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Objectives of the Criminal Justice System – Use when can’t decide which way to go. 1. Retribution: We punish because we’re angry and let’s punish to a great extent! Kant says: let’s punish because they deserve it... “must kill a murderer, eye for an eye justice, otherwise we have blood on our hands” natural punishment (ex. media humiliated him already) v. judicial punishment Stephen says: it’s morally right to hate criminals…it’s healthy Upside of theory: acknowledges human feelings…if we didn’t have feelings, we wouldn’t have action Downside: harsh punishment – people feel differently therefore how do you decide how much punishment to give? The problem is that we’re not thinking clearly when we’re angry. 2. Deterrence – General and Specific Idea is that we can deter people from committing crime Bentham: We assume that if pain > pleasure of crime, one won’t do crime Andenaes says: punishment is society’s way of showing disapproval Ex. Martha Stewart case – prosecutorial discretion: prosecutors have to pick and choose cases they take on because they can’t take on every case; this case would have been ideal general deterrent case for white collar criminals…but didn’t work out because Martha was not sorry Scared of authority that’s why we don’t do coke Problems: should we use others as a tool to teach others? Repeat offenders…does specific deterrence really work? 3. Incapacitation – Collective and Selective To remove criminals from the streets; no utilitarian effect -collective: provide theoretical foundation for crimes; mandatory minimums Problems? People get old and tired and stop committing crime Ex. robbery is punishable by a minimum of 5 years -selective: look at offender’s file and decide accordingly; 2 people committing same crime get different sentencing Problems? Unfair, unequal justice, discriminatory ex. plea bargaining - 20 yr gets 10 yrs when squeals, changing law for this person 4. Rehabilitation Fixing someone because people can change -utilitarian reasons: resources are well spent this way; problem? Moral blindness, are resources really well spent this way? Paternalistic view ex. good to have lobotomy -encourage people to live successful lives Regina v. Dudley & Stephens
Facts: Cannibalism case – 4 people at sea thinking they wouldn’t get rescued, Dudley and Stephens killed boy and ate him with the 4th passenger and then they got rescued; jury in trial court did not know what to do; lots were not drawn Issue: Was this murder? Defense argued self defense Court looked at Hale’s Pleas, Holmes Case, & Bacon Hale: Can’t kill an innocent, can kill only an attacker; “can’t steal a baguette and can’t kill” Holmes case: Court doesn’t like decision, too weird. Bacon: you can kill to survive; court doesn’t accept this theory Court employs policy statement: “what would happen to society if picked one rule over another?” Court is worried that if this isn’t murder then it would be perverse incentive – slippery slope = opportunistic crime - give on this and all hell will break loose Rule court adopted: It is never legal to kill to save yourself, unless you are killing an attacker. What about ballots? They thought about taking ballots but decided not to. 1. people are allowed to sacrifice themselves for good of others ex. go to war 2. it’s lottery like, seems fair 3. it’s clear, consistent with politics Problems? Yes…court decides not to go this route Ex. a year passes, people starving on a boat, they take ballots and Carlos gets chosen and they eat him; 17 days later they get rescued…was this murder? Does Dudley case rule this case? No, specifics are different; we distinguish the case based on facts. Analysis: rule of Dudley says “you can never kill to save yourself.” But that rule leaves out consent…we can’t change the rule but we can say that rule of Dudley doesn’t apply here because that case did not deal with consent. Carlos’ case can use Holmes case (even though Dudley didn’t) because Holmes case dealt with ballots. Argue for Carlos by saying…”Carlos voluntarily sacrificed his life for his brothers”…try to make new rule look like it’s flowering from Dudley rule. Therefore, can use Holmes case, rule out Dudley rule because it doesn’t deal with consent, and use policy to argue for defense. We have law for utilitarian reasons. However, morality also influences law. Need specific law so people can follow it. Ex. “you can’t kill unless extraordinary circumstances” is vague. Bergman Case: Facts: Bergman pled guilty, he accepted responsibility Defense: Time isn’t justified 1. retribution: Defense: he’s been punished enough by public Prosecution: if we don’t punish, how do we satisfy public’s anger? Defense: he has been through so much suffering therefore retributive objective has been reached. What else do you want…endless punishment? 2. deterrence: Defense: this man shouldn’t be made an example of for others – uses Kant
Hardwick A case about sodonomy and about state’s ability to make things illegal things if they think it is wrong. rehabilitation: Defense: This will not happen in jail 4. he thought in advance– uses Kant to argue back 3. I have right to do what I want in my bedroom/sodonomy. therefore it’s ok to punish even though there is no law Morris says: jury should decide Reid says: you need notice. therefore we wouldn’t have deterrence. not vague. incapacitation Defense: he has already been marked therefore he won’t be dangerous Held: Bergman went to prison for a short period of time Bowers v. ct said its not about sodonomy. laws operate prospectively 3. ct: initially decided that his right was not protected and precedent didn’t honor homosexual activity. this law is vague therefore there is no law . laws must be specific.they create a net for government to get you. It would be wrong to prosecute one if law doesn’t exist because -no rehabilitation purpose. living on prostitution earnings 3. publishing on obscene publication Simmonds says: common law will be powerless if can’t cover gaps that legislature leaves. Legality 1. Legislature defines law 2. -retribution would not be reached because we would feel sympathy for someone who is being punished when they had no idea that what they were doing was wrong -incapacitation: vague crimes are too expansive of rule for government Shaw Case: May Shaw be brought up charges for 1. -we would have over and under deterrence problems at the same time. Legality problem is vague because morals are subjective. vague law = no law Need law to prosecute. Issue from Hardwick’s defense: Does GA statue violate constructive rights to privacy? Defense: behavior is protected under privacy if the existence of the right is necessary for liberty and justice and it is deeply routed in the US history and tradition Court holds: It is not up to fed to decide state law…what did court do? Morality is all over justice system. jury shouldn’t determine negligence because jury doesn’t make up laws – there would be no consistency otherwise .Prosecution: he will be benefited by his own punishment because this was a crime of calculation. can’t hold one liable for it. if law doesn’t exist. conspiracy to corrupt public morals Public morals are subjective. 2. there would be no point in having laws if everything would be up for grabs. it would have been more favorable to bring as a heterosexual case.
body hurts. she involuntarily acted when she walked into the water and killed herself…problems? Yes. hurting somebody and he falls Did he act voluntarily? No. Professor who killed baby by leaving it to roast in back seat. B is hurt. A was pushed onto B by C in a most pit. you don’t come out of the womb with for ex. hypnotic act: although involuntary act under MPC. he had a physical disconnect INVOLUNTARY ACTS: RULES: 1. either conscious or habitual (conscious or habitual = voluntary act) ex. unconsciousness or sleep => Newton Case and Cogdon Case c.3) Ex. a heroin addict. something you started in the first place. reflex or convulsion => Newton Case b. Should he go to jail? Objectives of CJS . Ex. needs drug to stop pain. bodily motion otherwise not a product of effort or determination. No. then we can slippery slope problem. if say no. then we’ll have slippery slope problem Ex. if we say he didn’t act voluntarily. State ex. not a voluntary act Ex. Virginia Wolf heard voices and she killed herself. addict steals money to get drugs Do he act voluntarily? Yes. although unfortunate. it is something you develop. a bad habit of swearing Ex. she was brainwashed. slippery slope. Martin v. it is a voluntary act. a. heroin addict is having a seizure and he falls. A person is not guilty unless his liability is based on conduct which includes a voluntary act or the omission to perform an act of which he is physically capable. Acted voluntarily? Yes. actus reus. Patty Hearst: she acts like a completely different person when she is captured… should we give her a break? After all.2. When did she act? When she killed => actus reus She can’t use her emotional state to argue that she wasn’t acting because she did act. brother hitting sister with her own arm Habitual: although feels like a reflex. Susan Smith killed 2 kids because man she loved didn’t want kids. Is A liable to B? No A was pushed. it can be qualified voluntary in certain situations ex. Did she act when she walked into water and killed herself? Yes. can’t give her a break because of slippery slope problem d. this is a controversial point.Court adopts Reid’s view therefore Shaw was found guilty even though wrong Actus Reus (act requirement of crime)-voluntary act is required for actus reus 2 types: Positive Act & Omission Positive Act: Brain engaged with body MPC: 2.01 (1. people like Susan Smith can use mental state to claim involuntary acting Ex. for ex. he claimed it was a habit to drive straight to work on Tuesdays and he forgot that he had to take baby to nursery.
What about drunk woman who killed kid by letting it roast in car? Objectives of CJS decided between them. Rehab: the man already feels horrible for what he’s done. AC held that unconsciousness is a complete defense. therefore no actus reus. if he didn’t feel sorry for what he did. management says leave and he gets kicked out on the street and police take him in In both Martin and Winsar case. he shot a cop and TC held that he was guilty. you’re getting drunk at home which is ok. people are physically moved. How is it different than Martin? Bad v. one is not guilty if he was taken there because that does not constitute a voluntary act. then we would need to help him 4. although acted voluntarily. therefore no actus reus Cogdon Case: Woman kills her daughter while sleepwalking If had history of doing dangerous things when she’s sleeping then actus reus = her negligently killing another person. We can’t argue that he didn’t act because of slippery slope problem People v. not an angry situation unlike that ex. can argue that he was under duress. police come to house and tell drunk man while holding guns at him “come with us” and drunk man goes…has drunk mad acted voluntarily? Yes. Newton Facts: Newton after being shot. we hold her to a higher degree of responsibility for her actions because she was drinking Martin v. Court finds: any person while intoxicated appears in public place drunk is guilty. I don’t think there is anything to fix. Retributive: no. Newton is appealing on grounds that the TC didn’t educate jury about unconsciousness as a defense. therefore prosecution didn’t press charges. this is a sad situation. Helpless => Windsar v. However. therefore not voluntary.1. Objective: ex. fell into a state where he would go in and out of consciousness. he is not dangerous Prosecutorial Discretion: not an appropriate way of distributing resources. but she doesn’t have history. General deterrence: why? Nobody wants a roasted kid anyway so how would this deter? 2. rehab must relate to a specific law *No Actus Reus because being taken to freeway does not = voluntary act Windsar Case: he goes to a bar and gets drunk and becomes abusive. where drunk mom forgot kids in car and one of them did because drunk mom has extra culpability of drinking and being a mom at the same time 3. Incapacitation: we don’t need to hold him behind bars. Martin Ex. State Facts: Police come to house and arrest Martin when he’s drunk. they take him to the highway and he starts acting drunk on the highway. VOLUNTARY ACTS: .
How do we decide if voluntary? a. which applies? Reflex and the case on reflex is Newton. Voluntary? Was brain engaged with body? Liability will be based on conduct which includes a voluntary act or omission. doing heroin) Decina v. MPC 2. it was my hand. In both cases. by law = statute -often found in a tort law. Voluntary Act? Yes How is this different than Martin case? Both voluntary acts. his body is our of control. RULES: If you live in a jurisdiction without a good Samaritan statue. Omissions: Test: need both to prove liability: 1. 4 types of involuntary acts. slippery slope ex. Failure to do an act of which the defendant was physically capable and 2. then a duty exists 1. Ex. Soldier comes home and he goes to the market the next day and he hears a loud noise when cans fall. we don’t have a description of when voluntary act began. On Exam: Question can be is there a crime here? Give a balanced view. parent 2. applying Newton to this case is expanding its holding. Mother.Habit. Rule: Who is liable of child abuse under omission? 1. Defense. rape. Pope can qualify for “responsible for the supervision of child” category. he doesn’t get punished because of policy. People Epileptic man doesn’t take his medicine and drives car and kills 4 people. adoptive parent 3. was beating baby in front of Pope and Pope did not do anything to stop mother or help baby and baby died. mentally disturbed.01 language creates a flexible window of when an act begins and when an act ends. must have duty. 1. MPC 2. For ex. it permits us to shift our window in order to apply it to different policies. in Martin. we don’t have any blood. in this case. intoxication. external stimuli has created a reflex Prosecution: In Newton. Actus Reus: He touched man unwantingly 2. But why does court say that she is not responsible? Court is afraid of slippery slope/worst case scenario: if qualify Pope as responsible. and impulses (muffin. in loco parentis 4.01(3)(b) – where a duty is “otherwise imposed by law” -Pope was a statutory duty case Pope v. his guts are bleeding. it wasn’t me. don’t take a position. he pushed my buttons so I killed him. Soldier in IRAQ has made it a habit to crouch when hear loud noises because that means there’s a bomb coming. responsible for the supervision of child In this case. State: Facts: Pope asked mother and baby to come and stay with her. He crouches and while crouching he injures an elderly man standing next to him. in Decina. then everybody will interfere with parents taking care of their . For ex.
husband to wife. As a result. Woman died and man was not liable because he had no legal duty. If we deem her responsible. status -status relationships are often found in tort law -parent to child. Barber Case: Actus Reus = omission or positive act? -act = removing life support . Jones v. Held: Pope didn’t have duty. master to apprentice. A guy drinks too much beer and dies. Issue: Did defendant have a legal duty to supply food and necessities to baby? Issue 2: Did judge err in instructing jury about omission? Court held that jury wasn’t instructed about omission 2. He was secluding her by being alone with her at his house. Beardsley Case: man who spend weekend with woman at his house did not call for help when woman took a fatal dose of morphine tablets. ship captain to crew. wife to husband. US Facts: Defendant was taking care of 10 month old baby of family friend. a girl that charges $5 to everyone that comes in to party in order to cover the beer price. The issue in this case is “what is the scope of duty owed? What are the parameters?” The court held that person charged with the duty of care is required to take steps that are reasonably calculated to achieve success. Argue Duty: Their relationship was like husband and wife. Jones v. we hold bartenders at a higher standard. A bartender has incentive to get a man drinking because the more a man drink. no policy reason to extend the relationship to this situation. innkeeper to drunk customer Ex. the more money he will make. Should a one night stand create a duty too? People don’t always have a traditional relationship. therefore. therefore was not legally liable. Is she liable? Can we apply innkeeper to drunk customer relationship? No. US – can also argue status Cardwell case: court found that mother was liable because she did not take enough steps to keep daughter safe from husband who sexually abused her. The girl has no incentive to have guy drink. sex and romance creates a relationship where you owe each other duty. Argue no duty: If we say he is liable then we have slippery slope. Defendant failed to take proper care of the baby and the baby died. because of policy. then people will stop helping each other thinking they might qualify to get convicted. Another slippery slope: Pope was trying to help mother and baby by inviting them to come over and stay with her.children.
Barber is legally distinct because that was a case of omission whereas here. most of Kevorkian’s patients were female who were not very highly valued by their family members. therefore can argue that wife alone cannot make decision and that if they could. for ex. dr. Is she liable to student? Argue duty: yes contractual. this would be too controlling. we can’t understand what people in pain are going through -If want to argue against it: life is good. -this case holds very narrowly Cardwell Case: What is scope of duty? Held: like Barber. dr. lethal agent makes it a positive act.-positive act = must be voluntary This case is clearly a positive act. no duty to provide heroic aid to someone who won’t come through Policy Decision: Should we be allowed to remove hydration and food from vegetative body? Hypo: What if wife comes in a year later. can argue that people should have freedom to make decisions concerning their body. prescribes dose and patients take it and die. contractual Ex. voluntarily assume care over another and seclude helpless person ex. therefore she owes them a duty Argue no duty: contracting bare transfer of yoga movements. yoga class: first time student has a heart attack in class and teacher doesn’t do anything. looking at homicide unless there’s legislature that makes it ok 3. however. boy hit by motorcycle. Can also argue captain and crew relationship => like a captain. motive does not matter. -this is different than Barber because in Barber. If an elderly person dies of dehydration. the instructor is leading the class who are clueless. we’d have a slippery slope: people can kill ill family members all the time What about Euthanasia? Motive does not matter. health coverage is included in price paid for class. -If want to argue for euthanasia. not CPR 4. EXAM: if legal agent involved. we have mens rea of knowledge and a positive act -Barber said: both the doctor and the family decided to take patient off support. therefore court decides this case under omission.’s motive drove action whereas here. the nurse is liable because this elderly person can not get water any other way. also policy reason = we want doctors to stop treatment when no longer helpful. shouldn’t be a way out -Oregon has passed legislation: Death with Dignity where dr. stranger says ill take care of him and takes boy to his house and then goes on a date and boy dies => stranger is guilty . Ex. gave patient morphine to take away paid but that would also kill in 10 days. crying. court decides not to go this route because all doctors would end up being liable. and turns off machine…is there a crime? -in this case.
in the Beardsley case. making doctors killers to anyone who dies in front of them and the context is in an apartment.Argue duty: use Oliver: -folks who are unconscious in the care of other. being a blood relative does not give you a formal duty. Peril: Jones rape case? In Jones. consenting to take a tough class which would get him in shape. Jones Rape Case: Ex. he had sex with her which isn’t the safest conduct either. Lawyer is emotionally unstable. too ambiguous. Peril Ex. Dr and patient status? This would create a legal duty. he voluntarily took class. What type of a case do we have? Positive Act = killing lawyer when give them drugs.’s house which the dr. has supplied. Court found that she took charged of him when she brought him home drunk and she breached her duty to him when she didn’t call for help when he collapsed. she gave him a spoon to take heroin with. has suicidal feelings. It is possible to create a duty here. . he raped her. Court found a duty. if you slap someone and they kill themselves. lawyer voluntarily did heroin. defendant was distraught and she killed herself. Childhood friends. 5. Generally. potential voluntary assumption of care. In this case. Dr should have known about the potential danger of doing heroin. Oliver: Oliver brought drunken deceased person home with her and gave him a spoon and he swallowed heroin and died. other owes duty -Also can use Stone and Dobinson case: they had power to do something but gave up and court found them liable -Argue no duty: use Pope People v. Status is not looking good. Defendants tried to help her but when their attempts were going nowhere. Status: friend and friend status? who says who is a friend. not in an examination room. they stopped and sister died of anorexia. Court found that defendants were liable and that they failed to take sufficient steps to help her. Yoga example: what if victim is strenuously breathing and instructor becomes a drill agent and says keep going we need to get you in shape! In this case. and potential peril. They’re doing heroin at dr. Dr. Voluntary assumption of care: Lawyer came in voluntarily. Furthermore. Lawyer dies from overdose. Argue No duty: Use Beardsley case: In this case. -this case is not a direct hit on any element Regina v. is instructor is creating a peril? Argue no duty: Policy = Slippery slope: people do mean things to each other all the time. Stone and Dobinson: Defendants lived with anorexic sister. how would a reasonable person have known? Also. victim is a lawyer and other person is a doctor. tries to do CPR but waits too long and lawyer dies. slippery slope: you could give someone a burger and kill them Omission = his absence of aid We have potential status.
could be vague ex. could create peril for actor. Find precedent case and start showing similarities MENS REA 4 types: 1. deemed to shift responsibility from perpetrator 3. Heitzman Case where daughter failed to prevent the egregious and fatal neglect of her father by her siblings who were living with him. gang rape in tavern where no one did anything. American culture: rugged individualism => you stay out of my way and ill stay out of yours. it is an involuntary act because it is a reflex and the MPC says so and so. actually the Rhode Island rape crisis center argued that reporting this crime would be a violation of victim’s rights => it is her choice to tell the authorities. Begin with an affirmative statement: ex. by doing this. purposely: it is your conscious object to do something or cause a result . then we would not have a specific law and hence legality problem. Ex. Does D have duty? -if want to argue that D is liable can argue duty under voluntary assumption of care and peril and site cases. Sally is brought to lake by D…the drowning example. Why? A reason maybe that the victim would want to avoid the additional hurt that may come along from ignorant people who would for ex. we want our freedom 4. the rule is “any person who willfully permits any elder or dependent adult to suffer unjustifiable pain or mental suffering.Kuntz case? Based on Kuntz dr is guilty? Mixing status duties in this hypo. could do more damage 5. we’re eroding the rule of “no duty to aid” and if court does this. Oliver created a duty out of thin air which creates a precedent to erode general duty -if want to argue that D is not liable talk about how this would be eroding the rule and too activist and we believe in freedom POLICY: Why isn’t there a general rule that says everyone has duty to aid? 1. In this case. could be struck down based on legality principle 6. must give reasonable assistance. unless cure is provided by others” how to answer a question: 1. say it’s your fault for wearing that skirt -Vermont has set itself apart from the US by instating a statute which holds that “persons who know that another is exposed to grave physical harm shall unless the aid puts the person in danger or interferes with important duties. victim’s rights might be a reason ex. impractable 2. 2.” this rule is too expansive.
failure to perceive a substantial and unjustifiable risk. knowledge. Best race car driver is driving 120 on PCH at 1 am Negligent or reckless? He is really negligent. person’s rights argument. but he considered possibility and took a chance = RECKLESS mens rea RECKLESSLY: -deemed important enough unlike negligence -it is crucial for D to be aware of something for recklessness 1. a gross deviation from the care that would be exercised by a reasonable person in D’s situation Regina v. not wickedness. and common law objectives -MPC does not define this conflict: ex.SUBJECTIVE 3. -malice = bottom line recklessness -Although D has done something wrong. thereby endangering that person’s life” -TC: held that he acted wickedly -AC: insufficient because he didn’t INTEND to hurt Mrs. what do you do when somebody has convinced themselves of something 1.SUBJECTIVE 2. -defines malice: “to actually intend the result or that D foresees harm but goes ahead anyway” thus meaning purpose. Gross deviation from the standard of a reasonable person . D is consciously aware of the risk . base arguments for either one on precedent and policy and conclude. -he didn’t know for sure that she would inhale gas. CAN’T use mind games to negate mens rea -Policy: he is taking other people’s lives into his own hands which is wrong -risk is substantial and unjustifiable when going 120mph. but reasons for negligence are problematic and there is no good policy reason to find him not guilty of recklessness -he knows there’s risk and he disregards it -he is not aware of substantiality of risk because he has fooled himself in believing that he is the best driver. or recklessness. recklessly: D aware of the risk and goes ahead anyway. we swear.OBJECTIVE Ex. or aware that the prohibited result of her conduct is PRACTICALLY CERTAIN 3. knowingly: D aware of her prohibited conduct. 4.2. negligently: no state of awareness. having a fantasy/wish does not make you reckless -if negligence: D’s subjective awareness is irrelevant 4. Risk is substantial and unjustifiable – WILD CARD: judged on Objective or Subjective. however. use perverse incentive argument. we’re mean. that is why we have speed limit . D disregards the risk . Wade. but that doesn’t make us a criminal. What’s wrong with saying its wrong to be wicked? We’re all wicked. we can’t find him liable by building a bunch of crimes all on top of one because it would be unfair => being a thief does not make you an attempted murderer. Cunningham -“unlawfully and maliciously causing a noxious thing to be taken by another. stupid and not reckless OR 2.
Mens Rea: -Motive was important in Barber for policy reasons. Kid dies. It exists for plea bargaining purposes. Ex. it doesn’t matter because it is still a fraudulent offer where he is trying to do something dangerous to justice -P (govt) says: D knew that attorney would lapse -D says: D only wanted money. and watch her die. he doesn’t have a juror. -practical certainty may be established here because they saw her dying. -Even though D is a liar. she will not die. religious family doesn’t take sick kid to dr. getting worst every day. but they were mad at him so bumped it to purpose -anti Cunningham Statutory Construction: Negligence is different from purpose. why would he want to kill himself by burning the ship down?!?! <= fact that locks it -ct says: bottom line recklessness is required. -on its face it is civil negligence case. Their motive = religious reasons. knowledge.because anything can happen Santillanes v. not mens rea Ex. You would be held for ordinary negligence which is civil negligence. kid trips over one and dies. it doesn’t matter. -History of obstruction of justice rules: made to deter mobsters from killing. Mens Rea = they knowingly did not take her to the dr. therefore. told attorney to continue doing a good job. New Mexico -uncle cuts 7 year old’s neck with knife during an altercation -Ct holds: use standard of criminal negligence instead of civil negligence Civil negligence: RP foresees an unreasonable risk of injury Criminal negligence: gross deviation. if ct turns around and treats for ex. substantial and unjustifiable risk Vs. it expands this rule. your purpose) to obstruct justice which requires a high level of mental state. Regina v. and he was only negligent . however. -more serious therefore criminal US v Neiswender -Defendant says give me $2000 and I’ll have case go the way you want -HELD: D is charged with “endeavoring” (to try. a guard who forgot wrong magazine in front of jury member as a mobster. and recklessness. leave grocery bags as you’re unloading on sidewalk while kids are running up and down on it. Faulkner -unlikely that he maliciously caused fire because he was on high seas. while praying and hoping that by some miracle. and needs everything to go like clockwork so he doesn’t come out as a liar -Ct says: D only needed to have NOTICE that his act would lead to impeding justice and notice was provided because it is reasonably foreseeable. Motive v.
” Kennedy’s Dissent Barhart Case: US v. we can’t be found guilty for failure to investigate -willfully blind = actively avoids knowledge. unless he actually believes that it does not exist. MPC 2.02(7) = “when knowledge of the existence of a particular fact is an element of an offense. therefore its exercising too much power -4 objectives: reducing knowledge into negligence will create problems for retribution and deterrence MPC 2.02(7) the better standard? -ct is redefining knowledge in Jewell -ct does not = legislature. we don’t have time to run around and snoop in order to be found innocent of aiding and abetting. Giovanetti -Landlord rents house to gamblers and says I didn’t know. a cutting off of curiosity by an effort of will -mental effort creates vagueness: ex. such knowledge is established if a person is aware of a high probability of its existence. -Ct says: even though landlord has a good idea of what’s going on. Landlord is gambler himself. qualifies as knowledge -Dissent disagrees with test: no perfect identity because doesn’t talk about high probability -Is conscious purpose to avoid knowledge a good/efficient test or is it too expansive? -good for safety notice but can get problematic since it can cover too many mental states -one can be negligent but under Jewell case can qualify as having knowledge -Objective test is a problem because objective test is good for negligence standard and law cut the line at recklessness -Did ct do a good job by reducing knowledge into a negligence or is MPC 2. What if friends come over with a bloody rug? Held: not liable EXAM: Argue if hypo fits under either Jewell rule. active avoidance is a mental or physical effort.Jewell Case: -D was convicted of bringing in 110lbs of marijuana and he said that he didn’t know there was marijuana in the secret compartment of his car -Ct held: willfull ignorance satisfies knowledge. people can play mental tricks with themselves and make themselves believe certain things therefore this cannot be a defense -willfull blindness = conscious purpose to avoid learning the truth. we cannot hold that he has knowledge -Problems Ct found him guilty of knowledge: it would be turning recklessness into knowledge and it would be an invasion of privacy => we’re not required to snoop. or Giovanetti rule and then conclude Prince: -crime = taking unmarried girl < 16 yrs of age against will of father .02(7).
being wicked does not = criminal -Reasons for ct’s decision to find him liable -makes prosecution easier and because ct is angry with his conduct -Nowadays. then too bad for him -can argue for him: he’s not a child molester. hence we have the term jail bait -Should we have statute that protects D’s rights? -what is at stake: damage to the victim is greatest therefore strict liability is needed. it doesn’t matter how old she is Why? To protect public safety and to prevent SS if had recklessness standard where no one would check for anything – negligence and recklessness would not protect public safety. girl Why wrong? Girl = property of father and must be virgin to be top of the line business What if girl was orphan? D wouldn’t be violating statute What if girl is dressed like a boy and D takes he/she fishing? He’s not liable because his intentions are to go on a fishing trip. However. can’t punish him like one because it’s problematic and unfair -Cunningham example: can’t bootstrap when no mens rea. under strict liability. statutory rape is strict liability by vast majority of states. Actus reus = taking 2. State: Actus Reus = left woman Mens Rea = intent AC = woman is pregnant -this case is a replay of Prince -leave wife and she’ll starve because it’s the great depression Olsen: Common Law approach Age is MATERIAL! Question = will court extend this to tender years? Issue: Did D’s council make a mistake by saying mistake of fact to age is a defense? Hernandez Case Ct holds: tender years is IMMATERIAL because of . we need people to be hyper-vigilent. is morally wrong and if it turns out to be illegal. move above reasonable person standard. AC = under 16. against father’s will. Mens Rea = recklessness 3. -taking away from father.Statute: empty of mens rea therefore we assume it is bottom line recklessness 1. we have a super duty to take care of minors -MPC does not promote strict liability whereas common law has a more expansive application White v. not have intimate relations with him. he would be guilty How can we say age is immaterial? -goes to harm we seek to prevent -strict liability in this sense is valid because person who committed conduct otherwise understood that what they were doing was wrong and yet there must be some cutoff otherwise everything would be illegal. fornicating in that time frame.
288 – legislative is trying to SERIOUSLY PROTECT MINORS by saying tender years are immaterial. you’re already bound. therefore it’s MATERIAL -at night => no mens rea. -Is D guilty? Step 1: AC: possess MR: not told so it’s bottom line recklessness AC: hand grenade Step 2: Did D make a mistake that negates MR to a material element? 1. D believes she is moving personal items and doesn’t look inside the boxes. “it is an offense if an actor at night. mistake doer: can’t treat them the same way -if costs you more (7 more years). -STATUTE: It is a felony to possess a hand grenade. upholding strict liability because feel retributive and super-protective. thus must create super-deterrence -Legislature has clearly spoken here. he didn’t know he was dealing to minors. should have mens rea to it 3. court’s job is done.” -there is no mens rea to “upon a child under the age of 14” therefore it’s IMMATERIAL STEP BY STEP ANALYSIS: Hypo: D helps friend move. he was convicted of higher charge because selling to a minor -RULE: a mistake of fact relating only to the gravity of an offense will NOT SHIELD a deliberate offender from the full consequences of the wrong actually committed. 1203. then it’s material Ex.066 – probation means you’re already convicted. 1 yr non tender rape Lopez Case: “GRAVITY” =>PRO STRICT LIABILITY CASE. -Dissent: Extra element should be material -Dissent = OTHER SIDE: Anti SL because NEED HIGHER MENS REA -were retributive toward baby hunters. Turns out there’s a hand grenade in one of the boxes. LEGISLATIVE INTENT revealed through other law that it’s IMMATERIAL: Sec. not people who make a mistake on age -baby hunter v. ANTI CUNNIGHAM -D dealt drugs. This offense is punishable by 20 years in prison. F has a known criminal history in the neighborhood for dealing drugs. Policy: < 14 yrs need special protection 2. Legislative Intent: if requires mens rea. and you’re done! Sec. purposely commit arson” -arson =>purposely = mens rea of committing arson.1. therefore IMMATERIAL Ex. “any peson who shall willfull and lewdly commit any lewd or lascivious act / upon a child under the age of 14 years / with the intent gratifying lust is guilty of an offense. Penalty: 8 yrs for tender years rape v. Is her mistake to grenade material? -2 approaches: MPC and CL .
Jewell: D is moving in a criminal environment. then it is MATERIAL -Analysis CL: -this question is still important but doesn’t decide => does the element go to the harm/evil statute seeks to prevent? -under CL: higher punishment means IMMATERIAL -look at same factors from Olson case: gravity goes DIRECTLY AGAINST MPC 2. policy – anything not covered by intent 3. penalty – the higher. gravity 6.04(2) -Under MPC. however. it’s material because not as serious as statutory rape which is strict liability. there are no policy reasons to make this strict liability -20 years indiates legislative intent that it’s material. MPC 2. Otherwise objectives of criminal justice system would not be served. and Giovanetti to argue whichever side you want. the more material and less strict liability -MPC 2. objectives of criminal justice system 5. Is there gross deviation from the standard of a reasonable person? -choose between Jewell. Does D disregard the risk? 3.04(2): If you thought she was 17 but she was really 13 =>Get lesser sentence but still guilty of Mistake of Fact -“defense is not available if D would be guilty of another offense had the situation been as he supposed.04(2) will also help analysis: if lower punishment for mistake. legislative history 2.02 (7).” . In such case. Is risk is substantial and unjustifiable? 4. -In Olson: 7 more years for tender year => higher penalty indicates that element is material -Conclusion: grenade = MATERIAL Step 3: MR = recklessness => Is D reckless? -define recklessness and answer: 1.-MPC: does the element go to the harm/evil the statute seeks to prevent? -CL: strict liability -Analysis MPC: -Olson Case gives us factors to consider when deciding if an element is material: 1. use 4 objectives and conclude CL: too bad if you though she was 17 and she was really 13 => GRAVITY => SL MPC 2. Is D is consciously aware of the risk? 2. PICK A SIDE AND ARGUE! Ex. it’s material -Under CL. the ignorance or mistake of D shall reduce the grade and degree of the offense…to those of the offense of which he would be guilty of had the situation been as he supposed. statutory language 4.
screaming. lots of inappropriate banter. Sherrey Case: MR => recklessness => 3rd prong case -Court says verbal refusal is sufficient to constitute rape -it doesn’t matter if honest mistake. Jurisdictional fact is an immaterial element and not a defense. stupidity can give capacity to do more damage ex. She takes her purse and begins beating the silver haired man. I’m hot and she wants me -So why have this? People are tense about GOOD MEN GOING TO JAIL HELD: 3rd prong is decided under OBJECTIVE STANDARD. Feola does not decide the material element for hypothetical. they engage in dangerous work. no MR would be required to defense and that would be bad Ex. She has a problem with a temper. There is strict liability to it. Does D have a Defense? MPC jurisdiction. a civilian. It triggers a higher punishment and it goes to the harm and evil we seek to prevent. “I am going to kill you. but the court declines to determine that federal agent because they want to protect them. it’s SL -Rape = recklessness mens rea -Problem with recklessness: hazard for victim => creates a perverse dangerous incentive -Do objective analysis on 3rd prong of recklessness: honest mistake doesn’t matter. Court’s indicating that a reasonable defense may not constitute a defense therefore rape might be a SL offense. Also. Problems: if SL. Controversial—an individual who seeks to attack an agent v. is worse. society thought it would cause women to lie but MR got crushed down while force moved up which created a worst problem => IF NO BLOOD.Feola Case: -STRICT LIABILITY CASE and a SUPREME COURT DECISION -Jurisdictional elements are IMMATERIAL -There is SL as to jurisdictional elements -cannot claim mistake. In front of her is a husky man smoking a cigar and he begins to flirt with bank teller. This is strict liability case. Sex acts are discussed. HYPO: Danielle is waiting at bank. Fiola has to be given a lot of weight but doesn’t necessarily cover it. she’s crying and he says what’s wrong and she says nothing => won’t even reach negligence! -victims can freeze => she’s raped but he’s not a rapist Reason for SL: all situations would be taken care of. NOT RAPE . takes over MPC. Trying to create a hyper vigilance. so you want to super deter people from harming them. This is a supreme court decision. He spends about 30 minutes chatting up the attractive bank teller. The state and the Feds seek to protect themselves. They are more likely to take lethal risks. Problem— THIS DOES GO towards the harm or evil. must be reasonable mistake => putting recklessness to a negligence standard! Problem with recklessness becoming negligence => would cover more sexual conduct and punish differently thank recklessness. Takes 40 min.” Next day she is charged with the attempt to assassinate a former president of the United States. Who is wearing a beret.
he’s just weird HELD: MofL = NO DEFENSE -Ct analogized it to MPC saying NYPC meant to have it look like MPC! -MPC permits a MofL where D relies upon an official statement of law later deemed to be erroneous or invalid -this law is very restrictive -When ct turns NY law into MPC. we presume folks to know rules of culture -Problem: initiated when laws were simple unlike now -retributive problem: cases where D has no idea what they’re doing is wrong People v. Marero: -D = federal corrections officer who has an unlicensed possession of a pistol -D interpreted statute wrong -D is a weirdo. HELD: MofL = defense because it negated mens rea -Why does D get a defense? -negated mens rea to a material element -ONLY DISTINCTION: Weiss looks like a good guy whereas Morrero looks crazy . WHY? -because at no point will the court say that legislature sucks => they must save legislature face otherwise they will receive heat from legislature -USE THIS CASE TO EMPHASIZE FORCE OF GENERAL RULE Dissent: likes NYPC. no one would know anything and everything would fall apart.Summary: -Must have MR as to material element to have a mistake of fact defense. says that MofL general rule made senses when laws were simple. D is not entitled to effectively kidnap this person without authority of law => it’s illegal. it’s calling black white and white black…so WHY? -ct doesn’t want NY law => IT’S TOO DANGEROUS => worried about mountains of claims that will use MofL to everything -PROFESSOR THINKS THIS IS RIGHT! -Ct is acting as SUPER LEGISLATURE -Problem: ct is operating in fiction => they’re lying to us.” -D looks like he’s doing ok under statute. it must give way now. Weiss Case: -D thinks he has identified Lindberg’s kidnaper and D kidnaps him. -Question = is element material? -See summary in notebook MISTAKE OF LAW: General rule: Mistake of Law is NOT A DEFENSE Reasons: perverse incentive: people would blind themselves. giving guns to his girlfriend and others he knows -NYPC statute = “defense if a mistake belief is founded upon an official statement of the law contained in a statute.
02(9) -“neither knowledge nor recklessness or negligence as to whether conduct constitutes an offense or as to the existence. unless the definition in the offense or the code so provides.” Cheek acts willfully! -What if D said “I read code and I didn’t think my wages were taxed. need a defense of MofL -reasonability test wouldn’t work because we’re all dumb to tax code Liparota Case: -“food stamps” -Court said => D must have awareness of code 3.EXCEPTIONS TO THE GENERAL RULE: 1. therefore thinks he owns is => D misunderstood property law -P says your fantasy about property law doesn’t mean you can destroy stuff of another DIFFERENCE: a person who seeks to destroy another’s property VS. Smith -an offense of intentionally damaging property belonging to another -D built a structure in apartment. destroying property thinking its yours => good reason to not hold him liable -This is a case where MofL which negated mens rea to a material element Weiss Case: Cheek: 2. Innocent Conduct: -innocent actors = ATTRACTIVE . or application of the law determining the elements of an offense is an element of such offense. meaning.” -this WILL BE A MofL under Cheek -COMPLEX CODE EXCEPTION => when complex. BUT COURT FINDS HIM GUILTY -Why? Because Legislature says “willfully” => indication of Legislature intent that Cheek must commit a “voluntary.” -means = law itself is NOT MATERIAL UNLESS LEGISLATURE SAYS IT IS! Regina v. US: -how does legislature speak => “willfully” -Case = exception to general rule -MofL is based upon a disagreement of the law -Can Cheek’s mistake as to owing taxes be a MofL defense? -it can be a defense. intentional violation of a known legal duty. Complex Codes: =>MofL need not be reasonable Ex. Cheek: unconstitutional belief does not = MofL defense Cheek v. M of L is a defense if it negates a material element of the offense: MPC 2.
later determined to be erroneous” (b)(iii) “administrative order or grant of permission statement from an administrative agency.04(3) (a) “where D does not have actual notice of the law and it has not been published or otherwise reasonably made available.Regulatory offense involving omission: Lambert Case: -D is in violation of registration law = regulatory offense -Court says MofL = defense in this case because doesn’t make sense otherwise and it would be unfair -says this is a passive conduct => low level offense = regulatory offense . administration. court is worried about NOT giving him a MofL defense so they create a defense for him => “willfull”. court is worried about potential future innocent people -Policy reasons: can’t make it so innocent people will go to jail. like the IRS or the INS” (b)(iv) “official interpretation of the law by a public servant charged with responsibility for the interpretation. Lake Winnevago Hypo (see notebook) (b)(ii) “acting in reasonable reliance on a judicial decision. MPC Defenses: (very limited) -MPC estoppel defenses -Behavior is legal but later changes and becomes illegal -Government is estopped from saying “you’re in violation of law -MPC 2. Polar Opposites: =>Ratzlaff => D has evil mind but court is concerned with others so creates MofL =>Bryan => D has evil mind but court declines to create MofL 4. NOT Bryan: -selling guns without a license -did NOT get a MofL defense.” -constructive knowledge (b)(i) “where D acts in reasonable reliance upon a statute later determined to be erroneous or overturned” -ex. It was clear that D was acting with an “evil meaning mind” because filed off serial numbers and stood on a corner where there was drug dealing.Ratzlaf: -“gambling debt” => structures to pay $100k in 10 installments in order to avoid reporting -in this case. D had a MofL defense to prevent criminalizing a host of otherwise innocent conduct. or enforcement of the law defining the offense” -high ranking official 5.
he said cruise control got stuck therefore involuntary act -Ct says: you turned cruise control on therefore voluntary Traci Lords: . penalties. CL (look at legislative history. speeding) -penalties are small -do the same materiality analysis -is element material? -MPC v. US: -in violation of firearms act -punishment – 10 years -SCT says it’s material because everyone has a gun. low stigma 3. shouldn’t be considered dangerous Freed: Baker: -guy turned on cruise control and was speeding. policy) 3 Elements: Does offense conform to a SL profile? 1. cannot use this case for felon babysitter hypo Dissent: says “nobody knows” in MofL cases 6.-regulatory offense involving OMISSION = MofL Defense BEWARE: this is a case of omission. high hazard 2. low penalty Morissette: -junk dealer went into bombing range and took spent bomb castings and converted it and sold it -statute = “knowingly converting government property” -lower court says SL offense -SCT says not SL because there’s a mens rea requirement in code (“knowingly”) -theft offense does not = SL offense because it is an offense with high moral stigma and traditionally punished significantly -punishment = 10 years which is high (high punishment is not a SL characteristic) -this case = strong anti SL case in CL jurisdiction Staples v. part of our nature. Cultural Defense: -argue Ratzlaff because it has a loophole (whenever have a hard case) -unfair to take people who have no concept of new culture and punish them Strict Liability: SL offenses were designed against Public Welfare Offenses because it was deemed necessary for maintenance of social order (ex.
people would get defenses -legislative history = SL offense -penalty = high =>10 years -Ct is being extreme: allows a MofF defense which is not compatible with SL offense -says “SL case with Mof F defense” . went to a great extent to fraud -this was a SL offense before court decided to get rid of “knowingly” because if had MR.-she fooled industry about age.
types of involuntary acts. applying Newton to this case is expanding its holding. Status is not looking good. has supplied. his guts are bleeding. we don’t have any blood. not in an examination room. Soldier in IRAQ has made it a habit to crouch when hear loud noises because that means there’s a bomb coming. don’t take a position. the more money he will make. Defense. A guy drinks too much beer and dies. He crouches and while crouching he injures an elderly man standing next to him. his body is our of control. he pushed my buttons so I killed him. has suicidal feelings. Ex.’s house which the dr. Childhood friends. a girl that charges $5 to everyone that comes in to party in order to cover the beer price. Dr and patient status? This would create a legal duty. Lay out structure. Ex. slippery slope ex. 1.How to argue Involuntary Acts? 1. Actus Reus: He touched man unwantingly 2. and potential peril. Go through objectives of CJS Voluntary Acts: Ex. How do we decide if voluntary? b. Voluntary? Was brain engaged with body? Liability will be based on conduct which includes a voluntary act or omission. A bartender has incentive to get a man drinking because the more a man drink. On Exam: Question can be is there a crime here? Give a balanced view. They’re doing heroin at dr. too ambiguous. Lawyer is emotionally unstable. it was my hand. . What type of a case do we have? Positive Act = killing lawyer when give them drugs. Is she liable? Can we apply innkeeper to drunk customer relationship? No. it wasn’t me. law 2. Facts of test: go through facts and test it to see if body was engaged with brain 3. no policy reason to extend the relationship to this situation. As a result. Dr. which applies? Reflex and the case on reflex is Newton. therefore. external stimuli has created a reflex Prosecution: In Newton. we hold bartenders at a higher standard. The girl has no incentive to have guy drink. Lawyer dies from overdose. In both cases. victim is a lawyer and other person is a doctor. because of policy. potential voluntary assumption of care. Status: friend and friend status? who says who is a friend. slippery slope: you could give someone a burger and kill them Omission = his absence of aid We have potential status. in this case. Soldier comes home and he goes to the market the next day and he hears a loud noise when cans fall. making doctors killers to anyone who dies in front of them and the context is in an apartment. tries to do CPR but waits too long and lawyer dies.
4. attendant circumstances Hypo: D wants to trash someone’s garden and decides to do it tonight. mens rea = knowledge 3.02(4): the prescribed mens rea applies to each element 3.punishable by 20 years” Night = 6:05 pm Another statute: “entering building without permission and causing damage = 10 yrs” History: this statute was created prior 1980 at a time where there was rioting Break statute into 1. D opens door. lawyer voluntarily did heroin. 10 yrs Is building a material element? -material elements require mens rea -MPC 1..” -material elements relate to the HARM or EVIL sought to be prevented by the .13(10) defines material elements as: “material elements of an offense are elements that do not relate exclusively to any matter unconnected with the harm or evil sought to be prevented. Sally is brought to lake by D…the drowning example. he raped her. Peril: Jones rape case? In Jones. so he stumbles without knowing into house and starts destroying tv. it is an involuntary act because it is a reflex and the MPC says so and so. D believed he was entering garden. without permission. actus reus = entering 2. by doing this. mens rea -MPC 2. It is possible to create a duty here. Find precedent case and start showing similarities MISTAKE OF FACT: “It is a felony to knowingly enter a building at night without permission and cause damage. Does D have duty? -if want to argue that D is liable can argue duty under voluntary assumption of care and peril and site cases.Voluntary assumption of care: Lawyer came in voluntarily. Oliver created a duty out of thin air which creates a precedent to erode general duty -if want to argue that D is not liable talk about how this would be eroding the rule and too activist and we believe in freedom how to answer a question: 3. Begin with an affirmative statement: ex. its dark. actus reus 2. AC = night.. building Is D guilty? 20 yrs v. Dr should have known about the potential danger of doing heroin. Ex. we’re eroding the rule of “no duty to aid” and if court does this. Kuntz case? Based on Kuntz dr is guilty? Mixing status duties in this hypo. In this case. then we would not have a specific law and hence legality problem. 1.
Statute -MPC is taking an anti strict liability stance -legislative history is important. It’s nighttime and D and friend get to cabins which all look alike and numbers don’t show on them. therefore building is material Ex.02(7): willfull blindness-subjective test . Step 1: ISSUE: Is without permission material? -no permission = harm/evil -stumbling accidentally = no harm/evil -without permission differentiates a dangerous person from a non-dangerous person. therefore building is a material element -is person going to open space capable of doing same damage as would do inside? -less likely to lead to death when outside. What if it’s light. Does D have mens rea to “without permission”? -does D have practical certainty (knowledge) that they did not have permission for each element? -all the signs are there but D refuses to see it ex. also. more valuable property is inside.MPC 2.Giovanetti: cutting off curiosity to party Ex. it is material -So what does its materiality mean? Step 2: Does D’s mistake of fact to this material element create a defense to this crime? 1. you could lock case down by saying D clearly turned away knowledge on purpose when saw “Reagan pictures does not = hippie” -Jewell: inappropriate test because this is a negligent actor. -in this case. D says didn’t know 6:10 is night. we use because it can knock all dominos down -willfull blindness? 3 tests: it’s uncertain which test applies. always include in analysis. even though 6:10. endeavor is like purpose. therefore. Is without permission a material fact? Test: does it go to harm/evil? We did analysis. not a dangerous actor . must be argued. legislature is trying to prevent rioting of homes. therefore. Is night material? -immaterial if night or not because night goes to harm/evil aimed at time to prevent rioting -material because 20 yrs sentence v. uncle = poor hippie while this cabin = rich man’s home -Neiswender case: notice is provided if a reasonable person can see it. YES 2. although Neiswender is a marginal case. D doesn’t like Bob so D goes to Bob’s house and breaks his glass menagerie. 10 yrs sentence . my uncle has a cabin and gave us permission to stay there this weekend. They somehow get into a cabin and stay there for 3 days after which they realize they’re in the wrong cabin. picture with President Reagan. see above.
here D didn’t COUNTER: MPC 2. giraffe is probably immaterial under Olson and Lopez. D should get 10 years because mind is central not conduct -CL: Policy = protect children (like Olsen).02(7) -which is best test? 1. he’d be selling it for a higher price -is he willfully blind? THREE TESTS: -should it satisfy unconscious purpose under Jewell? Ex. yes. but get 10 years.04(2) => if material element. this is better than Giovanetti because in Giovanetti. -like Lopez. Jewell = too expansive 2. Giovanetti = best test So liable? YES. there is strong pressure for CL to find it IMMATERIAL!! . can’t find him guilty of ordinary heroin because he didn’t have that which means if follow Olson’s dissent. he was aware of drug and didn’t taste it. therefore we should have SL. giraffe Step 1: -MPC: MATERIAL because 10 year punishment v. if he were practically certain = knowledge. just because it’s worst than believed. you’re changing CL to MPC. even though he thinks he does -MPC 2. use 4 objectives. should have MR to it -what happens if giraffe is material? -the D doesn’t have MR to it and D gets 10 years instead of 20? NO!!!!! Can’t mix and match MPC with CL. 20 year punishment -harm/evil = keeping kids from ingesting drug -D doesn’t have ordinary heroin. giraffe is IMMATERIAL Step 2: -If giraffe is material. it doesn’t matter.02(7) = has enough safeguards. too bad.Heroin hypo: ordinary heroin v. If giraffe is material. MPC 2. D doesn’t qualify 3. WILL BE UNPREPARED FOR WHAT COMES NEXT. does D have MR to giraffe? (We’re testing it under MPC now) -no. D had a suspicion. we have dead kids which is worst than rape. directly on point with Olson. therefore. in this case. SL = he’s so bad that he should be found guilty COUNTER: Giovanetti -if he were aware. he’s charge higher price. not 20 Step 3: -Is giraffe material under CL? -because this is a minor’s case. worst than Jewell. DO SAME MPC TYPE ANALYSIS FOR CL) -if want to argue that giraffe is MATERIAL under Olson type analysis => use dissents argument that if it costs you more. therefore D should have no mistake of fact to punishment (DON’T STOP HERE BECAUSE IF WRONG.
-Ask professor: if say its material under CL. then must establish MR to element and do 3 tests then mix and match and throw Lopez in trash? Pick MPC or CL approach and argue policy and objectives! What tells us which approach MPC or CL is best? .
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