The common law versus statutes Common Law is judge-made law the basis of what we learn.

. At common law, there were eight felonies. Now, virtually anything is a crime. Almost all states have abolished common law offenses. The Model Penal Code says that common law crimes are out the window. That doesnt mean that the common law is irrelevant. Common law crimes: Arson is defined as the intentional or reckless burning of the dwelling house of another. Burglary is defined as breaking and entering the dwelling house of another at night with the intent to commit a felony therein. Murder is the killing of a human being by another human being with malice aforethought. At common law: Intent = purposefully or knowingly Pretty much all criminal law is now statutory. The common law has been grafted onto the statutes. What is a crime? Say some that what makes a crime different from a civil matter is the condemnation of the community, which is more important than the punishment. You can have a heavier punishment for a tort than for a crime, so its not the punishment that really distinguishes criminal from civil. Its the communitys condemnation of you that makes the differenceyoure been found guilty of a crime. Will this law be effective (except by coincidence)? (1) You must know of the laws existence. (2) You need to know about the circumstances of fact which make the abstract terms of the direction applicable in the particular instance. You have to know how the law is going to apply to you. (3) You must be able to comply with the law. (4) You have to be willing to obey the law. This doesnt mean you have to like the law. Jury nullification The jury is totally secret. It doesnt have to explain itself. An acquittal from a jury is absolutely, positively final. Therefore, the jury can always acquit the defendant for any reason without being subject to sanction or appeal. Should juries have this power? Advocates say that jury nullification protects against convictions that are legal but not moral. Critics say that juries ought not to use nullification, because in practice it has had more negative effects than positive effects and because it results in the jury breaking their oath. The prosecution could try to get a juror discharged if theres evidence they will try to nullify. The court must give the juror the benefit of the doubt because it mustnt intrude upon the deliberative process. State v. Ragland Must a jury be informed of its nullification power in order for a verdict it returns to be valid? There is no rule, which is why the court must make its decision on the basis of policy. Theories of punishment Utilitarianism and retribution are the most important tools we will use to study the criminal justice system. We have a duty to be able to explain why we are punishing people. There are two questions involved in how we distribute justice: (1) Whom do we punish? (2) How much punishment is appropriate? How do we distribute justice on a case-by-case basis? Utilitarianism Utilitarianism is forward-looking and tries to deter future bad conduct while increasing happiness and reducing pain. Utilitarians believe that both crimeand punishment are evils to be avoided. A utilitarian doesnt like punishment. Human beings must be characterized by seeking pleasure and avoiding pain. We must be able to do the calculations; we must be rational. Forms of utilitarianism: (1) General deterrence when you punish one person for a crime in order to send a message to society. (2) Specific deterrence when you deter person X by punishing person X: (a) By incapacitation you keep the person off the streets or (b) by intimidation you make the person scared to do it again because they remember how unpleasant the experience was being punished the first time. (3) Rehabilitation when you use the penal system to change the person such that they wont want to do bad acts in the future; you diagnose the problem and then solve it. Act-utilitarian What would be the right thing to do in this particular case? Rule-utilitarian What would be the better outcome if we announced this to the entire world? What would be the utilitarian effect? Retributivism The punishment of a wrongdoer is justified because it is a deserved response to the wrongdoing. You cant be angry at someone unless you believe they have the capacity to choose to either do right or wrong. Retributivists focus on people having free choice or free will. The retributivist says that it is societys duty to punish and that this duty is independent of the consequences or costs or benefits.

Forms of Retributivism: (1) Negative retribution (utilitarianism*) utilitarians, except punishing an innocent person is never justified. (2) Positive retribution pure retributivism: you must punish guilty people, and you must never punish an innocent person. (3) Assultive anger and hatred are morally right when directed at criminals. This is kind of a disguised utilitarianism: if people hate a criminal, they will institution private justice. So with the criminal justice system, we prevent vigilantism. This views a criminal as a worthless human being who deserves what they get. (4) Protective Morris, and the classic modern retributive theory. The importance of the theory is that it views the criminal as having the right to be punished. (5) Victim vindication we vindicate the victims moral rights by punishing the perpetrator. Differences between the theories Utilitarians dont see punishment as inherently good; retributivists view punishment as inherently good and justifiable because there is a right and a duty to punish even if it doesnt do any future good. Utilitarians sound like economists trying to come up with an empirical justification for punishment and talk about profit. Retributivists think as moralists do and talk about just deserts. Retributivism makes us look to our moral roots. Actually, some forms of retributivism turn out to be forms of utilitarianism. It is plausible to argue as a utilitarian, given a particular situation, that punishing an innocent person would be the right thing to do. Is this enough to abandon utilitarianism? Could a retributivist punish an innocent person? Categorically: no. You may only punish a person who is guilty. Most utilitarians are unhappy with a three strikes law. They might oppose it from an efficiency standpoint. They might also oppose it from the point of view that punishment is a social cost. The Queen v. Dudley and Stephens We will use Dudley and Stephens as an object lesson for the purpose of general deterrence. Even if Dudley and Stephens arent deterrable in their particular case, the utilitarian must still find they are a useful example to others. This case would send a message to be certain you are prepared when you go out on a boat because youre going to be held liable for whatever goes on out there. People v. Superior Court (Du) The probation officer said Mrs. Du was unlikely to commit another crime but recommend she be sentenced to prison. How much punishment is it just for Du to receive? A just punishment should: 1) protect society, 2) punish the defendant for wrongdoing, 3) encourage the defendant to be good in the future, 4) deter other crimes, 5) incapacitate the defendant, 6) make restitution for the victim, and 7) be comparable to punishments for similar crimes. A retributivist would say two criminals should get the same punishment for the same crime. Retributivists say you must look at the actor as well as the act; you must look at personal blameworthiness as well as the social harm caused. One controversy is whether a persons personal character matters or should be considered. United States v. Jackson What punishment should Jackson receive? The statute does not state a maximum penalty, but it does forbid release on parole. Easterbrook says that the sentence imposed by the trial court is just on the basis of general deterrence and incapacitation. Posner thinks theres no chance under the current law to create general deterrence, therefore, he focuses on specific deterrence. He says if you keep the guy in jail for 20 more years, he probably wont commit any more crimes when released. The principle of legality The principle of legality is no crime without preexisting law. This trumps any other rules if there is a conflict. Courts dont create crimes. Statutes must be written clearly, and interpreted to the benefit of the accused. If you have to rely on a prosecutor or judge to interpret criminal statutes, you give them enormous power. The Due Process Clause says that potential criminals must have fair warning of what is against the law. Commonwealth v. Mochan The defendants conduct was not forbidden by any particular statute, but a general provision in the Pennsylvania Penal Code grandfathered in common law crimes. The defendant was convicted and appealed on the basis that his conduct did not constitute a common law crime. The court finds that any act which outrages decency and is injurious to public morals is a misdemeanor under common law. Keeler v. Superior Court The Penal Code further forbids the courts from convicting or punishing anyone for a crime not specified by statute. Statutes are to be interpreted in the manner most favorable to the defendant. Finally, no one can be convicted of an act they committed before that act was a crime, in other words, no one may be punished under ex post facto legislation. The protection of due process is the judicial analogue of the prohibition on ex post facto laws. It is not the role of the court to make crimes, rather, it is the responsibility of the legislature. In Re Banks In order to be constitutional, a statute must clearly and with a reasonable degree of certainty tell persons who are subject to it what conduct is forbidden. Banks claims that the Peeping Tom statute is overly broad, and thus it is unconstitutional. He says that some of the conduct prohibited is entirely innocent. The burden is upon the defendant to prove that a statute is invalid. The court says that statutes must be strictly construed. This is equivalent to the doctrine of lenity. The doctrine of lenity says if there are two ways to interpret a statute where one way would favor the State and one way would favor the accused, the court must side with the accused. It only applies when youre right on the razors edge. In other words, we give the benefit of the doubt to the defendant.

The court says that if a statute is clear, you just do what it says. If its ambiguous, you look at legislative intent: Read the statute carefully. Read the preamble of the statute. Read the title. Look at legislative history. Look at common law. Look at precedent cases. Its hard to come up with a statute that will work! Its hard to avoid vagueness and overbreadth! Burden of proof There are two kinds of burdens of proof: (1) Burden of going forward, or the burden of producing evidence: Who has the responsibility of putting on evidence in a particular case? The government has the burden of producing evidence regarding any element of a crime. Anything that constitutes an element of a crime is something the government must put on evidence for. On the other hand, for putting on a certain defense, its the burden of thedefendant to show evidence of, e.g., self-defense. (2) Burden of persuasion: Now that the issue is before the factfinder (jury or judge), who must convince the factfinder in regard to the issue? Why do we have such a high burden on the government to prove their case? The theory is that the cost to society of jailing an innocent person is much higher than releasing a number of guilty people. Also, protection against overzealous police force, judges, prosecutors. It has less to do with this particular criminal trial, and more to do with limiting government power in general. Owens v. State [A] conviction on circumstantial evidence alone is not to be sustained unless the circumstances are inconsistent with any reasonable hypothesis of innocence. The only issue on appeal, as distinguished from the trial court, is whether a reasonable jury could have convicted, not whether they would have acquitted or should have acquitted. The appellate court wasnt there to see the trial and should not play the role of the 13th juror. The jury sees stuff that the appellate judge never sees. On appeal, the presumption of innocence is gone. You assume that all of the facts that are in dispute favor the prosecution. The appellate court can overturn the conviction if they think, How the heck did the jury reach that verdict? The Winship doctrine Winship tells us that the Constitution requires every prosecutor to persuade the factfinder beyond a reasonable doubt of every fact (element) necessary to constitute the crime charged. The costs to an individual of conviction are so high that they should not be convicted when there is reasonable doubt of their guilt. The benefit of the standard is that it assures public confidence in the system, and in particular, the standard inspires confidence that innocent people dont get convicted. The government doesnt just have to prove the facts, they actually have to negate possible defenses (excuses, justifications). So, for example, the absence of self-defense must be proved beyond a reasonable doubt. Even though you might have the burden of going forward as the defendant in presenting evidence that you acted in self-defense, the government has the burden to prove beyond a reasonable doubt that the defendant didnt act in self-defense. But in some jurisdictions, the defendant has the burden of proof. We put the right to a jury trial in the Constitution to prevent judges from oppressing the people. The framers of the Constitution wanted the community to judge the defendant. The elements of a crime At exam time, this is the way we should organize our answers: (1) Voluntary Act (or omission), (2) Social Harm, (3) Mens Rea, (4) Actual Causation, then (5) Proximate Causation. Actus reus The actus reus is the physical component of the crime. It happens out there, in the physical world. The mens rea (or guilty mind) deals with the state of mind the actor had in committing the actus reus. Actus Reus = Voluntary Act + Social Harm Actus reus requires a voluntary act (or sometimes an omission, or failure to act) that causes social harm. We say social harm because this is criminal law, not tort law. Social harm means something very specific, yet it has a very broad meaning. Martin v. State Martin is convicted of being drunk on a public highway. It turns out that he is arrested at home and taken out onto the road. He says that the statute implicitly requires him to voluntarily go to a public place while drunk. Voluntary act A voluntary act is a willed act or a willed muscular contraction. This is the difference between choosing to pull a trigger and kill someone and having a seizure and plugging the trigger without will. Warning! Voluntary has several different meanings. Questions to ask about the voluntary act or omission: (1) Was there conduct? (2) If yes, does the conduct include a voluntary act? (3) If no, is this one of those rare cases in which there is a legal duty to act?

State v. Utter The Model Penal Code says that a voluntary act is a necessary element in any crime. An involuntary act removes agency. Agency is required to attach blame to a person, rather than merely a human body. 2.01 says: In order to be found guilty, you must either do something or not do something that you were physically capable of doing. The only ways you can be found guilty due to omission are: If the law says that your omission makes the crime, or if you breach a duty imposed by law. The Model Penal Code eliminates the need to play with words. People v. Decina Decina says he should be acquitted because he committed no voluntary act. How can he be found guilty under the Model Penal Code? The conduct must include a voluntary act. That doesnt mean that all the conduct must be voluntary. The breadth or narrowness of the time frame will relate to the conduct that constitutes the crime charged. Omission Two forms of omission liability: (1) Statutory duty (e.g. tax laws, duties of parents, bad Samaritan laws), (2) Commission by omission: When a statute imposes a duty, when you a have certain status relationship to another, when you have assumed a contractual duty to care for another, when you have voluntarily assumed the care of another and in so doing kept others from helping, when you create a risk of harm to another People v. Beardsley Should people be punished for omissions? Omission is defined as the neglect of a legal duty, rather than a merely moral duty. If you have no legal duty to act, but you start to act, but then quit, you will have a duty if by having started then quitting you put the person in a worseposition than if you had done nothing at all. Barber v. Superior Court Life sustaining treatment must be continued when it is proportionate. In other words, the treatment must be continued so long as the benefits exceed the costs. The main question is whether the omission (no longer providing life sustaining care) was lawful. The omission was lawful if there was no legal duty to act. There is no duty to act if the prescribed course of treatment has been shown to be ineffective. In this case, the treatment is ineffective because the patient will never recover substantial brain function. The court says the physician has no duty to act once the treatment is found to be disproportionate. Social harm Social harm means any harm to any socially valuable interest, and it has three components: (1) result elements, (2) conduct elements, and (3) attendant circumstances. It is often difficult to draw a distinction between the result of an act and the conduct related to an act, but it usually doesnt matter. However, you must draw the distinction between these two elements and attendance circumstance. Mens rea The issue with mens rea goes to social harm. Think: Mens rea = thought about harm, NOT thought about act. We cant deter pure accidents, nor can we find fault for pure accidents. If you dont have a guilty mind, we wont find fault. Whenever you talk about mens rea, think about whether you mean the culpability meaning or the elemental meaning. The culpability meaning is the broad meaning that just means evil mind, more or less. When a person is doing something he shouldnt be doing and causes a certain social harm, we can say they did that act in a morally culpable manner. The elemental meaning is the particular mental state required by the definition of a particular offense. The elemental approach requires a more precise analysis than the culpability approach. Regina v. Cunningham Malice is not merely wickedness, but rather an actual intention to cause the social harm of the crime or to recklessly cause the social harm of the crime. People v. Conley Under Illinois law, someone intends to do something when that something is the conscious objective of his conduct. Someone does something knowingly when they are consciously aware that something is practically certain to happen based on his conduct. Transferred intent Common law talks about the transferred intent doctrine, which says that intent follows the bullet. If you had intent, but hit the wrong person, you still have the mens rea necessary to constitute the crime. Model Penal Code 2.03(2)(a) your mens rea is purposely or knowingly if you cause a result that differs from the intended result only by who or what is affected. General versus specific intent There are at least three different definitions of general and specific intent. Specific intent can mean the requirement of: (1) intent to commit a future act, (2) proof of a special motive, or (3) proof of the actors awareness of an attendant circumstance.

Today, as a general matter, we include mens rea words in most statutes. General intent may refer to an offense for which no particular mental state is mentioned in the statute. Specific intent, on the other hand, could refer to an offense that sets out a particular mental state as part of the crime. General intent may mean any mental state that only relates to the acts that constitute a crime, whereas specific intent would mean, in this case, a special mental element above and beyond the general intent. When you have a specific intent crime, there are typically three types: (1) intent to commit a future act, (2) proof of a special motive, and (3) proof of awareness of attendant circumstances. If an offense requires a culpable mental state but isnt a specific intent crime, then its a general intent crime. Kinds of culpability 2.02. You must act purposely, knowingly, recklessly or negligently with respect to each material element of the offense to be guilty. Intentionally. At common law, this is basically the equivalent of Model Penal Code purposely and knowingly in one. Purposely. A person acts purposely when its their conscious object to do the conduct or cause the result. Knowingly. A person acts knowingly when they are aware that the result is practically certain to follow. Recklessly. A person acts recklessly when they consciously disregard a substantial and unjustifiable risk. Negligently. The actor should be aware of a substantial and unjustifiable risk. There is no subjective fault. Dres sler says that P, K, R, N is acontinuum of culpability. There must be either P, K, R, or N with respect toeach material element of an offense. This provision effectively means that the Model Penal Code applies an elemental approach rather than a culpability approach to mens rea. You must show a particular state of mind, not just any bad or immoral state of mind. When there is no specific kind of culpability given, you assume P, K, or R. The Model Penal Code drafters dont like the idea of ever punishing a person whose culpability is mere negligence. If a legislature wants to punish a negligent person, they have to be totally explicit about it. State v. Nations In Missouri, the Criminal Code dictates that in order to prove that someone did something with knowledge, you must show that they were aware of the attendant circumstances necessary to constitute an offense. Nations claims the defense that the state must prove that she knew the girl was underage. In Missouri, knowledge means awareness of facts; here were talking about knowledge of an attendant circumstance. This is not the Model Penal Code formulation. What argument can be put forward against this wilful blindness provision? It blurs the line between knowledge and recklessness. What is the mental state of a person who is aware of a high probability that, for example, a female dancer is under the age of 17? Isnt that very similar to the definition of recklessness, which talks about disregarding a substantial and unjustifiable risk? Many critics say this provision is no good because it defies understanding what it means to know something when in fact you dont know it. If, on the other hand, you require actual knowledge, as in Missouri, it will be harder to get convictions in cases like this. We could attack this two ways: we could knock down the standard of culpability in the statute to recklessness, or else you can, by statute, ratchet up the mental state of wilfulblindness to knowledge, as the Model Penal Code does. United States v. Morris One may be punished for damaging federal computers unintentionally if the damage resulted from intentional access to the computers. Morris would have been found not guilty under the Model Penal Code because he did not perform all the elements of the crime knowingly. He only accessed the computers knowingly. He did not cause damage knowingly. 2.02(4) says that in the absence of clear language to the contrary, all the required elements of the offense must be accompanied by, in this case, knowledge in order to find guilt. Mistake of fact People v. Navarro A good faith mistake is a defense when it negates a required mens rea of the crime. Specific intent is negated by mere good faith mistake, and reasonableness is not needed. If the belief was unreasonable, did he act in a morally culpable manner? We would more or less be saying he was negligent. There would be a mens rea, and thus some level of culpability. Why did the court reverse the verdict? He lacked the specific intent required for the crime. Moral culpability is general intent. What would Model Penal Code 2.04 say about this case? It says either the mistake does or does not negate the required mens rea for the crime. If themens rea is the intent or purpose to steal, and the mistake proves that the defendant did not have such a purpose, then the defendant must be acquitted. The Model Penal Code rules! Mistake of fact is not a true affirmative defense. It is really a challenge to proof beyond a reasonable doubt of mens rea. The first thing to do when youre in a non-Model Penal Code jurisdiction is to ask: is it a general intent, specific intent, or strict liability crime? If its strict liability, youre

done. Intent doesnt matter, and thus mistake doesnt matter. If you have a specific intent crime, you ask if the mistake relates to the specific intent portion of the crime. If you have a general intent crime, then at common law you must apply a culpability analysis. You must ask whether the defendants state of mind was blameworthy, and in particular you must ask whether or not their mistake, and in turn their behavior, was reasonable. In the Model Penal Code, you always apply elemental analysis. The moral wrong doctrine When you use the moral wrong doctrine, you look at the world through the eyes of the defendant and assume the facts as the defendant himself understood them. This doctrine says that if the defendant acted immorally, it is reasonable for him to assume the risk that the circumstances are different from what he thinks they are and thus be found guilty of some crime. Here, we end up asking: are you a bad guy? The answer turns out to be yes, even though there is a reasonable mistake of fact. Many jurisdictions do not apply this doctrine anymore. It is a position that some jurisdictions still do use. Regina v. Prince A reasonable mistake means there is no culpability. However, this conviction was upheld. Why? Taking an 18 year old away from her parents was considered immoral even though its not illegal. The other problem is the principle of legality. If its so wrong to take an 18year-old away from her parents, make it a crime! Theres a lack of notice and the risk of the court creating crimes. We do not live in a world where everything that is immoral is illegal. There are lots of things that people do that are immoral that are not a crime. It is up to the legislature to draw a line between the illegal and the merely immoral. The legal wrong doctrine The legal wrong doctrine is basically the moral wrong doctrine with the word legally substituted for the word morally. Under common law doctrine, the defendant would assume the risk that the facts were not as he believed them to be, and be found guilty of a more serious crime. It can be argued that this is unjust, because he may be convicted of a crime that requires a higher mens rea than he has. Under the Model Penal Code, he will be convicted of the lesser crime. Its crucial at common law to distinguish between general intent, specific intent, and strict liability. However, sometimes courts will fall back on the moral wrong or legal wrong doctrines when dealing with a general intent crime committed under a reasonable mistake of fact. Mistake of law Generally, mistake of law will not relieve an actor of criminal liability. However, mistake of law may negate the mens rea necessary for a crime. Look at Model Penal Code 2.02(9): this codifies, more or less, the common law idea that generally knowledge of a laws existence and understanding of its meaning is not a required element of an offense, unless the statute itself says to the contrary. People v. Marrero Mistake to law may negate intent but it is not a defense to a strict liability crime. The common law says that Ignorance of the law is no defense. The utilitarian rationale for such a harsh rule is that admitting the excuse of mistake of law encourages ignorance of the law. This is a classic utilitarian statement. Were willing to concede that this individual does not deserve punishment, yet our interest in persuading people to learn the law outweighs that individuals interests. On the other hand, if ignorance will never get us off, we have no incentive to learn the law. However, if we make a reasonable effort to learn the law and are thus given a defense, we have a good incentive. Retributivists say we mustnt punish someone whose mistake of law is reasonable, because that person is not blameworthy. Basically, we do not give people a defense from a mistake of law, except for very few special cases where they made a reasonable mistake based on anofficial statement of the law. The Model Penal Code approach: 2.02(9) does not ordinarily require proof that a defendant knew that a law existed or understood it. 2.04(1) creates the exception that if the definition of the crime itself requires knowledge of the law and you didnt know it, then you lack one of the necessary elements for the offense. 2.04(3) provides a limited set of circumstances in which even though knowledge of the law isnt an element of the crime, we allow a defense. We dont allow a defense based on a personal misunderstanding of the law, but rather a reasonable reliance on an official statement of the law from a public official or some other source. A casual or unofficial interpretation of the law from a public official is no good. Put this together with 2.02(1): there must be a mens rea for each element of the crime. In a sense, 2.02(9) makes an exception to this general rule. In short, you dont have to prove that the defendant understood the law, usually. What are the exceptions? 2.04(1) says that if the statute explicitly says you must know the law to be subject to it, then fine. 2.04(3) further says that you may have a limited defense on the basis of your reliance on an official statement of the law from an appropriate source. This is a very limited exception, though. However, 2.04(3) does not permit a defense based on your personal misunderstanding of the law. The

defendant must reasonablyrely on an official statement of the law (from an appropriate, specified source) that is afterward determined to be invalid. Note that in these areas, the Model Penal Code is more or less a restatement of common law. People v. Weiss Weiss claims that he thought he had authority of law. How does Weisss mistake differ in character from that of Marrero? Duress might be relevant to the question of whether the mistake was reasonable. Cheek v. United States Cheek was indicted for failing to file and tax evasion. In his defense, he argued that he sincerely believed he didnt have to pay his taxes and thus he acted without the mens rea required for the crimes. Does an honest but unreasonable belief negate willfulness? A claimed good-faith belief need not be reasonable in order to be considered as a defense. Look at 2.04(1), which tells you that theres an exception to the ignorance is no excuse rule when the statute specifically says you must have knowledge, recklessness, or negligence in regard to the law. At common law, or in other words, if were not in a Model Penal Code jurisdiction, its ambiguous whether a culpability or mens rea word modifies everything that comes after or only some bits. Causation Actual cause Heres the definition: But for the voluntary act or omission of the defendant, would the social harm of the offense have occurred when it did? If the answer to this question is yes, that means the defendant is not the actual cause of the harm. If the answer to this question is no, that means the defendant is actually the actual cause of the harm. Velazquez v. State Courts usually use the but for test of causation, which says that a defendants act was the cause-in-fact of a result if it wouldnt have happened if it werent for their action. Sometimes, courts substitute the but for test with the substantial factor test when two or more defendants did the same thing at the same time causing the intended result. Finally, some crimes have a proximate cause element that is wider than but for test. Basically, courts wont find defendants guilty if the result of their conduct was unforeseeable or when it just wouldnt be fair to find them guilty. With actual causation, we create a line-up of all the possible people who could have caused the harm. With proximate causation, we pick and choose on grounds of justice which possibly blameworthy person we will hold accountable. If something is a proximate cause, then it is an actual cause. Therefore, you must discuss actual cause first and then discuss proximate cause. Proximate cause There is no categorical rule that answers these questions. Now were in the area of deciding what is just and fair. Whenever you think about a proximate cause question, think about a line going from the act of the defendant and the social harm. Then you look to see if there were any other but for causes that occurred between the time of the voluntary act and the time of the social harm. If there is nothing that comes between the act and the harm, then it is a case of direct harm. Thats an easy case; the defendant is in the actual cause lineup by himself. Often, however, there will be some intervening cause that comes between the act and the harm. Now we have a serious proximate causation issue because we must decide who we want to hold responsible. Kibbe v. Henderson By statute, the state must prove beyond a reasonable doubt that the defendant caused the victims death. In this case, we have a number of intervening causes. We are forced to decide whether or not we should hold the defendant accountable for the death, even though he didnt want to kill the victim. If we dont blame the defendant for the death of the victim, who do we blame? The real issue is a policy issue. Is it just to hold someone responsible for a harm given the way in which it happened? In other words, the Model Penal Code is getting away from all the complicated tests from common law and is suggesting that we give the jury the basic question of whether the result is just. Thats not to say that the common law rules and doctrines are no longer relevant. As an attorney, you will want to use them for the purposes of arguing justice to the jury. There is no black letter rule for judging proximate cause. However, there are a number of tests and standards for proximate cause. Coincidental and responsible intervening causes An intervening act is a coincidence when the defendants act just put the victim in the wrong place at the wrong time, in which case the defendant is not the proximate cause unless the result was foreseeable. On the other hand, an intervening act is a response when the act is a reaction to the conditions made by the defendant for the victim, in which case the defendant is the proximate cause unless the intervening cause is unforeseeable and very highly unlikely, bizarre, and abnormal.

The intended consequences doctrine Based on the intended consequences doctrine, we reach back to the person who intended to cause the harm to find the proximate cause of the harm. In other words, the mother got what she wanted, though not the way she wanted. We will probably hold her to be the proximate cause of the death. However, we must say probably because this is just one way to look at proximate causation. The apparent safety doctrine The apparent safety doctrine says that once the danger from the defendant is no longer present, we no longer consider that defendant a proximate cause. The question is: did the victim reach apparent safety? Since she could have easily gotten into the house, we would assign proximate cause for her death to her based on this doctrine. There are a number of other tests in the book. To get familiar with these tests, Dressler recommends trying problem 11G on page 208. The Model Penal Code on proximate cause The Model Penal Code advocates a frank, justice-oriented analysis. If a defendant is the actual cause of the result, it permits conviction so long as the actual resultis not too remote or accidental in its occurrence to have a [just] bearing on the actors liability. 2.03(2)(b) and (3)(b) Criminal homicide Murder is the killing of a human being by another human being with malice aforethought. The distinctions that exist at common law and in the Model Penal Code as well as the various non-Model Penal Code homicide statutes between murder and manslaughter as well as between degrees of these crimes are all functions of mens rea. The act is always the same: killing somebody. Its just the mental state that changes. Everything that well be covering in the remainder of this chapter will deal with mens rea. Whats murder at common law? Its the unlawful killing of another human being with malice aforethought. There are no degrees of murder at common law! Know this for the exam! Degrees of murder are purely statutory. At common law, all felonies carried the death penalty. States decided that not all felonies deserve the death penalty. When were talking about degrees of a felony, were talking about statutes. Whats the common law definition of manslaughter? Its the unlawful killing of another human being without malice aforethought. Notice that in this case, there are lawful killings of other human beings without malice aforethought, such as killing in self-defense. At American common law, there are really two kinds of manslaughter: so-called voluntary and involuntary manslaughter. These distinctions existed inEngland by statute, but here its a common law concept. Malice aforethought What is malice aforethought at common law? It is either (1) the intent to kill, (2) intent to cause grave bodily harm, (3) recklessness (depraved heart), or (4) the intent to commit a felony (felony-murder rule). There must not be a justification, an excuse or any mitigating factor. How did we define acting with malice earlier in the semester? It means acting intentionally [purposefully or knowingly] or recklessly. Aforethought doesnt really mean anything anymore. State v. Schrader On appeal the defendant says that for a killing to be premeditated, there must be intent to kill for some finite period of time before the act occurs. This is incorrect according to the interpretation of the statute in the state at the time: no time is too short for someone to form the intent to commit murder. An intentional killing that is not premeditated and deliberate would be second degree murder. Model Penal Code on criminal homicide In the Model Penal Code, there are no degrees of murder, but there are degrees of felonies. Murder is a felony of the first degree in the Model Penal Code. Thats not the same thing as murder in the first degree. Murder is a felony of the first degree, just like rape and some other crimes. At common law, murder is murder and thats how it is in the Model Penal Code. The Model Penal Code doesnt contain a requirement of malice aforethought or the word unlawful. We just have PKRN. The Model Penal Code is, in a sense, a return to the common law. The standard for determining premeditation is whether the defendant had time to take a second look before acting. Deliberation involves weighing the issue. Premeditation is how long you think about your act. You could premeditate without meeting the deliberation requirement. Midgett and Forrest If these two cases are rightly decided, we find that Midgett committed second degree murder, while Forrest committed first degree murder. Have we come up with a meaningful way to distinguish first and second degree murder? Does the willful, deliberate and premeditated distinction do the work we want it to do? Is the Model Penal Code right that we shouldnt have degrees of murder? Adequate provocation

Here are the requirements for mitigation from murder to manslaughter: (1) Adequate provocation, (2) heat of passion, (3) lack of opportunity for the passion to cool, and (4) causal connection between provocation, passion, and act. At common law, words alone never constitute adequate provocation. Girouard v. State Words can only constitute adequate provocation to mitigate if they are accompanied by the threat of bodily harm. The reason for this rule is that as a matter of social policy, we dont want domestic disputes to end in the killing of a spouse. Strictly speaking, in Girouard, the provocation is not words alone because the victim jumped on the defendant and pulled his hair. But at common law, words alone are never adequate provocation to partially justify or partially excuse homicide. The reasonable man To what extent should we subjectivize the reasonable man standard? It is argued that if you include some subjective characteristics, you must include all characteristics. There are several ways we might want to bring a defendants characteristics into the reasonable man standard: (1) Was the defendant really provoked to lose self-control? (2) Was the provocation severe to a reasonable person? (3) How much self-control is expected of the reasonable person? Director of Public Prosecutions v. Camplin Should the defendants reaction be judged against a reasonable grown-up or a reasonable boy? The text of the Homicide Act refers to the reasonable man. Should we include the defendants age in the description of the reasonable man we will compare him to? Why should gender count? Should women be held to a reasonable woman standard? Thats a higher standard than reasonable (male, manly) man or reasonable person). People v. Casassa In a bench trial, the defendant argued the partial excuse of extreme emotional distress. The judge found him guilty of murder. The defendant appealed on the basis that he wasnt allowed the extreme emotional disturbance defense. The Model Penal Code standard for extreme emotional distress is more subjective than the common law standard. The Model Penal Code does not talk about adequate provocation. Instead, it only talks about extreme mental or emotional disturbance. The Model Penal Code has both an objective and a subjective test for the reasonableness of the extreme emotional disturbance that is put forward as a partial excuse. The word situation in the Model Penal Code section on manslaughter is ambiguous by design. Its your role as an attorney to make the argument why a jury should come out a certain way. The Model Penal Code claims that the bottom line is whether the jury can be sympathetic to a defendant in a particular case. The defendant must show that he has a reasonable reason for being in the condition he was in. If the judge finds that there was extreme emotional disturbance, then the jury would decide whether or not that disturbance was reasonable. Depraved-heart murder We will consider cases where the defendant does not intend to kill, but may still be found guilty of murder. The defendant takes an unjustified risk. If we have a continuum of risk-taking, there will be some risk-taking that is entirely innocent at one end. Further down the line, there is risk-taking that might constitute negligence at a tort level, followed by risk-taking that might constitute negligence in criminal law. Finally, at the other end of the spectrum well have recklessness, and in some jurisdictions even extreme recklessness. These cases talk about express and implied malice. At common law, when the court talks about express malice it is talking about intent to kill. Implied malice suggests any of the other three formulations of malice. Berry v. Superior Court In California, the defendant must be shown to have had a knowledge of the high degree of risk, or in other words, they must be shown to be reckless, in order to be charged with murder as opposed to manslaughter. No one claims that there was intent to kill. Berry took an unjustifiable risk. The expected harm (pL) exceeded the benefit of keeping the dog in the neighborhood (B). A reasonable person would not take such a risk. If the reason for taking the risk is socially useless or unacceptable, then any risk is unjustifiable. In the Model Penal Code, both the definitions of both recklessness and negligence include a substantial and unjustifiable risk. If you take this literally, then you could get into a strange situation: if a tiny risk is unjustifiable but not substantial, you might not be found culpable. But another way to view this is to look at it as a substantially unjustifiable risk. Extreme recklessness will be murder at common law or under the Model Penal Code. State v. Hernandez Evidence is admissible so long as it goes to show that the defendant had the mens rea necessary for the particular offense charged. The defendant argues that the evidence in dispute speaks only to his character rather than his awareness of risk. His awareness of risk was not at issue because the prosecution charged him with a crime that does not require such awareness. At common law, when someone is found to be reckless, they possess malice and thus they have committed murder. If they are criminally negligent, they have committed involuntary manslaughter. If they dont meet criminal negligence, they will not be criminally liable. However, under the Model Penal Code, if someone commits homicide recklessly, it could be either murder or manslaughter. Manslaughter is a reckless killing, while murder can be a reckless plus killing. If the person killed negligently, they can be charged with negligent homicide, which isnt even in common law.

The Model Penal Code says that when negligence is sufficient to establish an element of an offense, that element is also satisfied by acting purposely, knowingly, or recklessly. The Model Penal Code has a continuum of culpability. The Model Penal Code says that if a person is charged with negligence and the prosecutor is able to prove purposefulness, knowledge, or recklessness, it does not preclude the prosecutor from convicting for negligence. This seems quite logical. Lets say a person is charged with negligent homicide. The defendant could go on the witness stand and make an argument that he intended to kill. Then, absent this rule from the Model Penal Code, we might be led to believe that we must acquit the defendant of negligent homicide. State v. Williams In Washington, manslaughter is any homicide committed with simple (as opposed to gross) negligence. Furthermore, homicide is excusable if it is committed accidentally while doing any lawful act by lawful means, with ordinary caution. The standard of negligence that had to be proven in this case was civil negligence, or in other words, tort-level negligence, not gross negligence. The Model Penal Code does not look kindly upon punishment of negligence. Is there any basis for ever punishing a person who is incapable of living up to the established, objective standard? Its hard to blame someone who is not capable of being otherwise, but on the other hand, from a utilitarian perspective, we may want to keep these people off the street. The felony-murder rule It can be argued that felony murder is a strict liability crime. 99% of cases of real world felony murder do not require the felony-murder rule to convict. Usually, you can show a depraved heart. Usually, when a prosecutor uses the felony-murder rule, they already have intent to kill or depraved heart. People v. Fuller Under California law, all murder that is committed while committing another felony is considered first degree murder. Consider the rationale that the felony-murder rule will help deter the underlying felony. This seems totally bogus, because why dont you just up the penalty for that felony? Lets say, on the other hand, we cant deter felons. Maybe we can get the felon to at least commit their felony in a way that reduces the risk that human life will be taken in the process. Maybe, for example, this will give the escapee an incentive to escape safely. Dressler believes that this is thebest utilitarian argument for the felony-murder rule. He doesnt necessarily think its correct. He says it is subject to empirical analysis. At common law, the felony-murder rule is a pure, absolute rule. Any killing that occurs during the attempted commission of a felony would trigger this rule. However, this rule is controversial, and so courts have tried to find ways to limit the rule. These are judge-made limits. Some jurisdictions keep the common law rule. Other jurisdictions have imposed certain limitations on the rule. California was a leading state in trying to limit the felonymurder rule at the time these two cases were decided. The inherently dangerous felony limitation People v. Burroughs To determine whether the felony-murder rule should apply in California, you must use a two step process: (1) Does the primary element of the offense necessarily involve danger to human life? (2) Do the factors elevating the offense to a felony render that offense dangerous to human life? There are two alternative inherently dangerous standards: a felony is considered inherently dangerous if (1) it is dangerous in the abstract or (2) it is dangerous based on the facts of the case. Does this limitation make sense? We have previously discussed arguments in favor of the felony-murder rule. Whats the best utilitarian rationale for the felony-murder rule? We want to give felons an incentive to commit their felonies safely. Lets say someone commits felony pickpocketing. Under this limitation, we wouldnt apply the felony-murder rule to pickpocketing. Dressler says if we accept the felony-murder rule, and we accept that the previously stated justification for this rule (safe felons, safe felonies) is the best one, then it makes sense to exempt the pickpocket from the felony-murder rule. Is possession of a concealed firearm inherently dangerous? This is a very common statute. Once youve been convicted of a felony, you basically lose the right to possess a concealed firearm. What the California Supreme Court said was that white collar felons carrying concealed firearms are no more dangerous than just regular folks carrying concealed firearms. So their answer was no, carrying a concealed firearms is not inherently dangerous because it could be done in a matter no more dangerous than the average schmoe carrying around a firearm. How does the court cut off the felony-murder theory? The court finds that practicing medicine without a license is not inherently dangerous. (1) The court looks at the statute and decides in the abstract whether this is an inherently dangerous felony. (2) The court asks: how dangerous must a felony be in order to be inherently dangerous? What is the standard the court uses? The court considers whether an offense may be committed without a high probability of loss of life. The court finds that you can violate the statute without any risk of causing death. For example, you could make someones mental illness worse without killing them. As long as you can imagine a way that a crime can be committed without creating a substantial risk of death, the crime in question is not inherently dangerous.

People v. Henderson False imprisonment is defined as imprisonment effected by violence, menace, fraud, or deceit: it uses its terms in the disjunctive (or). Therefore, the crime described can indeed be committed without a high risk of causing death. So false imprisonment is not inherently dangerous. The independent felony or merger limitation People v. Smith In California, the felony murder rule is inapplicable to felonies that are an integral part ofthe homicide. In such cases, the latter felony must be merged into the homicide and murder must be proven by one of the other three types of malice. If a state uses both rules, there is sort of a ceiling and a floor. Felonies that arent inherently dangerous cant get a felony-murder conviction, but felonies that are, in a sense, too dangerous wont support a felony-murder conviction either because they will merge. The only type of felony that remains is one where it was something inherently dangerous, yet it wasnt integral to the homicide. The California Supreme Court adds a caveat: if a felony has an independent felonious purpose, it can be used with the felony-murder rule. Note that this independent purpose must be felonious. Discipline of children is not inherently felonious. If a state applies both the inherently dangerous limitation and the merger limitation, whats left? The most dangerous felonies are excluded and the least dangerous felonies are excluded. This would include felonies that are inherently dangerous, but not assaultive. Robbery may fall in this gap. A court that doesnt want to apply the felony-murder rule can knock out pretty much all the felonies it wants by applying these two limitations. Rape Almost all of what constitutes rape is the actus reus. State v. Alston If an act of sexual intercourse is by both force and against the victims will, it constitutes rape even if the victim gave consent to the defendant for previous acts of sexual intercourse. The court finds there is sufficient evidence that the sex was against the victims will, but it finds insufficient evidence that the sex was forced. The court finds that there were acts of force and threats of force, but the court considers them unrelated to the act of sexual intercourse. The court seems to suggest that it is necessary for the victim to resist the act of sexual intercourse in order for it to be rape. This case, according to Dressler, represents the most traditional case of rape. Well go from here and see how there has been movement over time. In North Carolina, second degree rape involved: Vaginal intercourse, with force, against the victims will, without the victims consent. Here are some issues to keep in mind: Keep in mind the potential distinction between force and the threat of force. In some statutes, force is required, while in others, only the threat of force is required. This court says that there may be non-consensual sex that is not rape. Was the court right in saying that there was insufficient evidence to show force or the threat of force? What facts might the prosecutor point to that would prove that the defendant forced the victim to have sex? State v. Rusk Was the Court of Special Appeals correct in reversing Rusks conviction? In particular, was the reasonableness of the victims apprehension of fear a question of fact or a question of law? Is the evidence in the record of the case sufficient for a finder of fact to conclude that the act of intercourse in this case was accompanied by force or threats of force and to thus find Rusk guilty beyond a reasonable doubt of second degree rape? Under the Maryland statute at the time, the offense of second degree rape is defined as vaginal intercourse accomplished by force or threat of force against the will and without the consent of the other person. The resistance requirement If there is a resistance requirement, then we are in some sense trying the woman and asking if she resisted adequately. In the traditional law, you can have force with consent. Some courts argue that resistance is part of force. Other courts interpret the against the will part to suggest there must be some kind of physical battle going on. Requiring the woman to resist for there to be a successful rape prosecution may actually increase the risk of physical harm to the woman. Maybe we need to provide notice to the man that the woman is not consenting. Resistance could be conceived of as a form of notice. Also, well need to prove a mens rea of rape, though it is a general intent crime. A reasonable mistake of fact would be a defense to rape. If the woman resists, and the man proceeds anyway, it vitiates his possible defense of reasonable mistake of fact. Another argument out of the common law is that if a woman is what a woman is supposed to be that the only natural thing for the woman to do is to protect her virtue. Therefore, the argument goes, if she doesnt care enough about her virtue to protect it, then why should we? This probably stinks to us now.

Coughlin tried to explain the law of rape in terms of the Victorian period and the use of rape as a defense to adultery. All forms of fornication (sex outside of marriage) were considered immoral. So if the woman resists, it shows that she was an unwilling participant in something that was considered a crime on the part of both parties. The common law rule of resistance If the man used force likely to cause death or serious bodily injury, the law at common law did not require the woman to resist. If the man used less force, then the woman was required to resist. At common law, the woman had to resist to the utmost to fight the man off. But if the woman has to resist, one of two things happens: (1) the man stops, or (2) the man overcomes her resistance, which constitutes the force necessary to the offense at common law. If we take away the resistance requirement, how much force is needed? Is the sexual act itself the force? If there is a genuine resistance requirement in the law, it is much easier to determine by law if a rape has occurred. If we remove the resistance requirement, it will be a lot harder to tell whether rape has occurred. Maximalist anything that is immoral should be criminal. Minimalist not everything that is immoral should be criminal; only the worst acts should be criminal. Every year, the Penal Code gets thicker. We seem to be moving away from a minimalist approach. But no one would suggest that were approaching a maximalist approach. Dressler proposes that most people arent going to be upset by this. We all sometimes do things that are immoral. In this country, we do not treat morality and criminal law as exactly the same. In certain theocratic countries, it might be different. In the United States, we dont punish people for being less than perfectly virtuous. Commonwealth v. Berkowitz Under the Pennsylvania statute at the time, does the victim saying no allow us to construe force on the part of the defendant? Under the rule of Rhodes, the judgment of whether forcible compulsion or the threat of forcible compulsion occurred is to be judged on the totality of the circumstances. No matter what the victim may have meant by no, there is the mens rea question of what the defendant understood by her saying no. A reasonable mistake of fact is normally a defense to a general intent crime. Rape is a general intent crime. The Model Penal Code provides for a lesser offense related to rape called gross sexual imposition. Might that apply in Berkowitz? The thing is that this offense requires a threat rather than actual force. State of New Jersey in the Interest of M.T.S. Is any force required besides the force of sexual intercourse itself to find the defendant delinquent for second-degree sexual assault? NEW RULE! [A]ny act of sexual penetration engaged inwithout the affirmative and freely-given permission of the victimconstitutes the offense of sexual assault. Therefore, physical force in excess of that inherent in the act of sexual penetration is not required for such penetration to be unlawful. The court focuses on the defendants conduct and rejects any judgment passed upon the victim except as it pertains to the actions of the defendant. If you dont get permission, its sexual assault. If the evidence shows beyond a reasonable doubt that the defendant knew that the sexual penetration was accomplished without freely given affirmative permission, then the defendant should be found guilty. If the evidence shows beyond a reasonable doubt that the defendant believed that the sexual penetration was accomplished with freely given permission, then the factfinder must consider whether, given the totality of the evidence, that belief wasreasonable. So what is the new rule of sexual assault in New Jersey? In other words, if Im going to have sex, how can I make sure I wont be prosecuted? The court says that you must get freely given affirmative permission to engage in the sexual penetration. Unless a party gets such permission, the mere act of sexual penetration constitutes the force required under the definition of the crime. Does without consent necessarily mean against ones will? When we ask whether something was done without consent, arent we inquiring into an internal state of mind of the alleged victim? Dressler says that permission is an externalized form of consent. In New Jersey, permission can only be given by acts or statements. Permission cannot be given by omission. Permission must be externalized. Is this a good way to define criminal sexual assault? How could the defendant prove that the alleged victim gave permission? Imagine how humiliating the trial has just become! But how else can the defendant defend himself? This sends a message to women about whether they want to bring charges. The Kobe Bryant case shows just how embarrassing a rape prosecution can be to a woman. M.T.S. stands alone. We dont know what it means, and we dont know what other states might argue it. The mens rea of rape and mistake of fact The issue of mens rea in the area of rape is almost always whether the man believed that the female was consenting to sexual intercourse. This is mistake of fact, which weve already covered. Rape is a general intent offense. Thus, we apply a culpability analysis and ask whether the defendants mistake of fact was reasonable. If the defendants mistake of fact was unreasonable, we are clear to convict.

MacKinnon thinks the mistake of fact defense is stuuuuupid! Why is this statement not as silly as it sounds? We point to the law and say that a rape has not occurred without an actus reus and mens rea. Its different to say that someone was raped in the actus reus sense than to say that someone committed the crime of rape. Theres a problem of vocabulary. When we talk about murder, it would make sense to say that someone was killed, but not by a murderer. There isnt quite equivalent language for rape, unless maybe we use forcible, non-consensual sexual intercourse for the actus reusof rape. Commonwealth v. Sherry The defense of mistake of fact requires such a mistake to be reasonable and in good faith. What would be the level of mens rea required to be guilty of rape at common law? It would appear that its negligence. If the man should have knownthat the woman was not consenting, thats negligence. That doesnt mean that unreasonable mistake of fact always implies negligence rather than, say, recklessness. Rape turns out to be a crime of negligence. Dresslers problem is that once you say a mistake is unreasonable no matter what, thats strict liability. Once you hear the words you assume the risk, its strict liability. That would convert rape to a general intent crime to a strict liability crime. Youre going to basically get in trouble for wanting to have sex with someone. At common law, there is always an issue of interpreting instructions as to whether a certain mens rea term modifies one or several subsequent actions. Think seriously about the question of what the mens rea of rape ought to be. As the definition of the actus reus of rape is expanded to include more and more potentially ambiguous events, the claim by the defendant that I thought she was consenting becomes more plausible. This was not previously an issue under the more narrow rape laws of the past. One view is that as soon as a woman says no, the defendant proceeds at his own risk. Any belief that the no didnt mean no would be deemed unreasonable mistake of fact as a matter of law. Is there a time-framing issue? There is a movement going to try to make rape into sort of a strict liability crime. Its getting increasingly difficult for a defendant to get a mistake of fact claim to a jury. Theres also a trend in the opposite direction. Regina v. Morgan This is the so-called kinky wife case. The husband of the victim told the other men that his wife will resist, but thats just a game for her and they need not mind it. This was false; she was really resisting. The perpetrators argued that she was consenting because the husband told them she was consenting. It is argued that the defendant intended to have sex with the victim with her consent. In Lord Hailshams mind, rape is a specific intent crime because intent modifies the attendant circumstance of without her consent. If we have a specific intent crime, we use elemental analysis and ask whether the mens rea of the crime was proven or not. In other words, does the mistake of fact negate the required mens rea of the crime? Under this view, Lord Hailsham makes sense. If we use an elemental analysis, then the prosecution must prove beyond a reasonable doubt that the defendant intended to (1) have sex, and (2) do with without the womans intent. Due to this decision, rape becomes a specific intent crime in England for a short time. When the public found out about this, they got mad a demanded a new statute. Parliament backed away from Morgan. So, England is moving somewhat in the opposite direction from the United States. Under the Model Penal Code, since no mens rea term was mentioned in the rape statute, the level of mens rea required would be P, K, or R, just like in the English law. Rape shield laws The basics Heres the problem these laws are designed to fight: the defense will try to get a bunch of evidence out to try to make the alleged victim look like a slut. It can be argued that this evidence is relevant because it would go to show that the alleged victim has consensual sex a lot and therefore could reasonably be seen to have had consensual sex in this particular case. But even when you can make that argument, the character of the alleged victim is damaged and the jury becomes prejudiced. This will be awful for the woman. Also, why would a woman ever report the crime? We might admit evidence that the woman in the Kobe Bryant case had consensual sex on other occasions, but under rape shield laws, we wont admit evidence that she had consensual sex with others. The first question in any criminal or civil case is whether or not the evidence is relevant. If its not relevant, it doesnt belong in the trial. Is it relevant that the victim had blond hair? Is it relevant that the defendant wore a beard? You can imagine situations where both are relevant though in many cases these facts would not be relevant. All that relevant means is that theres something about those facts that would move the rational factfinder towards the side of the prosecution or defense. Some facts are hugely important, and some are just barely relevant.

The second question is whether the probative value of evidence outweighed by other factors? For example, in the O.J. Simpson case, the prosecution wanted to introduce evidence that Simpson beat his wife. Is that evidence relevant to whether he killed her? Maybe it is relevant. But is its relevance outweighed by other factors? In Criminal Procedure, you learn that prior bad acts are not admissible as evidence to the jury because they may be prejudicial. If the evidence has a small amount of factual significance versus a big amount of prejudice, then that evidence doesnt get admitted. There may also be a factor of time consumption. How long will it take to put on the evidence? If it will take six hours to put on this evidence, but the probative value is low, we might boot it out. Except for rape shield laws, the admissibility of evidence is determined primarily by the judge on a case-by-case basis. What is unusual about rape shield laws is that the legislature has found that certain kinds of evidence are either always irrelevant or always inadmissible based on public policy considerations. The Sixth Amendment provides the defendant a constitutional right to cross-examine his accuser and call witnesses on his own behalf. To some degree, rape shield laws undermine the Sixth Amendment. Almost all rape shield laws have some exceptions that bow to the Sixth Amendment. These exceptions allow the judge to decide that in a particular case, the defendants need to have certain evidence introduced trumps the victims interests protected by the rape shield laws. The Supreme Court has held that Sixth Amendment rights are not absolute. It has never been thought that you can cross-examine your accuser without any bounds. Not just any cross-examination is allowed. Defenses 1. 2. 3. 4. 5. Failure-of-proof defenses Offense modifications Justifications Excuses Non-exculpatory public policy defenses

Be very sensitive to the difference between excuse and justification. Take, for example, mistake of fact. Which of the five categories above contains mistake of fact? Its a failure-of-proof defense. Mistake of fact in a rape case negates an element of the alleged offense: the mens rea. In the kinky wife case, Lord Hailsham says there is no room for mistake of fact as a defense. He put defense in quotes because he thinks that failure-of-proof isnt a defense in the ordinary sense. Its sort of more like a lack of offense. The defense tries to break down an essential element of the crime, showing that it hasnt been proven beyond a reasonable doubt. The rest of the defenses that well talk about in this chapter will fall into the categories of justification and excuse. If conduct is justified, it doesnt need to be excused. A justification defense says that what the defendant did wasnt wrong. You dont need an excuse for an act thats not bad. An excuse, on the other hand, focuses on the actor rather than the act. Justification When youre justified, it means that what you did was at least not wrongful, if not actually good. Four theories of justification: (1) Public benefit, (2) moral forfeiture, (3) moral rights, and (4) lesser harm. Self-defense Common law principles Deadly force used in self-defense is justified at common law when: The defendant is a non-aggressor and the defendant reasonably believes that deadly force is necessary to repel an imminent, unlawful, and deadly attack by the other person. This set of elements also fit the structure of a justification defense, namely: (1) Proportionality the force used is proportional and reasonable in relation to the harm threatened. (2) Necessity the force used is necessary to protect the interest at stake. Deadly force generally means either force likely to cause death or serious bodily harm. In order to justify the use of self-defense on the basis of deadly force, you must be trying to repel deadly force in response. You can use deadly force to defend against potential crimes other than murder. At common law, if you act in justifiable self-defense, youre not guilty of any crime. Even if you prove all the elements of the crime of murder, if you have a justification, then youre not guilty. Even if you have the intent to kill that usually constitutes malice, you may not be guilty of the offense.

The aggressor issue You cant use deadly force in self-defense if youre the aggressor at the time of the conflict. In order to find the aggressor, we are looking for an affirmative unlawful act reasonably calculated to produce a potentially fatal fight. Self-defense cannot be claimed by someone who deliberately puts himself in danger. Reasonable belief at common law Say a defendant shoots someone believing they have a real gun when the gun is actually fake. Under the reasonable belief requirement, even though the person couldnt or wouldnt have killed the defendant, the defendant still is acquitted even though what he did was objectively wrong. However, if, on the other hand, the gun was obviously a toy then the defendant loses the self-defense claim because the belief about the threat wasnt objectivelyreasonable. People v. Goetz The reasonable person standard for self-defense as justification is an objective standard. Goetz felt that the prosecution gave an objective standard whereas the standard should have been subjective based on the statute. The intermediate appellate court argued that the emphasis in the phrase he reasonably believes is on he. That becomes a subjective standard because were not interested in what a reasonable person would do, but rather whether the defendant thought he was doing a reasonable thing. The thing is that the defendant will obviously think that what hes doing is reasonable. But the defendant may be an unreasonable person. The Court of Appeals of New York rules that the statute was meant to create an objective standard. But how objective did the legislature intend it to be? Who is that reasonable person? How can it be justifiable to kill an objectively innocent person? We might excuse someone for it, but maybe it wouldnt be justified. The common law says, on the other hand, that such an act would not be justified, but rather excused. Dressler argues that this could create a situation where two people could justifiably kill each other. State v. Wanrow The jury may stand in the shoes of the defendant in assessing whether his or her conduct was justified. The basic issue in this case is bringing gender into the discussion of the reasonable person. What does this case stand for? Does this mean that a woman who uses selfdefense must be judged by the standard of a reasonable woman, or must she be judged by the objective standard of a reasonable person? The ruling says that the defendants actions must be judged subjectively, not objectively. After this case, case law has clarified this result to mean that they use a reasonable woman standard. The Model Penal Code chooses designedly ambiguous language to describe the standard of behavior: a reasonable person in the actors situation. State v. Norman If North Carolina applies the common law, why isnt Norman entitled to a self-defense claim? It rests on the meaning of the word imminent. At common law, this term means just about right now. Were talking seconds, not minutes or hours or days or weeks. Since thats not what we have in Norman, the Supreme Court of North Carolina represents the traditional view. Under the ruling of this case and in most common law jurisdictions, Norman would not even be entitled to an instruction on the justification of self-defense. Does syndrome evidence arguably turn a justification defense into an excuse? Self-protection and the Model Penal Code 3.04(2)(b)(i) deals with one limitation on the use of deadly force: the defendant mustnt provoke the use of force with the purpose of causing death or serious bodily injury. The Model Penal Code says that 3.04(2)(b)(ii) says that you cant use self-defense if you can retreat, except if youre in your own home or youre a public officer. The Model Penal Code, as well as common law, treats human life very, very highly. The sanctity of human life is valued so highly that the law doesnt even want bad guys killed unless its absolutely necessary. Thus, its very difficult under the Model Penal Code and at common law to win on a self-defense claim. The Model Penal Code doesnt focus on the amount of time before the actor will be killed, rather, it focuses on the actor to figure out if it is necessarynow to use deadly force against the victim. 3.04. This statute uses the word immediately necessary rather than imminent. The provision is general. The deadly force provision is 3.04(2)(b). Even if you meet 3.04(1), there are additional conditions in order for a valid justification to be constructed. If an actors belief is sincere but reckless or negligent, the actor isnt justified as far as reckless or negligent offenses. If the defendant was negligent in believing that a toy gun was actually real, then under the Model Penal Code the defendant wouldnt be guilty of murder. The defendant would be guilty of negligent homicide if the defendant was negligent, and the defendant would be guilty of manslaughter if the defendant was reckless.

What the Model Penal Code does that is dramatically different from common law is that it doesnt like the all-or-nothing proposition. In the three situations above, the defendant is not guilty in the first case, not guilty in the second case, but fully guilty in the third case. On the other hand, the Model Penal Code allows conviction for a lesser crime in the third case. Necessity Three elements are required in order to show necessity: (1) The act charged must have been done to prevent a significant evil. (2) There must have been no adequate alternative. (3) The harm caused must not have been disproportionate to the harm avoided. Nelson v. State Theres a balancing test here between the harm actually caused and the harm averted by the act. Thats the very definition of necessity. The drafters of the Model Penal Code 3.02 thought the necessity defense was essential because we want to encourage sort of efficient breach of the law. If obeying the law involves greater harm to society than breaking the law, we want people to break it. This is kind of a belt to keep the legislatures pants from falling down in exceptional situations. If the legislature would have said Yes, break the law in this case, then we want to let the offender off the hook. It would be irrational to want people to obey the law if we believed that the legislature in a certain situation would say do break the law because that would result in a better outcome for society than obeying the law. Although necessity (or the choice of evils justification defense) is typically thought of as a utilitarian justification because of its balancing aspect, it can also be viewed in non-utilitarian terms by comparing the moral value of one choice of action against another. A defendant must actually believe that his conduct is necessary to avert a greater evil (and not an equal or lesser evil). The necessity defense doesnt help you if you recklessly or negligently created the necessity. The Queen v. Dudley and Stephens This is the single most important case in Anglo-American jurisprudence to deal with the following question: is it ever justifiable to kill an innocent person in order to save a greater number of innocent persons? The court suggests that sometimes the law has to set up standards that we cant really live up to. Can we punish someone when we all would have done the same thing? If youre a retributivist, then it is never right to kill an innocent person in order to save a greater number of innocent lives. If youre a Kantian, you believe that you must never use a person as a means to an end rather than as an end in itself. Thats what Dudley and Stephens did with Parker: they used him as a means to an end, violating what Kant would say is a categorical imperative. Excuse Excuse focuses on the actor, not the act. Excuse concedes that the act was bad, but there was something about the actor such that were willing to let them go without punishment. When we use an excuse defense, the burden of proof is placed on the defendant. Bentham says that an excuse is a defense when their conduct was nondeterrable. The only use for punishment, in a utilitarian view, is deterrence. Therefore, if there is no value to punishment and only a net social cost, we shouldnt punish. However, say there are some people who are genuinely undeterrable. There may still be some utilitarian value in punishing an undeterrable person due to specific deterrence or incapacitation. What about the general deterrence value in punishing an undeterrable person? If we excuse an undeterrable person, someone else might get the wrong message. Someone else might believe that they can convince a jury that they are undeterrable. Generally speaking, they may be less likely to obey the law because they will perceive it as full of holes. Retributivists say that we have excuses because we dont want to blame those who were not responsible for their actions. To blame someone who is not responsible for his actions is a falsehood. It is a matter of justice to excuse certain people even though they have caused some social harm. Excuse law is now explained almost exclusively by some sort of retributive theory rather than utilitarian theory. Even the utilitarian argument has a retributivist aspect to it. Our theories of excuse are: (1) Utilitarian theories, (2) causation, (3) character, and (4) choice (personhood). Duress Duress is an excuse and not a justification. Most jurisdictions treat it in this way. At common law, duress is no excuse for murder. In the Model Penal Code, however, there is no murder exception. United States v. Contento-Pachon There are three elements of the duress defense, according to the court: (1) immediacy of the threat, (2) wellgrounded fear of the threat, and (3) lack of escapability from the threat.

Another way of describing duress as an excuse is that a person will be acquitted of any crime other than murder if: (1) the coercer issues an unlawful threat to imminently kill or grievously injure the defendant or another person, and (2) the defendant was not at fault in exposing himself to the threat. The court also says that a necessity defense suggests that there was no social harm on balance. On the other hand, the court says that duress suggests there was no culpability. The court therefore implies that necessity is a justification rather than an excuse. The Model Penal Code definition of duress is revolutionary compared to the common law. Its different from the common law definition in many different ways. There is a limit to duress under Model Penal Code 3.02: the threat listed is unlawful force. Only humans can do unlawful things. The Model Penal Code is like the common law in the fact that it limits the defense of duress to human threats. However, under the category of necessity, the Model Penal Code would allow either natural or human threats. The Model Penal Code is well aware of this. It says that even if 3.02 applies, 2.09 may still apply if youre dealing with a human threat. Whats different about the Model Penal Code provision on duress than the common law? In the Model Penal Code, there need not be an imminent threat. Also, under the Model Penal Code, a kill or be killed threat could work as an excuse: there is no murder exclusion. Finally, it is a person of reasonable firmness standard. Its an objective rather than a subjective standard. People v. Anderson At common law, duress was not a defense to murder. Some intentional killings, if they are the result of provocation, reduce murder to manslaughter. But this isnt a heat of passion case. Adequate provocation makes someone angry which makes them intentionally kill. Its a lot harder to control yourself when youre very angry. When weve very angry, our self-control is undermined. But we dont think ones self-control isfully undermined by anger. When youre angry, you could do a lot of things other than kill. You could vent your anger in some other way. Why couldnt you have fear in place of anger in heat of passion? Fear is an emotion that is like anger in that it makes self-control more difficult. We may be able to empathize more with fear than with anger. Andersons point is that if you give a defense for killings caused by adequate provocation leading to anger leading to the intent to kill, then it follows that you should give a similar defense with fear in the place of anger. Dressler seems to argue for just such a partial defense. The Model Penal Code would actually agree with Anderson, although they wouldnt use duress to get there and they wouldnt use the heat of passion excuse. You would go straight to manslaughter based on the fact that the homicide was committed under extreme emotional distress. The Model Penal Code necessity defense allows the intentional killing of an innocent person to save a greater number of lives. In a Model Penal Code jurisdiction, you could have a complete defense. Insanity There must be some kind of mental illness in order for the insanity defense to kick in. A person can be mentally ill without being insane. But you cant be insane without a mental illness. The MNaghten test: Youre insane if you didnt know the nature and quality of your actions, or if you didnt know right from wrong when you did what you did. The traditional hypo for the first prong of MNaghten is that youre insane if you think youre squeezing an orange when youre really squeezing someones neck. To the extent that a MNaghten jurisdiction uses the moral right from wrong test, the defendants belief about whether he did right or wrong is not the standard. The question for the psychiatrists and the jury is: Did Bundy know that society thought what he did was morally wrong? If the answer is yes, then Bundy is not insane under that prong of the test. MNaghten + irresistible impulse or control test Model Penal Code test: You are not responsible for your conduct if your mental disease causes you to lack the substantial capacity (1) to appreciate the criminality or wrongfulness of your conduct, or (2) to conform your conduct to the dictates of the law. 4.01. Durham (product test) A person shall be excused if their unlawful act was the product of a mental disease. In other words, theyll be let off if they wouldnt have done the act but for their mental disease. There are two models of diminished capacity: (1) the mens rea model and (2) the partial responsibility model. Model Penal Code 4.02 reminds us that medical or psychiatric evidence can be used not only to prove insanity, but to proof the lack of a certain mens rea necessary for to prove a crime. On the other hand, when all of the elements of the crime have been proven, some courts will reduce the offense from murder to manslaughter on the grounds that a person should be found to be partially responsible for the homicide. Its a case of partial diminished capacity rather than total loss of capacity. Courts recognize that there are some people who are not insane, but also are not fully responsible for their actions. Very few states recognize diminished capacity. The Model Penal Code, however, does recognize this concept. Manslaughter, under the Model Penal Code, covers extreme mental disturbance, not just extreme emotional disturbance. Any state that recognizes EMED implicitly recognizes the diminished capacity doctrine. But most states have abolished the partial responsibility version of the diminished capacity doctrine.

Rotten Social Background (RSB) Defense Some think that these three things must be true in order to convict: (1) The defendant committed an act that is condemnable. (2) The defendant can be condemned personally insofar as the defendant could have behaved in conformity to law. (3) Society stands in relation to the defendant such that it is entitled to condemn him. Some say that people with a bad upbringing may be undeserving of condemnation because they dont satisfy either #2 or #3 above. This is also known as the social environmental defense. What about RSB as a partial excuse? If you steal something though you can afford to buy it, maybe the social harm is greater than if you couldnt afford to buy it. How would we explain this excuse in terms of the excuse theories we have previously discussed? Delgado would say RSB is a causation excuse. Delgado would say that being poor caused people to commit a crime. The causation theory is the broadest of all the excuse theories. In fact, causation theory can excuse all criminal conduct. Everything that youre responsible for is caused by something else, so we would have results that dont seem to conform to our notions of fairness. On the other hand, Dressler would argue that the free choice theory of excuse is the narrowest of the three non-utilitarian theories. Did the person have both the capacity and fair opportunity (to apply the three prongs of the standard)? If not, then the person may be excused. With causation, you keep looking backwards more and more. The free choice theory narrows the focus to the particular moment when the offense was done. What are the problems with the rotten social background defense? It is suggested that the defense is infinitely expandable. Theres one view of retributivism that says that people have a right to be punished. If you take away that right, you dehumanize people. If we allow an excuse for the defendant based on RSB, what will the effect be on society? We must say that the dangerous person goes back on the street. It also creates the incentive for other similarly situated to argue that they are similarly situated and make a claim for a rotten social background defense. In the long run, if were utilitarian, we actually want to reduce the rotten social background that causes the crime rather than merely eliminate the crime. Then you would get a utilitarian argument for the defense: if we excuse people with rotten social backgrounds, then we may give society an incentive to eliminate the conditions that lead to such backgrounds. Cultural defenses To what extent should a persons culture, such that its different from American culture, be relevant in determining a persons culpability for a crime? State v. Kargar If the admittedly criminal conduct was not envisioned by the legislature when it defined the crime, it might not be punishable under thede minimis statute. Inchoate offenses Consider the range of conduct: (1) Someone thinks about committing a crime (we dont punish this). (2) Someone solicits a crime. (3) Someoneconspires to commit a crime. (4) Someone attempts a crime. (5) Someone completes a crime. Conspiracy and solicitation At common law, conspiracy is agreement between two or more persons to commit an unlawful act. Its not an act! Before youve done anythingtowards committing the actual crime, you could be found guilty of conspiracy. It takes two to tango, and to conspire. Solicitation is the act of asking someone else to commit a crime. Its a one-person crime! It comes even earlier than conspiracy! If the other person says no when you ask them to help you commit a crime, its solicitation. If they say yes, its conspiracy! The line between thought, solicitation, and conspiracy can be very thin. Attempt, on the other hand, will take somewhat more time to materialize. Also, note that at common law, asking someone to help you commit a crime is not solicitation. Only asking someone to do it himself is solicitation! Double and triple inchoate offenses bring us closer and closer to punishing thought. You can ask someone to help you kill someone, and if they never get the message, thats a case of failed (attempted) solicitation. Attempt This is a tool that law enforcement can use to prevent crime. We dont want people murdered, robbed, or raped. So if we have someone stalking an individual or pointing a gun at someone, we want to give law enforcement a way to stop potential criminals in the act. In a complete attempt, the offender does everything necessary to complete the crime but they fail (e.g. you shoot someone but they dont die). In anincomplete attempt, the offender gets stopped short from completing the attempt.

However, preventive law enforcement cant explain why we have inchoate offenses for complete attempt. We might say that they are as culpable as the actual offender, but they just got lucky (or unlucky). Also, the person who failed this time might succeed next time. That person might be dangerous. Finally, complete attempts may be subject to general deterrence. Dressler says general deterrence is not an argument for inchoate offenses. McQuirter v. State McQuirter was arrested for attempt to commit an assault with intent to rape. Assault, at common law, was an attempted battery. So, we can parse this crime as attempt to attempt a battery with intent to rape. This is a triple inchoate crime! What about the social harm? If there was less harm, shouldnt there be less of a penalty? Thats almost exclusively a utilitarian argument. Utilitarians are concerned with what will happen in the future. Retributivists are concerned with having you pay your debt to society. But there are two kinds of retributivists: harm retributivists and culpability retributivists. Culpability retributivists would say that we should punish attempt and completed offense equally. To a retributivist, inchoate laws themselves create a problem: wheres the harm? If I try to kill Mr. X but I fail, wheres the harm? If theres no harm, maybe there should be no punishment. Recall one definition of social harm: [N]egation, endangering, or destruction of an individual, group, or state interest, which [is] deemed socially valuable. Theres also a utilitarian argument for punishing attempt less than a completed offense: marginal deterrence. If youre starting to attempt a crime, but you still have an incentive to stop early, you may still be deterred. Objectivism versus subjectivism An objectivist doesnt look inside the head of the offender and doesnt punish unless and until you can find objectively that theres harm. A subjectivist is focused on what the person has in mind, expressed through their statements or their conduct. An objectivist who focuses on harm will likely say less punishment for less harm. A subjectivist will say equal punishment for equal culpability. Model Penal Code is subjectivist and generally treats attempted crimes as severely as completed crimes. The exception is murder or first-degree felonies. For the most serious crimes, they give a benefit to the attempter by reducing the grade of the crime. At common law, the mens rea of attempt is the intent to do the act that constitutes the attempt and the intent that the underlying offense be committed. So if you fire a gun at someone intending to scare them but not to kill them and you miss, you will not be guilty of attempted murder or attempted manslaughter. Attempt is a specific intent crime. It requires the specific intent to have some future act happen. Attempt always requires intent. Even if the underlying crime doesnt require intent (like extreme reckless murder), the attempt does require intent. People v. Gentry This looks a lot like a battered wife case. It seems highly unlikely that the events unfolded the way they did. The wife probably perjured herself at trial. If youre dealing with a completed attempt, use 5.01(1)(a) or (b). If youre dealing with an incomplete attempt, use 5.01(1)(c) and 5.01(2). If youre dealing with a conduct offense, use 5.01(1)(a). If youre dealing with a result crime, use 5.01(1)(b). Many jurisdictions say that when you use the common law definition of attempt, what we really mean is purpose, not knowledge. Some jurisdictions say that intent means purpose or knowledge. They say he basically acted purposely. We have a split. The Model Penal Code gives us an answer by having the word belief in there. Actus reus of attempt How far do you have to do from thought to completion in order to have an attempt? In general, theres an attempt when someone takes a substantial step towards the commission of an offense with the intent to commit that offense. At common law, this was a misdemeanor, no matter what the target offense was. Today, attempt to commit a felony is a felony. Tests for attempt Last act test A criminal attempt only occurs when the actor has performed all the acts they believe are necessary to commit the target offense. Physical proximity test To be guilty of attempt, the actors conduct must be so near to the completed offense that it would result in that offense actually happening if the actor wasnt hindered by outside circumstances. Dangerous proximity test This is Holmess test: theres no attempt unless the danger of success is very great. Indispensable element test There is no attempt if the actor has not obtained some indispensable feature of the criminal plan. Probable desistence test The actor has committed an attempt if they reached a point where its unlikely

that they would have voluntarily desisted from his effort to commit the crime. Unequivocality (res ipsa loquitur) test An act isnt an attempt until it ceases to be equivocal. This is an objectivist test. With only a few exceptions, most jurisdictions that follow the common law dont follow one particular test. Usually, a jurisdiction will use multiple versions of these tests. For the purposes of the exam and for purposes of being a lawyer in a non-Model Penal Code jurisdiction, you must be familiar with all the tests. The Model Penal Code has its own test, so you would use that test in a Model Penal Code jurisdiction. There are a few states that really actually apply a particular common law test, like New York. In most states, all of these tests and more are out there and may be considered. In a Model Penal Code jurisdiction, there is a defense of renunciation. You must freely and completely give up your plan. If youre an objectivist, what is your position? Should we recognize a defense of genuine abandonment of the criminal plan? The objectivist would reject the defense, while a subjectivist would accept the defense. If you have truly renounced your dangerous intentions, you are no longer dangerous or culpable. The common law tends to be objectivist, while the Model Penal Code tends to be subjectivist. We dont want to find attempt too close to the mere thinking stage because that would be unjust, but we dont want to find attempt to close to the completion stage because we want a shot at preventing the criminal conduct. State v. Reeves Look at 5.01(1)(c) because this was an incomplete attempt. You will be guilty if you do a substantial step towards the commission of the crime. In 5.01(2), there are a bunch of things that are examples of things that may be sufficient to corroborate the actors criminal purpose. We dont want to punish innocent people. The poison in the purse is presumably strongly corroborative. But if any of the categories 5.01(2)(a) through (g) are present, it just means that its not legally permissible for a judge to hold that its not legally sufficient. To put it another way, if any of these factors are present, the case should go to a jury and it would be wrong to direct a verdict of acquittal for a defendant if they meet one of those categories and its strongly corroborative of criminal conduct. The categories (a) through (g) are only for the judge. They are not read to the jury. The jury only hears the substantial step language. The Model Penal Code is strongly distinguished from the common law in that most of the common law tests look back to see how close the defendant has come to completion. The Model Penal Code test asks how far the defendant has gone from the thought process. If the defendant has taken a substantial step towards committing the crime, even if there is a lot more to be done, you can convict. Therefore, its much easier to convict under the Model Penal Code than at common law. Defenses to attempt People v. Thousand The defendant is charged with attempting to send pornography to an underage female when in fact he sent pornography to an overage male. The charge is attempted distribution of obscene material to a minor. From the defendants perspective, the individual was not really a minor, so its impossible for the defendant to have committed the crime. Thousand claims legal impossibility. The court punts on this distinction because they claim that neither impossibility defense exists anymore in Michigan due to statute. Factual impossibility versus legal impossibility In traditional common law, here is a good definition of legal versus factual impossibility: Legal impossibility occurs when the actions which the defendant performs or sets in motion, even if fully carried out as he desires, would not constitute a crime. Factual impossibility occurs when the objective of the defendant is proscribed by the criminal law but a circumstance unknown to the actor prevents him from bringing about that objective. At common law, factual impossibility is no defense, while legal impossibility is a defense. Pure legal impossibility means pure mistake of law. Everything is exactly factually the way you think it is, but you just dont understand the law. Just as ignorance of the law is no excuse, ignorance of the law doesnt make a crime. The pure version of legal impossibility remains a defense in the Model Penal Code, but even if it werent, the legality principle would require us to reach the same result. However, most of the cases of so-called legal impossibility involve this kind of hybrid situation. Because they are hybrid and because you can make a plausible legal argument to suggest that its factual impossibility, which is not a defense at common law, and you can also make an argument that its legal impossibility, which is a defense at common law, there must be a problem with the law. Jaffe The Jaffe court said that Jaffes act wouldnt have been a crime if it had been completed. That is, we wouldnt otherwise punish someone for receiving non-stolen property. The Jaffe explanation is a traditional way to explain legal impossibility. Utilitarians would say we should abolish this defense because we want to take dangerous, morally culpable people off the streets. On the other hand, an objectivist might say that youre punishing thoughts. The Model Penal Code clearly does away with one aspect of the impossibility defense. But even in some non-Model Penal Code states, their law may be interpreted to eliminate this defense.

Complicity There are two kinds of complicity: (1) Accomplice liability, and (2) conspiratorial liability. Accomplice liability and conspiratorial liability overlap 99%. Most of the time, if you could be held liable under accomplice liability, then you could also be held liable under conspiratorial liability and vice versa. But not always. There are a few cases where someone is one but not the other. The common law terms were make-or-break distinctions for prosecutors at common law. Virtually no state today follows the odd, technical common law rules that existed way back when. But even though thats true and some of the distinctions between the terms have disappeared, you will find that courts even today will talk about defendants using those terms. To understand what theyre talking about, you need to refer to the original common law definitions. For a very long time, an accessory after the fact is no longer part of this analysis. That sort of person who is described as an accessory after the fact today is not deemed to be guilty of the crime for which they were accessory after the fact. Well hold them guilty of obstruction of justice or misprision of a felony. State v. Hoselton The only evidence that showed that the defendant was an accomplice was his statement during questioning that you could say that he was a lookout. Is there enough evidence to convict the defendant of entering with intent to commit larceny? If the State can show that the defendant was a lookout, the defendant may be convicted as a principal in the second degree (someone who helped out at the actual time of the crime). Youll be liable as an accomplice if: (1) The person gave helped out in the crime, or (2) the person had the intent to promote or facilitate the commission of the crime. So the actus reus is: youve acted, youve encouraged, or youve made an omission when you should have done something. The mens rea is: intent to aid and intent that your assistance result in the commission of the offense. Whenever you think about accomplice liability, think about actusreus first: how did the defendant aid? Then go to the mens rea. Did the defendant intend to do that act? Did the defendant also intend that the act result in the commission of an offense? You can be found guilty if you did it, or if youre legally accountable for the person who did do it. But when are you legally accountable? There are three circumstances, but we only need to worry about two of them. MPC 2.06(2)(c) involves accomplice liability. What makes someone an accomplice? You need the mens rea of purpose, and the actus reus of solicitation, aiding, or failing to carry out a legal duty. Its kind of like the common law so far. If youve given your friends a psychological boost by promising to help themthats encouragement. If the assistance isnt prearranged, they dont get the benefit of the encouragement. If theres no prearrangement, and thus no encouragement, and the attempt to aid fails, then at common law, the defendant isnt an accomplice. Under the Model Penal Code, the attempt makes him guilty as an accomplice. Mere prearrangement can give you both the mens rea and the actus reus at common law. The agreement to aid is a mens rea of accomplice liability in the Model Penal Code. Mens rea of accomplice liability People v. Lauria To establish the mens rea necessary to convict a supplier of conspiracy, you need either direct evidence that he plans to participate in the criminal activity of another or you need to be able to draw an inference that he has a special interest in the activity or show that the crime is of an aggravated nature. This case teaches us two important things: (1) Sometimes you can infer purpose from knowledge. For example, they might have a stake in the venture. If the Sacramento Bee charges prostitutes more to advertise than others, then you can infer that the Bee wants them to succeed in prostitution. (2) This is dicta: but the possibility is suggested that for really serious crimes, maybe we should be able to punish people simply on the basis of knowledge and not purpose. Sometimes you can infer purpose from knowledge, but you usually need something extra in order to draw the inference. The common law is deeply divided. Many jurisdictions say only purpose will do. Some jurisdictions are willing to punish on the basis of mere knowledge, at least for serious crimes. The Model Penal Code requires purpose. State v. Foster Accessorial liability for criminally negligent homicide requires the same level of culpability as the underlying offense, that is, negligence. Even though you cant attempt or conspire to commit an offense that doesnt require intent, you can be an accessory to such an offense. In this case, we still need to prove the first intent, but what is really required for the crime is simply that the person have the mens rea required for the commission of the offense. If the crime has a mens rea of intent, then the second intent would be intent. But if the crime is a crime of recklessness, the mens rea required would be recklessness. The second intent is a misnomer, except for crimes of intent.

Whats the policy argument for stating accomplice liability in this way? The court asks why we would require a higher mens rea for the accomplice than we do for the principal. If were willing to convict Cannon on the basis of criminal negligence, why should we require a higher mens rea for Foster? This seems like a sensible policy argument. If the legislature has decided that people should be punished for criminally negligently killing people, then people who help them should be judged and punished just the same. What makes a risk unjustifiable? Its product of the gravity and the risk of the harm. This is the Learned Hand formula, more or less. What goes on the other side of the balance? Its her purpose in encouraging the cab driver to speed. 2.06(4) deals with result crimes: (4) When causing a particular result is an element of an offense, an accomplice in the conduct causing such result is an accomplice in the commission of that offense if he acts with the kind of culpability, if any, with respect to that result that is sufficient for the commission of the offense. If we want to find out whether someone is an accomplice in the commission of an offense, we go back to 2.06(3). So an accomplice in the conduct becomes an accomplice in the offensive if they act with the kind of culpability with respect to that result that is sufficient for that offense. If the defendant doesnt have that kind of culpability, they should be acquitted of that offense. Look at 2.06 as a three-step question: (1) What conduct caused the result? (2) Was the defendant an accomplice in the conduct that caused the result? (3) If yes, did the defendant have the level of culpability regarding the result, as stated in the definition of the offense? If you dont solicit the thing that caused the result, you can argue that you werent an accomplice. Foreseeable consequences doctrine State v. Linscott To convict under the foreseeable consequence rule, you must find: (a) The primary person did the primary crime. (b) The secondary person helped the primary person commit that crime. (c) The primary person committed another crime. (d) That other crime was a foreseeable consequence of the primary crime. What is Linscotts constitutional argument? He says that if you convict him with intentional murder without showing that he possessed the mens rea of intent, youre convicting him without proving each element of the crime beyond a reasonable doubt. The difference between intent murder and negligent homicide is the defendants culpability, and it results in a big difference in the potential penalty. Why dont we follow this principle in this case? It appears that Linscott was only negligent as to the victims death. If the perpetrator of a negligent homicide would get, say, 5 years in prison, why should an accomplice to murder get life in prison? In the last case, the court said that commensurability is the key. Why should we be willing to punish an accomplice based on a lesser mens rea than that of the primary offender? Natural and probable consequences doctrine A majority of jurisdictions follow the natural and probable consequences doctrine. This basically means the same thing as foreseeable consequences which more or less means the same thing as negligence. Note that the Model Penal Code rejects the natural and probable consequences doctrine. To understand how this doctrine works, you first ask the question, basically: was the defendant an accomplice of this other person as to Crime #1? In this case, Linscott was, unarguably, an accomplice in the robbery. He meets all the normal criteria of being an accomplice to the robbery. He assisted the robbery, he had the proper intent; he should be convicted of robbery. Once you do that, if Crime #2 was also committed, a person who was an accomplice in Crime #1 will also be deemed an accomplice of Crime #2 if Crime #2 was a natural and probable consequence of Crime #1. Presence State v. Vaillancourt Whats the argument by the prosecutor for indicting the defendant? What exists in the case that justifies treating him as an accomplice? Vaillancourt was talking to the primary offender. Also, the defendant came to the house with the primary defendant. That suggests that they didnt just happen to be there at the same time, but actually came there together. That makes a somewhat stronger argument that they are more than just physically proximate to each other. Mere physical presence at the scene of the crime cannot, by that mere fact alone, make someone an accomplice. You have to assist, and you have to have a mens rea. However, presence can frequently get us closer to the point where we can say that someone has assisted. So whats the extrasomething you have to have in order to be an accomplice?

Wilcox v. Jeffery Regarding the rapeswhat is the liability, if any, of the cheering customers, non-cheering customers, and the bartender? Does the bartender have a legal duty to act to prevent the rape? The bartender would seem to be responsible to protect his customers. Since this is a business and the victim was a customer, he owes a legal duty to her. Can we get the non-cheering customers for rape? Based on what weve learned, they dont have a duty to prevent the crime. If they have a duty to stop a crime, all of us have a duty to stop any crime that occurs in our presence. That may be a moral duty, but its not a legal duty under the criminal law. Think of Jeffrey Strohmeyer. He didnt have a legal duty to stop his friend from raping a girl. What about the cheering customers? Could you get them for encouragement? What if the rapists were deaf? Would that make a difference? Does this make any sense? How do we explain Wilcox? How can Wilcox be deemed an accomplice while none of the other thousands of people at the auditorium are found to be accomplices? If Wilcox had booed, apparently he would have been off the hook. Theres another problem here. Lets assume that Wilcox is the only person who encouraged Hawkins and specifically encouraged him to break the law. But hadnt the crime already happened? The crime started when Hawkins entered the country without the appropriate documentation. Wilcox didnt assist in getting him into the country illegally. But by the time of the concert, it would seem that the crime has already occurred. Dressler assumes that this isnt being discussed because this crime is viewed as a continuing crime. That is, every second Hawkins is in the country illegally, a crime continues and therefore anyone who helps at any time is an accomplice. State v. Helmenstein You cant convict in North Dakota on the testimony of an accomplice unless that testimony is corroborated by a nonaccomplice. The accomplice has an ulterior reason to testify against his fellow accomplices. In multi-party crimes, the prosecution will go after the little guy and try to get them to cheese them out. Then the accomplice has the incentive to say, Just tell me what to say, and Ill say it. Accomplices have their own reasons to lie or make it look like the other guy did more than him. Many jurisdictions say there must be something to confirm the testimony of an accomplice. Prosecutors love accomplice liability. People v. Genoa What was Genoa prosecuted for, and why did the court throw out the conviction? A Michigan police officer tried to get Genoainvolved in a purported scheme to buy cocaine. The cop says: Give me $10,000, Ill buy and sell the cocaine and give you a profit. Genoa got the money and gave it to the cop. He gets arrested and charged with attempted possession with intent to deliver cocaine. But Genoa never wanted to possess cocaine. Whats up? The prosecutors theory is that Genoa was an accomplice to the crime of possession with intent to deliver, or more properly, he was an accomplice to the crime of attempted possession with intent to deliver. Lets avoid the impossibility doctrine! Why does Genoa get off the hook? The crime never really took place, and at common law you need to derive your liability from some underlying crime; thats what accomplice liability is all about. Since the cop committed no crime, there is no crime to be an accomplice to. If the social harm of the crime or of the attempt hasnt happened, theres nothing to get the accomplice for. There must be somethingover there we can connect our accomplice to. What would be the result in Genoa under the Model Penal Code? I think Genoa would be guilty. 5.01(3) shows this clearly: (3) Conduct Designed to Aid Another in Commission of a Crime. A person who engages in conduct designed to aid another to commit a crime that would establish his complicity under Section 2.06 if the crime were committed by such other person, is guilty of an attempt to commit the crime, although the crime is not committed or attempted by such other person. Has the Model Penal Code rejected the derivative liability concept? How can Genoa be guilty of a crime that was never occurred or attempted? How can we explain the result without getting rid of derivative liability? In common law terminology, Genoa is an accessory before the fact, which would suggest were getting rid of derivative liability. But maybe Genoa is the principle in the first degree. Hes guilty of the crime of attempting to aid in the possession with intent to deliver cocaine. The Model Penal Code says that Genoa would be guilty as the perpetrator. From the Model Penal Codes subjectivist point of view, Genoa is just as culpable and dangerous as someone who completed a crime. From the objectivist way of looking at it, there is no social harm and Genoa should be let off. Under the Model Penal Code, we ask: would this person have been an accomplice under 2.06 had a crime been committed? If the answer is yes, then you can be guilty not as an accomplice but as the perpetrator of the attempt. Genoa becomes the principal in the first degree of the attempt. Can we do 5.01(3) with solicitation and not just aid? In 2.06, solicitation is in a different subcategory from aiding. 5.01(3) seems to deal only withaid and not solicitation. Is this a glitch? Is this inconsistent? Well, you could still be guilty of solicitation to commit a crime, which is usually as serious as the completed crime anyway. So, no problem really. Doesnt really matter. Innocent instrumentality doctrine

Bailey v. Commonwealth Must Bailey have shared a goal with the police officers in order to be a principal in the first degree? [O]ne who effects a criminal act through an innocent or unwitting agent is a principal in the first degree. Bailey is not a principal in the second degree because he wasnt at the scene of the crime. He wasnt an accessory before the fact because he didnt do any preplanning with the officers. Bailey is a principal in the first degree by the innocent instrumentality doctrine. How would this case be decided under the Model Penal Code? 2.06(2)(a) gets us there. There are two ways weve looked at where you can be held responsible for the conduct of another: you can be an accomplice, or you can cause an innocent person to carry out your evil deeds for you. Innocent means someone who would lack the mens rea for the crime or would be excused from the crime. Irresponsible more or less means insane. 2.06(1) says that you can be held responsible for a crime based on your own conduct. State v. Hayes Why is it that Hill is not guilty of the burglary and larceny charges for which the government has charged Hayes? Hill has no mens rea. He had no intent to commit either crime. He was just trying to trap Hayes. Hayes gets off because theres no liability to derive from, since Hill didnt commit a crime. We cant get Hayes on the innocent instrumentality doctrine, because Hill manipulated Hayes rather than vice versa. What could we get Hayes for under the Model Penal Code given these events? We could get him for solicitation. But theres also something that we can get him for. We could convict him of attempted burglaryreally, attempting to aid and abet a burglary. We can also get him for larceny at common law or under the Model Penal Code. These days, with penal codes that get thicker and thicker and thicker, theres usually a way to convict a person of a crime if you are creative enough. United States v. Lopez Intolerable prison condition claims: a person escapes prison and tries to avoid conviction for the break based on the conditions in the prison. It makes sense if the prison is on fire to try to escape because its necessity. Duress is an excuse, necessity is a justification. This has some relevance to Lopez. Necessity is balancing evils from a societal perspective. But were not interested in her, were interested in McIntosh. It definitely matters to him whether Lopezs defense is characterized by justification or excuse. Justifications are universal and excuses are personal. If we believe that Lopezs leaving the prison was justified, then McIntosh becomes the accomplice in a justified act, that is, something we think is good notbad. If what Lopez did was excusable, then we wont excuse him because his life wasnt at risk. We will say that something bad has happened that someone must pay for. Or suppose Lopez escapes but is not liable because shes insane. McIntosh shouldnt be able to benefit from her insanity. In the Lopez case, McIntosh would be convicted as an accomplice of a crime that occurred but is invisible to us because were letting her off on the grounds of duress. She intended to escape. Were just letting her off because of her excuse. McIntosh is not using Lopez as an instrumentality.