CRIMINAL LAW: SETTING THE STAGE

A. RECURRING THEMES: 1. Competition/ balance b/t freedom & security- Reluctant to allow gov't to intrude on our lives. Question of how much freedom are we willing to give up in order to feel secure. (Cts & legislatures differ on this topic) 2. Need to balance b/t rules & discretion- Strict rules or leave decision to person making them at the time? Whom do we want to allocate the authority to make the decision. (Judge, jury, or legislature??) 3. What is a crime & how seriousness a crime is a certain act- GRADING: How much should we punish for committing a certain crime 4. What makes crime- Crime b/c we say it is; A decision that you have done something that is harmful enough to society that we are willing to morally declare it a wrong & willing to punish you. 5. Wrong Acts that are not crimes- Ex. Lying generally not a crime 6. Acts that are crimes in 1 society but not in others Adultery, Homosex 7. If you have a law that does not adhere to the consensus of moral value what happens to enforcement? Either no enforcement or arbitrary enforcement (people being singled out) 8. Difference b/t a Tort & Crime? Who is prosecuting the act --Tort is prosecuted by the individual who is harmed . In Crim Law it is the State that is aggrieved (societal interest) where Criminal Law it is prosecuted by society. POLICY ARGUMENT: Societal Interest 9. Criminal Law in US came from Common Law. Cases from British & American. Look at legislative intent 10. When evaluating cases---Look at the goals the Ct is trying to reach, the proportionality of how it is decided, & policy B. CRIM LAW PROCEDURES 1. Adversary system of justice Judge plays neutral role, prosecutor, defense atty on other side. 2. Characteristic of our system : Points of discretions where choices are made. Choices about what things shall be crimes; Defenses to crimes 3. Jury trial exists in all prosecutions where max potential of punishment exceeds incarceration of 6mths; in all non-petty offenses 4. Impartial Juror - Process of examining potential juror = Voir Dire. If bias is demonstrated then juror is excused for cause. Both D & P are entitled to preemptory challenges challenges not based on cause. 5. In most crim cases, jury is composed of 12 and must reach unanimous verdict to convict/acquit. Juries of 6 is Constitutionally permissible. 6. There is NO directed verdict for the State/Prosecution in Crim Case. Directed verdict can be issued for the Defendant. 7. Standard on Appeal Whether a rational trier of fact could reasonably reached the decision it did. (i.e. Was the evidence sufficient to support the decision.) a) Appellate Ct is NOT the fact-finder in a Crim Case. (That s Jury s Role). Jury is in a better position to resolve factual conflicts b/c they see all of the evidence. b) After conviction, Ct App faced w/a record of historical facts supporting conflicting inferences must presume the trier of fact resolved any conflicts in favor of prosecution, and defers to that resolution. C. PROOF OF GUILT @ TRIAL 1. Proof Beyond a Reasonable Doubt difficult to define. 2. Wild guess that D is guilty Probably Cause (Reasonable ground that D might be guilty Preponderance of Evidence (more likely than not D is guilty Clear & Convincing (Some things for which the Cts require more than 51%) Beyond Reasonable Doubt Absolute Certainty. 3. You want to be closer to absolute certainty. 4. Better to let guilty go free than to convict the innocent. (Windship) D. ENFORCING PRESUMPTION OF INNOCENCE 1. Owens v. State D convicted of driving, while Intoxicated, on a Highway. Ct App upholds conviction b/c based on evidence it was reasonable, more than a flip-of coin to find the D guilty. Ex) Empty cans, no radio on in the car, etc.). E. JURY NULLIFICATION 1. Allows jury to ignore facts & judges instruction & acquit Prof. Rosen McMillan-McWaters 1

PRINCIPLES OF PUNISHMENT
RETRIBUTIVIST UTILITARIAN A. (Def.) Punishment is justified b/c people A. (Def. ) Justification is punishment serves useful purposes; looks at what the benefits are for society. deserve it. B. This is sometimes referred to as consequentialist or instrumentalist. B. Retributist does not measure the cost, but C. Utilitarian Policy For Punishment instead relies on the fact that it is morally 1. Deterrence - prevention of future crime. If we punish the person harshly then it will prevent others just. (EYE FOR AN EYE) from committing the same act. C. Proportionality limitation principle of a) Problem against deterrence is that if the possibility of getting caught is low then it will not retributivism. This is a way to decipher deter you from committing the act. revenge from retribution. One is punished in b) Specific Deterrence - notion that you will deter this particular individual from committing the proportion to the crime. crime. D. Justification (Moral based) We punish b/c 2. Incapacitation - taking away the capacity of that person to commit another crime by locking them up we derive social benefit. Punishment helps for life or killing them. more than it hurts. a) Problem with incapacitation is the cost to do this. Very expensive Punishment must fit either one of these theories b) Another problem is determining how long you lock someone up 3. Rehabilitation - reforming offender so they won t commit the crime again A. CHARACTERISTICS OF PUNISHMENT 1) Punishment is performed by and directed at, agents who are responsible in some sense. ( People can punish, hurricanes cannot), 2) Punishment involves "designedly" harmful/ unpleasant consequences, 3) The unpleasant consequences usually are preceded by a judgment of condemnation, 4) Punishment is imposed by one who has authority to do so, 5) Punishment is imposed on an actual/supposed violator of the rule behavior. B. OBJECTIVES OF SENTENCING 1. To protect society 2. To punish the D for committing a crime 3. To encourage the D to lead a law-abiding life 4. To deter others 5. To isolate the D so she can t commit other crimes 6. To secure restitution for the victim 7. To seek uniformity in sentencing C. PROPORTIONALITY - 8th Amend- excessive bail shall not be required, nor excessive fines imposed, nor cruel & unusual punishment inflicted" 1. A punishment is excessive and unconstitutional if a. It makes no measurable contribution to acceptable goals of punishment & thus is nothing more than purposeless/needless imposition of pain & suffering b. Is grossly disproportionate to the underlying offense. RULE: The 8thAmend does NOT require strict proportionality btw crime and sentence. Rather, it forbids only extreme sentences that are grossly disproportionate to the crime. 2. Three factors relevant to determining whether sentence is so disproportionate that it violates the 8th : 1) The gravity of the offense and the harshness of the penalty; 2) The sentences imposed on other criminals in the same jurisdiction; 3) The sentences imposed for commission of the same crime in other juris s 3. Test For Whether A Punishment Is Excessive Two Part Test 1) Makes no measurable contribution to acceptable goals of punishment & hence is nothing more than the purposeless & needless imposition or pain & suffering; or 2) Is grossly out of proportion to the severity of the crime. Prof. Rosen McMillan-McWaters 2

LEGALITY
A. LEGALITY (def.) - notion that you are only punished when you violate the law & only to the extent that the law allows it. 1. Ct may not impose penalties or measures; only those implied by law. 2. Why is this important? What are we trying to prevent? POLICY: Uniformity in the system to give citizens the chance to comply with the law; Fear of arbitrary use of power; Fundamental notice of fairness. B. PRINCIPLE OF LEGALITY--conduct is NOT punishable unless the law defines it as criminal before it occurs. 1. No punishment unless conduct was defined by statute before D acted, rather than judicial crime-creation. C. THREE INTERREALTED PRINCIPLES TO LEGALITY 1. Criminal statutes should be understandable to reasonable law-abiding persons; 2. Criminal statutes should be crafted so as NOT to delegate legislative matters to others (judges, police, etc.) for resolution on an ad hoc and subjective basis 3. Lenity Doctrine (interpretation should favor the accused) favorable to D ; if there is a tie it goes to the Defendant. One Cost of the Rule of Law is that sometimes people will get away with doing bad things if there is no statutory provision. D. CASES: 1. Commonwealth v. Mochan- telephoned the victim & made filthy and indecent phone calls. D argues that there is no statute that prohibits this conduct. There i law & thus I should not be punished. Ct says the lack of the statute is not a hindrance to the conviction. No precedents that say making dirty phone calls is a crime he court believes they can punish the D b/c this is the way it was done at Common Law. 2. Keeler v. Superior Court - Demonstrates the limits of the Common Law methods and shows the continuing importance of Common Law. D saw his wife driving down the road. D severely beat ex-wife and unborn fetus was also killed as a result of the beating. Issue of whether fetus is a human under the elements of the crime. HOLDING: Fetus is not a human 3rd element of crime based on historical interpretations. E. SPECIFICITY IN STATUTES 1. Law must give a person of reasonable intelligence a reasonable opportunity to know what is prohibited. City of Chicago v. Morales Ordinance prohibiting loitering by gang members in public places is too broad and doesn t provide specific limits on the enforcement discretion given to police Violates D/P 2. Courts may narrow the construction of a statute (In re Banks Peeping Tom statute) a. You can t prosecute someone if the language of the statute is so vague that they can t tell what they have done wrong. This amounts to NO notice. b. Look at intent of the legislature. c. Look at the words in the statute in isolation notice flaw d. Void for vagueness: if too ambiguous to be applied fairly e. Laws must provide explicit standards to those who apply them so to avoid discriminatory application. i. Clear statute = plain and definite meaning. ii. Ambiguous statute = match legislative intent F. INTERPRETING STATUTES 1. Ct will look at plain meaning with clear language UNLESS: Application leads to injustices, oppression, or absurd consequences. 2. If a statute is ambiguous, Ct will examine legislative intent. Look at context, changes to statute, and legislative history.

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ACTUS REUS
A. In order to convict/punish for a crime you generally must prove: Act/ Conduct 1. Specified Mental State 2. Result B. The actus reus of an offense consists of 1)voluntary act; 2) that causes; 3) (social) harm.  Ex:) If A picks up a knife &stabs B, killing B, the actus reus of a criminal homicide has occurred: A has performed a voluntary act (stabbing B) that caused B s death (the social harm). C. Def. - person commits what the law calls an act pursuant to a culpable mental state and sometimes a result D. Presumption is that an act is required unless the statute specifically tells us otherwise. E. Reflex or Convulsion does not give rise to liability 1. BUT, if had knowledge of being subject to the act and unreasonably puts himself in a position likely to harm others, he might be liable (EXAM TIP: argue both if issue comes up) F. CONDITIONED RESPONSE is ALWAYS a defense to criminal liability. (State v. Utter Drunk stabbed son and argued conditioned response from the war). 1. Drinking was a voluntary act which led to violence. Unconsciousness acts as a complete defense EXCEPT when the state is voluntarily induced. Selfinduced state may be an earlier voluntary act that deprives of involuntary defense. Why doesn't the D get a new trial? Ct says there was no substantial evid of what occurred in the room b/c D testified he was unconscious. Good Lesson: you can win the legal argument & lose case!!! G. Generally not a voluntary act: - Mere thoughts are never punishable as crimes; Reflex or convulsion; Unconsciousness: Unless voluntarily done to yourself (intoxication) Usually called automatism. Sleepwalking will usually fall into this category; Hypnotism: Cases are divided on this one; MPC says that all of these are defenses to actus reus except voluntary intoxication. H. Why require an act and not prosecute for mere thoughts? 1. Need to give people latitude to think; Over-deterrence and chilling free will; Problems of proof (mind reading). I. OMISSIONS (NEGATIVE ACTS) 1. Hypo: An Olympic swimmer strolling on beach & a 5yr old child runs in front 2. People v. Beardsley - D & victim party while D's wife is out of town. Victim OD s on pills. HOLDING: Duty must be a legal duty and not a moral obligation. Ct says D had no legal duty. Even if D had duty, D s defenses: he was incapacitated or he had no idea she was going to take the pills & thus had no obligation. J. Categories of Legal Duties in Crim Law: 1. Statute that imposes duty Ex.) Failure to file taxes is a crime, at accident you have to stop, failure to furnish med care for a child. 2. Special Relationship 3. Assuming a contractual duty to care for another Ex.) Nurse, railroad gatemen, life guards, etc. 4. Where one has voluntarily assumed the care of another 5. When a person creates a risk of harm to another 6. Model Penal Code sec. 2.01 (1) - Nothing else appearing, there is not duty by omission of an act. K. Barber v. Superior Court - Barber is a Dr who performed a surgery on victim & discontinued life support on victim. Victim died. Family authorized the removal of life support. Barber intended for the victim to die b/c they removed life support so that he could die. (This will be enough to show intent to kill) 1. If Drs had injected the victim with poison to kill them, they would still be guilty of murder. Euthanasia NOT a defense to murder. 2. Omissions Law Analysis: a. Do Dr's have duty to treat patients? Yes under the contractual obligation. Doesn't duty require Dr to make the patient better? Generally, Doctors duty is to make the patient better. If you define duty as keeping the patient alive, then the Doctors are guilty of murder. b. Ct defines the Dr's duty more narrowly. Dr s duty in this narrow situation is to respond to the wishes of the family. To give proportionate treatment which is determined by the family. The wife made the choice in this case.

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of swimmer. Child drowns. Swimmer does nothing to save the child. Can we hold the swimmer criminally liable? Crim Law is all about morality. RULE: We do not impose criminal liability even if the person could have saved the child without danger/peril to ones self. We generally do not impose a duty to inform about a crime, unless there is a statute that states otherwise. RESULT CRIME v. CONDUCT CRIME With a conduct crime, the actus reus of the Offense will NOT include any harmful result

Opening up the Time Frame --Court may do this in order to include prior conduct y Ex: A seizure while driving does NOT automatically preclude liability, b/c courts may say that you had a choice about getting into car. POSSESSION: Law generally allows ct to hold that someone possessed something even w/o a physical act. y (MPC) Possession is an act if possessor either knowingly obtained the object possessed OR knew she was in control of it for a sufficient period to have been able to terminate possession.

VOLUNTARY: D must perform physical act ( willed movement) for each element of crime that has an actus reus component. L. MISPRISON OF FELONY Absent special circumstances, a person has NO legal duty N. ACT v. OMISSION to inform the police of another person s plans to commit a criminal offense. ACT M. ATTENDANT CIRCUMSTANCES: y Is there a causal link? 1. An attendant circumstance is a condition that must be present, in conjunction w y Is there Mens Rea prohibited conduct or result, in order to constitute the crime (such elements constitute a part of the actus reus of an offense). 2. Ex: Statute it is an offense to drive car in intoxicated condition. The words in an intoxicated condition represent attendant circumstance: actus reus of offense does NOT occur unless actor drives car (conduct) while intoxicated (circumstance that must be present at the time of conduct). 3. In an intoxicated condition is NOT a conduct element b/c the offense, as defined, does NOT prohibit a person from becoming intoxicated, ONLY that, in such condition, she must not drive her car. 4. There is another attendant circumstance ; driving a car (b/c driving a car is NOT, in itself, prohibited). 5. The social harm of offense has NOT occurred unless the specified attendant circumstances are present.

y y

y y y

OMISSION Was there a failure to act? Is there a causal link to prohibited harm? (Would it happen otherwise?) Was there a legal duty to act? Did the actor have culpability? Is there Mens Rea?

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MENS REA(culpable/guilty mind)

of malicious intent. This is the different type of intent and doesn't A. (Def.) D act w/ a blameworthy/ culpable mental state. necessarily transfer. 1. Mental state expressly required in the definition of an offense. 2. Applies to the state of mind that D must have in regards to the elements of G. MODEL PENAL CODE &DEFINITIONS OF MENS REA 1) Purposely - you have the specific intent to achieve the specific result the offense. 2) Knowingly - you are practically/probably certain that the desired B. POLICY: Utilitarian: if one lacks the mental state specified, punishment would result will occur. (Ex. You throw a stick of dynamite in a bar; you not deter; Retributive: it is unjust to subject one to social stigma without a have positive desire to kill but your act is likely to cause death) morally culpable state of mind. 3) Recklessly - consciously taking a substantial & unjustifiable risk; you C. EXAM TIP: Question presented/ to analyze in each case is which, if any, Mens are aware of the risk but you disregard it; risk is a gross deviation Rea applies to this specific element of this case? from the standard of care. 1. Ex.) Occupied House in NC for burglary. D's thought they were going into 4) Negligently - inadvertently causing a substantial & unjustifiable risk; an empty house. Not 1st degree burglary to go into an empty house. Ct you do not have to be aware of the risk held this was strict liability b/c the cops were in the house waiting so it 5) NOTE: NC does not use Model Penal code & has its own definition. was occupied whether or not the D's believe there was no one in the 6) If there is no mens rea in a statute than the default mens rea is house. recklessness D. Regina v. Cunningham - D convicted of acting unlawfully & maliciously toward 7) The lower you go down the list of Mens Rea the easier it is to prospective mother-in-law (victim) by pulling the gas meter from the gas pipes convict. Prosecution usually wants a lower Mens Rea, while the which resulted in mother s asphyxiation. HOLDING: Evid sufficient in which Defense wants a higher Mens Rea. jury could find that D acted intentionally. E. People v. Conley - D went to party and hit a guy in face with a wine bottle, but H. State v. Nations D charged w/ endangering a child by hiring her to strip in club. At issue is whether D had knowledge of child s age. Statute intended to hit another person. The court finds that the jury could have found required actual knowledge, and Ct held D didn t have requisite knowledge that D acted knowingly, even though he did not intend to disfigure victim. You  Hypo: What if there was evidence in the record that girl hit someone w/bottle, it is reasonable to know that they could be seriously looked like she was 10? Actual knowledge comes in diff ways. injured or disfigured. You can use common sense. F. TRANSFERRED INTENT I. WILLFUL BLINDNESS 1) Intent to kill A is transferred if you kill B. What you are being convicted 1. 2 Things the Prosecution must show: (EASIER BURDEN FOR GOV T) of is the killing someone with the intent to kill a person. It doesn't matter a. What the Jury has to be instructed on who you kill. You created the harm that you wanted to create & we don't b. What inferences the jury can draw from the evidence. care that you killed a diff person than intended. 2. State v. Juel - D drove car across border with drugs & claims he didn't 2) IMPT NOTE: Transferred intent (Mens rea) does not necessarily transfer. know drugs were in secret compartment. Ct instructed jury that Ex) People v. Conley - his intent to steal the gas did not transfer to an despite his denial you can convict if he purposely avoided confirming intent to harm his mother-in-law and didn t' automatically make D guilty his suspicions; willfully kept himself from knowing

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STATUTORY INTERPRETATION 1. MPC - a word describing a mental state early in a statute will apply to all later words that require a mental state. 2. When applying and interpreting statutes, make sure to remember the Rule of Lenity ambiguous statute should be rule in favor of Defendant 3. Things to look at when interpreting statutes: a. Check PUNCTUATION b. Look for the word at other points in the same section c. Check legislative history d. Look for the word in other subsections and see how it s used e. Draw negative inferences. 4. State v. Morris D released virus into internet to show inadequacies in security system. Element at issue is intentionally as defined in stat. HOLDING: that Legis had double mens rea, but chose to took 1 out b/c they didn t want people to get prosecuted if they access a fed comp. STRICT LIABILITY 1. GENERAL RULE: Operate under assumption that there is a culpable mental state. EXCEPTION: STRICT LIABILITY is an exception to this general rule. 2. In some circumstances penalties are imposed w/o any requirement that the act is accompanied by proof of a culpable mental state. This is primarily a matter of statutory construction. Strict liability crimes for the most part are not unconstitutional. Prevailing thought is that they are disfavor able 3. Question under Strict Liability: Is the statute strictly liable as to this essential element? 4. Staples v. U.S. - D found w/altered semi-automatic weapon. Holding: Ct says that this is a public welfare statute & that there is a mens rea requirement of knowledge here and it's not a strict liability crime b/c: 1) There is a 10 yr penalty (the higher the penalty the less likely the ct will find it to be strict liability, 2) they do not view semi-automatic rifles as dangerous items and compare it to cars, unless Congress changes this. Dissent - Firearms are dangerous objects and that it's close to hand grenades than cars.

12) Common Law Mens Rea Analysis: If you look to see if a Mens Rea was required under Common Law, then it can be assumed that the Mens Rea requirement was meant to apply under the statute. 13) Garnett v. State mentally retarded man (20yrs) found guilty of statutory rape of 14yr old. Ct finds that it is strict liability b/c there are other parts of the statute there are mens rea but this part specifically excluded it. Pretty strong evidence that the legislative didn't want it. What mens rea is here: knows or should reasonable know? Knowledge & Negligence. 14) Advantages/Arguments in Favor of Strict Liability a. Little wiggle room b. Deterrent effect --puts the risk on those who do something that is unacceptable c. Ensure that guilty people don't escape conviction 15) Criticisms of Strict Liability a. Dean Singer argues other weaknesses: y Extensive gov't civil regulations & strict liability in tort achieve the same deterrent effect y The judicial efficiency of dispatching minor offenses w/o an inquiry into mens rea is attained equally by decriminalizing them and hearing such cases in a regulatory or admin forum. y The small penalties imposed for the most SL offenses oblige the public to engage in a pernicious game of distinguishing "real" crime from some lesser form of crime. y Some SL laws may result from careless drafting y SL dilutes the moral force that the criml law has historically carried. y Does not deter because D is unaware of the facts that made his conduct dangerous. y It is unjust to condemn someone who is not morally culpable. Response: people may be more careful simply because they know that a certain behavior is governed by strict liability. 16) Steps for determining if a statute is SL: a. Elements b. Mens rea for each element c. Facts? d. What are facts as D believes them? Prof. Rosen McMillan-McWaters 7

MISTAKE & MENS REA 1) Mistake of fact, good faith mistake, reasonable mistake, unreasonable mistake. 2) STICK TO ELEMENT ANALYSIS WHEN DEALING WITH MISTAKE 3) GENERAL RULE: A mistake can be a defense if it negates a mens rea requirement for a conviction. If it does not, then it is not a defense in most circumstances. 4) D raise the defense of mistake when they have been mistaken either about the facts or the law. a. Look at the effect of the mistake on D s mental state. b. Examine whether he was prevented from having the mental state required for the crime BECAUSE of the mistake of fact or law. 5) D s mistake is least likely to help him for crimes of general intent where the most general kind of intent will suffice (i.e. murder) 6) If a statute requires intent of knowledge, even an unreasonable mistake as to a fact will block conviction under the MPC. a. If a statute only requires negligence, only a reasonable and honest mistake as to a fact will block a conviction. 7) If a statute does not require a mental state, D can be convicted under the moral wrong doctrine. a. If under the facts, as D believed them to be, his conduct was still immoral. 8) When the mistake relates to the application of law to fact and the fact is a collateral one, the mistake doctrine can block conviction. 9) Even an unreasonable mistake will block conviction if the mistake prevented D from having the requisite intent or knowledge. 10) Legal Wrong Doctrine requires that if D believed he was committing a crime, but it was a lesser crime, he is still guilty of the greater crime. 11) People v. Navarro D believed items were discarded, abandoned property. Reversed decision b/c of jury instructions. No reasonableness requirement b/c theft is a specific intent crime and the general rule is good faith mistake is a defense. If it had been a general intent crime the Trial Ct instruction of reasonableness would have stood. Holding - Specific intent crime = NO OBJECTIVE STANDARD if erroneous belief is genuine.

Specific Intent Crime & General Intent Crimes 1. General Intent - Requires a degree of culpability before D can be convicted. Acting with a bad, corrupt, wicked purpose. 2. Specific Intent - Used when def of crime require that the D act with a special motive or purpose. y Also applies when law requires that the D has a specified knowledge. (Ex. Knowingly assisting a felon = accessory after the fact) y Premeditated & deliberated (Ex. Murder) Malice is usually not specific intent MISTAKE ANALYSIS: Look at elements Then look at this chart & determine what mistake applies. Common Law Specific Intent Model Penal Code Purpose & Knowledge Honest Honest Reasonable No mistake defense b/c there is no mens rea requirement Mistake Defense

General Intent Reckless & Crim Negligence Strict Liability Strict Liability

Mistake or Ignorance of the Law Analyze the same way as Mistake of Fact 1. Do general element analysis.Once you do your element analysis and you get a guilty based off of that, it is very hard for the court to allow a defense 2. Ct will generally not grant exemption if D claims they did know the law, unless the crime itself requires actual knowledge of the law. POLICY - to say that ignorance of the law is an acceptable defense, would be to encourage such ignorance, rather than to respect and adherence to the law; there would be infinite number of mistake defenses; additionally it would create opportunity for wrong-minded individuals to contrive in bad faith solely to get an exculpatory notion before the jury. EXCEPTION: When a law imposes a duty that we don t expect anyone to know about then it violates D/P. Notice needs to be given to be Constitutional. Prof. Rosen McMillan-McWaters 8

PURPOSEFULLY
1. Intent (Def.) D must have the conscious objective or purpose to cause harm. 2. Attendant circumstances: If the actor is aware of the existence of such circumstances and acts anyway 3. The existence of a particular condition does not prevent the intent from existing unless the condition negatives the harm or evil sough to be prevented by the law defining the offense. a. Ex. Just b/c D will only steal from the house if no one is home doesn t negate the purposeful intent of breaking and entering to steal (burglary). 4. Motive will usually be irrelevant (ex. Euthanasia) a. But special motives may be relevant to the existence of a defense

KNOWINGLY
1. Results: If an actor is aware that it is practically certain that his conduct will cause such a result. 2. Conduct & Attendant Circumstances: One acts knowingly if he is aware that his conduct is of such a nature or that such attendant circumstances exist. 3. Diff b/t purposefully and knowingly is D s awareness of the consequences of his act. 4. Statutory or judge-made presumption: may be used to help prove that D acted knowingly (Ex In D s unexplained possession of stolen property gives rise to presumption that D knew the property was stolen). 5. If Stat attaches knowingly to attendant circum of the crime, usually the requirement of knowledge is applicable to all elements

STATE OF MIND RECKLESSLY

1. A person acts recklessly if he consciously disregards a substantial and unjustifiable risk. 2. D acted in a way that is a gross deviation from the conduct of a law-abiding person. 3. D was subjectively aware and ignored a substantial and unjustifiable risk. 4. This is conscious risk creation, but the awareness is less than substantial certainty. ( Conscious disregard ) 5. Not like negligence because the state of mind is judged subjectively

NEGLIGENTLY
1. People are responsible for a gross deviation from the standard of care (above tort standard). 2. D s awareness of the risk imposed by D s conduct is not required 3. It would have to be shocking to allow to get away with his carelessness. 4. Judged from an objective standard.

STRICT LIABILITY
1. No culpable mental state must be shown it s enough that D did the act in question regardless of his mental state. 2. Same as in torts. Not acting reasonably under the circumstances. 3. No matter how careful you are, you are responsible for your dangerous activities.

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ACCOMPLICE LIABILITY
A. Def.) One who aids, abets, encourages or assists another to perform a crime, will be liable for that crime. B. TYPES OF ASSISTANCE 1. Physical: physically help with the crime 2. Psychological: encourage the person to commit the crime 3. Failure to act when there is a duty: must be precipitated by some legal relationship (parent/child) C. Advantages for Accused/Disadvantage for Prosecution- B/c they shield accessories from punishment notwithstanding overwhelming evidence of their criminal assistance. D. Principals: 1st Degree (Perpetrators) - one who actually commits a crime either by his own hand, or by an inanimate agency, or by an innocent human agent. At Common law was known as a principal in the 1st degree. There can be more than 1 perpetrator. Ex) 3 people can stab the victim. E. Accomplices: 1. Principals in 2nd Degree (Aiders /Abettors) - one who is guilty of felony by reason of having aided, counseled, commanded or encouraged the commission thereof in his presence, either actual or constructive. People who did not physically commit the crime. 2. Accessories Before the Fact (Inciters) - one who is guilty of felony by reason of having aided, counseled, commanded or encouraged the commission thereof, without having been present either actually or constructively at the moment of perpetration. They are not present at the time the crime takes place. Not helping in any way when the crime takes place, but are considered responsible for the crime. 3. Accessories After the Fact (Criminal Protectors) - one who with knowledge of the other's guilt renders assistance to a felon in the effort to hinder his detection, arrest, trial or punishment. F. What is impt about these categories is that the finder of fact has to establish or find D has met the requirements in 1 of these roles. G. POLICY: It is derivative liability. Not like agency law. You associate Diff b/t Principals & Accessories: Principals Trial Accessories

2nd Degree may be tried Accessory CANNOT be tried, w/o & convicted prior to the his consent, before the principal. trial of the 1st Degree principal; or after 1st Degree has been tried & acquitted. 2nd Degree may be convicted of a higher crime or lower crime than the principal. No similar rule to accessories ----> Accessory could not be convicted of a higher crime than his principal.

Punishment

Jurisdiction

Accessory can only be prosecuted in the juris in which the accessorial acts took place, rather than where the crime occurred.

Requirements Prove degree of of Evidence complicity Accomplice Mens Rea & Actus Reus Mens Rea Dual Intent 1. The intent to aid the primary party; and 2. The intent that such assistance result in the commission of the offense charged. Actus Reus Actus reus of accomplice liability can take form of solicitation of the offense active assistance in the commission of the crime, encouragement of the offense, or failure to prevent commission of the crime if the secondary party has the legal duty to make such an effort.

with a criminal venture. You & principal carry out common plan &

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therefore you are as liable as the principal. The principal's guilt becomes your guilt. They are convicted of the substantive crime on the theory that they were an accessory before the fact or after the fact.
F. QUESTION TO ASK: Did the D perform an act make him a participant and did the D have the required mens rea for the crime. G. Theory of Intentionality 1. Policy Arguments: a. That people otherwise lawfully conducting their affairs should not be constrained by fear of liability for what their customers will do. b. That it is proper for the criminal law to prohibit conduct that knowingly facilitates the commission of a crime. 2. Intentionally acting to further the criminal actions of another, the secondary party voluntarily identifies himself with the principal party. The intention to further the acts of another creates liability under the criminal law. H. Elements of Accomplice Liability 1. State v. Hoselton D convicted of entering w/o breaking a vessel with intent to commit larceny. Gov t had to prove that D had mens res, the intent to commit the criminal activity. There is question as to whether D was a look out for the act of his friends going on the boat, or crime of stealing. Ct found D did not actively encourage or assist his friends in stealing. I. MENS REA: Intent: Purpose/Knowledge. 1. D must intentionally aid or encourage another s mental state. 2. D must have the mental state necessary for the crime actually committed by the other. Not enough that D simply brings about the other party s criminal act. 3. D knows that his conduct will encourage or assist another person in committing a crime but does not intend or desire to bring about that criminal result. 4. Courts and MPC hold that D is not liable. 5. People v. Lauria D charged w/ conspiracy to commit prostitution. HOLDING: You need to show intent or purpose. Knowingly helping

Limited circumstances, even though D knowingly helped prostitutes, he did not have the requisite purpose to further prostitution to have your business join in the criminal activity. 6. ANALYSIS: Did D & prostitute join together in a common plan to commit a crime? NO! 7. FACTORS THE CT CONSIDERS: a. The more serious the crime is the more likely the ct is going to find you are liable when you provide assistance to the other perpetrators knowing what they are going to do & you are willing b. Direct evidence that the person is doing more than just selling something. (Ex. Someone says they need a gun to kill someone and you show them a variety of guns) c. If you have a stake in the venture; making a profit (Ex. By charging a crazy amount of money for the service) 8. Pure Model Penal Code of Mens Rea i. Only guilty for those crimes in which you are part of the original plan. ii. Ex of this is Riley & Foster cases. 9. Riley v. State D and another person fired a gun in a crowd & they were wounded. Problem here is they don't know which one fired the shot. Ct found D has to intentional aid. For conviction of the crime D must have the mens rea of recklessness. This is the Dual Mens Rea Theory. 1) Intentional Aid and 2) Recklessness. 10. State v. Foster D didn t personally kill. D supplied the knife & played a major role. D had the mens rea requirement for the conviction of the crime b/c he held someone against their will at knifepoint. Therefore, D can be guilty of the crime b/c he has the same mens rea as the principle for the crime/offense and the intention to aid Cannon. NATURAL & PROBABLE CONSEQUENCES (Rejected by MPC) 1. State v. Linscott - Went to drug dealers house to rob him and the other guy killed the victim by shooting him. HOLDING: TC found D would not have participated in robbery had D known the murder would take place. Note that a jury (fact-finder) could have reasonably found otherwise. D Prof. Rosen McMillan-McWaters 11

J.

someone is sufficient evidence to support a conviction. Under these ACTUS REUS IN ACCOMPLICE LIABILITY 1. State v. Vaillancourt - He goes to house, ring door bell while talking to a friend. The friend goes around the side of the house & tries to break in. When the cops come, both the D & the friend flee. HOLDING: Accompanying someone to a scene of a crime & watching is NOT a crime. RULE: Mere presence alone w/ nothing else is insufficient to make one an accomplice to a crime. 2. Aiding: assisting, supporting, or supplementing. Abetting: instigating, advising, or encouraging words alone may be enough 3. Presence at crime scene not required (requisite act may occur before or after the crime) 4. Mere presence is not sufficient for AL prosecution must show that D was at the crime scene for the purpose of approving and encouraging commission of the offense (but can be used as circumstantial evidence of AL) y Undisclosed intention to aid is not sufficient. y Mere presence plus flight is not sufficient. 5. Failure to intervene is generally not sufficient unless a legal duty exists 6. Cheering while a crime occurs could be deemed to be encouraging one to commit a crime 7. Attempting to Aid (Causation): If the assistance turns out not to be necessary, D is still liable. 8. But for causation is not required. One only needs to aid, abet or procure not cause. 9. D will generally not be an accomplice if D s acts are not necessary and do not influence the crime at all. MPC 2.06(3)(a) makes this a crime. 10. If the principal does not attempt the crime, there is no liability. 11. If he attempts the crime and fails, some courts find liability. 12. The underlying crime must actually be committed by someone. 13. Wilcox v. Jeffrey - D charged w/assisting another in playing saxophone in UK. To become an accomplice----We do require that you attach yourself to the criminal activity in some way, by assisting or encouraging. It doesn t have to be much and doesn t make a diff of whether the criminal activity would have occurred or not.

was still convicted b/c it was a foreseeable consequence of the primary crime. 2. What you must prove under Natural & Probable Consequence a) Must show that the principle committed the primary crime b) That the accomplice was aiding & abetting the primary crime c) Did the principle acting with the mens rea commit a 2nd dary crime? If yes, & it occurred during the joint primary activity, then the accomplice is guilty of the secondary crime if the secondary crime was a reasonable foreseeable consequence of the primary crime. Distinguishing Direct from Accomplice Liability (Bailey) If no criminal act was committed, one may not be an accomplice, but still may be a principal. If one uses an innocent agent or an innocent instrumentality. If an intervening act is reasonably foreseeable, it will not break the chain of causal connection between the original act and the subsequent injury. Limits to Accomplice Liability In Re Megan D goes to ex gf house to have sex with minor. Gov t attempts to hold victim liable for burglary. Victim is guilty of the crime under strict liability, however, Ct finds the legislative intent of statute was to protect victim not punish. Abandonment General Rule - is that once you attach yourself you must make the withdrawal effective. People v. Brown D attempted to burglarized house by kicking in door. D tries to argue that he voluntarily abandoned the crime, but Ct holds he did not do so in a timely fashion b/c they had already kicked in the door. Proving Complicity: Accomplice testimony must be corroborated by indep. evidence in order to sustain a D s conviction. Thus, if analysis shows that the status of the other parties is accomplices, it s insufficient. Most states have a rule similar to this corroboration rule OR else require a jury instruction cautioning jurors to treat the testimony of accomplices w/ a cautious eye. Vicarious Liability Commonwealth v. Koczwara D ran tavern. RULE: Employer can t be imprisoned unless he approves/consents to acts, but can be fined under respondeat superior for the crim acts of his employees committed on his premises w/o his presence, participation or knowledge. Strict liability eliminates mens rea; Vicarious Liability eliminates both mens & actus reus. Prof. Rosen McMillan-McWaters 12

CAUSATION
A) Causation plays a more limited role in criminal law than in tort law. Most crim cases do not require causation. B) Two Basic Concepts of Causation 1. But-For a) But for the d's acts the crime would not have occurred b) Limit on but-for 2. Proximate Causation a) In some cases the D will not be held criminally liable even when but-for test is met. b) Def) Assuming that but-for test is it just to hold D liable for causing the harm. It is a policy determination. C) ACTUAL CAUSE 1. Oxendine v. State - This is a but-for cause case. D beat child after gf pushed child in tub. States Theory was that D's beating caused the victims death to accelerate. State's expert testimony stated only possibility that D's action caused the death and this was not enough. Ct says that based upon the expert testimony there was insufficient evidence to show that the D's blow was a but-for cause of the child's death. This is a case where procedure means everything. At the time the State closed their case there was no evidence that D's blow contributed the acceleration of the victims death. Note: D's motion was made before the Co-D put up their expert. D) PROXIMATE CAUSE ("Legal Cause") 1. Kibbe v. Henderson - D and co-D, met guy at bar, offered him a ride & then robbed victim leaving him in the street where he was hit by car. Ct found D was deprived of D/P b/c at trial judge failed to explain to jury the issue of causation. Is there but-for causation? Yes, but for the D's act the victim would not have died the way he did. The drive was violating the law by speeding. D argues that there was an intervening act & that act caused the death and if the other driver had not been speeding the victim would not have died. D argues that he didn't get a jury instruction on causation or intervening cause at TC.  D argues that the test that should have been used is: y Whether or not intervening cause was foreseeable y Was the result too remote/accidental to hold the D liable.  HOLDING - TC violated D/P b/c didn't give the D opportunity to defend on causation. 2. Velazquez v. State D & victim were drag racing. Ct says the victim died recklessly and not going to hold the D guilty 3. State v. Rose D charged w/ leaving the scene of accident & manslaughter. D hit victim w/ car & body was dragged under car. Ct rules that b/c you can't show a negligent act killed him, there is no way to show jury beyond a reasonable doubt that the culpable act caused the death. Not enough to show that it could have caused the death. Can't show but-for causation.

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CRIMINAL HOMICIDE
A. HOMICIDE 1. MURDER: (Def.) - unlawful killing of another person w/ malice 2. Lawful Homicides: Death Penalty, Killing during war, Abortion, etc 3. Elements of Murder: a. Actus Reus: Conduct by the D either an affirmative act or an omission by D where he had a duty to act. b. Corpus delecti: death by the victim (although prosecution does not have to present a corpse) c. Mens Rea: D must have the requisite mental state for murder malice aforethought , but this is a term of art which can be satisfied by several other mental states (below) d. Proximate Cause: there must be a causal relationship between D s act and V s death y Most states continue a common-law PC rule that applies only in murder cases: V must die within a year and a day of D s conduct EXAM TIP: anytime D can be said to have killed V, go through all types of murder before concluding that no murder has occurred! B. Malice (def) - unlawful, unjustifiable, intentional killing. One with a mental state that the court thinks is a bad as an intentional killing. C. Malice Aforethought - 4 constituent states of mind 1. Intent to Kill - awareness that the death of another would result from one's actions 2. Intent to Cause Grievous Harm - knowledge that one's conduct would cause seriously bodily injury 3. Depraved Heart Murder - unintentional homicide under circumstances evincing a "depraved mind" or an "abandoned & malignant heart." 4. Felony Murder - assigns Strict Liability for homicide committed during the commission of a felony. D. Manslaughter (def) - unlawful killing of a human being w/o malice 1. Voluntary - An intentional homicide committed w/o malice. Upon E. INTENTIONAL KILLINGS 1. 1st Degree Murder: killing that is premeditated and deliberate. Without premeditation and deliberation, one can only be guilty of seconddegree murder. a) Premeditation: About time. Did the actor have sufficient time to think about what they were doing? Only a short time needed (5 minutes is enough); Ex.) Planning activity (i.e. purchasing a weapon); Evidence of motive; A manner of killing so precise that it suggests planning b) Deliberation: About the quality of your reflection. If you are so angry that you cannot think straight, have you deliberated? Heat of passion Ex.) Intoxication can negate deliberation/premeditation c) Willful: Mens rea element. Did you have the required mental state to perform the act. d) Malice aforethought: Can be satisfied by a number of means: (1) Intent to kill, (2) Intent to commit grievous bodily injury, (3) Reckless indifference to the value of human life, (4) Intent to commit certain non-homicidal offenses. e) All of these factors can, and usually will, be proven by circumstantial evidence. f) The intent to kill need only be present for an instant. (Schrader) g) Now, there is usually some period of reasonable time required between the formation of intent and the killing itself. h) Opportunity for reflection -Must kill purposefully after contemplating the intent to kill. F. Second Degree Murder: 1. No premeditation 2. If it was D s intention to injure, but not to kill. 3. Cases with a reckless indifference to human life. 4. Note: The jury can return a verdict for a lesser crime than instructed, but Prof. Rosen McMillan-McWaters 14

sudden quarrel or heat of passion a) This was a way to shield some D's from the death penalty. b) Way to understand this, is even though D acts with the intent, there are mitigating circumstances present that would justify the lesser offense. c) Concept of mitigation, not excuse d) D is still guilty of a felony, but b/c of mitigating circumstances 2. Involuntary - In the commission of an unlawful act no amounting to felony, or in the commission in an unlawful manner, or w/o due caution & circumspection, of a lawful act which might produce death. G. VOLUNTARY MANSLAUGHTER: Heat of Passion Killings 1. (Def) Intentional homicide committed w/o malice (basically, b/c of extenuating and mitigating circumstances) 2. Common Law Juris: Heat of Passion Four Requirements: a. Acts in response to a provocation that would cause a reasonable person to lose his self-control, b. Acts, in fact, in the heat of passion, c. Lapse of time is so great that a reasonable person would not have cooled off , and d. He has not in fact cooled off, e. Causal connection between the provocation and the killing. 3. MPC sec. 210.3 (pg 1012)Says a D will get manslaughter if the murder was committed under the influence of extreme mental or emotional disturbance for which there is reasonable explanation or excuse. 4. RULE OF PROVOCATION a. There must have been adequate provocation b. The killing must have been in the heat of passion c. It must have been a sudden heat of passion--killing must have followed the provocation before there had been a reasonable opportunity for the passion to cool off d. There must have been a causal connection b/t the provocation, the passion, and the fatal act. 5. Reasonable Provocation: a. D s act must be in response to a provocation that is:

I.

never for a greater crime INVOLUNTARY MANSLAUGHTER 1. (Def.) An intentional killing done w/ either reckless OR criminal negligence. However, where the killing results from such disregard and recklessness as to constitute the malice necessary for intentional killings, D may be charged w/ murder. 2. Two Categories: a) Misdemeanor Manslaughter -Punishes people who kill somebody unintentionally during commission of unlawful act which is not in the covered under the murder felonies (Ex. Speeding, assault) b) Killing done in lawful act done by recklessness or gross negligence. Unlawful killing w/ culpable mental state which falls short of malice.  Recklessly is where D is aware of risk of death & consciously chooses to ignore it showing a gross deviation from standard of care. 3. Sometimes that when you kill someone unintentionally but you are acting so wanton and reckless that we are willing to treat you as if you were acting with malice. 4. MPC: Requires that D act recklessly MPC - murder if its committed recklessly under circumstances manifesting extreme indifference to human life. a) A gross deviation from the standard of conduct that a lawabiding person would observe in the actor s situation. b) Considered in light of all of the surrounding circumstances. 5. Implied malice: When no considerable provocation occurs or when the circumstances show a maligned heart. a. Malice may be implied when D deliberately does an act with a high probability that will result in death and does it with a base antisocial motive. 6. State v. Williams - Parents did not seek med attention for child and it died. Ct says that you only convict if person in ordinary caution would have acted to get medical care.

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a. Sufficiently strong that a reasonable person would have been caused to lose his self-control; AND Strong enough that D himself lost his self-control. b. Characteristics of the reasonable person: Physical characteristics have sometimes been allowed, but emotional characteristics have almost never been allowed. 6. 4 Situations Which Are Recognized as Adequate Provocation: a) Discovering your spouse having sex w/ someone else; b) Engaged in mutual combat; AND c) Assault and battery (having been subjected to assault and batter by the victim) d) Authority recognizing injury to a family relative or third party, and death resulting from resistance of an illegal arrest as adequate provocation for mitigation to manslaughter. 7. Manslaughter defense : (broadens defense) If D can show that he acted under the influence of an extreme emotional disturbance for which there was a reasonable explanation or excuse, this may reduce murder second to manslaughter. The extreme emotional disturbance defense in the MPC is an outgrowth of the heat of passion defense found in common law, but is considerably broader. It eliminates entirely the provision which required that there be no cooling off period btw the provocation and the actions which caused the death.It also eliminates the analysis of whether D was adequately provoked. 8. 2 Separate components (2): (subjective & objective) a. Act must actually been done in state of extreme emotional disturbance from D s p.o.v. & circumstances b. Whether there was a reasonable explanation or excuse for emotional disturbance. Both defenses do NOT overlap completely Ex: mutual combat is a sufficient requirement to bring about the issue of heat of passion BUT it would NOT suffice to establish extreme emotional disturbance. Split Jurisdiction concerning whether the defense of heat of passion OR extreme emotional disturbance applies in situations where D kills a person that DID NOT provoke them.

J.

7. Actual Awareness of the Risk: a. Likely to turn on a reading of the statute. b. If the state only required ordinary negligence, D can be liable even though he is unaware of the risk. (State v. Williams) c. If gross negligence or recklessness is required courts usually require actual awareness. 8. The death must be a proximate cause of D s conduct for liability to exist. Ways of Limiting Felony Murder 1. State v. Sophophone - Victim killed by police during D s & victims burglary. D is handcuffed when the killing takes place. HOLDING: Ct says the D is not criminally responsible b/c the felony murder rule does not apply if the person who directly causes the death is a non-felon. 2. Broad Felony Rule - applies to accidental or unforeseen death which occurs in the course of a felony. a. Under this limitation it focuses on who does the killing NOT WHO GETS KILLED b. If a police officer shoots a innocent person or speeding to scene & kills an innocent person the D is not guilty of felony murder under these situations. What matters is whether the killing is done by D or one of the people acting in consonant with the D. 3. Inherently Dangerous Felony: If a felony isn t inherently dangerous, it is highly improbable that the potential felon will be deterred. 4. Merger Limitation: FRM is inapplicable to felonies that are an integral part of and included in fact within the homicide. 5. Would preclude the jury from considering malice aforethought. 6. Can still apply if the felony was committed with an independent felonious purpose. 7. FMR does not apply to homicide categories, assault, battery, burglary committed in order to assault b/c it would degrade legislative intent in grading homicides. Burglary can still be applied to the FMR. 8. In the Perpetration of a Felony Time: If a killing occurs while the felons are attempting to escape, it will be in the commission of a felony. 9. Agency Approach: FMR does not apply if the person who directly causes the death is a non-felon. Prof. Rosen McMillan-McWaters 16

Most courts are moving towards just analyzing the mens rea (and not categorizing these factors) Diff b/t second degree murder v. Voluntary manslaughter: Secondary murder requires malice. Voluntary manslaughter is murder 2nd BUT ( but is the mitigating circumstances; killing is intentional, but there are circumstances in which we don t want to attach the same level of culpability) H. FELONY MURDER 1. In relation to the killing it is a STRICT LIABILITY CRIME!! If an accomplice encourages or attaches themselves to crime, they are guilty of felony murder. 2. POLICY Why have Felony Murder Rule: a) As a deterrence from committing a crime. b) It makes prosecution easier to convict people of murder c) Intended to make people be more cautious when they commit a felony d) To minimize perjury--makes it harder for liars to get out of a murder conviction by saying that they didn't intend to do or that they didn't have the requisite mens rea. e) Generally people who commit felonies are not good people so if you decide to commit a crime, society is ok to say that we don't care what your mental state was and we justified in convicting you. By hypothesis felons are bad indiv's, so are comfortable elevating you up to murder.

(Felony murder con t) People v. Fuller D charged w/ killing an innocent bystander during police chases caused by D committing burglary. Felony murder applies when D s attempt to commit felony & lasts to immediate flight. People v. Howard same facts as above. Ct looks at whether speeding is inherently dangerous to human life to decide 2nd Degree felony & finds you can t convict based on this. Possible to convict D on theory of D drives recklessly and kills someone, to show malice you could argue a blatant disregard for human life or depraved heart by wanton disregard for the life of another. People v. Robertson D kills man trying to steal his hub caps. Fires gun to scare victim. Discharging the gun negligently is the predicate for the felony. a. Merger Doctrine  When is Merger Doc applied? You need to have an independent felony otherwise than an assault on the victim. General Rule: that if you assault someone, that cannot be the predicate for felony murder b/c we assume that the legislative hasn t intended this. K. ACCOMPLICE LIABILITY & FMR 1. All co-felons will be liable for the accidental killing committed by one of them if it was in furtherance of the felony. 2. If it was not in the commission of the felony, the co-felons will be able to escape liability.

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CAPITAL PUNISHMENT
A. CP is thought to be reserved for the most deserving killers. Historically, capital punishment was mandatory for murders. Now we limit the class of people who are eligible for capital punishment. Decision to impose death is left to the discretion of the judge or jury. B. Furman v. GA (1972) -5-4 vote, the Ct throughout that death penalty as currently imposed in this country violates the cruel & unusual punishment clause of the 8th Amendment. All 9 justices wrote opinions. 3. Justice Stewart - Being executed is arbitrary and capricious he found that it violated the 8th Amend. 4. Justice White - DP is a deterrent but it can only be a deterrent if more people are executed. 5. Justice Berger (dissent) - said that this does not end the death penalty. Only 2 find it Unconstitutional. There are ways to meet the concerns of Justice Stewart & White. You can satisfy White by giving mandatory death penalty in certain cases. C. CONSTITUTIONAL & POLICY DEBATE 1. Gregg v. Georgia - This case sets the perimeter for the DP. Issue: If the DP can be imposed consistent w/ 8th Amend & whether GA s system of imposing DP passes Constitutional muster. GA Death Penalty Systemhas guilt/innocent trial. If D is convicted of murder there is a 2nd trial and the jury hears evidence in aggravation and mitigation and cannot impose the death penalty unless 1 aggravating circumstance is found. Ct says GA DP is not a violation by using gross & proportionate test of excessiveness 2. AGGRAVATING CIRCUMSTANCE --killing a police officer, killing to avoid arrest, murder is esp heinous or cruel, age of victim, helpless victim, manner of the killing, felony murder, etc. (Prosecution proves aggravating circumstance/Defense puts up mitigating circumstances (childhood abuse, etc) to rebut) D. Ct has struck down the mandatory DP system, E. SUBSTANTIVE PROHIBITIONS 1. Jury must make determination; NOT judge--but NOT all states require consideration of aggravating/mitigating facts. 2. DP may NOT be imposed for rape of an adult 3. DP may NOT be imposed on D s who are minors at time they commit offense. 4. Cannot execute D who is mentally retarded OR insane at time when D commits offense OR at time of execution. 5. F-M rule--major participation b. Major Participation--in the felony committed combined w/ reckless indifference to human life is enough to supply culpability necessary to constitutionally impose the DP. F. VICTIM IMPACT EVIDENCE 1. 8th does NOT prohibit victim impact evidence at sentencing phase of a capital trial. However, prosecutor can t introduce evidence to jury about th deceased wishes or belief about the DP. G. CATEGORIES FOR ACCOMPLICES & DEATH PENALTY: 1. Accomplices having intent--they can receive DP under f-m rule. 2. Accomplices that are major participants--they can receive DP under f-m rule. 3. Accomplices that are just drivers for instance--they CANNOT receive DP under f-m rule. 4. Tison v. Azizona Family prison break. Sons can get DP as accomplices. H. ISSUES W/IN DEATH PENALTY 1. Quality of Defense- places there is a $2k cap, places trouble getting good atty's taking capital case, not well paid, not very popular. 2. Problem of Innocent people on death row and how to sort this 3. Underlying issue of race--majority of people on death row in NC are African American or people of color. McClesky v. Kemp Black man kills white officer. Ct says can t accept raw data b/t flood of similar evidence. I. 4 VIEWS ON CAPITAL PUNISHMENT Scalia & Thomas - death penalty is Constitutional. DP per se is Unconstitutional (Brennan & Marshall) on moral & religious grounds, cruel & unusual. Kennedy & O'Connor - need to do our best to rationalize & regulate DP and once we do this we have to accept that the death penalty is Constitutional. Blackmun & Powell - done our best to regulate, but we just can't do it well enough to say that DP is Constitutional. Prof. Rosen McMillan-McWaters 18

RAPE & SEXUAL ASSAULT

A. RAPE DEFINITION 1. It is the intercourse of a woman by a man, forcibly against her will, and by force or threat of force (constructive force). a. Against will is also articulated as "w/o consent" 3. There are other types of rape: a. Statutory rape - sex with underage person whether w/consent or not. b. Crimes - Having sex with someone when they are unconscious, physically helpless, incapacitated, etc. c. Crime for custodians to have sex with someone under their care even if it is consensual. Some States its illegal for teacher to have sex w/ their student. d. Sexual assault - violation of the body not involving intercourse. B. FORCE & NONCONSENT 1. State v. Alston Elements of rape: Vaginal Intercourse, w/another, by force, against will. 2. Rusk v. State - Victim met D at the bar. Under this statute, victim is required resist or show she was prevented from resisting in order to convict for rape. 3. Commonwealth v. Berkowitz - 2 college kids who end up having sex after she came into his room looking for someone else. Elements of rape under PA: sexual intercourse w/ someone not your spouse by forcible compulsion. HOLDING: Not consensual sex but there was not enough evidence of force to show that this was rape b/c of size of victim & D. 4. State of NJ v. MTS Victim goes to bathroom she & 17 yr old in her room. TC finds that there was no consent. Ct App reverses D s conviction Traditional Common Law Rule: Need to have additional force beyond sexual act for something to amount to rape. Under this ruling, in order to get a rape conviction, Prosecution has to show an offensive touching that involves sexual penetration then it is a rape. It does not require an additional force beyond the act of unwanted sexual penetration. NOTE: E. FORCIBLE COMPULSION: Once you show forcible compulsion then there is no resistance requirement. Ex.) If guys says get on bed or I'll kill you then resistance by the victim is not required. F. WITHDRAWN CONSENT 1. People v. John Z. - Ct says it is forcible rape b/c it you w/draw consent & D's continue w/ using force or threat of force then its rape.Dissent argues there is insufficient evidence that there was force. Doesn t see any indication that con't sexual activity was done by force. G. MENS REA 1. Commonwealth v. Sherry 3 Dr s are found guilty of raping a nurse. D's wanted a jury instruction at trial that they had a good faith mistake that nurse consented. D s arguing for mens rea of Purpose & knowledge. Ct says we will allow a defense of mistake in this case. It has to be a reasonable mistake. EXAM TIP: Rape is a general intent crime so you only get a defense if there is a reasonable honorable mistake. In MPC rape is a recklessness crime. Being aware of a substantial justifiable risk. H. RAPE SHIELD LAWS 1. Enacted to protect victims from having their entire sex history revealed. To minimize victims from unnecessary harassment & embarrassment. Limited by Constitutional guarantees for Crim D's under 6th Amend Confrontation Clause. 2. Balancing Test: in which the State's interest in enacting a statute is weighed against the D's Con interests. Cts are required to interpret rape shield statutes in a way that does not violate the D's Con rts to present evidence about a relevant matter. Rape shied keeps irrelevant info. Rape shield shifts the assumption away, now D has to show why it is relevant to a fact in issue in the case. 3. POLICY: a) Prevents D from harassing and humiliating the complainant w/ Prof. Rosen McMillan-McWaters 19

If D is mistaken about whether permission is granted, does D have a defense of reasonable mistake. C. RAPE BY FRAUD OR NON-PHYSICAL THREATS 1. Boro v. Superior Court - Guy tells victim that she has a rare disease & that it can be cured by having expensive surgery or pay to have sex with someone who has been cured for the disease. y State relies on 2 theories: Sex out of force or fear (this is dismissed b/c D did not use any force or threat of force); This is rape by fraud b/c victim is unaware of the nature of the act. D. STATUTORY RAPE 1. Only 3 juris where there is a Mens Rea requirement for statutory rape 2. Usually age diff component of the statute. y Ex.) NC has to be a 4 yr age diff b/t person being charged with the crime & minor.

evidence of either her reputation for chastity or of specific prior sexual acts. b) This type of evidence generally has no bearing on whether the victim consented to sexual conduct with the D at the time in question c) Exclusion of the evidence keeps the jury focused only on issues relevant to the case. d) Law promotes effective law enforcement b/c a victim will be more readily report & testify in sexual assault cases if she does not fear that prior sexual conduct will be brought before the public. 4. People v. Wilhelm D is charged w/ rape & wants to show that victim showed herself to other men in the bar.Ct holds that the evidence can't come in b/c it is irrelevant. How she behaved w/ others is not relevant in whether she was raped by D. What is D's argument? The fact that she exposed herself to others close in time to the alleged rape, shows that she has loose sexual nature

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GENERAL DEFENSES
A. Hypo: John & Fred tied together w/ rope. F is more experienced climber. He slips & falls and pulls J down with him. F is going to die. J either cuts the rope & hastens that death or he dies too. So J cuts rope & F falls to death. Would F have died as he did & when he did if J had not cut the rope? No, not at that point. So we hasten the death which is usually enough for liability. Did J intend or know he was going to cause F to die? Yes. J had the mens rea. What would J be guilty of that he killed someone with certainty that they were going to die? 2nd Degree Murder. J acted w/ malice which is not ill will. Why don't we want to punish J? B/c J would die if he had not cut the rope so we don't want to punish him. There are factors that come out of our usually analysis & therefore we don't want to punish. Some things that happen that change our mind about what we as a society wants to do. B. Affirmative Defenses 1. Def.) All elements of the crime are satisfied but there are other factors that come into play where we don t want to impose liability. This is diff than mistake. When the categories are insufficient to send some justice so we feel we need to consider outside factors. C. Element of Proportionality 1. Def.) Relationship b/t harm avoided & harm that is cause. 2. Ex.) Same hypo as above, except J doesn't want to bruise his arm and is aware that F would die, but cuts rope to avoid injury. We want to punish him b/c the harm caused is greater than the harm avoided. D. 3 Principles To Decide Whether to Punish in SELF DEFENSE (ANALYSIS) 1. Who is at fault? Is the D at fault? Who caused the harm? a. D should not be the aggressor or acting unlawfully 2. Whether the action is necessary? Is there a reasonable alternative? (Modern Common Law: RETREAT DOCTRINE NO DUTY TO RETREAT a. D can only act in self defense in order to prevent imminent bodily harm or death. 3. Whether harm actually caused is proportional to the harm avoided. a. D can only use the amt of force reasonably necessary to avoid the amount harm. Can't shoot someone that slaps you. b. Defenses are articulated diff in diff juris. Almost all of the rules that apply to these defense have to do with 1 or more of the above principles. E. Burden of Proof on Affirmative Defenses 1. State prove every essential element beyond reasonable doubt Winship 2. Is it Constitutional for State to put burden on D for self defense? It depends on state law. a) Ex.) NY says that murder is an intentional killing and if D claims selfdefense, then D has the burden to prove they were acting in selfdefense. b) Ex.)NC requires that in order to convict someone of murder it has to be an unlawful killing, so State has to prove there is no self-defense if that issue is raised by the D. F. DEFENSE OF OTHERS 1. (Def.) - Defense of other theory is available only if a person acts to prevent unlawful bodily harm against another. 2. Elements of Defense of Others: Reasonable belief that someone is being threatened & you need to intervene for the protection of a 3rd person & that person you are protecting would need to use a reasonable amt of force to protect them. You can't act unless there is a perceived necessity and can only use a reasonable amount of force. 3. Common Law - Defense of others at your on risk so if you were wrong then you could be prosecuted. 4. Majority View: You get defense of others so long as you reasonably believe that you are protected a person and if you are wrong then it doesn't matter (Ex. Cop/Robber hypo) 5. People v. Kurr Pregnant D kills bf w/ knife & b/c he is punching her. RULE: Ct says fetus is included as "others" for the purposes of defense of others using the Fetal Protection Act as their rationale. Prof. Rosen McMillan-McWaters 21

G. SELF DEFENSE 1. Def.) For a D to prevail on self-defense, he must have a reasonable belief (subjective) that such reasonable force was necessary to defend himself OR 3rd person from imminent and unlawful force by another. D s beliefs must be objectively reasonable in light of the surrounding circumstances (objective).ALL facts and circumstances known to a D, including those known prior to the incident and the gender & sizes of persons involved, should be considered when deciding if D s belief was reasonable. 2. There is NO self-dense in a f-m prosecution; when you commit a felony, you lose your right to self-defense. 3. Self defense is both a justification and an excuse. Justification- situation ends up better than it otherwise; Excuse - something bad happens but we don't want to blame anyone. 4. US v. Peterson D kills robber who comes after toward him w/ lug wrench. Could argue that D reasonably believed that it was necessary to protect himself. If someone is coming after you with a lug wrench can you shoot them its proportional to respond w/ deadly force b/c D could reasonably believe that it was necessary to kill in order to protect himself. RULE: Even if you are at fault at one point you can free/purge yourself as the aggressor if D had turned around & went back to the house and Keitt continued to come at D with the lug wrench. Why does D say he did not have to retreat? B/c it was his home. A man does not have to retreat in his own home. RULE: Ct says the castle doctrine doesn't apply b/c D was the aggressor. 5. Common Law Elements of Self Defense a. Must have been a threat, actual or apparent of the use of deadly force against the defender. b. Threat must be unlawful & immediate c. Defender must believe that he was in imminent peril of death or seriously bodily harm.  Imminent describes such perceived threats of death or great bodily harm as will justify a homicide by reason of self defense has been defined as immediate danger.  Application - the evidence in this case tends to show that the D (reasonably /did not reasonably believe depending on facts of exam) was confronted by a threat of imminent death or great bodily harm. d. Defender's response was necessary & proportional e. Defender is not at fault or the aggressor. Did not provoke the conflict. 6. Reasonable Belief Requirement a. People v. Goetz - D shoots 4 teens in subway in NYC. What is NY law on self defense? When are you allowed to use deadly force? Defending yourself or reasonably believe kidnapping, rape, or robbery. What is D complaining about? The instruction that D's conduct was that of a reasonable man.Why did lower court throw out instruction? B/c they used a totally subjective approach and jury was instructed on the reasonable person. NY follows MPC and it uses a relatively subjective test: MPC says you look to see if the person was negligent in believing that self defense was necessary then he is only guilty of negligent homicide. If he was reckless then he can only be guilty of reckless homicide. You use the same mens rea. What facts could jury consider? That D had been previously robbed, racial profile (this quest is left lingering) b. Common law: bystander gets killed. You get right to self-defense so long as you reasonably believe you were acting in self defense and the force used is not excessive. (Same outcome in MPC) c. MPC: A D charged w/murder need only show that he believed that the use of deadly force was necessary to protect himself against death, serious bodily injury, kidnapping or forcible sexual intercourse to prevail on self defense claim. Depending on your state of mind as to self defense you can Prof. Rosen McMillan-McWaters 22

be guilty of negligent homicide or reckless homicide, whereas in NY if you have self defense then you are acquitted. 7. State v. Wanrow D kills an alleged child molester at neighbors home. D is complaining that the Jury was instructed to consider only the immediate danger and they kept talking about he. What's wrong w/ instruction on immediate danger? Victim didn't have any weapon & was not threatening at the time. Ct says this is too narrow and should widened so jury should consider the surrounding facts & circumstances that led up to the act known to the Defendant. Quest: Was it reasonable for D to believe that there was a threat at the time? HOLDING: Ct says jury said the instruction was given like 2 men were having a fight & didn't look at what a woman would do. Ct says you have to ask: Would a woman in D's situation, knowing what she knows about the victim, act in a diff way given the relative size & strength of the persons involved. This is a subjective standard of the reasonableness of the D's apprehension of danger. Jury instruction will likely be: you will consider the age, sex, & past experiences of the D. Not the reasonable man. This would be a question of law & fact for the jury. Under NY law they are much more willing to send it to the jury, but the judge is a gate keeper (Ex. If it s a 300lb man and 150lb man it may not get to the jury.) 8. State v. Norman(Ct. App) D kills husband in his sleep b/c of ongoing abuse. Self Defense: the right to kill in self-defense is based on the necessity, real, or reasonably apparent, or killing an unlawful aggressor to save oneself from imminent death or great bodily harm at his hands. For that reason, our law of self-defense has required that a D claiming that a homicide was justified establish that she reasonably believed at the time of the killing she otherwise would have immediately suffered death or great bodily harm. The imminence requirement ensures that deadly force will be used only where it is necessary as a last resort in the exercise of the inherent right of self preservation.  Arguments Atty General for upholding the conviction: She had alternative, she could have left home. She was not in immediate danger b/c he was not in the process of attacking her and therefore she can't use self defense. She could have avoided this killing  Arguments for the Defense for reversing the conviction: Although threat needs to be imminent, one definition of this word is that its going to happen and its reasonable that she believed he was going to kill her. What were her reasonable alternatives: run away (is she putting herself in more danger, threats to her family, she has run away before & he has found her), call the cops, wait until the moment he was attacking her, etc. Why does she need to wait? For example if you were kidnapped and the kidnapper said they were going to kill you the next day, would you need to wait until then to kill them & try to escape? If she waits for him to wake up and shoot him, she risks that she might miss him or the gun locks, then she is likely to be killed. You have to look at whether she is to blame for being there at that time & shooting him. Rosen says she didn't have an alternative H. DEFENSE OF PROPERTY 1. Hypo: Someone tries to steal your car? Can you push them away? Yes. Can you blow them away? No 2. Rule: Allowed to use a reasonable amt of force as necessary to protect your property. As a general rule we don't allow deadly force to protect property. 3. EXCEPTION: Robbery is different b/c its taking property by force, so you can use deadly force in a robbery. 4. People v. Ceballos - D lives in house above garage. Someone breaks into garage & steals tools so he sets up a spring gun. Assuming D had a right to shoot if he was present, was he justified to have a spring gun? No b/c the spring gun you can't make the decision of whether it was necessary or not. Spring gun in dangerous instrumentality that could kill children, police officers, etc. 5. POLICY: Allowing persons to employ deadly mechanical devices imperils lives of children, policemen acting w/in the scope of their employment & others. 6. Common Law : you can shoot about any unlawful intruder. All that is required is that D reasonably believe that intruder was trying to unlawfully enter their home and deadly force was necessary. Hypo: Drunk neighbor is confused & tries to get into your house, under old Common law you can use deadly force. 7. Modified Common Law: you can use deadly force if you reasonably believe that someone was coming inside to commit a felony or cause injury. Prof. Rosen McMillan-McWaters 23

I.

J.

8. NC Law: lawful occupant in home can use any degree of force, including deadly force to prevent an intruder, if the occupant reasonably believes that intruder is going to commit a felony. NECESSITY 1. 3 Essential Elements to this defense are (3): Common Law a. Must actually believe that his conduct is necessary to avoid an evil. If there are reasonable alternatives then it probably was NOT necessary b. necessity must arise from an attempt to avoid an even greater harm; AND D s actions must be weighed against the harm reasonably foreseeable at the time, rather than the harm that actually occurs. c. The balancing of evils is objective. 2. MPC Different Approach Rejects imminence requirement of common law, D does not automatically lose defense if at fault for creating situation. Defense not limited to emergencies created by natural forces, physical harm to persons or property, and may be employed in homicide prosecutions. 3. Nelson v. State D used Highway Dept yard equipment to try and free his truck that was stuck in mud. As a matter of law even if believed is insufficient, the judge can refuse to give an instruction. 4. RULE: Defense of necessity may be raised if the D's actions, although violative of the law, were necessary to prevent an even greater harm 5. POLICY/RATIONALE: The law ought to promote the achievement of higher values at the expense of lesser values, and sometimes greater good for society will be accomplished by violating the literal language of the criminal law. 6. US. Schoon - D's protested IRS office b/c of US involvement in El Salvador. RULE: Will never allow civil disobedience is not going to be a necessity defense. Harm is too remote, lack of causal relationship b/t disobedience, there is always an alternative. 7. Defense of Murder a. Queen v. Dudley & Stevens - According to jury's finding in this case D & co-D that they would have died of starvation had they not ate young boy. Necessity to kill him? Yes, b/c it was reasonable for D's to believe that it was necessary and they were not at fault for bringing this about. Argument that a life to save 3 might be proportional. There is one life being sacrificed to save 3. RULE: This court says - we don't think we are comfortable saying that you can murder another person who is not an aggressor just b/c it was necessary to save your life. DURESS 1. (Def.) Excuse usually in response to human forces) Duress (coercion) traditionally arises when someone unlawfully commands another to do an unlawful act using the threat of death or serious bodily injury.D s is essentially claiming that threats overwhelmed her will so that her inability to make the correct choice should be excused. (As opposed to necessity where D claim to have made the correct choice)Duress cannot justify an intentional killing--i.e., NOT a defense to murder. 2. U.S v. Contento-Pachon D smuggled cocaine b/c drug dealer said he would kill his fam. 3. ELEMENTS OF DURESS: a. Immediate threat of death or serious bodily injury. Requires that there be some evidence that the threat of injury was present, immediate, or impending. b. A well-grounded fear that the threat will be carried out. A veiled threat of future unspecified harm will not satisfy this requirement. c. No reasonable opportunity to escape the threatened harm. D must show that he had no reasonable opportunity to escape. Look for physical & mental restraint. Prof. Rosen McMillan-McWaters 24

4. HYPO: Most cts will not allow the defense if the D is part of the on-going role in drug dealing organization. If you are at fault for putting yourself in the position to be vulnerable to the threat. 5. MPC - Reasonable Firmness If one reasonably BUT mistakenly believed he had been threatened, he would be liable for NO offense if a person of reasonable firmness would NOT have been able to resist such a threat. If one s mistaken belief was recklessly or negligently formed, he could be liable ONLY for a crime of recklessness or negligence. Regardless, D must NOT be at fault in exposing himself to the threat.Duress is NOT a valid defense to murder NOR will it serve to reduce a murder to manslaughter; nonetheless, it will have bearing on D s mens rea (it is just NOT a formal defense). 6. Traditional Diff b/t Duress & Necessity - Generally, you have 2 paradigms. Necessity is usually caused by an act of nature not by another person & also notion that what you are doing is helping the general welfare. Duress is considered more as an excuse than a justification. Duress is usually brought about by a coerced human act. 7. People v. Unger (Escape Case) Under general mens rea analysis D intentionally escaped so he s guilty under this general requirement. Public Policy - Don't want to give prisoners a reason to escape & be allowed to a defense. The threat doesn't fit for D to escape. No one said D had to escape or be killed. 8. People v. Anderson D convicted of 1st Degree murder & kidnapping of a woman molester. D argues Duress b/c he was threatened to get the shit beat out of him Common Law Rule- duress is not a defense to killing an innocent person. 9. When can you raise duress defense in murder? FELONY MURDER & if you succeed in the defense in the underlying felony then that would wipe out the 1st degree conviction of felony murder. (Ex. You are threatened with the death of your family if you don't rob the bank. You rob bank and teller dies of heart attack during robbery - felony murder) 10. FutureHarm: D may assert duress when he acts under a threat of future harm only when the harm is likely to occur so quickly that the D cannot escape the situation. K. INTOXICATION DEFENSE 1. Voluntary intoxication - you chose to become intoxicated/drunk/high. 2. RULE: You have to be more than drunk or high. You essentially have to be out of your mind. Incapable of forming the specific intent. Some states retain the dichotomy of Graves, specific intent/general intent while others have narrowed or even abolished it in others. We feel uncomfortable about allowing someone who chooses to become intoxicated & then causes harm to other, it is hard to work up a sympathy for that person. Society says they are morally blameworthy. Commonwealth v. Graves D drank & took LSD before burglarizing 75 yr old man s home in which he died from gun shot. 3. VI is NOT a separate defense; may be used to negate mens rea requirement of a specific intent crime.D s level of intoxication must be at the point where you were unable to form the mens rea of the crime (essentially, D is unable to is unable to distinguish right from wrong). a) If jurisdiction has the distinction of 1st and 2nd murder where 1st requires intent (i.e. a specific intent) BUT murder 2nd (malice murder; depraved heart--extreme recklessness/indifference) does NOT require a specific intent ( general intent crime) then evidence of intoxication will NOT help D. Thus, D would NOT get an intoxication instruction for rape (general intent crime), BUT may get instruction for assault w/ the intent to commit rape (specific intent crime). b) Some Cts do NOT consider intoxication at all; some jurisdictions give instructions to the effect that jurors may ignore whether intoxication as affected D s mens rea or other cautionary instructions. Other cts may opening up the time-frame to show that D voluntarily became intoxicated 4. MPC - says that intoxication is a defense to specific intent crimes, but not general intent.  Defense that will lower 1st degree murder down to 2nd degree. Prof. Rosen McMillan-McWaters 25

 Not a defense to malice murder. Requires intent to kill & encompasses extreme recklessness. Generally if you are tried with 2nd degree murder you can't raise intoxication defense.  Is a defense if it negates the mens rea, but its not a defense to recklessness. This repeats the Common Law pattern of purpose & knowledge. 5. Early Common Law - in early common law there was no intoxication defense. Gradual acceptance of intoxication. 6. Hypo - D conviction is for rape, (general intent crime) so you don't get a jury instruction on rape for intoxication defense. However you get an intoxication defense with a charge of intent to commit rape. Assault w/ deadly weapon is not a specific intent crime so you don't get an intoxication defense. 7. Involuntary Intoxication a. Minneapolis v. Altimus - Ct says you have a right to an instruction on involuntary intoxication. b. Categories of Involuntary Intoxication: i. Coerced intoxication - you are forced to take drugs, alcohol, etc by reason of duress or coercion ii. Pathological intoxication You take something for 1 purpose & have an outrageous reaction. You have no reason to believe that this reaction will occur. (Ex. You take medically prescribed drug and you have a bad reaction) iii. Intoxication by innocent mistake You take something that you think is something else. (Drink root beer that is actual spiked punch) iv. Unexpected intoxication resulting from the ingestion of a medically prescribed drug - need to show that you don't know or have reason to know that the drug would have the effect that it did, that the drug was the cause of the harm.

L. INSANITY
1. TEST OF INSANITY Traditional - ability to know right from wrong or to know the nature of your act. Broad Test - looked at whether you knew right from wrong, but b/c of a mental defect you had an irresistible to commit the crime; MPC- When as a result of mental disease or defect, the D lacked substantial capacity to appreciate the criminality of his conduct; or When as a result of the mental disease or defect the D lacked substantial capacity to conform his conduct to the requirements of the law. 2. POLICY- How do you deter someone who is out of their mind; morally we feel differently about people who harm another person b/c they are out of the mind. We don't feel that they are as culpable as those who chose. POLICY FOR DOING AWAY W/ INSANITY - fear of manipulation that D's who are blameworthy use it; when you get into an insanity defense, we are in essence turning over our crim justice system to psychiatrists and neither the public or the legal system trusts these folks to make the decision. 3. DIFF b/t INSANITY AS A DEFENSE & COMPETENCY TO STAND TRIAL a) When you are raising insanity you are saying that during the commission of the crime D was suffering a mental defect & was the crime. RULE: To establish defense on the ground of insanity, it must be clearly proved that at the time of the committing act, the accused party was laboring under such a defect of reason, from disease of the mind, as not to know the nature & quality of the at he was doing or if he did know it, that he did not know that what he was doing was wrong. b) Competency to stand trial is prior to trial or during the trial. Is D competent enough to understand and participate in the defense against themselves. If D is incompetent at time of the trial then it is Unconstitutional to bring them to trial. Constitutionally permissible to place the burden of proof on D to show that he/she is incompetent. When that happens D is sent to mental institution is kept there until they are competent. RULE - whether D is reasonable able to assist the law & has a rational understanding of the proceedings going on. M. CONDITIONED RESPONSE (SEE ACTUS REUS PAGE 4 (F) Prof. Rosen McMillan-McWaters 26

N. MISTAKE (SEE MENS REA PAGE 8) O. MISTAKE OR IGNORANCE OF FACT Ignorance or mistake as to a matter of fact will affect criminal guilt only if it shows that the Defendant did not have the state of mind required for the crime. (Ex. You go deer hunting & shoot at what you reasonably believe to be a deer, but in fact its B, who is killed. Mistake of fact establishes that you did not have the state of mind required for the murder. P. MISTAKE OR IGNORANCE OF THE LAW General Rule: It is not a defense to a crime that the defendant was unaware that his/her acts were prohibited by the law or that she mistakenly believed that her acts were not prohibited. This is true even where the ignorance or mistake is reasonable. 1. Mistake or Ignorance of Law May Negate Intent If the mental state for a crime requires a certain belief concerning a collateral aspect of the law, ignorance or mistake as to that aspect of the law will negate the requisite state of mind. Ex.) A is charged with violating a statute that prohibits the sale of a gun to one known to be a convicted felon. A was unaware of the statute prohibiting this, but was aware that the person to whom the gun was sold was convicted of assault. A mistakenly believed, however that assault was a misdemeanor, in fact, it was a felony. Is a guilty? HOLDING: No. A s ignorance of the statute prohibiting the sale does not affect her liability, but the statute requires awareness that the buyer was a convicted felon. Since A believed the buyer to be only a convicted misdemeanant, she lacked the state of mind required for the crime.

INCHOATE OFFENSES
A. Inchoate Offense (Def.) - one which is incomplete where the harm has not been done. 1) Conspiracy, 2) Attempt - generic way of imposing criminal liability fairly early in the process, 3) Solicitation - many juris a crime to solicit another to carry out criminal activity. B. ATTEMPT 1. Attempt requires (1) an intent to commit the target offense, AND (2) a substantial step in furtherance of the crime. 2. Generally, NO separate liability for attempting and completing crime b/c attempt merges into completion. 3. MPC punishes attempt to the same extent it punishes the completed crime. 4. On the other hand, MOST jurisdictions punish attempt less than the completed crime. 5. POLICY REASONS TO CATCH PEOPLE EARLER: Deterrence; For protection 6. REASONS FOR WANTING TO WAIT Encourage people to have a chance to desist; Judicial resources argument --most of us would be in court daily. Conserve judicial resources--punish those who are most dangerous. You may have someone doing something that is actually innocent. Ex) In bushes with gun for hunting. 7. Mens Rea: a) Majority--to establish guilt for an attempt of a result crime (e.g., murder) state must show that D intended the result of that crime (i.e. the completed offense). b) F-M Exception: Generally, a criminal attempt consists of specific intent to commit the offense along w/ some overt act in furtherance of the intent which goes beyond mere preparation. B/c a conviction for f-m requires NO specific intent to kill, it follows that there can be no conviction for attempted f-m. 8. Actus Reus: a) Substantial Step Test: (Modern view) If actor has taken a substantial step in the furtherance (commission) crime such action is strongly corroborative of the actor s overall purpose Prof. Rosen McMillan-McWaters 27

b) Preparation is NOT punished; only when D begins to commit crime (we don t want to punish to early).Cts tend to want to give people opportunity to NOT go through w/ the crime c) Mere preparation and attempt are conclusions NOT descriptions. By determining that act was mere preparation, we have decided that D is NOT criminally responsible d) Abandonment: (NOT a defense ) some jurisdictions allow abandonment even when the attempt has already begun. NO bright line btw abandonment & mere preparation. e) Line b/t mere preparation (which by definition is a non-criminal activity) up to an attempt (which is a crime). f) POLICY: What the Cts are doing as a matter of policy is determining where in the line of doing a crime they want the law to intercede. Reflection of where the line ought to be than a determinative factor of whether someone is guilty or not. y Modern law has tended to push the timeline back. Willing to find an attempt at an earlier stage of the criminal activity. g) Commonwealth v. Peaslee - D was trying to burn down insurance bldg. He set up combustibles in bldg & solicited another to light candle, but then changed his mind. HOLDING: Ct says the mere collection of materials w/ purpose of setting fire is too remote b/c its not accompanied by any present intent. Actually enough evidence of an attempt, based on fact that he set materials up & solicited someone to commit the crime, but the indictment failed to allege solicitation. 9. Pre-Attempt Conduct: a) Inchoate offenses of solicitation and conspiracy punish specific types of preparatory conduct (conduct that has NOT yet reached the attempt stage). b) Solicitation--asking someone to commit a crime--does NOT require an agreement by other person (person approached may be undercover cop) c) Conspiracy--two OR more people agreeing to commit a crime. Some jurisdictions require an overt act by at least one of the parties that was part of the agreement. In others, the moment you agree it s a crime 10. Abandonment a) If you are committing a crime & you stop b/c you get busted or events occur you are guilty. b) Commonwealth v. McCloskey - D planned to escape from prison, had civilian clothes etc, but decided to go through with it b/c of fam. Concurring judge says that he would let the D off b/c of voluntary abandonment. This was an attempt, but b/c D should be let off b/c he abandoned the crime. Concurring Judge - PA legislature had adopted a proposal from MPC & PA had previously realized abandonment. You want to encourage what happened here and say he's not guilty b/c he abandoned the attempt. c) Those juris which recognize abandonment as defense, you have to do not b/c you are afraid of getting caught (ex. Hearing police sirens) but convince fact-finder you are doing it for something else. (Ex. Like D here, abandoned for the sake of his fam.

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MAJOR SPECIFIC INTENT CRIMES Solicitation Intent to have the person solicited to commit the crime Attempt Intent to complete the crime Conspiracy Intent to have the crime completed First Degree Premeditated Murder where so defined by statute: Premeditated intent to kill Assault Intent to commit battery Larceny & Robbery Intent to permanently deprive another of his interest in the property taken Burglary Intent at the time of entry to commit a felony in the dwelling of another Forgery Intent to defraud False pretenses Intent to defraud Embezzlement Intent to defraud

VOID FOR-VAGUENESS DOCTRINE The D/P Clause of the Constitution found in the 5th & 14th Amendments, has been interpreted by the Supreme Court to require that no criminal penalty be imposed without fair notice that the conduct has been forbidden. The void-for-vagueness doctrine, which has been held to require particular scrutiny of criminal statutes capable of reaching speech protected by the 1st Amendment, incorporates two considerations: 1) Fair Warning a statute must give a person of ordinary intelligence fair notice that his contemplated conduct is forbidden by the statute. 2) Arbitrary & Discriminatory Enforcement Must be Avoid a statute must not encourage arbitrary and erratic arrests & convictions. INTERVENING ACT As a general rule, an intervening act will shield the defendant from liability if the act is a mere coincidence or is outside the foreseeable sphere of risk created by the defendant s act. Ex.) Act of Nature, Act by 3rd Party, Acts by the Victim) CLASSIFICATIONS OF HOMICIDES 1) Justifiable homicides (those commanded or authorized by law), 2) Excusable homicides (Those for which there was defense to criminal liability), and 3) Criminal homicides.

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CHECK LIST: 1. POLICY: THEORIES OF PUNISHMENT 2. INTERPRETATION OF CRIM STATUTES 3. ACTUS REUS i. Voluntary Act no diff in Common Law or MPC ii. Possession i. Common Law - Absent a state of mind requirement in the statute, the D must be aware of his possession of the contraband, but he need not be aware of its illegality or true nature. ii. MPC MPC provides that possession can be a criminal act only if the D knew he had possession of the object & was aware of his control thereof. MPC adds knowingly or intentionally state of mind element to possession crimes, & under such statutes the D ordinarily must know the identity or nature of the item possessed. a. Burden of proof on the prosecution that the D was in possession or it s in your control. D can overcome this presumption by providing evidence that he didn t know of the objects presence or that he had no control over it. iii. Omission (Failure to act under a duty) Legal duty under: a. Statutory Requirement b. Special Relationship c. Creation of peril d. Duty based on k e. Voluntary Undertaking iv. Attendant Circumstances 4. MENS REA i. Specific Intent a. Need of Proof Existence of a specific intent cannot be inferred from the doing of the act. The prosecution must produce evidence tending to prove the existence of the specific intent. b. MPC:
Prof. Rosen McMillan-McWaters 30

ii.

i. Knowledge/knowingly - MPC imposes the subjective test in determining the D s knowledge. The test if whether the D actually knew or believed something, not whether a reasonable person in their position would have had that knowledge or belief. ii. Purposefully MPC a person acts purposely with respect to a particular element of a crime if D has the conscious objective or purpose to cause harm. iii. Recklessly a person said to act reckless under MPC when consciously disregards a substantial & unjustifiable risk & that the risk involves a gross deviation from the standard of conduct that a law abiding person would observe in a similar situation. All the circumstances known to the D must be considered when determining whether the risk was substantial & unjustifiable. (Ex. Motive, end D was seeking, etc) iv. Negligently - There is a greater degree for this type of negligence than civil negligence. MPC rejects this approach v. Strict liability no mens requirement c. Defenses Voluntary intoxication & unreasonable mistake of fact apply only to specific intent crimes. General Intent a. Generally, all crimes require general intent, which is an awareness of all factors constituting the crime, i.e. the D must be aware that she is acting in the proscribed way and that any attendant circumstances required by the crime.

iii.
Common Law Specific Intent Model Penal Code Purpose & Knowledge Honest Honest Reasonable No mistake defense b/c there is no mens rea requirement Mistake Defense

General Intent Reckless & Crim Negligence Strict Liability Strict Liability

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5. CAUSATION i. But-for & Proximate - the act was the cause & fact of the harm and that the act was the proximate or legal cause of the harm. ii. Issue unintended victim. iii. Some crimes require a harmful result & causation. 6. ACCOMPLICE LIABILITY i. Parties to the Crime a. Principle in 1st degree b. Principle in 2nd degree c. Accessory before the fact d. Accessory after the fact ii. Procedural effects of Classification a. Common Law At Common Law, the distinction b/t the parties have procedural significance. Ex) An accessory could not be convicted unless the principle had already been convicted. b. Modern Statues have abandoned Common Law distinctions, so that all parties to the crime can be guilty of the criminal offense, except accessories after the fact are treated separately. iii. Actus Reus a. Aiding & abetting is one who aids, abets, encourages, or assists another to perform a crime will be held liable for that crime. b. Words may be enough if the words constituted encouragement & approval of the crime c. Mere presence is not sufficient iv. Mens Rea a. Intentional aid D s conduct in rendering assistance or encouragement must generally be intentional in 2 respects: (1) the D must intend to commit the acts which in fact give aid or encouragement. (2) By committing those acts, the D must intend to help bring about the other party s criminal act. b. Must have purpose to further the crime.

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c. Depraved indifference Ct may impose accomplice liability on D where X commits a killing with reckless indifference to human life, and D (acting with the same reckless indifference) encourages X in the conduct leading to the death. (Ex. A & B open fire on a group of people, killing V. Prosecution can t figure out whether fatal shot came from A or B, so most States would probably hold that B could be convicted as an accomplice under depraved indifference, if he is shown that he fired with reckless indifference. v. Limits to Accomplice Liability a. Abandonment b. Vicarious Liability c. Proving complicity need more than accomplice testimony to convict D. Need corroborating evidence. 7. CRIMINAL HOMICIDE i. Intentional Homicide a. 1st Degree Murder b. 2nd Degree Murder c. Voluntary Manslaughter i. Heat Passion + Elements of Provocation: d. Involuntary Manslaughter ii. Unintentional Homicide a. Felony Murder i. Common Law strict liability under felony murder. ii. MPC does not adopt the felony murder rule per se. MPC takes a less severe approach than Common Law. MPC establishes a rebuttable presumption of recklessness manifesting extreme indifference to the value of life. (Ex. Where D is engaged in an accomplice burglary, if an unintentional occurs during one of these crimes, then Prosecution gets to the jury on the issue of depraved heart murder, but D is free to rebut the presumption that he acted with reckless indifference to the value of human life. )

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8. CAPITAL PUNISHMENT i. Aggravating Circumstance this put up by the Prosecution ii. Mitigating Circumstance the defense puts this up iii. Victim Impact Evidence does not violate the 8th Amend 9. RAPE i. In most States, even a reasonable mistake as to age is not a defense. HOWEVER, MPC allows the reasonable mistake as to age defense. ii. Force & Consent a. Common Law needed to show an additional force beyond the act of penetration. b. MPC need show force or threat of imminent death or serious bodily injury, extreme pain or kidnapping to be inflicted on anyone; or he substantially impaired her power to resist. c. State v. NJ v. MTS - Under this ruling, in order to get a rape conviction, Prosecution has to show an offensive touching that involves sexual penetration then it is a rape. It does not require an additional force beyond the act of unwanted sexual penetration. State must prove beyond a reasonable doubt that there was sex/penetration & it was accomplished w/o the affirmative & freely given permission of the alleged victim. iii. Statutory Rape strict liability a. Protected Person Doctrine if the legislature has intended the person to be protected under the statute then they cannot be held liable. (Ex. Statutory rape case where guy takes underage girl to ex-gf house and both guy & underage girl are charged with statutory rape, but Ct holds that the underage girl was intended to the protected person, and therefore cannot be held under this statute.) 10. DEFENSES i. Proportionality ii. Duress a. Elements: Threat, fear, imminent danger & bodily harm. b. MPC you can use this defense where the threat to the D was sufficiently great that a person of reasonable firmness in the D s situation would have been unable to resist. Modern courts & MPC are
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iii.

iv.

v.

more liberal. Many cts recognize this defense where a threat is made against the family member of the D. The MPC poses no requirement at all as to who must be threatened. c. Common Law - Traditionally this defense is not available if D is charged with homicide. Necessity a. MPC does not rule out necessity defense even in intentional homicide cases. But under the MPC one may not sacrifice one life to save another. Code requires the lesser of two evils not merely the equal of two evils. b. EXCEPTION if a life can be sacrificed to save 2 or more lives, the code would allow this defense. (Ex. Mt climber example) Self Defense a. MPC MPC construes imminence of harm liberally. Harm must be reasonably imminent. D may use force to protect himself against unlawful force that will be used in the presence not future. b. Rule: Aggressor cannot claim self defense i. EXCEPTIONS: (1) non deadly force met with deadly force (2) withdrawal. c. MPC if D can safely retreat then you must do so before the use of deadly force. d. Common Law castle doctrine e. MPC (Minority view) even an unreasonable but genuine mistake as to the need of self-defense will protect D. Defense Others a. Requirements: danger to other, degree of force must be proportional no greater than what is reasonably necessary, and D reasonably believes that the party being assisted would have the right to use in his own defense the force that D proposes to use in assistance. b. MPC you have to be actually defending another person and reasonably believe c. Traditional Common Law you could only defend your relatives. d. Common Law If the person aided would not have had the right to use that degree of force in his own defense, D s claim fails. (Ex. You see robber & cop in civilian clothes, you shoot cop---YOU GET NO DEFENSE OF OTHERS) (THIS IS DIFFERENT FROM MPC- You get reasonable person standard)
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Defense of Property a. Generally person has a limited right to use force to defend his/her property against wrongful taking b. No deadly force can be used c. Reasonable degree the degree of force used must not be more than appears reasonably necessary to prevent the taking. d. Traditional Law- D could use mechanical deadly device (Ex. Spring gun) if the situation were one in which D himself could use deadly force. vii. Intoxication a. Voluntary intoxication self induced intoxication does not excuse criminal conduct i. MPC self induced intoxication is not a defense unless it negatives an element of the offense. ii. Traditionally cts in a crime of general intent, intoxication would never be a defense and in a crime of specific intend, D would be allowed to show that because he was intoxicated he did not have the requisite intent to commit the crime. (Ex. If D was charged with assault with intent to kill, he could show that he was too drunk to have an intent kill.) b. Involuntary where D can show that his intoxication was involuntary, D is much more likely to have a valid defense. viii. Insanity a. M Naghten Rule D is entitled to an acquittal if the proof establishes that: a disease of mind, caused by a defect of reason, such that the D lacked the ability at the time of his actions to either: (1) know the wrongfulness of his actions; or (2) understand the nature or quality of his actions. 11. INCHOATE OFFENSES i. Attempt 12. POLICY ARGUMENTS FOR EVERYTHING!!!

vi.

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