIDE ~Common Law-your actions are premeditated intent to kill There is a legality problem with no time is too short because it gives the jury too much discretion between Carroll-no time is too short for premeditation murder 1 and 3 ~MPC 210.5 Guilty If purposely aid in suicide guilty of Change of Law: Current American Law: Not Guilty of felony if causes suicide murder if deceased was mentally responsible and acted voluntary without force or deception Misdemeanor Manslaughter Rule-(like Felony Murder Rule). Same legality arguments as to FM. It a misdemeanor results in death basis for an involuntary manslaughter without proof of R or N

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III. FAILURE OF PROOF DEFENSES

Failure of Proof Defenses-mistake of fact, mistake of law, diminished capacity M ISTAKE OF FACT Mistake of Fact-failure of proof defense-P cannot meet the burden of production 2.04 Prosecution Defense Even if there is a mistake of fact, I can still get you under ~There was a mistake of fact which negates the mens rea 2.04(2) had the facts been had he supposed he will be guilty required to establish a material element of that offense of that offense Still lacking the material fact of age imposing Ex. You thought she was 11 but really 9 criminal liability of false facts ~Works better from societys point of view to impose a fault Big legality problem with this approach b/c jury is assessing level of extreme indifference to non consent instead of >R attitudes by assessing character and end up punishing status ~A reasonable person would not have made that mistake. Mistake negates the mens rea of an element. 2.02(1) says (Negligence) you must prove fault for every element of the offense and if mistake negates an element, you cant charge me. You should have realized that your coat is blue not tan For mistake in MPC all you need to show is a GGFB, not negligence. Negligence is not the This is a weak argument because it is based on standard for mistake because of legality issues. We negligence, which is not usually the required mens dont want judicial lawmaking rea. If have GGFB to the contrary of the element then you negate requirement mens rea PKR Your belief is unreasonable Reasonableness doesnt matter only care about GGFB ~You are still guilty under 2.04(2), if what you genuinely Legality problems with charging me for rape of believed the circumstance to be, would still be a crime. You 11-making up facts because she was 9 will just be charged with the offense as you believed it to be. Charged for rape of 11 (lower crime) instead of 9 We do this because it approached an intuitive result. Jurisdictions get around the legality problem of making facts by passing statutes. ~You did not make a mistake of fact, you made a mistake of I was mistaken as to a legal conclusion not to a legal law and that is no defense. prohibition so that works like a mistake of fact. (go to next chart) MISTAKE OF LAW Mistake of Law-failure of proof defense- 2.04 Prosecution You are guilty- mistake of law is no defense Mistake of the law only works that same as mistake of fact when you are mistaken about a legal conclusion. But you were mistaken about a legal prohibition Mistake as to what constitutes death (conclusion) v. mistake about murder being illegal (prohibition) Mistake about a prohibition is only a defense when Defense ~Mistake of the law works the same as a mistake of fact under 2.04(1) ~Under 2.02(9) ignorance of a crime is a defense if knowing about the prohibition is an element of the crime (the existence of the crime is rarely an element but when it is it sounds like willfully not follow your legal duty to pay income taxes) Did not willfully violate the law by failing to do an

Downloaded From OutlineDepot.com that knowledge or purpose is an element of the crime. Under 2.04(4)- A D must prove (3) by a preponderance of the evidence affirmative act, like pay taxes. I had a GGFB that I didnt have to. ~Under 2.04(3) a belief that conduct does not constitute a crime is a defense if: (a) D does not know about the statute and it has not been published or made reasonably available (lack of notice usually only works for omission crimes like sex offenders failing to register because they didnt have notice that they had to.) (b) D acts in reasonable reliance upon an official statement that is later ruled to be invalid or erroneous Plain Language of Statute-Stick with the language of the statute because Legality issues: Predictability, Clarity, People knowing where they stand, no judge made law

Cultural Defenses are analyzed as mistake of law cases, look to whether it is a mistake of a prohibition (mistake of law) or a proposition (mistake of fact) Federal Willful- voluntary, intentional violation of a known legal duty Insert Definition-because if you apply the definitions you expand and contract the prohibition. Scope of Prohibition. If we go ahead and apply the definition then it can genuinely be a mistake of law Legal Prohibition (parrot case) Legal Conclusion/ Proposition/Fact Mistake v. Impossibility D believes he is But the result is Mistake Acting lawfully Injury, loss, harm, wrong

- Criminal law consists of these things you cannot do. - If you make a mistake about criminal law, this is not a defense. Mistake of law defense. - If you make mistake about property law (application of law to facts of who owns the raincoat, etc.), this is mistake of fact = defense.

Impossibility Acting Unlawfully No injury, loss, harm, or wrong

Mistake defense to completed crimes Impossibility defense to attempt They are the converse of each other. Error Legal Mistake No defense (error about a legal prohibition) Good defense of failure of proof on the fault element Impossibility Good defense to attempt (If there is no crime on the books, it is impossible to attempt that crime.) surreptitious dog petting No defense in attempt (It constitutes the attempt-had the circumstance been as you believed themcrime)

Factual

DIMINISHED CAPACITY Diminished Capacity-Failure of Proof Defense- 4.01 -If you have diminished capacity, you also usually have insanity Prosecution Defense Change of Law- -DC should NOT be a defense (Wilcox) ~A Diminished Capacity defense Negates Intent or an element of the offense; can be complete or partial defense evidence of diminished capacity should be Raise reasonable doubt that no PKRN admissible during the sentencing phase only to MPC 4.02 Evidence the defendant suffered from a reduce sentence not to negate mens rea mental disease/defect is admissible when relevant to prove that the defendant did/didnt have a state of mind which is an element of the offense MPC 2.02(1), 2.02(3) requisite mens rea Example If you have MD or D and think that you are killing a fallen angel, you have a claim for diminished

Downloaded From OutlineDepot.com capacity because you were not reckless in killing a human being because did not know act was wrong weak argument because while this is the majority ruleits not the MPC rule ~This is an affirmative defense- P has the burden of persuasion that I did not have DC by proving the mens rea for all of the elements. (D has the burden in insanity) ~DC is complete defense, negates mens rea and so is not guilty b/c P must prove guilty beyond a reasonable doubt If he is a danger to society he will be civilly committed, he will not go free. If he didnt have the required mens rea can NOT be guilty of the crime. Diminished Capacity is NOT Jr. Insanity, it is a completely different argument, relying on completely different moral grounds. Whereas insanity has to do with the justice of punishing a person who is incapacitated, DC is about the consistent application of our rules on intentional states fault.

Even if you have DC- this does not get you off it only entitles you to a reduction in the severity of the sentence. This is a weak argument-only really applies to diminished responsibility He can be Civilly Committed -show by clear and convincing evidence that he is danger to himself or others and should be involuntarily committed ~Change of Law Because of danger to society DC negates the fault element, results in acquittal and lets you go free if there isnt a lesser crime Change of Law - Diminished Capacity argument just lowers the bar for a showing of insanity, giving the defendant who fails to show insanity another crack at showing a lower level of disability that will nevertheless result in a complete acquittal Wilcox Case

INTOXICATION Self Induced Intoxication What is admissible? Purpose Knowledge Recklessness ?Negligence? Non-Self Induced Intoxication What is admissible? Purpose Knowledge ?Recklessness? ?Negligence? Intoxication- 2.08- disturbance of mental or physical capacities resulting from of drugs alcohol, or medication Prosecution Defense Relevant time frame back is when you voluntarily got drunk. ~I was in involuntary state under drugs or alcohol At this time you were R or N as to the risk by getting high or Time of omission of the act comes after the time of drunk voluntariness -Objective fault, look at entire transaction to find fault. (extend relevant voluntary time frame to include crime) Intoxication does not negate P or K if you have that P or K from before you got drunk. ~Intoxication (self-induced or non-self induced) negates the Purpose or Knowledge required for the crime If got drunk for the purpose of lowering inhibitions 2.08(1) to commit the crime, then intoxication will not negate P and K. The court will time frame back to I was too drunk to know what I was doing, I was your mens rea when you decided to get wasted. unaware of the circumstances Evidence of non/self induced intoxication is fully While intoxication may negate purpose and knowledge, it admissible when offered to disprove the required does not negate recklessness under 2.08(2) purpose or knowledge of crime. Could argue R with extreme indifference to bring Concurrence issue- non concurrent time frame manslaughter back up to murder NO Self-Induced Intoxication Defense for Reckless Crimes ~I was NOT Reckless -because of Self-Induced Intoxication Under 2.08(2)-when Recklessness establishes an element of I did not see the Risk the offense, if the actor, due to Self-induced intoxication, is Example: when you have a BAC of .315 you are unaware of the risk of which he would have been aware had not reckless because you cant possibly see the risk he been sober, such awareness is immaterial. He CANNOT introduce evidence of self-induced intoxication. Justice Souter reasoning behind MPC is that there is ~ It is against the principles of legality to say that my a general equivalence between the risk created by unawareness is immaterial conduct of drunken actor and the risk created in becoming drunk A Reasonable [sober] person would have seen the risk, so ~I was too wasted to know that I was creating a risk. I was your intoxication does not negate Negligence maybe Negligent but NOT reckless. Im operating on brain cell not conscious of anything Under 2.08(3)-intoxication does not constitute a mental ~I was so wasted that I lacked the capacity to appreciate the disease within the meaning of 4.01 criminality of my conduct or conform my conduct to the law Insanity Defense MPC doesnt expressly say Non-Self Induced Intoxication ~I have a defense to a Reckless or Negligent crime because

Downloaded From OutlineDepot.com Can also be used to negate mental states which indicates that it Cant be used under standard rules of statutory interpretation. In order to use 2.08(4), you must be wasted to the point of insanity very high bar Completely devoid of higher mental functions Pathological (D suffers from a grossly excessive reaction to an intoxicant, considering the amount taken and assuming that D does not know of a susceptibility to such reaction) ~Change of Law- Should Use Specific + General Intent, General Intent (RN)- Can NOT use Self-Induced Intoxication as a defense Specific Intent (PK)- Can use Self-Induced Intoxication as a Defense my Non-Self induced Intoxication negatives the required mens rea needed for the crime and since 2.08(1) refers to intoxication without distinguishing between self induced and non-self induced I have this defense. ~I have a defense to a Reckless Crime under 2.08(4) Quasi-Insanity Standard- my intoxication was not self induced or it was pathological- and because of my intoxication at the time of my offense I lacked the substantial capacity to appreciate its criminality [wrongfulness] OR conform my conduct to the requirements of the law MPC does not use the terminology of specific and general intent, because of potential confusion

IV. JUSTIFICATION DEFENSES

Justification defenses: Article 3: (2) lesser evils, (3) public duty, (4) self defense, (5) protection of others, (6) protection of property, (7) use of force to effect an arrest (or stop suicide or a crime), actor has a special responsibility 3.09-justification is unavailable for 4-7 if the belief that force is necessary is erroneous and this error is due to ignorance or mistake as to the code -for 3-8, when actor is R or N in believing that force is necessary, defense is unavailable when R of N suffice to establish culpability. - Defendant has burden of production; prosecution has burden of persuasion. If prosecution proves actor is unreasonable on even one element of the defense, they win SELF DEFENSE Elements of Self Defense (GGFB) Necessity of Force Imminence / Immediately Necessary (Battered Woman Syndrome) Proportionate Response No Safe Retreat Threat of Unlawful Force He is not the Aggressor -Negation of GGFB is PKR -Negation of reasonable belief it PKRN Defense I am not guilty because my action was justified under self defense-3.04. My force was justifiable because: I had a GGFB that Force was immediately necessary to Protect myself against use of unlawful force by original aggressor on the present occasion o Proportionality of response was appropriate o No retreat was available Under MPC 3.04(1), the threat does not have to be imminent-only immediately necessary. If I have been kidnapped and the kidnapper does not plan to kill me for 3 days, I can still justify using force if I have an opportunity to kill him

Self-Defense-Justification (total defense)- 3.04 Prosecution ~You PKRN caused the death of another human being. Can not claim self defense under 3.04(2) If You are resisting arrest by a peace officer, even if its unlawful (a)(i) You are under attack by a person protecting their property(a)(ii)

~The threat to you was not imminent. The victim was sleeping Should have called the police or something

Downloaded From OutlineDepot.com ~You had an unreasonable belief as to one or more elements of self defense claim now. MPC takes subjective approach to fault and dont need reasonableness just need GGFB

If only take (subjective) intentional states of fault then will acquit idiosyncratic believer. Change of law to objective ~Under 3.04(2)(b)-you may only use deadly force to protect I had a GGFB that he would: kill, seriously injure, kidnap, against death, seriously bodily injury, kidnapping, or rape. or rape me. ~Under 3.04(2)(b)(i)- Use of deadly force is not justifiable if While I initially threw a plastic plate, I was not the initial you were the initial aggressor aggressor of deadly force. He was when he swung a bat at my head. There is also a framing issue. The Ds response to the victim must be within the same encounter. ~Under (2)(b)(ii)-deadly force is not justifiable if you know Under (2)(b)(ii)(1)-I have no duty to retreat from my home that you can safely retreat or surrender a possession or my place of work You must retreat from your place of work if the aggressor also works there Backstop 3.09 If you were negligent or reckless in your ~I must only show a GGFB that the factors to satisfy GGFB, then you should be convicted of a lesser crime of the justifiable force are present. Even if I was mistaken as to the same kind under 3.09(2). A lesser crime of recklessness if justification I am not guilty of the crime. the defendant held his mistaken belief recklessly. A lesser crime of negligence if he held the belief negligently. ~Although your use of force was justified against the victim, If my GGFB that I was justified was wrong, I was not N or you R or N injured or created a risk toward innocent people. R-instead I made a mistake about self-defense. Under 3.09(3)-your actions are not justifiable toward innocents. (This takes care of the idiosyncratic believer) USE OF FORCE- (Self Protection, Protection of Others, Protection of Property, In Law Enforcement) LESSER EVILS (NECESSITY) Lesser Evils-Justification-3.02 Prosecution Defense ~You have no justifying circumstance here that equate to I believed that I was justified in doing what I did lesser evils I chose the lesser of two evils by killing 1 instead of 100 It was a necessity ~The name of lesser evils implies a numbers game but this I am the best person in the world in assessing the situation doesnt always hold. Numbers dont matter, asses duties of which is the lesser of two evils. and decide case on duties. We want people to do the right Can always try to show that he had a greater to thing and here you didnt. duty to the person he saved. ~Under 3.02(1): I had a GGFB that I was choosing the lesser evil. And that is all that is required in MPC conduct which the (a) The harm caused by the offense charged was actor believes to be necessary greater than what you prevented (b) the code prevents you from using this defense for this situation (c) the legislative purpose plainly excludes you using this defense ~There was no imminence in this situation MPC No imminence required because may be situation where illegal act is necessary to avoid an evil that may occur in the future ~You were reckless or negligent in bringing about the Even if I was wrong with regard to which was the lesser situation requiring a choice of harms. Therefore under evil-look at my record to show that I was not N or R in 3.02(2), justification is NOT available for any offense for making this decision. which recklessness or negligence suffices to establish Or culpability. I made a mistake about the lesser evil. Hard Choice Involuntariness-Bogus defense, not a general If justification for lesser evils does not work, can also try excuse duress- moving from justification to excuse Literal Genuine Involuntariness- body is in motion but no one home (coma, sleepwalking) This is an argument but not an excuse.

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Downloaded From OutlineDepot.com Excuse NO YES Justification YES NO

Can bystander (legally or morally) assist D Can victim (legally or morally) resist D

V. EXCUSE DEFENSES
-Always want to argue justification (or anything) before excuse because excuse acknowledges that all elements of the crime are present but that D should get off anyway. -P has the burden of persuasion for showing lack of justification whereas D has the burden of persuasion for excuse. (D had the burden of production for both Justification and Excuse.) Excuse-even if all of the elements of the crime are met, I should still be excused -limited to insanity, minority, and duress

DURESS Duress-An Excuse Defense-2.09 -cases where D acted under a do it or else threat-quid pro quo (this element must be present) -excuse of incapacity-like insanity or minority -duress and lesser evils may be argued together (take the money or Ill kill you- taking the money is the lesser evil [did the right thing and you were forced to do it under duress[no choice]) Prosecution Defense There is no involuntary argument. Even though there was a ~I was acting involuntarily because I was under Duress, I gun to your head, you still choose to act didnt have a choice There was no do it or else threat ~I had reason to believe that person was going to inflict threatener must have explicitly demanded that defendant serious bodily harm. do the crime or suffer; def. cant just commit a crime to He said to me, do it or else. avoid the threatener (escape) ~Threat was not a serious or deadly threat The threat can be just that of an injury, does not have to be deadly or serious under MPC Objective standard-a person of reasonable firmness in my situation wouldnt have been able to resist No imminent threat requirement under MPC

~There was No Imminence- Under common law, if the threat is not imminent, D has a duty to escape or seek help from the police. The threat here was not imminent. ~But since the threat was Not Imminent and it was not a threat of death or serious bodily harm a person of reasonable firmness would not have behaved as you did-they would have been able to resist the threat. ~An Excuse of Duress may NOT be used for Homicide

Under MPC Duress can Excuse Homicide

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Downloaded From OutlineDepot.com ~It would still take a great deal more coercion to cause person or reasonable firmness to kill than to commit lesser offense ~Under 2.09(2)-No duress defense to a D who recklessly or negligently placed himself in situation in which it was probable that he would be subjected to duress. Like a gang member-can not claim duress because he put himself in that situation ~Your belief that you were under duress was unreasonable, negligent, or reckless. It is an objective standard ~When excuse is argued, you have conceded fault- mens rea for all elements has been satisfied

Duress may be used as a defense to homicide because we do not demand a degree of heroism which, by definition, the ordinary person is incapable.

I had a GGFB that I was under duress (weak argument) I made a Mistake as to the duress (weak argument) If my actions werent the result of human forces but rather the result of natural forces, I am no longer arguing duress necessity justification

INSANITY Insanity-An Excuse Defense-4.01 -must be the result of a (scientifically recognized) mental disease or defect (high threshold) -does not apply to intoxication, anti-social, or psychopathy -Under MPC there are 3 levels on which one can be affected (rather broad) -Cognitive-know/understand -Emotional/valuation/motivation-what MPC means by appreciate -Volitional-capacity to conform Prosecution Defense Change of law argument Under the common law (federal ~Insanity is a general defense to everything. I admit that all law)- just question whether the actor could tell the difference of the elements are met for the offense and that there are no justifying circumstances-but I should still be excused between moral right and wrong (cognitive). If yesno because: insanity I meet the threshold of a scientifically recognized legal right and wrong would be an even narrower mental disease or defect defense MPC is broader than CL in that it asks whether CL does not ask whether they were able to conform The actor could appreciate the criminality their behavior [wrongfulness] of his conduct This is the federal rule because the MPC rule lets Or too many people off for insanity If he could conform his conduct to the requirements of law He can appreciate Wrongfulness- moral right and wrong so ~The MD or D has affected actor on a cognitive level he cant be acquitted He cannot appreciate the wrongfulness of his He admitted its the wrong thing to do so (thinks conduct because he values evil hes 007 and is allowed to kill) it effects how he thinks He can appreciate legal matters legal right and wrong ~The MD or D has affected actor on a motivational level he even went and did legal research to figure out He cant appreciate the criminality what the death penalty is. He knows whats legal The word appreciate is very broad-can cover a lot and illegal (crazy cop killer who thinks killing cop of people will save him from hell) ~It should it be failure to appreciate Criminality (legal right They are both similar normative systems, if mental disease and wrong) and NOT Wrongfulness (moral right and wrong) manifests itself in one way or another and very similar, so if either of these manifestations are present either will suffice Depending on which argument helps P more ~You had literal voluntary control. If someone put a gun to The MD or D has affected the actor on a volitional level your head-you would have stopped Can not conform his behavior the requirements Fingernails hypo with the law Persons act is almost involuntary one who substantially lacks control over behavior

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Downloaded From OutlineDepot.com cannot be morally condemned and should not be regarded by criminal law as a responsible person ~I have a limited insanity defense because I am antisocial/psychopath. I lack the capacity for an ordered living. (weak argument-exists in some jurisdictions but expressly excluded from MPCs insanity defense) Pro-Insanity -insanity defense is essential ethical postulate of criminal law and it is intolerable to treat the sick as though they were bad, the ethical integrity of the criminal law demands an insanity defense that is focused upon appropriate criteria for making a moral assessment of fault, responsibility and blame. Cruel and unusual punishment barred by 8th amendment.

Limited insanity, via anti-social/psychopath, is not a recognized MD or D under MPC 4.01(2) We want these people in jail, not mental institutions because they would be dangerous there ~Abolish Insanity Defense- danger posed by mentally disturbed people who engage in criminal behavior and need to punish those who commit egregious social harms. Inability of psychiatry to identify those who should not be blamed

VI. ATTEMPT
ATTEMPT Attempt 5.01 -You start out with the elements of the completed crime and you only change that element or culpability that you are expressly told to change -(1)(a) must purposely engage in the conduct -the culpability for the attendant circumstance remains the same -(1)(b) Purpose or Belief that the result will occur when the result is the element of the crime -for murder, cause death can be argued to be conduct or result -MPC-people should be equally punished for attempt and the completed crime 5.05(1) -an inchoate offense (along with conspiracy and solicitation)-a step toward the commission of another crime, the step in itself being serious enough to merit punishment Prosecution Defense ~Completed Act Attempt- Conduct 5.01(1)(a)- Actor No Attempt for Reckless or Negligent CrimePurposely engaged in conduct which would constitute the crime if the attendant circumstances were as he believed o Can not have attempted manslaughter because them to be attempt requires P for the conduct and K for the Purpose conduct element result cannot have a reckless attempt (attempt is a specific intent crime) man chains himself to tree thinking that he is o an attempt has to have purpose or knowledge trespassing but it is a public park o You cant try to do something reckless or cannot have an attempts of a reckless crime negligently b/c it Will create liability that is very Can get attempted manslaughter if D has a broad, because the prosecutor will have too much provocation defense that lowers murder to discretion. Everybody behaves recklessly and manslaughter-This type of manslaughter is nothing happens (driving recklessly) committed with purpose. The provocation knocks down the degree but not the mens rea that was present. Change of Law -Defense of legal mistake + impossibility ~There is a Legal Impossibility-what Im being charged should be abolished with is not on the books I thought that I was committing a crime but there is **Defense** Cant abolish defense because it would violates no such crime so I cant be guilty of attempt principle of legality to make up crime after the fact in the If try to commit a crime thats not a crime you courtroom as opposed to legislature. This also violates due cant be prosecuted process, and so cant abolish that defense Cant abolish this because would be violation of

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Downloaded From OutlineDepot.com Claim of factual impossibility is NOT a defense in attempt (It constitutes the attempt-had the circumstance been as you believed themcrime) his error about the fact is what makes it an attempt Factual Impossibility- D has the criminal intent, he is a dangerous person, and should be locked up, just because he chose an unlikely means of harm this time but next time maybe he will be successful. He has intent to commit a crime and has showed that he has no qualms about trying due process ~There is Factual Impossibility- there was no way for me to commit the crime No bullets in the gun ~MPC 5.05 if the particular conduct charged to constitute a criminal attempt, solicitation or conspiracy is so inherently unlikely to result or culminate in the commission of a crime court should lower or dismiss charge ~The fact that I choose one inherently unlikely means doesnt mean Im dangerous Defense to (b- result element) and (c substantial step) Actor made a complete and voluntary renunciation of his criminal purpose. I abandoned my effort to commit the crime or I prevented its commission 5.01(4) The circumstances of the Renunciation must be complete + voluntary-cant be brought abut because actor thinks hes about to get catch This defense does not extend to accomplices. Must be good faith renunciation Change of Law- should not use Substantial Step standard because it is too far away from the completed act of the crime. Use Different Standard Eagleton last act standard is the last possible step for substantial step and I did not take that step Or Miller case the Unequivocal Act- you cease to be merely preparing when your conduct ceases to be equivocal As soon as it becomes clear that you are definitely doing the crime, you pass threshold of criminality. Attempted assault and attempted burglary are very hard to charge me with because they are attempt crimes by nature. Under 5.05(2)-if the conduct charged to constitute attempt is so inherently unlikely to result in the commission of the crime the court may impose a sentence for a lower grade or dismiss the charge. Legal Impossibility good defense - the crime he intended to do is not on the books surreptitious dog petting

~Completed Act Attempt- Result 5.01(1)(b)- you did the act with the purpose of causing or believing it will cause a result (result element) (but no thanks to you, it did not) Purpose or Belief result element Belief here is like knowledge Man shoots wife but the gun turns out not to be loaded ~Incomplete Act Attempt- Substantial Step 5.01(1)(c)argument- the facts show that the actor took actions that are strongly corroborative of his criminal purpose In MPC this criteria can be met very early in the timeline-listed in 5.01(2)-list is not exclusive What used to be just prep is now classified as criminal activity-hard to pin down line Man goes into bank but a psychic detective arrests him at the door.

~I may not be able to get you on attempted assault but as per 211.1(1)(a)-attempt to cause injury is assault-I can get you on the real thing. Under 5.01(3) an accomplice (under 2.06) can be held liable for attempt even if the crime is not committed or even attempted by the other party. Factual Impossibility no defense intended to do a real crime, only it was factually impossible intended to kill, but the guy was already dead. Intended to buy stolen goods, but the goods were not stolen Prosecution you arent charged w/killing a corpse, rather youre charged w/attempting to kill a live man Mistake v. Impossibility D believes he is But the result is Mistake Acting lawfully Injury, loss, harm, wrong

Impossibility Acting Unlawfully No injury, loss, harm, or wrong

Mistake is a defense to completed crimes Impossibility is a defense to attempt Error Mistake Impossibility

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Downloaded From OutlineDepot.com Legal No defense (error about a legal prohibition) Good defense of failure of proof on the fault element Good defense to attempt (If there is no crime on the books, it is impossible to attempt that crime.) surreptitious dog petting No defense in attempt- (intended to do a real crime, only it was factually impossible) (It constitutes the attempt-had the circumstance been as you believed themcrime)

Factual

Why is a factual impossibility no defense to attempt? Because it constitutes the attempt. If a man tries to shoot his wife but the gun turns out to be unloaded he should not be able to argue that it was impossible for him to do the crime. It is the fact that makes the crime an attempt (rather than completed) so that can not be the defense to attempt.

VII. ACCOMPLICE LIABILITY

ACCOMPLICE LIABILITY Accomplice Liability 2.06 -D is an accomplice of P in the commission of an offense if he intentionally assists P to engage in the conduct that constitutes the crime -if you cant figure how to charge a guy with a crime try accomplice. If that doesnt work, try attempt to accomplice 5.01(3) or accomplice to an attempt crime -this is a conduct crime (purpose to aid, solicit, etc). It is not a result crime so it doesnt matter if the conduct really does aid. -there is no strict liability for an accomplice -mens rea required for accomplice __P___ Act in Aid (Aiding being an additional element of crime) __P___ Immediate result of Accomplice Act in Aid __P___ Principal to commit the Conduct Element _>R__ Attendant Circumstances (MPC default >R Because doesnt take a stand) __ ? _ Result of Principals Conduct If any same Mens Rea as Principal Accomplice is not charged as an accomplice he is charged with murder but he is really accomplice to murder Prosecution You dont need to be the principal (the person who pulled the trigger) to be guilty of a crime. Need not be at the scene of the crime to be guilty of complicity. Aiding can be done in advance or at a distance You are an accomplice, if being there gives the principle encouragement and support (theyre friends/family), can be liable If you encourage or assist in anyway It is possible to encourage by merely be presence If the effect of your presence is to encourage Defense ~I didnt commit the crime, so I cant be guilty of it ~I wasnt even present (there at time of crime) Presence is insufficient Just being at the scene of the crime is insufficient, if you dont help in any way.

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Downloaded From OutlineDepot.com ~You are an accomplice under 2.06(3)(a) if with the purpose of promoting or facilitating the commission of the offense you: Solicit such other person to commit it Aid or agree or attempt to aid such other person in planning or committing it Having a legal duty to prevent the commission of the offense, you failed to make proper effort to do so (this is a conduct crime, not a result crime, so it doesnt matter if your conducted resulted in aid to the crime.) Accomplice Level of Culpability as to Attendant Circumstances should be Negligence (N) Culpability with regard to Attendant Circumstances should be Know or have Reason to Know which equals Negligence for accomplice. Default rule for crimes defined by legislature just dont apply here, so should be Negligence. I was NOT accomplice. Under 2.06(7) (a) I was the victim of that offense (b) The offense is so defined that my conduct is inevitably incident to it commission (c) I terminated my complicity prior to the commission I wholly deprived it of effectiveness in the commission of the offense; o or I gave timely warning to law enforcement or made proper effort to prevent to commission of the offense Accomplice Level of Culpability as to Attendant Circumstances should be Greater or Equal to Recklessness (PKR) MPC is purposely ambiguous 2.02(3) is default provision for statutorily defined defenses, it is a gap filler provision but with attendant circumstances, >R MPC says shouldnt use negligence as criminal liability unless absolutely necessary. P should have to prove more fault for accomplice than the principal. Majority View- For an accomplice as to attendance circumstances has to be a little higher than negligence because hes one step removed >R Hand- says must have purpose all the way through act in aid, conduct, attendant circumstances and result ~My conduct had absolutely NO effect on the crime (I tossed you gun but it wasnt even loaded) In the ordinary course of events my aid WOULD NOT have done anything

THE ACT IN AID DOESNT HAVE TO PRODUCE ANY CONSEQUENCES- Aid doesnt have to be effective. I can still be an accomplice because I am engaged in conduct that ordinarily would be aid. Aid need not be effective just has to be something that WOULD have been effective in the ordinary course of events. PRINCIPAL DOESNT HAVE TO BE CONVICTED OR PROSECUTED Under 2.06(7) an accomplice may be convicted of a crime even if the principal has not been prosecuted or convicted or was convicted of a different offense or degree of offense or has immunity or has been acquitted Under MPC 5.01(1)(c), they still took a Substantial Step they are guilty of attempted murder, so you can be guilty of Accomplice to Attempted murder Even though the principle did not commit a crime, you still had the purpose to commit a crime so under 5.01(3), you are guilty of Attempt to Accomplice

~The principle was NOT prosecuted or convicted

If the principle had DC then there was no crime for you to be an accomplice to but you still are guilty of Attempt to Accomplice. You are still an Accomplice. Accomplice does not get benefit of excuse defense, If principal is insane and kills someone and you are accomplice, he will get off on insanity but there is still a crime (all elements have been met) and you are accomplice to that crime

~There was no crime. I tried to help them kill him but they got drunk and fell asleep ~There was no crime because the Principle was Justified in his behavior. If there was no crime then I can not be an accomplice. He was acting in self defense which negates mens rea no crime Accomplice gets benefit of principals justification ~There was no crime b/c principle had Diminished Capacity ~There was no crime, the principal had Excuse (Duress or Insanity) Accomplice can assert a justification for the principal even if the principal did not assert it in

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Downloaded From OutlineDepot.com If principal is not on trial and is not convicted, were going to as an abstract matter determine at accomplices trial whether or not the principal committed a crime? If you caused an innocent or irresponsible person to commit the crime under 2.06(2)(a) you are legally responsible for them so under 2.06(1) you are guilty of the offense. Reasonably Foreseeable Results Committed by the Principle guilty of offense he intended to facilitate, but also guilty of any reasonably foreseeable offense committed by the principle he aids American law, and the MPC, Punish Accomplice the Same as Principals. his own defense

~I wasnt the principal in the crime, I should be charged on a lesser degree or my punishment should be lessened.

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