Criminal Law I.

Theory Dimension

Broader Theories Applied to Punishment o Efficiency -> Optimal Deterrence o Fairness -> Individual Desert o Social Meaning -> Expressive Condemnation Optimal Deterrence o Central Question: What legal remedy will benefit society the most? o The individual is considered only insofar as they bear on this broader question. o Marginal Deterrence: There must be a distinction between gradations of offenses in order to discourage people from committing the great offense o Typical considerations:  Individual Deterrence: will the offender be deterred in the future?  General Deterrence: will others be deterred? o Deterrence questions, because they are empirical, can become very complex (substitution effects, etc.). o Deterrence is forward looking in nature Individual Desert o Central Question: What does the individual deserve? o Disavows consideration of broader societal welfare concerns insofar as they conflict with individual desert. o Heavy focus on choice o Typical consideration:  Proportionality: Is the punishment proportionate to the crime? o This is a philosophical question that is difficult to determine with any precision. Expressive Condemnation: o Central Question: Does the defendant's act express illicit values, and if so how can the law reassert appropriate values? o Typical Considerations:  Suggests that both deterrence and just deserts arguments depend on social norms.  Because norms are social, these evaluations are always contingent on values that vary across the population.  This is likely to lead to conflict in the law. o The hardest question: How should the law handle this kind of conflict?

A. Optimal Deterrence Bentham: Pain and pleasure are springs of human action. The value of the punishment must not be less in any case than what is sufficient to outweigh the profit of the crime. Between 2 offenses, punishment for the greater offense must be enough to make one prefer the lesser offence (if you get murder for everything, might as well steal and kill). Easier to err on overpunishing. No need for punishment if it won’t be effective, it costs more than it prevents Posner: Offers similar economic approach to deterrence as Bentham.

Meares, Katyal, and Kahan Updating the Study of Punishment: Not enough attention is paid to how deterrence of one crime increases another (economic substitutes). In 3 strikes and you’re out situation, might as well make the 3rd crime heinous (death penalty could serve as incentive to crime). Punishment can breed crime by increasing taste for it and reducing price of future crime. Imprisonment increases crime as it labels/stigmatizes individuals and they band together, and also more people are criminals, less social shame. Hubcap Example (p.22) Say that $50 fine for stealing just a $25 fine and catch only 1/5000big problem To deter hubcap theft, going to have to raise fine $250,001 but also unrealistic So you have to go toward imprisonment, say 15yrs…but the cost of that will be high plus marginal deterrence plus if a rapist only gets 15yrs, what does that say to the rape victim -If the costs of preventing a crime are too high, utilitarians would say don’t enforce it -Criminal law is usually the last and least effective way to deal with a problem…option of last resort. At same time, crim law is the expression of our society so big temptation to use it. B. Individual Desert Kant: Punish only for what one did and for what he deserves, not to set an example. Morris: Punishment about restoring equilibrium C. Expressive Condemnation Feinberg: Expression of community’s condemnation is an essential ingredient in legal punishment. Hampton: Must punish in a way to show victim’s worth, under-punishment diminishes victim’s status in community. People v. Du (CA 1992, p.43) -Female store owner kills teenage girl after shoplifting dispute/fight in a very bad neighborhood -D given leniency because she is not likely to repeat, first time offense, extenuating circumstances of the neighborhood State v. Chaney (AL 1970, p.47) -Chaney convicted of rape. P recommends 7yrs for rape and 5yrs suspended sentence for robbery, D recommends 2 yrs for rape 2 yrs suspended sentence for robbery -The judge sentences only one year and invites very early parole -What kind of message does this send? Fairness, Deterrence and Expressive Concerns are all seemingly ignored by judge Message conveyed of the relative worth of this guy and this woman Maybe the judge didn’t believe the guy was actually guilty? He feigns belief and respect for jury’s verdict so finds a way around it by drastically reducing the sentence (which in Alaska cannot be lengthened) This would also send an awful message. Certainly for general deterrence and to the community for their expressive condemnation


-Talk is cheap, punishment/action is really giving meaning to your expressions -For the victim in the Chaney case, what does she take away? That Alaska doesn’t care about rape? -Different legal actors will approach the same outcome differently (different values). Look at the Chaney case. If the judge doesn’t think raping a prostitute is that bad, then the judge won’t see it fair to lock up Chaney for life. If you can change the judge’s values, you can tailor arguments to convince that judge that the women deserves greater protection, that she has some greater value, and he needs to send a stronger message D. How Do We Punish? Imprisonment & Its Rivals US v. Bergman (SDNY 1976, p.51) -Bergman pleads guilty to defrauding Medicaid -The defense argues that there is no utility in sending him to prison. They propose fines and community service for Bergman (once proud member of the community) -The prosecution objects to him doing this because he used to do the community service stuff in his spare time plus it would be an honor to serve the community in the capacity suggested by the defense -From a utilitarian stand point the defense has a strong case because he is not a repeat offender, he is been pilloried in the community, unusual for someone of his stature to commit this crime no need for deterrence -A Kantian may say he shouldn’t go to jail because that would use Bergman as a means to an end by making him a deterrent to others…but then again he put himself in this position -From an expressive point, the court can’t devalue the crimes he committed by not giving him jail time…even the ripping in the press he’s taken can’t be considered b/c his high status is what is making him a target in the press, the press is just bringing him down to equilibrium…A fine could come across as just the cost of doing business…if you have money you can break the law US. Gementera (9th Cir. 2004, p.60) -D stole from mailboxes, sentenced to a shaming penalty (sandwich board, lecturing at HS, etc) -Dissent finds public humiliation to not aid in rehab and to be barbaric step backward in justice system Shaming -To see so many criminals and so many minorities on the street might be very distressing to the public…what is wrong with our criminal justice system -Is shaming only effective in small towns? -Incarceration rates are through the roof in every state, people are seeking alternatives…in every aspect prison is way too costly Kahan On Shaming: Shaming is good: frees up valuable resources for prison system, shaming penalties impose serious costs (reputation, etc), expresses community norms more openly, shaming is no more cruel than prison, especially good where no reason to incapacitate. Need more empirical data though.


Massaro: Shaming may produce more deviance than deterrence. Encourage stigma immune criminals to commit certain crimes. Not good because it rejects people from society. Whitman: In allowing public to condemn, government is delegating its power where it shouldn’t, can lead to mob justice. Unpredictable response from the public, not fair to the criminal who deserves predictable punishment. -The problem is the social meaning these alternative sanctions convey a) Fines seem like a sale more so than an offense b) Community service doesn’t seem fair because it is a laudatory act c) Shaming has distressing implications in society -seems like mob justice, many other negatives associated with it II. Institutional Allocation

Central Question o How should power be allocated across different institutions to achieve the best fit between the law the various theories of punishment? Courts & Legislatures o Desuetude  Gives courts the power to invalidate defunct statutes. (Stowell)  Is formally available in a minority of jurisdictions, but plays an informal role in most jurisdictions. o Legality  Law should be clear, strictly interpreted, and non-retrospective.  Vagueness: Laws cannot be so vague that a reasonable person will not know whether or not they are violating the law. (Morales)  Lenity: Where there is uncertainty, construe statutes narrowly and err on the side of lenity towards the offender. (Keeler, Zavrel)  This reflects a deep concern not only about the dangers of judicial lawmaking, but a concern about a particular type of mistake o If a judge reads a statute too narrowly (and thereby underpunishes a defendant), the legislature is likely to correct the courts mistake o But if a judge reads a statute too broadly (and thereby overpunishes a defendant), the legislature is unlikely to do so.  Ex-Post Facto: No punishment for a law that wasn't in place, or in a manner that was not established, at the time of the crime. (Rogers, Carmell)  Important Note: As you've no doubt noticed, courts often disregard Legality considerations. An important part of the class will be devoted to understanding why courts do this. Courts & Juries o Right to a Jury Trial


Defendants have a constitutional right to a jury trial for "serious" offenses. (Duncan)  Prosecutors can refuse to consent to a defendant's waiver of jury trial in many jurisdictions. (Moon)  Determining where to hold a trial and whether to prefer a jury or bench trial can be complicates. (Koon) o Jury Nullification  Juries have the power to nullify the law, but need not be informed of this power (Dougherty) Courts & Communities o To what extent should courts defer to local democratic decision-making? (Chicago Housing Authority, Morales) A. What to Punish? Central Question o How should power be allocated across different institutions to achieve the best fit between the law the various theories of punishment? Courts & Legislatures o Desuetude  Gives courts the power to invalidate defunct statutes. (Stowell)  Is formally available in a minority of jurisdictions, but plays an informal role in most jurisdictions. o Legality  Law should be clear, strictly interpreted, and non-retrospective.  Vagueness: Laws cannot be so vague that a reasonable person will not know whether or not they are violating the law. (Morales)  Lenity: Where there is uncertainty, construe statutes narrowly and err on the side of lenity towards the offender. (Keeler, Zavrel)  This reflects a deep concern not only about the dangers of judicial lawmaking, but a concern about a particular type of mistake o If a judge reads a statute too narrowly (and thereby underpunishes a defendant), the legislature is likely to correct the courts mistake o But if a judge reads a statute too broadly (and thereby overpunishes a defendant), the legislature is unlikely to do so.  Ex-Post Facto: No punishment for a law that wasn't in place, or in a manner that was not established, at the time of the crime. (Rogers, Carmell)  Important Note: As you've no doubt noticed, courts often disregard Legality considerations. An important part of the class will be devoted to understanding why courts do this. Courts & Juries o Right to a Jury Trial  Defendants have a constitutional right to a jury trial for "serious" offenses. (Duncan)  Prosecutors can refuse to consent to a defendant's waiver of jury trial in many jurisdictions. (Moon)


(Keeler. (Rogers. construe statutes narrowly and err on the side of lenity towards the offender. Morales) Central Question o How should power be allocated across different institutions to achieve the best fit between the law the various theories of punishment? Courts & Legislatures o Desuetude  Gives courts the power to invalidate defunct statutes. Carmell)  Important Note: As you've no doubt noticed. but plays an informal role in most jurisdictions. courts often disregard Legality considerations. (Moon)  Determining where to hold a trial and whether to prefer a jury or bench trial can be complicated.  Vagueness: Laws cannot be so vague that a reasonable person will not know whether or not they are violating the law.  Ex-Post Facto: No punishment for a law that wasn't in place. the legislature is likely to correct the courts mistake o But if a judge reads a statute too broadly (and thereby overpunishes a defendant). o Legality  Law should be clear. An important part of the class will be devoted to understanding why courts do this. and non-retrospective. (Koon) o Jury Nullification  6 . (Morales)  Lenity: Where there is uncertainty. at the time of the crime. but a concern about a particular type of mistake o If a judge reads a statute too narrowly (and thereby underpunishes a defendant).    Determining where to hold a trial and whether to prefer a jury or bench trial can be complicates. the legislature is unlikely to do so. but need not be informed of this power (Dougherty) Courts & Communities o To what extent should courts defer to local democratic decision-making? (Chicago Housing Authority. or in a manner that was not established. Zavrel)  This reflects a deep concern not only about the dangers of judicial lawmaking. strictly interpreted. (Stowell)  Is formally available in a minority of jurisdictions. (Duncan)  Prosecutors can refuse to consent to a defendant's waiver of jury trial in many jurisdictions. Courts & Juries o Right to a Jury Trial  Defendants have a constitutional right to a jury trial for "serious" offenses. (Koon) o Jury Nullification  Juries have the power to nullify the law.

not a threat to the 1st amendment Utility/Deterrence -Prevent future hate crimes. reason for punishing them more seriously. Texas (US SC 200) -Bowers was charged with violating GA’s sodomy laws (he was a homo). does this all the time -Dissent argue this violates individual liberty and right to be left alone -If someone doesn’t share your same values. marijuana) Wisconsin v. but need not be informed of this power (Dougherty) Courts & Communities o To what extent should courts defer to local democratic decision-making? (Chicago Housing Authority. Bowers v. challenging constitutionality of such a law -Just because it was in private and is a moral issue doesn’t mean the state can’t regulate it. If majority of society dislike something. Designation of behavior as violating public norms confers status and honor on those groups with conventional cultures and derogates those whose cultures are considered deviant. their perception on the same crime will likely be very different…one sees it as dangerous and the other sees it as fine (e.g. low value of gays) Posner’s Emotion versus Emotionalism in Law: Posner opposed to hate crime enhancement because varying punishment not to deter but to make a political/ideological statement. Morales) A. p. p. the greater the need to deter it Social Meaning/Expressive Condemnation -Could argue the hate crime is even more abhorrent by saying that a certain group doesn’t count -The hate crime statute expresses the values of Wisconsin a) But there’s not necessarily a consensus around this issue Devlin: A common morality is part of the bondage that keeps a society together. Mitchell (US SC 1993.88) (overruled by Lawrence v. Hardwick (US SC 1986. Institutional Dimension 7 . the greater the desire to commit the crime. believes this is a wrong and dangerous practice.92) -Issue whether you can enhance crime because it was a hate crime -Sentenced increased b/c D selected victim based on his race -Court contends that hate crimes are likely to provoke retaliations more unrest. Juries have the power to nullify the law. B. they shouldn’t be denied right to eradicate it (he points to sodomy) Kahan’s Secret Ambition of Deterrence: Hate crimes expresses perpetrators perceived value on victim and his punishment will express society’s view of his crime (low crime for homo hate crime. What to Punish  Gusfield: Agents of government are only persons who can legitimately claim to represent the total society.

we can’t get you on prostitution. would look soft on crime Commonwealth v. it’s just not how things work -When courts do try enforcing something like this. Superior Court (Cal. strictly interpreted. it gets repealed in the legislature -There is a message sent by these older statutes…at what time they may have showed a community’s value. it would act -The court doesn’t have the power to say this is not a law. how will that play in a campaign) -The risk here might be under-punishment. there’d be an outcrywhat happened to legislative supremacy?? Posner’s Sex and Reason: punishing nonmarital sex is a way of making a substitute more costly and encouraging marriage. the legislature reigns supreme and the courts need to understand that -Why yes? Legislative Process Failure -Judges do it because politicians can’t be trusted to do what the public wants them to do all the time. but we’ll get you on adultery -If a judge struck down a rule that is popular. there are no common law crimes. need strict construction Keeler v. repealing legislation is very hard to do by politicians (who is going to repeal a law on adultery. 2. Court construes statute to hold that it is not -D attacked ex-wife and killed her unborn baby intentionally a) Was charged with murder for killing fetus -Court says if liability is to be extended to fetus. In particular. but is the risk that great? Not really because politicians will no doubt grandstand over judicial activism here. which can be very dangerous (Bowers)an abuse of authority -In Stowell. 1970.108) -Issue is whether unborn fetus is a human being. p. legislatures never override courts decisions when they read a statute broadly and give over-punishmentNo one in the legislature is going to cry foul and rollback punishment. and non-retrospective -Prevents judges from making their own law or expanding the current law -No common law crimes. Desuetude -Desuetude holds that a prolonged failure to enforce a law in the face of widespread vilations renders it void -Why not? Legislative Supremacy This is not how we organize our government. Legality -Legality holds that the law should be clear. now they might just express a disregard for the law when it’s not enforced -The laws are enforced very selectivity.100) -D contests MA law against adultery as being unconstitutional -On its face.1. Stowell (MA 1983. p. it’s a matter for the legislature to decide -No notice in criminal code to D that his actions would constitute murder 8 . court doesn’t think it’s unconstitutional just b/c it deals with privacy -Court rules that if the legislature wanted law void. that’s why many jurisdictions still allow for the open practice of desuetude -Desuetude also deals with over-punishment.

It’s unfair to read the law in a broad way. no common law crimes -Certainly no federal common law crimes -Common law rules are not absolute. the legislature can get it right? That said.-Is there really a notice issue here? He should’ve known beating a pregnant woman was wrong -Dissent disagrees and finds D to have committed murder b/c how was it different than if he had stomped on a newborn. which asserts that people should conform behavior to societal norms -CL that whatever openly outrages decency and is injurious to public morals is punishable at law -But what about the principle of legality. p. CA legislature changed statute to make killing a fetus murder -If there’s an ambiguity in the law courts are directed to find in favor of justice This can swing both ways. TN (US SC 2001. in this case.126) 9 . the legislature may go nuts and overreact Judges do worry about the legislative landscape and the effect their decision could have C. Ex Post Facto Rogers v. they’re rules of thumb from a moral grounding D. the remedy may be worse. 2004. 123) -D had miscarriages and disposed of the bodies in gruesome ways -Invokes McHale doctrine. the guy knew what he was doing -Immediately after case. Common Law Crimes Commonwealth v. unfair to the mother and fetus to read it narrowly though -Reading Keeler case narrowly is going to prompt under-deterrence (that’s why the legislature steps in immediately and amends the statue) -The more narrowly courts read statutes the more work the legislature is going to have to do -Judges need to have some leeway in identifying injustice and having broad interpretations of the caseHave to follow moral intuition -The social background of the case can’t be ignored. Keller (PA 1964. p. effectively transferring law defining power to the courts US v. Zavrel (3rd Cir.118) -D faked an anthrax scare to get someone else in trouble -D argues her actions didn’t count as a communication or threat (just envelope with cornstarch) -Court disagrees and thinks that it shouldn’t have to follow dictionary definition and applies a reasonable person standard for interpretation -Dissent disagrees and says it is not right to expand meaning here to get harsher penalty -In this case should we risk under-punishment because if we get it wrong. In the 9/11 climate. shadowed by the huge abortion debate a) Courts are thinking about this…does making feticide a homicide make abortion illegal Lenity: directs courts to construe ambiguous statutes narrowly a) Need fair warning and legislature should establish criminal statutes/penalties -Legislative resistance to lenity based on creating more work for the legislature -So when legislature eschews specific prohibitions and enacts general ones.

131) -Government needs to abide by its own rules and can alter them to advantage the state E. Louisiana (US SC 1968. as it reflects community morals with its actions 10 . Jury produces government by man rather than by rule of law. a jury’s misunderstanding may force them to rely on their own biased opinions (D argument) -D only has right to jury trial not to bench trial -No reversible error. The law was repealed after D’s crime but it was nowhere in TN statutes and had tenuous foothold in the state -Strong dissent that D had no warning that TN Court would retroactively eliminate one of the elements of murder Carmell v. jury is expensive. if it less than that it is a petty crime) -Why else. 1983. buffer for the judge and legal process (they can be the lightning rod). p. Moon ran a cult religion and prosecuted for tax evasion -How can it be that forcing someone into a jury trial is violating their 6th amendment right? -Also. disenchants citizens. US v. since it’s a complex trial. p.-Majority finds that the rule and day law. does not apply to this case. but was denied jury trial -Court holds that 14th amendment guarantees a right of jury trial in all criminal cases (in federal court 6th amendment would guarantee that right) -The Bill of Rights is incorporated against the states. Texas (US SC 2000. Can go both ways on competence (juries aren’t that bright but 12 heads better than 1). you should demand a jury trial when you can’t get impartial jurors because then you can never have a trial -The standard is so high to find that no good jury can be found that it never happens -Jury can serve to defend individual liberty of innocent against malicious prosecutor judge -Jury also serves societal purpose. so the 6th Amendment is considered to apply (that is if the crime is greater than 6 months. On the flip side. besides protecting against abuse of power do you need a jury? 1) As a group the jury can draw on commonality with D and use common sense 2) Jury gives a greater appearance of fairness (had a jury convicted Duncan it would look more fair than just the judge) -But jury’s everywhere are unrepresentative Kalven and Zeisel’s American Jury: Jury provides important civic experience.136) -Duncan convicted of simple battery. guarantor of integrity. then you don’t have a trial…if you’re the D counsel. which only existed under TN CL. p.139) -Rev. social costs on those who serve. conviction upheld -Can a prosecutor be trusted by a D? He certainly has motives to be more concerned with convictions than with letting innocent people go free -If you can never get fair or unbiased citizens. Moon (2d Cir. The Defendant’s Right-----and the State’s Duncan v. D can be charged with murder even though under CL it would just be manslaughter.

143) -Question is whether federal sentencing guidelines violate 6th amendment -Judge allowed to sentence within guideline range but cannot sentence beyond guidelines by finding facts beyond those found by the jury (in this case that Booker possessed more crack ina duffel bag) F. to take care of “your own” -Cost of incarceration greater than that of certain crimes -Black community has been betrayed by American legal system -If you’re going to have nullification. should you be explicit about with every jury? Would it be unfair not to have it told to some and not other juries? 11 . p. even if he did it -Butler contends that it is moral responsibility of black jurors to emancipate some guilty black outlaws a) Only if accused is nonviolent -Counter is that blacks then will be removed from the jury process and is a racially divisive way to think. while the D counsel would want a bench trial because of biased jurors -But how do you determine excessive force? Not an easy question. But what about legality? Should they be the ones resolving this? c) The police need some better determination for excessive force because they need to know for their daily activities what it is. Nullification US v. Booker (US SC 2005. in Duncan they’re challenging an overzealous prosecutor/judge -According to Horowitz article. counsel instructions carry more weight than jury instructions -As a defense counsel you would certainly want the nullification principal to be known by the jury -Is there a community interest in having laws executed and adjudicated in a predictable way? Butler Debate on Race and Acquittal -People don’t want to send another young black male to jail. a lot of balancing has to take place in this situation a) A legislator can’t come up with a hard and fast rule for excessive force b) Seems like the duty falls to the jury. they’re creating the law when they nullify -In this case challenging the legislature. p.-In Rodney King a prosecutor might want a jury trial for the appearance of fairness.151) -Case over break-in to DOW chemical labs during Vietnam protests -7 people convicted and appeal because judge refused to instruct the jury of its right to acquit appellants without regard to the law and evidence (nullification) -Jury knows its power and does need formal instructions because that could lead to excessive you and anarchy a) Not to mention it would be an extreme burden on the D -Tremendous burden on jury. Dougherty (1972. it can’t just be on a sliding scale -No strict formula for changing venues US v.

jury nullification rampant in both North and South (based on divisive issue of slavery) US v.g. Navarro-Vargas (2005. 1965. appeal because grand jury instruction prejudiced it against them (“Should vote to indict if probable cause exists” and “could not judge the wisdom of criminal laws enacted by Congress”) -Historically. 170) -Jurors misled by instructions telling them their powers were restricted to probable cause -A full disclosure to grand jury of their power would not subvert law. going through metal detectors for a plane or in a school.164) -Ds convicted of drug crimes.-Zenger trial is most famous instance of nullification.g.Judge is an expert. you wouldn’t have that problem . etc) -Don’t residents of the CHA have rights to not be shot a) Classic balancing test between social order and liberty/autonomy -Other ways to reduce crimes besides warrantless searchesSecurity guards in the lobby -You could beef up number of police -This is a cost-benefit analysis It’s often easy for a majority to place a burden on a minority (e. p. during revolutionary times the guy printed bad stuff about Royal Governor of NY -Around Civil War time. Chicago Housing Authority (NDILL 1994. they’re all in the same boat. certainly can judge the wisdom of laws US v.173) -Housing authority’s sweeps deemed unconstitutional despite popular support a) Would search apartments without necessary warrants -ACLU clients feel taxed by this search policy…just 4 people going against the whole community -Classic collective action problem. who is the minority? This is more like the metal detector stuff -Is it a judge or a community who gets to make this decision? Who is best situated here to make a decision (like the case with the jury)? a) Do the people really know what they’re giving up with these searches -You could set a dangerous precedent with the CHA’s case a) But if the case was never brought. p. everyone else signs up you opt out and maintain your privacy but everyone else doesn’t a) And are the people who are opting out likely criminals? Maybe -You need everyone on board or this isn’t worthwhile at all -The ACLU is worried about our rights to liberty and privacy -But don’t we sacrifice our privacy/liberty at certain instances? (e. DUI checkpoints. Megan’s Law) a) But with the CHA. Community Pratt v. and would take a more objective longer viewed approach -But these people need drastic actions to save their lives 12 . doing otherwise gives prosecutors too much discretion and consequently power E. Cox (5th Cir. grand jury independence has been for both good and bad -Jury was improperly instructed.

asleep.g. (Newton. ACTUS REA    Voluntary Act o What isn’t voluntary?  External .Chicago v. a jury will usually decide. Jarret)  Courts often deny request for involuntary act instructions where they view the defendant as author of their own impulses (Baird. sexual intercourse)  Attendant Circumstances: The Prosecution sometimes must also prove that some other facts are true (e. p. just revert to “not to remote or accidental to have a just bearing…”) 13 . the sexual partner was under the age of consent). the stolen property was worth more than $100. far too vague -The people proposing this are the ones that would be hurt by it -Issue is over city ordinance to cut down on gang problems that prevents a group of people from loitering a) So a cop. Warner Lambert) or Posnerian “enhanced risk” (Bracket) o Model Penal Code  But for cause of the result  Result not too remote or accidental to have a just bearing on the criminal liability of the defendant Intervening Acts o No MPC doctrine on intervening acts.physical compulsion  Internal – reflexive. can break up a group hanging out in public -Found to be unconstitutional because ordinance is far too vague and is therefore an arbitrary restriction on personal liberties a) No Notice and arbitrary and discriminatory enforcement GENERAL PRINCIPLES  Actus Reus: the prosecution must always prove the act (taking another person’s property. unconscious. Jacobs) o Who decides if voluntary?  Where there’s doubt.180) -Don’t want to have a law where no one will know if they can be subjected to it. Morales (US SC 1999. Causation o Common Law  But for cause of the result  Result was foreseeable (Arzon. under certain rules. etc.  The requisite mens rea for the act and the attendant circumstances may be different (more on that in a minute) III..  Mens Rea: The prosecution usually must also prove a particular state of mind with respect to the act and sometimes with respect to the attendant circumstances.

Pope. at least Newton is provoked. omissions -Model Penal Code developed in 1960s with the hope that you could have a consistent code derived from the common law MPC §2. Hunter) o Where these don’t exist. Jerrett (NC 1983. or (b) a duty to perform the omitted act is otherwise imposed by law. a self defense story (at least potentially morally justified) State v. p. he couldn’t control himself so it won’t serve to stop in the future -On the other hand. Newton (Cal. if the possessor knowingly procured or received the thing possessed or was aware of his control thereof for a sufficient period to have been able to terminate his possession. (b) a bodily movement during unconsciousness or sleep. (3) Liability for the commission of an offense may not be based on an omission unaccompanied by action unless: (a) the omission is expressly made sufficient by the law defining the offense. struck in the face then the rest becomes hazy. within the meaning of this Section. either conscious or habitual. Hendrickson) Omissions count as acts in two instances o When the statute defining the offense expressly requires that she perform a particular act o When defendant has a legal duty arising from some source independent of the criminal statute in question (See accomplice liability cases dealing with omissions: Nosfinger. kills husband then kidnaps wife in car -D had history of blackouts from his service in Vietnam (Agent Orange) -Unconsciousness would again be defense and it was an error not to instruct on it 14 .208) -D robs house. Common Law  The prototypical case for intervening act doctrine is one in which a homicide victim’s own actions make some necessary contribution to her death. an omission is not a criminal act (Beardsly. goes unconscious until he gets to the hospital a) D had been shot and cop was shot -Unconsciousness is a complete defense to criminal homicide. Did the defendant render the victim “irresponsible” for act that was necessary to death? (Stephenson. 1970. need to redo with proper jury instructions -If Newton was unconscious.01 Voluntary Act (1) A person is not guilty of an offense unless his liability is based on conduct which includes a voluntary act or the omission to perform an act of which he is physically capable. (2) The following are not voluntary acts within the meaning of this Section: (a) a reflex or convulsion. (c) conduct during hypnosis or resulting from hypnotic suggestion. (d) a bodily movement that otherwise is not a product of the effort or determination of the actor. p. Jones) o -Actus Rea: three areas.206) -D taken out of car by police. finding him guilty wouldn’t do much for deterrence. (4) Possession is an act. you don’t want guilty people faking this to get away with murder -There is also no volition here on Newton’s part -On expressive grounds. People v. causation. voluntary act.

Legislatures don’t specify voluntary because they know courts will read that in -In this case. Causation -But for/necessary for the result 15 . insane. State (Ind. 1944. 1888. He developed his condition from serving the country. courts look to contextual clues to see if an act is voluntary -When there’s a question of voluntariness. being involuntarily taken by the police to the highway did not suffice to fulfill the actus reus of appearing in a public place b/c it wasn’t voluntary O’Sullivan v. etc A.216) -Jacob (I think) stabbed a man -Jacobs appealed the fact that his expert testimony was denied by commonwealth’s objections a) The testimony was meant to show that Jacobs has a hot temper and can’t think straight when excited -If you allow Jacobs to get off for his temper. p.213) -D killed parents in-law and wife -Strangled wife then parents wanted to check on her. psychotic. stabbed them -D contends he was acting under a “sudden heat” -In testimony. the court presupposes that the person has to appear voluntarily -Court here reads the statute with common law and model penal code in mind. State (Ala. the statute itself says nothing about voluntary.219) -Guy drunk at home. police put him on the street. and then arrest him for public drunkenness -Under the plain meaning of the statute. he walks 10 yards and is arrested for public drunkenness -Needs to be determined if guy voluntarily left the house or if police lied to get him outside -All of this is to say that the voluntary act requirement is indeterminate. the judge hands the fact finding decision to the jury -Why didn’t the judge allow testimony in Baird or Jacobs? The reason was the impulse they acted on was considered illegitimate by the judge to be considered involuntaryHe was the author of that impulse a) Concern about what it would say about the law if you could act involuntarily on an impulse of rage. a much more complicated story Baird v. Fisher (South Australia 1954. you will subvert the normal order of things Martin v. Baird was described as OCD.-Similar deterrence issue to Newton a) But shouldn’t Jerrett have tried to seek help for this problem since this wasn’t the first time it happened -Harder to figure out on expressive grounds. p. p. impulsive -The experts described him as volitionally impaired -Motivated by humiliation of ability to close on a new farmNot a good moral reason -Court affirms convictions Jacobs v.222) -Police ask guy to leave his house. p. Commonwealth (Pa. 1992.

hiding anniversary gift and gets into a car accidentproduces different interpretations of causation and culpability MPC § 2. p. but for the assault. Arzon (NY 1978. believe it was oxygen liquefaction process. proximity is described as foreseeability b) Posner says foreseeability is too vague. it’s foreseeable that somebody might die a) But how foreseeable was it that another fire started -No fear of over deterrence here th People v. Warner-Lambert Co.230) -Ds assault made Winslow’s death more likely. p. Firemen go to pout it out and then an independent fire starts on 2nd floor of building. 1993. death was the last link in a continuous series of events started by assault -Posner introduces the idea of enhanced risk -In this case there was an intervening act that the D would argue broke the chain of causation -Very narrow approach to risk in this case.225) -D starts a fire on 5 floor of building. Punishing a squatter (Arzon) a) Could be over deterring b) Lambert could still face a significant civil liability Brackett v. and that was unforeseeable to Ds -Court finds but for test here to be inappropriate -Not foreseeable because the chain of events.-The cause/act be the proximate cause for the result a) Under classical law. not sure where/how the initial explosion happened. need to look at enhanced risk c) MPC says it cannot be too remote as to have a just bearing on criminal liability People v.03: Causal relationship 1) Conduct is the cause of the result when 16 . 1980.226) -Ds were aware there was a risk of explosion from ambient magnesium state dust arising from manufacturing process -Explosion killed 6 employees -Ds had been told a month before explosion of the dust problem and were working toward a solution by replacing equipment -Actual cause of explosion is only speculative. (NY. can only speculate on the actual chain of events -What would happen if you punished this capitalist who was employing workers? v. p. not something D would want a) D’s beating of her enhance risk that this women die when a nurse used a feeding tube -Foreseeable and enhance risk are subjective and very open to interpretation Alicke on Causation: Example of kid rushing home to hide drugs vs. and a fireman died -Court finds Ds action was an indispensable link in the chain of actions causing death -The court applies the foreseeability test -Was it but/for Arzon’s fire that the firemen died -You start a fire. she wouldn’t have died as soon as she did -Though she died a month later. Peters (7th Cir.

got into fight. State (Ind. she left the house in the freezing cold and died in the elements -The wife had a pretty brutal personality and was certainly not submissive to her husband -Different situation than in Stephenson.244) -Was convicted at trial court level -Wife attacked him.g. Omissions MPC §2.g. Commonwealth (Ky. (2) When purposely or knowingly causing a particular result is an element of an offense. (3) When recklessly or negligently causing a particular result is an element of an offense. the element is not established if the actual result is not within the risk of which the actor is aware or. the element is not established unless the actual result is a probable consequence of the actor's conduct. in the case of negligence.01 (1) A person is not guilty of an offense unless his liability is based on conduct which includes a voluntary act or the omission to perform an act of which he is physically capable (3) Liability for the commission of an offense may not be based on an omission unaccompanied by action unless: (a) the omission is expressly made sufficient by the law defining the offense -You are liable if don’t follow a statutory duty (e. and (b) the relationship between the conduct and result satisfies any additional causal requirements imposed by the Code or by the law defining the offense. as the case may be.238) -Was a KKK leader -Reasonable person might have tried to kill themselves to if they were forced to live with a KKK leader who violently raped them -Not in fear for her life but in fear of her honor. (4) When causing a particular result is a material element of an offense for which absolute liability is imposed by law. or (b) the actual result involves the same kind of injury or harm as that designed or contemplated and is not too remote or accidental in its occurrence to have [just] bearing on the actor's liability or on the gravity of his offense. p. willing to risk her life for it (e. the element is not established if the actual result is not within the purpose or the contemplation of the actor unless: (a) the actual result differs from the designed or contemplated. or (b) the actual result involves the same kind of injury or harm as the probable result and is not too remote or accidental in its occurrence to have a [just] bearing on the actor's liability or on the gravity of his offense. she acted rationally. p. Blaue (UK 1975.246) -What if it was a KKK member and not a Jehovah’s Witness? -JW was stabbed by D but could have been saved but refused blood transfusion based on religion -Pretty clear here that they intended the victim to die B. which makes Stephenson even more morally culpable -Found guilty because he contributed to the end result Hendrickson v.(a) it is an antecedent but for which the result in question would not have occurred. of which he should be aware unless: (a) the actual result differs from the probable result only in the respect that a different person or different property is injured or affected or that the probable injury or harm would have been more serious or more extensive than that caused. p. Stephenson v. paying your taxes) -Non-statutory legal duty apply a lot to doctors and parents 17 . 1887. the intervening acts she makes severes the chain of causation here Regina v. only in the respect that a different person or different property is injured or affected or that the injury or harm designed or contemplated would have been more serious or more extensive than that caused. 1932. women jumping out windows) -She wasn’t crazy.

This disregard involves a gross deviation from a law-abiding person's standard of conduct. really should have known not to do this (higher than tort standard). but did it anyway. Pope was not responsible for child. (If. acquitted -So the child abuse is thrown out.a gross deviation from that of a law-abiding person. that material element exists or that it is practically certain conduct will cause result  Practically certain it would happen. Pamela Anderson knows that Kid Rock sometimes sleeps in the garage in front of the Hummer and knows that he might be there as she drives off. what about the misprision of felony (concealment of a felony)? a) It’s a common law crime that no one is ever tried for (Similar issues in Beardsley and Jones. she really. Strict Liability 18 . (If. but doesn't bother checking because she is in a hurry to meet Borat).251) -Does she have a non statutory legal duty as she has been taken share of the child? a) It wasn’t her child. State (Md. then they should pass a law -In VT. p.  Conscious of the risk.  Even if defendent didn't know. but she was in a hurry to meet Borat at the Viper Room. (If.) Knowledge  Aware of nature of conduct. MENS REA  MPC o o o o o Purpose  Conscious objective to engage in conduct or cause result. she was just being nice -Law not indignation covers. Pamela Anderson knows that Kid Rock usually sleeps in the garage in front of the Hummer. a fine and a misdemeanor for omission (Good Samaritan Law) a) Changes the moral quality of assistance IV. running over Kid Rock with the Hummer wasn't her intent. but may not have desired or intended it to happen. Pamela Anders wants to run Kid Rock down with her Hummer and does. Running over Kid Rock isn't her purpose.) Recklessness  A conscious disregard for a substantial and unjustifiable risk that the material element exists or will result from conduct. no legal duty but a moral one but that doesn’t matter in court) -Court doesn’t want to deter acts of kindness a) If the legislature wants this to be a crime. say. 1979. say. but it doesn't cross her mind on this occasion because she is in a hurry to meet Borat).Pope v. it just happens to be something incidental to driving to meet Borat. though. (If. Aware of attendant circumstances or hope/believe they exist  Meant to do it. say. say. Negligence  Not exercising the standard of care a reasonable person would .

read in recklessness as the mens rea for both the act and attendant circumstances. Cheek.o o No mens rea required. Liparotta) o But note that dividing line between "malum in se" and "malum prohibitum" can be contentious -The § on Mens Rea is the most widely adopted part of the MPC 19 . When standard is strict liability. If mens rea is stated for the act. When standard is negligence. When silent. read in strict liability (Prince.  Would the act. no mistake of fact defense. but not the attendant circumstances. This must be explicitly stated by the legislature. o How do we figure out whether the law is "collateral" enough? o Malum in se – no mistake of law defense (Marrero.  Mistake of Law o o Presumption of strict liability with respect to mistake of law.  Obviously this test is value laden (Prince. read in knowledge standard (Morissette). King) o Malum prohibitum – mistake of law defense might be allowed (Long. X-Citement Video).  If not. read the mens rea as applying to both. But there are a few exceptions o Where statutes themselves allow for a mistake of law (Cheek) o Where one is relying on an official empowered to interpret the law (usually a court. a reasonable mistake of fact is a defense. be a bad act?  If so. Stiffler. Jadowski. Feola). if the facts were as the defendant imagined them to be. but sometimes others. boundary-line fact analysis.   Common Law o o o o o Intentionally = MPC Purposefully? Willfully = MPC Knowingly? Maliciously = MPC Recklessly? Negligently = MPC Negligently/ who knows?  Common Law: Mistake of Fact o o o o When standard is knowledge. an honest mistake of fact (even an unreasonable one) is a defense. If no mens rea is stated. Cox) o Where mistakes are made with respect to laws that are "collateral" (or sufficiently distant from) the criminal law being enforced. Albertini.

02 General Requirements of Culpability (1) Minimum Requirements of Culpability. Recklessness and Knowledge. especially in regard to strict liability a) Sometimes strict liability is read in and sometimes not MPC §2. as the law may require.-Wherever the legislature is silent about which element of Mens Rea to apply. knowingly. such element is established if a person acts purposely. (2) Kinds of Culpability Defined (see above) (3) Culpability Required Unless Otherwise Provided. such knowledge is established if a person is aware of a high probability of its existence. belief. (8) Requirement of Wilfulness Satisfied by Acting Knowingly. recklessness or negligence required to establish a material element of the offense. knowledge. (7) Requirement of Knowledge Satisfied by Knowledge of High Probability. meaning or application of the law determining the elements of an offense is an element of such offense. recklessly or negligently. When the grade or degree of an offense depends on whether the offense is committed purposely. Wherever there is uncertainty. its grade or degree shall be the lowest for which the determinative kind of culpability is established with respect to any material element of the offense MPC §2. such element also is established if a person acts purposely. (6) Requirement of Purpose Satisfied if Purpose Is Conditional. MPC says read in recklessness -Legislatures have to articulate strict liability under the MPC. such element also is established if a person acts purposely or knowingly. unless the condition negatives the harm or evil sought to be prevented by the law defining the offense. (4) Prescribed Culpability Requirement Applies to All Material Elements. When a particular purpose is an element of an offense. such element also is established if a person acts purposely. recklessly or negligently. If it is unclear if the Mens Rea applies to one or all elements of a crime. Mistake of Fact Morissette v. A requirement that an offense be committed wilfully is satisfied if a person acts knowingly with respect to the material elements of the offense. Neither knowledge nor recklessness or negligence as to whether conduct constitutes an offense or as to the existence. the MPC says to read in recklessness. the element is established although such purpose is conditional. (5) Substitutes for Negligence. such provision shall apply to all the material elements of the offense. p. MPC says read in recklessness. unless the definition of the offense or the Code so provides. you can never read in strict liability -The Common Law is different. US (US SC 1952.04 Ignorance or Mistake. Except as provided in Section 2. without distinguishing among the material elements thereof. unless a purpose to impose further requirements appears.269) -D claims he didn’t know it was government property -This is a common law case -Federal jurisdiction is common law. (1) Ignorance or mistake as to a matter of fact or law is a defense if: (a) the ignorance or mistake negatives the purpose. no adoption of the MPC 20 . When the law provides that negligence suffices to establish an element of an offense. or (b) the law provides that the state of mind established by such ignorance or mistake constitutes a defense A. (10) Culpability as Determinant of Grade of Offense. a person is not guilty of an offense unless he acted purposely. knowingly.05. When recklessness suffices to establish an element. When the law defining an offense prescribes the kind of culpability that is sufficient for the commission of an offense. unless he actually believes that it does not exist. (9) Culpability as to Illegality of Conduct. knowingly or recklessly with respect thereto. with respect to each material element of the offense. When knowledge of the existence of a particular fact is an element of an offense. unless a contrary purpose plainly appears. knowingly or recklessly. When the culpability sufficient to establish a material element of an offense is not prescribed by law. When acting knowingly suffices to establish an element.

you apply knowingly where it was clear or else apply recklessly -From a deterrence aspect. p. we were concerned about the chilling effect. then he’d be ok -Problem not with age. the chilling effect is good here. and there be lack of consent -Under MPC. the parliament amended the statute to allow reasonable mistake of fact -The moral question at hand is in fact critical to the MR applied a) Courts then delve deep into interpretation depending on the situation b) Should courts be doing the moral balancing? -There’s a reason legislatures and courts like the MPC -MPC’s two interpretative rules 1) “One for all rule”: where mens rea is applied once but not again. you want people who are unsure if property is abandoned or not to find out first before they just take a) Cost of over deterrence would be deterring entrepreneurial spirit? -No real just dessert or expressive condemnation issue here -Judgment against D reversed Regina v. and Prince would be fine -The court says that if Prince thought he had consent that would be fine.275) -Girl seems of age. be under 16. so they go off and get married w/o asking for permission (turns out she’s 14) a) Permission was important because children were used as bargaining chips in the 19th C -AR: Taking away the daughter -MR: Silent here -AC (attendant circumstances): That she be unmarried. with failing to obtain consent Compare to Morissette -If Morissette was right there was no illegal act. the court maintains a) After the Regina case. even if she was 17 and he took her without consent it would be wrong in and of itselfso court reads in strict liability for silence here a) So he should’ve been mistaken about the lack of consent. No worry of deterrence in Regina.-Actus Rea (AR): Actor converts -Mens Rea (MR): knowingly converts -Attendant Circumstances (AC): Government property -Statutes horribly unclear (does knowingly apply to gov’t property or just conversion?) -Mistake of fact defense a) The defense argues that D had to KNOW he was taking government property b) Should mistake of fact be exculpatory? -If this was the MPC. but the court in Regina maintains that even if Prince was right about the girl’s age he would still have taken the girl illegally because of no consent -In Morisette. you then read it across for all material elements of the crime 2) Silence: read in something less than or equal to recklessness a) These rules shift the burden of the moral boundary line that courts go through 21 . Prince ( UK 1875. the court would look at recklessness.

p. determines whose values are becoming law a) Why some issues are so hotly contested and divisive -Mistake of law gives criminals an easy way out if it is always a defense 22 .280) -MR: knowingly -AR: transports or ships -AC: child pornography -Court finds this is not strict liability a) Pretty broad statute. p. X-citement Video (US SC 1994.297) -Didn’t know victim was a federal officer -Court finds that mental state to do criminal acts is enough. p. This will often leave it to a jury to decide if a mistake was defensible -Determining a public welfare offense is a social contest. but… 1) Collateral law 2) Reliance 3) In the statute -Public Welfare OffensesStrict Liability -Courts will often hedge by applying a negligence standard instead of a strict liability one. Feola (US SC 1975. Jadowski (WI 2004. if you’re in any doubt at all still stay away State v. Mistake of Law -Generally no defense. do not need to know the victim is federal officer B. guy is guilty here (though punishment is only probation) -Most states have a strict liability approach to this issue because you want to deter the significant type of harm that can occur hereMessage here is stay away.287) -Victim use false ID so she was actually too young for sex -Still convicted because strict liability law and legislature’s refusal to allow a mistake of age defense US v. Stiffler (ID 1990. p. The mailman could be transporting child porn but how could he know -Under moral boundary analysis here both the sides are not good Statutory Rape -Considered to be strict liability laws -Different age requirements across jurisdictions State v.US v.283) -Claims reasonable mistake (a negligence standard) of the girl’s age -MR: silence -AR: Sex -AC: Underage female -Even though consensual.

336) -Cheek thought it was a good faith misunderstanding that he didn’t pay taxes -Statute says willfully because it doesn’t want to punish people who innocently make a mistake about complicated federal taxes -Cheek is not mistaken about the penal law. By doing this.327) -Corrections officer carries loaded gun because he thought the statute saying peace officers carrying guns applied to him -Morrero lives in NY but is not a peace officer in NY -He did look up the law and tried to investigate if he would be allowed to have the gun. p. in terms of fed. p. p. since this element was not met. US (US SC 1991. he brandished his gun at a nightclub. -In Cheek.321) -D thought he divorced his wife when he remarried but technically hadn’t -Long went to AK based on his attorney’s instructions -Generally reliance on attorney’s wrong information will not be a defense Collateral/Penal Divorce / Bigamy -Long is not confused about Bigamy/penal law he is confused about the collateral law regarding the effectuation of his divorce -CL treats a reasonable mistake of collateral law a defense. Willfulness requires that the person knew the duty and willfully violated it.-Most jurisdictions have strict liability approach to mistake of law defense. which was the case here People v. tax law. At trial. so he wasn’t acting appropriately State v. though some will use negligence Long v. -In Cheek. State (DE 1949.332) -D caught with a drug that was not in state books but in federal register as being a controlled substance -Found guilty because D should have attempted to ascertain status of the drug Cheek v. the judge was attaching a “negligent” mental state to the defense. Marrero (NY 1987. Cheek did not commit a crime 23 . ignorance of law is a valid defense for willfulness. King (MN 1977. so he looked up the law. and misunderstood what a peace officer was defined as -D found guilty but more to it. plus other correctional officers and some judges agreed with his interpretation -Is this guy just a loopholer just trying to get a weapon or did he just make a collateral law mistake? a) He knew the penal law required him to register a gun. p. the willfulness mens rea created another element of the crime. Congress’ use of the word willfully was construed to require a purposeful or knowingly mental state to the crime. the judge incorrectly instructed the jury that an honest but unreasonable mistake as to the legality of his conduct is not a defense. income tax. he’s only mistaken regarding the constitutionality of the law -Honestly believed that he did not need to pay fed.

Morrero is not confused about the peace officer can carry a firearm law (penal).352) -D acted based on 9 Cir. p. Dismissal of charges against him -The SC would later reverse that decision. Louisiana (US SC 1965. but see Bryan) 2) Penal v. Albertini (9th Cir 1987. Albertini relies on a court to tell him what the law is. US (US SC 1985. but when that law is reversed by the SC what he is doing is no longer allowed b.Morgan & dissent in Berkowitz  Negligence .342) -D’s restaurant was not authorized to receive food stamps -Court rules that the government must prove that the D knew that his acquisition or possession of food stamps was in a manner unauthorized by statute or regulation US v. Cox shows that sometimes the court will extend reliance for reasonable mistake of law beyond the judiciary -The justice look at the underlying acts to see if they conform to societal norms or threaten them.-Appeal court conviction is vacated Liparota v. judgment reversed Mistake of Law Recap 1) General Rule – Not a defense (unless mens rea with respect to law is part or statuteSee Cheek.356) -To convict D of protesting where officials told them they could would be entrapment. Long knew about the penal law governing bigamy but was just mistaken about the collateral divorce law b. p. Liparota. p. so courts have to “read in” a standard Mens Rea & the “No Sometimes Means Yes” Norm  Knowledge . and that influences their interpretations and rulings V. Collateral Law (Long / Marrero) a. but he is confused about what the definition of peace offer is (collateral)But here court says ignorance of the law no excuse (different values at play here) 3) Reliance (Albertini / Cox) a. RAPE o Mens Rea for Consent  Like “mistake of fact” problems we studied earlier in the semester (see Morrisette & Prince)  Legislatures are often silent w/r to mens rea and consent.most jurisdictions (& Sherry?) 24 o . though -Relies on prior judicial decision but the court decision is later overturned a) So he is charged b) He made a mistake about the law but he was relying on judicial decision -The court said he was allowed to rely on it until the law became bad th Cox v.

or (ii) the victim was not a voluntary social companion of the actor upon the occasion of the crime and had not previously permitted him sexual liberties.359) -The victim said “no” but didn’t physically resist and never screamed out -D claims that victim’s “nos” were amorously whispered -D convicted of indecent assault because there was no force (which would be rape) but a lack of consent -The no sometimes means yes norm is subject to dissensus. but prosecutors and juries are not allowing that to happen MPC § 213. Force Standard:  There must be proof of resistance on the part of the victim. Wisconsin has adopted a highly graded scheme. Commonwealth v. Rape and Related Offenses. Reform Efforts  Objections to the force requirement have lead some jurisdictions to drop the force requirement (MTS). A male who has sexual intercourse with a female not his wife is guilty of rape if: (a) he compels her to submit by force or by threat of imminent death. in which cases the offense is a felony of the first degree. the only unambiguous indicator of non-consent is physical resistance (dissent in Rusk). or (c) the female is unconscious. or (b) he has substantially impaired her power to appraise or control her conduct by administering or employing without her knowledge drugs.  Resistance must be physical and not merely verbal.1. or (d) the female is less than 10 years old. Berkowitz (Pa. 1994. A male who has sexual intercourse with a female not his wife commits a felony of the third degree if: (a) he compels her to submit by any threat that would prevent resistance by a woman of ordinary resolution. (2) Gross Sexual Imposition. extreme pain or kidnaping. (1) Rape. serious bodily injury. or (b) he knows that she suffers from a mental disease or defect which renders her 25 .  To address the objection that non-forcible rape is not as bad as forcible rape. Rape is a felony of the second degree unless (i) in the course thereof the actor inflicts serious bodily injury upon anyone.Simcock & Lefkowitz o o o o Force (or Threat of)  The traditional (and still predominant) common law approach requires that there be force of threat of force (see MD & NY statutes). p. Threats  A threat must be sufficient to make a reasonable woman fearful (Rusk) Traditional Justification  Under the “no sometimes means yes” norm. intoxicants or other means for the purpose of preventing resistance. o Strict Liability . both behaviorally and morally -Rape law reform has been targeted at repudiating no sometimes mean yes. to be inflicted on anyone.

but huge deterrence benefit in theory. Lefkowitz. Morgan (UK 1976. p. p. or (c) he knows that she is unaware that a sexual act is being committed upon her or that she submits because she mistakenly supposes that he is her husband. force or threat of force still required by rape statute -WI does away with traditional statute. arising out of same fact pattern. she verbally protests but has sex with all 3 men.368) -Husband and army buddies come home wake wife up and have sex with her. Force or Threat) and ask what MR should apply a) Remember in Morriessete. has a more complicated graded scheme where force/threat of force carries a stiffer penalty but other grades where it’s just sex without consent: -No mens rea in here -So how can courts figure out what the mens rea is when it’s not specified by the statute -So you look to AR (intercourse) and ATC (No Consent. the mens rea here is knowledge a) So honest mistake is a defense b) But at trial the D’s had a consent defense and not an honest mistake one c) The AC finds that even if they had made a mistake their TC defense of consent would still not stand -So the court ends up going with knowledge but still affirms Commonwealth v.incapable of appraising the nature of her conduct. you need a yes. non consensual sex is thwarted Regina v. court decided to apply knowledge standard for the MR because values supported that interpretation -Establishes gradations based on consent and threat of force -Strict Liability here. -In MD and NY. she said she was very frightened during all of this -D’s say very different story and that victim consented to everything -Court holds victim is not required to use physical force to resist. just needs to demonstrate her lack of consent is honest and real -Court says it is unaware of any mistake of fact defense regarding consent without reasonableness a) It’s a matter of actual knowledge (honest mistake) versus negligence (honest and reasonable mistake) versus strict liability (no mistakes allowed) -In Commonwealth v.377) -Victim taken to one of the D’s home. while she is held down -Court adopts honest belief in consent as mental state standard on lack of consent -Question is whether to apply a negligence standard of honest and reasonable or a knowledge standard of just honest -Judge is saying that negativing mens rea is not a formal defense. “no means no” adopted 26 . Sherry (MA 1982. not just a lack of non-consent -What distinguishes the gradations? 1) force/causes pregnancy 2) threat… 3) Lack of consent -Some chilling effect.

as for fairness. even put her hands on her throat lightly choking her. D did not act in a way to cause fear or make her think he was going to rape her State in the Interest of M. p. the chilling effect is going to be great a) Why is that when states institute no means no / strict liability standards. (NJ 1992. pretend you didn’t know. reasonable person interpreting the physical touchings between parties is how affirmative and free authorization to sex is understood -Acquaintance rape often takes place between two people who know each other with no use of force -Factfinder must only see if D’s belief that victim had freely given affirmative permission to sex was reasonable NOT whether engaging in sex without permission was reasonable -With the court deciding physical force like this. if the D fails to live up to what the community believes to be reasonable behavior then its fair to punish him -Strict Liability Standard (what MA adopted): forces people to be very cautious. asking for consent) because you can just say you didn’t know -Most jurisdictions employ the negligent standard: the jury will be doing a lot more work here to see if D was behaving reasonably. but what do you in communities with varying perspectives? In those instances. and then had sex with her -Rusk says it was totally consensual . not as worried about a chilling effect like we were in Morissette. 1981. Rusk (Md. discourages people from asking questions (i. Court concludes any act of sexual penetration without the affirmative and freely-given permission of victim constitutes sexual assault.381) -Pat drove Rusk home and she contends he took the car keys making her come into his place -Pat said she was scared to death so went with D up to his room. Physical force beyond penetration is not necessary for it to be unlawful -When no words are given. the standard is more objective.T. p. he refused.387) -Victim claims she woke with MTS on top of her with his penis in her vagina -MTS has a very different story and claims that it was consensual until his fourth thrust when she kicked him out of the room -At TC proved that victim was not asleep but she had not consented -Court looks to the unclear statute and defines “physical force”. rapes don’t go up? Because prosecutors don’t bring the cases. and jurors nullify State v.-Problem with knowledge standard: you can fake it.e.S. and after sex Pat started freaking out -Majority finds the TC should not be reversed if they thought Pat’s apprehension of fear was reasonable (don’t need force for rape) -Dissent says that Pat’s allegation of fear is not enough. judges influence cases. issue of Notice and Over Deterrence come up -Similar case to Keeler a) Controversial issue where institutions may want to dodge accountability MR AR AT Knowledge – honest mistake Intercourse w/o consent Force or threat Negligence – honest and reasonable mistake Strict Liability – No means no -Negligence is the majority rule in the United States -Strict Liability abolishes any local norms that might have no meaning yes 27 . begged him to let her leave. looks at what is normal reasonable in the community.

Aaron.. not so much  Most jurisdictions follow the PA standard and don’t require much in the way of real premeditation (see Carol)  Some (but not as many) require real premeditation (or at least did. 2nd Degree No Premeditation (Anderson) 2. compare. Unlawful Act (rare. there’s the potential for other institutions to not uphold the no means no standard (Police. Anderson & Perez) o Is there anything left over for 2nd Degree murder? MPC: Murder o Only one degree of intentional murder under MPC 28 .g.Cooling time (Welansky & Williams). Watson?). or (Thornton. HOMICIDE CONVENTIONAL HOMICIDE GRADATIONS Intentional Unintentional st Premeditation Felony Murder 1 Degree (Carol & Perez) (Auman.a) But even with strict liability. the person has to be reasonably in fear of their life a) You need a threat sufficient to have a reasonable woman succumb VI. Fleming?. or 3. eg. Felony Murder. Carr) 2. sometimes known as "misdemeanor manslaughter") 1st Degree 2nd Degree Murder Involuntary Manslaughter MPC HOMICIDE GRADATIONS Intentional Unintentional Purpose or Knowledge Felony Murder Murder Murder or Recklessness + EIHL Recklessness Manslaughter Purpose or Knowledge + Manslaughter Extreme Emotional Distress (Casassa) Negligence Negligent Homicide -MPC pays close attention to Mens Rea   Common Law: 1st v.(no consciousness of risk Voluntary necessary) or Wanton/Gross Negligence Manslaughter + Heat of Passion . Recklessness + Depraved & Malignant Heart Murder (Malone. Intent => GBH Adequate Provocation 1. Recklessness. and Smith) Murder 1. Jurors) -The majority rule in the US is still requires force or threat for rape -Force or Threat bears on issue of consent and the mens rea -Implied threats are not good enough. Phillips. 2nd Degree Murder o Supposed doctrinal standard: premeditation o In practice. Judges.

or kept private in the jury room? o MD reform suggests openness is good. or (b) a homicide which would otherwise be murder is committed under the influence of extreme mental or emotional disturbance for which there is reasonable explanation or excuse. but there might also instances where openness reinforces bad norms. The reasonableness of such explanation or excuse shall be determined from the viewpoint of a person in the actor's situation under the circumstances as he believes them to be. (2) Manslaughter is a felony of the second degree. knowingly.1.3. recklessly or negligently causes the death of another human being. (1) Criminal homicide constitutes manslaughter when: (a) it is committed recklessly. Manslaughter o Murder can be mitigated to manslaughter if there is “extreme mental or emotional disturbance for which there is reasonable explanation or excuse. MPC § 210. Manslaughter o Murder can be mitigated to manslaughter if there is:  Adequate Provocation  Heat of Passion  Insufficient Cooling Time o What is adequate Provocation?  Derivative of social norms  Spousal Infidelity traditionally accepted (see Thornton). arson. as provided in Section 210.g. kidnaping or felonious escape. Such recklessness and indifference are presumed if the actor is engaged or is an accomplice in the commission of. or flight after committing or attempting to commit robbery. 29 .3(1)(b). manslaughter or negligent homicide.” o Leads to battle of experts in court (see Casassa) MPC v. by MD legislature) o Who decides?  Normally jury decides (Maher)  Sometimes courts decide (Carr) MPC: Murder v. (2) Criminal homicide is murder. Common Law on Mitigation to Manslaughter o MPC conceals debate over what is “adequate” o Do we want contentious norms about who deserves to die to be made public in court. or an attempt to commit. burglary. Manslaughter. but also sometimes rejected (e.2.. (1) A person is guilty of criminal homicide if he purposely. MPC § 210. MPC § 210. criminal homicide constitutes murder when: (a) it is committed purposely or knowingly. Criminal Homicide. (1) Except as provided in Section 210. (2) Murder is a felony of the first degree [but a person convicted of murder may be sentenced to death. or (b) it is committed recklessly under circumstances manifesting extreme indifference to the value of human life.6]. rape or deviate sexual intercourse by force or threat of force.   Common Law: Murder v. Murder.

deliberate and premeditated killing. The court can’t bump it up. and in PA. (1) Criminal homicide constitutes negligent homicide when it is committed negligently. (2) Negligent homicide is a felony of the third degree. p. Court finds that no time is too short to allow for premeditation to occur (p. and (3) Precision/Manner of killing (was executed like a plan or just a hack-job) a) Court believes this case lacked all 3 of those things -Courts in CA empowered.” 1st degree requires willful. so lies with the jury -Cardozo wants the court to be more straightforward with the jury. society would be unprotected if we allowed impulsive killings to be treated as second degree of murder a) But even convicted of 2nd degree murder he is incapacitated. (2) Motive/Prior relationship with victim. Carrol (Pa.MPC § 210.424) -On the matter of impulsiveness.4.426) -1st degree murder conviction overturned for a conviction of 2nd degree murder -Court uses three part test to determine premeditation: (1) Planning activity.422) -The issue on appeal was whether the crime was premeditated or not (difference between murder in the first or second degree) -Carroll’s defense is that he was gripped by a sudden impulse. unlike in PA. express or implied. the court will not overturn because in that account you can find premeditation (reaches for gun and commits act) -“Murder in Pa is defined as an unlawful killing of another with malice aforethought. but why? a) Even given the D’s own account. p. 1963. they have the power to determine the gradation depending on their view of all circumstances but that’s not explicitly told to them like in jury nullification People v. 1968. Negligent Homicide. he was conscious of what he was doing but wasn’t in full control (he took gun and shot wife twice in the head) -The question here is was there sufficient evidence here to convict on first degree murder -The court affirms. the court won’t bump it down. to bump the gradation down to 2nd degree a) If you had Carroll in CA. there’s a reason for the gradation -We find the 1st degree murders to be more heinous. you could have gotten 2nd degree -Why is premeditation something we worry about? Isn’t it easier to deter a premeditation than impulsiveness? a) Deterrence argument here is not so great -Expressive argument holds more water for making premeditation worse than impulsiveness 30 . -2nd Degree murder is described as everything not 1st degree murder a) Premeditation is what distinguishes them Commonwealth v. more culpable in society -Courts are not allowed to increase the conviction on appeal -In this arrangement. Anderson (Cal. the jury has a lot of discretion here.

allows for the people to balance the difficult issues at hand and reach a conclusion representative of the community a) Disadvantages would be inconsistency. People (Mich. p. he walked into the situation. 1862. did the D act under EED 31 . p. still need to look at heat of passion/cooling time -Provocation here is not sufficient People v. heat of passion. did a lot of other stuff like let the air out of tires and get camera -Insufficient evidence of 2nd degree murder turns out to be sufficient evidence of voluntary manslaughter -Court finds this to be a classic case of voluntary manslaughter -From Maher. and SC reinstates 1st degree -D killed victim in her home. p. D claims his psychosexual history should suffice as adequate provocation -The ultimate test for provocation is whether a reasonable man confronted with the same series of events would have become impassioned to the extent that his mind was incapable of cool reflection a) If provocation found. bias People v. 1990.-Advantages of giving tough questions to jury is that they decide the controversial issue. they were separated. p.432) -TC found 1 degree. 3 elements are brought out regarding voluntary manslaughter: adequate provocation. and insufficient cooling time st State v. can’t get angry over something because you’re a bad person (like in Carr) Commonwealth v.440) -D shot his wife’s lover in the bedroom -Defense is it was a crime of passion -Classic case of mitigation manslaughter -Is there adequate provocation? Sleeping with another man’s wife would be provocative -Heat of passion? Seeing your wife sleep with another would no doubt create a heat of passion -Cooling time? D argues that the hours that elapsed was not enough time to diminish his passion -Of course. 1992. Casassa (NY 1980. Perez (Cal. Carr (Pa.437) -In Maher. had limited prior relationship and the manner of killing was sloppy -Court applies same test as in Anderson but yields a different outcome Maher v.448) -D devastated by neighbor’s romantic rejection of him. brutally murders her Debate here boils down to extreme emotional disturbance -The trier of fact decides if extreme emotional disturbance (EED) -There are 2 standards to EED 1) Subjective standard. Thornton (Tenn.446) -D became enraged when he saw lesbians making out. AC reversed that to 2nd. 1987. the prosecution could also argue against all of this a) His wife was loaded. p. passionate reaction must be reasonable.

MPC: Manslaughter = Reckless Homicide Common Law: Depraved & Malignant Heart o Resulting from recklessness with respect to the risk of death (in some jurisdictions.“constructive recklessness” see Malone & Fleming). may not require conscious disregard . you evaluate the provocation and passion -The MPC relies on EED that obliterates reason -Jurisdictions largely rely on the voluntaristic approach -When the law mitigates from murder to manslaughter. and decide doctrinally that certain provocations are more adequate than others and that certain amounts of time are sufficient/insufficient for cooling time a) Or the legislature could come in. certain evidence. like in MD.’s mind.. to distinguish from civil liability. “gross”.2) The objective standard. “wanton”. statute states that adultery situation does not constitute sufficient provocation mitigating murder to voluntary manslaughter (enacted after a man was sentenced to a work-release program after shooting his wife several hours after discovering infidelity) -People who kill on slight provocation are dangerous and need to be deterred with more serious punishments than those who are adequately provoked -The question is what is the best approachVoluntaristic in prof. and say that this (wife cheating) is not adequate provocation for murder     Common Law: Involuntary Manslaughter o At least three Mens Rea standards  Negligence  Gross Negligence  Recklessness (note: not always like MPC recklessness) o Theoretical dimension  Objective standard. Makes deterrence sense. maybe not desert or expressive condemnation (compare Welansky and Williams) o Institutional dimension  legislatures and courts employ language such as “willful”. and o Act and circumstances show a “depraved and malignant heart” MPC: Just Call it Murder o Reckless with respect to the risk of death. is there a reasonable explanation or excuse for EED (determined from the viewpoint of a person in the D’s situation under the circumstances as De believed them to be) -TC applied test correctly and was not right in finding no mitigation because D acted with malevolence -Md. leave it to a jury to decide. and 32 . etc. something is being said about the quality of that life that is taken – and that can be distressing -Employing confusing doctrines like EED to juries leads to similar results as under the CL -If we leave the issue to juries the issue could be exposed but it could stay silent -Judges could take the issue upon themselves by restricting the juries access to expert witnesses.

just gave it aspirin because didn’t want social services to take it away -Wash. it could have been avoided a) You want to deter people from taking substantial and unjustifiable risks b) It’s harder to deter someone who is doesn’t know of the risk Commonwealth v. o -The MPC says there is criminal liability for negligent actions (most jurisdictions don’t agree with the MPC) -Mere negligence around dangerous instrumentalities would constitute involuntary manslaughter -You don’t want to over deter things like driving or playing baseball even though they involve dangerous instruments. Williams (Wash. unlike Justice Thomas. believes people should be held to a subjective standard (only liable for what they could have known) 33 ..  Michigan Strategy: repeal. the difference is the social context -Under the MPC. D found guilty of wanton/reckless care. parents weren’t very bright. negligence is someone who is unaware of a substantial and unjustifiable risk -Under the MPC.” MPC & Common Law: Felony Murder o Limitations  Most jurisdictions list specific felonies  Many also require that the “natural consequences” of the underlying act be “inherently dangerous” (e. CA. Welansky (Mass. which is intentional disregard for dangerous risk -The negligence standard is if the ordinary person would be aware of the risk then the D should be or there’s negligence -This guy is a greedy SOB (locking fire exits to prevent them from skipping out on the bill) a) Poor character State v. 1944. CA.. see Phillips)  Merger: underlying felony can’t be a lesser included part of murder (e.g.464) -D ran a nightclub where the emergency exits were incredibly hard to find/open -Many people died. p.471) -Ds negligently failed to provide their child with medical care. doesn’t require gross negligence. p. see Phillips) o Reform  California Strategy: merger creates odd gradations. the crime is deemed committed even though there was simple or ordinary negligence -Did the D’s have the capacity to know about the risk / make the appropriate judgments? a) Court holds them criminally liable regardless -Hart. and the baby died because of it -Something was wrong with the baby. 1971. recklessness is someone who is aware of a substantial and unjustifiable risk but disregards it a) The difference between the two is consciousness -Consciousness of a risk makes someone more culpable because they’re aware about it.g. Displaying an “extreme indifference to the value of human life.

p. this guy is just drunk -The court deals with this fact by pointing out that voluntary drunkenness is not a mitigating factor -What is the implication of this for all drunk drivers? a) Court qualifies that if you’re drunk and driving like a normal person would then not as big a deal. 1984. for recklessness you have to know US v.480) -D and victim were boys playing Russian roulette with a pistol when the victim was shot accidentally in the head a) D was convicted of 2nd degree murder -Court finds an act of gross recklessness for which death must reasonably anticipated was committed and that exhibits a wicked disposition (a depraved and malignant heart) -This wouldn’t be first degree murder because premeditation was lacking a) What is the mens rea here? Well its reckless for sure b) Manslaughter occurs with mere recklessness. mayhem. p. To Human Life (EIHL) because the boy thought the bullet wouldn’t be fired -The moment you say “should have known” you’re in negligence. Inherent Danger b. that by definition is negligence -Court upheld 2nd degree murder conviction Felony Murder 1) Origins 2) Basic Rule (Serne and Auman)-----------> 1st Degree: Rape. kidnapping.-Thomas’ standard approach is easier to administer. arson. lost control of his car and killed victim -Convicted of 2nd degree. Fleming (4th Cir.484) -D was drunk. and it’s better to err on the side of over punishing Commonwealth v. 2nd Degree: all other felonies 3) Limitations a. Malone (Pa. there would likely have been a manslaughter conviction a) Not a case of Extreme Indiff. robbery. but if you drive erratically and are drunk then you’re in trouble -The point is that the prosecution. appeals arguing it should’ve manslaughter b/c no malice aforethought -Court holds that malice can be established by reckless and wanton conduct that D is aware will lead to death or serious injury -D not only drove drunk but his driving was so reckless to show a depraved disregard for human life -Not consciously making the decisions. 1946. burglary. what distinguishes this case to make it 2nd degree murder is that it is GROSS Recklessness that the D should have reasonably anticipated death could result indicating a state of mind of malice Under MPC. Merger 4) Debate and Reform 34 . etc are saying he SHOULD HAVE BEEN aware.

1966. they decide that felony murder is going to require all the elements of another murder (override felony murder basically).g.510) -Charged with grand theft and felony murder for saying he could treat cancer patient without surgery. knowledge)  generally excludes crimes of negligence and recklessness  but some jurisdictions allow for prosecution of strict liability crimes (e. CA won’t do that because they don’t want to run over the legislature -The argument against the MI approach is judicial activism BUT judges came up with it anyway through common law and if the legislature wanted to change it they could -In CA they pretend to be respectful of the legislature but they’re essentially gutting the law VII. though he broke in to commit a robbery -Seems like this should be a murder case. which you need for felony murder -What happens when merger and inherently dangerous is combined? See Watson case a) D breaks in with a weapon and kills his ex-wife.. Finds that the state has no statutory felonymurder rule which allows the mental element of murder to be satisfied by proof of the intention to commit the underlying felony a) Since this rule. Phillips (Cal. Court reversed felony murder conviction because grand theft is not an inherently dangerous felony. Actus Reus o Common Law: Dangerous Proximity (Peaslee & Rizzo) o MPC (majority rule): Substantial Step (Jackson & Buffington) Renunciation o Common Law: abandon or otherwise prevent commission of crime (Joyce) o MPC (majority rule): complete and voluntary renunciation of criminal purpose (Joyce?) Merger o If the crime is actually committed. state legislature has not amended murder statute to allow felony murder People v. p. where the state is trying to get rid of felony murder by broad interpretations of merging and inherently dangerous -In MI.-Felony murder imported from England to the US -In the US we have always increased the number of felonies on the books and in most jurisdictions we still have the felony murder doctrine -MI court held that felony murder is an unnecessary. but what if the person breaks in steals a stereo. very rarely. then the attempt is “merged” with the actual offence 35 . sparks a fire. statutory rape) o Read the MPC carefully. as it is the majority rule. ATTEMPT     Mens Rea o Purpose (and. and the woman dies anyway a) This case is more easy to punish than the one where the husband shoots the wife -This is the problem in CA.

Without negativing the sufficiency of other conduct.-Deterrence (preventing them from trying again). (e) possession of materials to be employed in the commission of the crime. increase expected cost of crime. under the circumstances as he believes them to be. is an act or omission constituting a substantial step in a course of conduct planned to culminate in his commission of the crime. and Individual desert (bad that someone had malice in the heart to attempt a crime) -Marginal deterrence to be gained from punishing someone less who has attempted a crime and failed than someone who has successfully completed a crime (chance to reconsider and weigh the options) -From a social meaning perspective. collection or fabrication serves no lawful purpose of the actor under the circumstances. and incentivize changing one’s mind and not completing crime MPC § 5. or (c) purposely does or omits to do anything that. vehicle or enclosure in which it is contemplated that the crime will be committed. (c) reconnoitering the place contemplated for the commission of the crime. Criminal Attempt. at or near the place contemplated for its commission. or (b) when causing a particular result is an element of the crime. (g) soliciting an innocent agent to engage in conduct constituting an element of the crime. they are wrongs in and of themselves -Posner: want to criminalize attempts to deter future attempts. even if D did not know that he was a federal officer)applies to these specific malum in se crimes. (d) unlawful entry of a structure.01. less offensive when a crime is not completed -Crimes of recklessness and negligence can never be attempted because of this -An exception: statutory rape and some strict liability crimes. if strongly corroborative of the actor's criminal purpose. (1) Definition of Attempt. A person is guilty of an attempt to commit a crime if. shall not be held insufficient as a matter of law: (a) lying in wait. (3) Conduct Designed to Aid Another in Commission of a Crime. the following. does or omits to do anything with the purpose of causing or with the belief that it will cause such result without further conduct on his part. expressive condemnation (wrong to try to commit a crime). that are specially designed for such unlawful use or that can serve no lawful purpose of the actor under the circumstances. is guilty of an attempt to commit the crime. Many jurisdictions hold that someone can be charged with attempted statutory rape even if unaware of the AT (also attempting to kill a federal officer. (f) possession. (b) enticing or seeking to entice the contemplated victim of the crime to go to the place contemplated for its commission. he: (a) purposely engages in conduct that would constitute the crime if the attendant circumstances were as he believes them to be. collection or fabrication of materials to be employed in the commission of the crime. although the crime is not committed or attempted by such other person. A person who engages in conduct designed to aid another to commit a crime that would establish his complicity under Section 2. (2) Conduct That May Be Held Substantial Step Under Subsection (1)(c). searching for or following the contemplated victim of the crime. acting with the kind of culpability otherwise required for commission of the crime. 36 . if such possession. Conduct shall not be held to constitute a substantial step under Subsection (1)(c) of this Section unless it is strongly corroborative of the actor's criminal purpose.06 if the crime were committed by such other person.

by circumstances. not present or apparent at the inception of the actor's course of conduct.(4) Renunciation of Criminal Purpose. p. had to get just up to the dangerous proximity and could abandon it without liability -But wouldn’t it be able to prevent people from getting dangerously close 37 .Under CL.524) -Bank robbery case -Again the question is how close to committing the crime did the Ds come -Ds not guilty because they had not found nor reached the presence of the person they intended to rob -These guys came as close as you can get to committing a crime without doing it and aren’t convicted because court didn’t find dangerous proximity -Under the MPC. Within the meaning of this Article. Rizzo (NY 1927. Commonwealth v.g. however. where a result is part of the essential element of crime (e. that increase the probability of detection or apprehension or that make more difficult the accomplishment of the criminal purpose. 1901. even though the guy clearly renounced that he was going to do the crime People v. in whole or in part. The establishment of such defense does not. When the actor's conduct would otherwise constitute an attempt under Subsection (1)(b) or (1)(c) of this Section. renunciation of criminal purpose is not voluntary if it is motivated. both cases satisfy the substantial step toward a crime. affect the liability of an accomplice who did not join in such abandonment or prevention. purpose with respect to the attendant circumstances is not required (e. under circumstances manifesting a complete and voluntary renunciation of his criminal purpose. p. still have to purposely engage in sexual intercourse but don’t need to know the age or purposely go after a younger woman .g. statutory rape). Renunciation is not complete if it is motivated by a decision to postpone the criminal conduct until a more advantageous time or to transfer the criminal effort to another but similar objective or victim. it is an affirmative defense that he abandoned his effort to commit the crime or otherwise prevented its commission. death for homicide) then knowledge with respect to that result is sufficient a) So if purpose does something and knows death is likely to result then there is sufficient MR for attempt -Second caveat is that some (but not all) strict liability cases in some (but not all) jurisdiction. Peaslee (Mass.523) -Guy charged with attempted arson after setting up combustibles around a building but chickening out before he did it -The court applies a dangerous proximity test and convicts the guy. but (4) of the MPC may get Peaslee off (but maybe not because he renounces after the kid hesitates)a question for the jury but under the dangerous proximity test (CL) the judge decides) -So institutional shift from the CL (judge decides proximate danger) to the MPC (jury decides if the facts meet the standard of attempt) -What drives jurisdictions to switch to the MPC approach? a) Law should encourage renunciation b) Stop people before they get to the dangerous proximity -First caveat.

526 b) Standing around. maybe want a more flexible standard for some substantial step -Prof. p.06(3)(a) & Modern Common Law Actus Reus o Solicit or Assist in Criminal Act  Need not contribute to result (Tally)  Mere presence not enough unless it evidences encouragement (Wilcox. p. waiting (2)(a)(c) US v. Clarkson & Dunlop)  Omissions may be enough were there is a duty (Noffsinger & Hunter) Mens Rea 38 .531) -Another bank robbery case -Again the Ds are surveying the scene.-This is what MPC did with substantial step test (has to be strongly corroborative of the criminal intent) a) MPC allows for abandonment. and left -D renounced his criminal act. MPC lays out what is needed and exceptions. Louis. demands to see the cocainehow are these not overt acts -Could read it as abandonment but it’s not heartfelt/voluntary. whether someone was dangerously proximate). 1987. Joyce (8th Cir. GROUP CRIME    MPC Section Section 2. Buffington (9th Cir. on appeal that is reversed because the conduct of Ds didn’t meet substantial step test -If you’re a prosecutor you might be able to argue substantial steps: a) Revolvers (2)(e) of MPC p. all that occurred was a preliminary discussion that broke down The guy flew to St.535) -Government sting operation. but it has to be a complete heartfelt abandonment -No longer up to the judge to figure out the doctrine (e. 1977. D refused to show money to buy cocaine and then refused to purchase the cocaine. believes this judge still relying on their old dangerous proximity test VIII. etc US v. p. Power outage forced bank to lock its door and so men drove away but were then arrested -At trial charged and convicted with attempted robbery.g. 1982.527) -Ds charged with attempt to rob a bank -Were casing the joint when they detected surveillance and tried to escape -MPC has 2 tier test for attempt: (1) Must have requisite mens rea and (2) must take a substantial step toward the commission of the crime -The abandonment in the first attempt would not constitute renunciation because they only did that because they thought they might get caught (Is the contrary to deterrence theory? No because deterrence theory is not suppose to encourage people to plan for an easier crime) US v. if he ever really tried to abandon at all -In cases where there is some chance of substantial harm. Jackson (2d Cir.

(4) When causing a particular result is an element of an offense. a person is not an accomplice in an offense committed by another person if: (a) he is a victim of that offense. he (i) solicits such other person to commit it. fails to make proper effort so to do. or both.06. (1) A person is guilty of an offense if it is committed by his own conduct or by the conduct of another person for which he is legally accountable. (3) A person is an accomplice of another person in the commission of an offense if: (a) with the purpose of promoting or facilitating the commission of the offense. unless such liability is inconsistent with the purpose of the provision establishing his incapacity. or (iii) having a legal duty to prevent the commission of the offense. though the person claimed to have committed the 39 . or (b) he is made accountable for the conduct of such other person by the Code or by the law defining the offense. he causes an innocent or irresponsible person to engage in such conduct. Liability for Conduct of Another. or (c) he is an accomplice of such other person in the commission of the offense. or (ii) gives timely warning to the law enforcement authorities or otherwise makes proper effort to prevent the commission of the offense. (7) An accomplice may be convicted on proof of the commission of the offense and of his complicity therein. or (b) his conduct is expressly declared by law to establish his complicity. (Richards. Hayes) Gebardi Exception o Can’t be an accomplice if  Defendant is victim of the offense  The offense is defined so that defendant’s conduct is inevitably incident to its commission o o MPC § 2. if any. the accomplice cannot be held liable for a crime the principle did not commit. an accomplice in the conduct causing such result is an accomplice in the commission of that offense if he acts with the kind of culpability. (2) A person is legally accountable for the conduct of another person when: (a) acting with the kind of culpability that is sufficient for the commission of the offense. with respect to that result that is sufficient for the commission of the offense. or (ii) aids or agrees or attempts to aid such other person in planning or committing it. Complicity. or (b) the offense is so defined that his conduct is inevitably incident to its commission. (6) Unless otherwise provided by the Code or by the law defining the offense.  Mental state of underlying offense (Wilson) Purpose of promoting or facilitating the underlying act (evidenced by what?)  Stake in the venture / Nexus of purpose? (Gladstone)  Common Plan? (Puffer) Derivative Liability o In a few jurisdictions. or (c) he terminates his complicity prior to the commission of the offense and (i) wholly deprives it of effectiveness in the commission of the offense. (5) A person who is legally incapable of committing a particular offense himself may be guilty thereof if it is committed by the conduct of another person for which he is legally accountable. Selected Sections of the Model Penal Code Page 13.

p.549) -D drew a map for where the undercover cop could find someone to buy weed from a) He is accused of assisting the seller and not buyer with the unlawful sale of marijuana -If Gladstone made a point to say tell Kent I sent you that could change things a) No nexus but that’s not necessary.offense has not been prosecuted or convicted or has been convicted of a different offense or degree of offense or has an immunity to prosecution or conviction or has been acquitted. assisting. p. under punishment) -Posner would want to grade the MR based on purpose not knowledge (e. Jeffrey (UK 1951. paying for a ticket and seeing the event succeed so he can write an article all are parts of the AR here Wilson v. who’s committing the crime State v. Wilson called the police -Sounds like Wilson is encouraging and assisting the criminal a) The guy didn’t even have the watch -But Wilson did not have the purpose of seeing the crime succeed. p. neither necessary or sufficient a) Something that could help establish purpose -Aiding and abetting is an after the fact offense and in the US. but is not as dangerous as Pierce. and he doesn’t have a stake in the success of the crime -Wilson though is a loose cannon. the legislature would be more likely to do something (Keeler and over punishment v. Accomplice Liability AR: Encouraging. or the juryBasically everyone in the criminal justice system does this -A lot of the outcome depends on who is trying the case and their background (intangibles) -If Posner did nothing. which is quite broad and only has one standard (can be held just as liable as the person who commits the crime) Wilcox v. the jury (often happens). 1939. Once Wilson had gotten Pierce through a window into the store. or soliciting a crime MR: Purpose of seeing the crime succeed Rough heuristics: Nexus / Stake in venture. someone worthy to try to deter? -If Gladstone referred Thompson to hit men to kill somebody would that change things? a) Yes because that is a lot more troubling even if there’s no change in the MR/AR -Court reversed Gladstone’s conviction -So you could leave the question of “Is this person responsible?” to the legislature. a lot worse if you help a kid buy weed than help Bin Laden). This is not the majority rule. MR arguably established with this -Is Gladstone a dangerous guy. -Legislatures fail to provide the sophisticated gradations that’d you like 40 .g. People (Colo.544) -American saxophone plays in England without the proper license -The D was found guilty because he derived a benefit from the illegal activity (enjoying the music and then writing a column about it)Aid and Abetting illegal act a) Clapping. Gladstone (1980.546) -Wilson told Pierce he would help him rob a store. it is considered less liable than accomplice liability.

Hayes (Mo.560) -D helps robber through window. Pino-Perez (7th Cir.567) -D had gotten two hired thugs to injure her husband -The guys did not have the intent to do grievous harm. Dunlop (Canada 1979. she can’t be convicted for it. 1891. who was not charged -Expressively we may want to do something here. assisting. p. Is that right? -This woman orchestrated the crime -Accomplices are not going to be held more liable than the offence of the principles -Policy issues cut either way here US v. p. Noosfringer & Hunter) Derivative LiabilityCan the accomplice be held liable if the principle is not? State v. she gets charged with the more serious crime -Because the more serious crime was not committed. Charged with aid and abetting -Would have to infer the Ds presence as encouragement -While the inference could be drawn.550) -Two guys watched an army buddy rape a girl. Richards (UK 1974. but it was all just a setup to catch the D.Regina v. p. if you extend liability down. then D would have been guilty of the more serious crime -D is more dangerous than the principal here. soliciting (Willcox & Tally) MR: With purpose or principle’s success (Wilson & Gladstone) a) Evidence: Stake/Nexus – But remember neither necessary nor sufficient 1) Derivative Liability 2) Gradations based on intents (Richards) 3) Kingpin Statutes (Pino-Perez) 4) Special Duties (Dunlop & Clarkson v. you’ve done away with the purpose of the statute itself -Peno is not an underling. for taking the bacon?) Regina v. but not convict them of the more serious crime -Cannot convict someone of the offence when the offence is not committed (can get him for petit larceny. who only helped the guy through the window -Hill doesn’t have the intent of actually completing the crime -If Hill had boosted D through the window. Clarkson (UK 1971.551) -Another rape case where guy was present when fellow biker gang members rape a girl -Again. p. accepts bacon the guy hands back out. p.573) -Want to restrict kingpin to the person at the top. he’s an independent supplier -Looking at the statute on pg 573. charges have to be dropped Regina v. looks like the guy fits the bill 41 . she didn’t want her husband killed but wanted him in the hospital -At TC. 1989. D is just present and that does not make him guilty because he did nothing to stop it Accomplice Liability (cont’d): AR: Encouraging.

CONSPIRACY  MPC (Section 5. we risk under punishing him and not deterring c) If Peno gets the statute. so the legislature does something to fix this NC v. p. a person is not an accomplice in an offense committed by another person if: (a) he is a victim of that offense. Russo. The next day gave it another bath and the child fell and was hitting its head -The child then look unresponsive CPR administered.563) -Dewella Hunter was charged with 2 counts of felony child abuse in regards to her two adopted girls LaTrece and LaCarol -Dewella married Monte Hunter. Hunter (2002.562) -Robin and her boyfriend. Dewella unsurprised to discover this but claims to know nothing about it -In examination with Dr. Noffsinger (2000. burned the baby’s skin off. or (b) the offense is so defined that his conduct is inevitably incident to its commission. -This is known as the Gebardi exception IX. AC finds Robin didn’t take affirmative steps to protect her child. knew LaTrece stopped PMSing -So conviction affirmed because she allowed or permitted abuse on her child MPC §2. LaTrece admits that Monte had impregnated her -Dewella appeals claiming the state did not have substantial evidence that she allowed Monte to sleep with her girls -If Dewella had been convicted on an aiding and abetting theory. Robin was sentenced for felony child abuse -Robin appealed.06: (6) Unless otherwise provided by the Code or by the law defining the offense. David Tripp were in charge of Robin’s 15 month old child David -The child was rushed to the hospital for injuries and Robin and David appeared to be laughing/concerned about being arrested -Robin had picked up the child 2 weeks earlier from the Proffitts home and it had bruises -Tripp gave David a bath the day before. the risk is we over punish d) Judiciary should take the under punishment risk. watched the girls but had mental problems -Concern that the 12yr old LaTrece was pregnant. p.-There’s another statute on the books (§841 on p.03) & Common Law o Mens Rea 42 .575) to punish this guy a) Why have it if you make him an accomplice -Look at this from perspective of institutional performance a) Peno could go either way b) If Peno gets off for the kingpin statute. therefore she could be found guilty of felony child abuse on the theory of aid and abetting NC v. then she would have had to have been present -In fact Dewella was aware that Monte might sleep with the girls. ambulance called -Tripp pled guilty to 4 counts of felony child abuse.

thwarted the success of the conspiracy. (5) Overt Act. Conspiracy AR: Agreement MR: Purpose Withdrawal has to be affirmative 43 . unless an overt act in pursuance of such conspiracy is alleged and proved to have been done by him or by a person with whom he conspired. solicit. must have knowledge of attendant circumstances (though there are many exceptions: assaulting a federal officer. Criminal Conspiracy.03. or commit a crime. there must be an overt act) Similarities with Attempt & Accomplice Liability: o Must have mens rea for underlying offense o Must purposefully seek the criminal act o In most jurisdictions. under circumstances manifesting a complete and voluntary renunciation of his criminal purpose.  MPC § 5.” Agreeing to participate in the enterprise does not require that the co-conspirators know the identities of other members. or (b) agrees to aid such other person or persons in the planning or commission of such crime or of an attempt or solicitation to commit such crime. A person is guilty of conspiracy with another person or persons to commit a crime if with the purpose of promoting or facilitating its commission he: (a) agrees with such other person or persons that they or one or more of them will engage in conduct that constitutes such crime or an attempt or solicitation to commit such crime. they just need to know of the enterprise’s existence.    With the purpose of committing a crime o Actus Reus  Agrees to attempt. (6) Renunciation of Criminal Purpose. after conspiring to commit a crime. and in some jurisidctions. but not MPC: No merger (can be guilty of conspiracy *and* the underlying crime) o Fully liability for reasonably foreseeable acts of co-conspirators (Pinkerton) o Withdrawal/renunciation: Must declare to co-conspirators or the police What is an “agreement”? o Interstate (dicta: no clear agreement needed) o Alvarez1 (smile and nod not enough) o Alvarez2 (smile and nod is enough) RICO o New concept of criminal “enterprise. It is an affirmative defense that the actor. or  Agrees to aid another person in doing so  (For smaller crimes. No person may be convicted of conspiracy to commit a crime. (1) Definition of Conspiracy. other than a felony of the first or second degree. for strict liability crimes. rather. the age of a statutory rape victim) Differences: o Common Law.

doesn’t understand English. can double up conspiracy with attempt and conspiracy with completed crime -Katal argues conspiracy should be treated as a separate crime because group crime created by conspiracy is more dangerous -Conspiracy is the atomic bomb of federal courts. not the same in common law.-Biggest gun in criminal prosecutor’s arsenal -Conspiracy is punished as a fraction of the underlying offense or at some fixed rate -Want to punish conspiracy less for deterrence. but have to show entering into a true partnership in a criminal enterpriseHard to figure out what constitutes an agreement Pinkerton v. where all the partners were necessary.599) -Price fixing case for movies -Have no evidence that of agreement. no point for them in backing out -The first panel said he aided and abetted but didn’t commit conspiracyprobably because the panel found him less guilty as the others -Unlike in Interstate. US (US SC 1939. Alvarez (5th Cir. does that constitute an agreement? -At first go. D obviously disagrees a) Points to the behavior to prove that’s enough (parallelism among movie theaters) US v. not the case with Alvarez a) Does Alvarez have an effect on the group dynamic? RICO -Created to breakup organized crime -Can have many degrees of separation between people but all will be liable for the offenses of the criminal enterprise 44 . p. p. intimidated by powerful figures -The plot would have gone on with or without Alvarez -In a world without conspiracy theory. 1980.602) -Nods and smiles. couldn’t nab Alvarez on attempt or accomplice because the crime hasn’t happened yet and really hasn’t taken a substantial step toward committing the crime -Alvarez just doesn’t seem as culpable as these other cats -If you punish Alvarez this early on in the plot. court says there was no agreement -Alvarez just smiles and nods. underlying acts are charged under one act. but if the crime is committed. US (US SC 1946. Pinkerton opens the floodgates for charging people -An overt act of one partner may e the act of all without any new agreement specifically directed to that act Interstate Circuit v. some jurisdictions allow for cumulative punishment -Under MPC. RICO is the hydrogen bomb -Conspiracy is incredibly expansive and gives great procedural advantages -Only way to constrain broad liability would be through Agreement element of conspiracy -Don’t have to show a lot.596) -Daniel convicted of crimes his brother did (Daniel is in prison no less) -As a prosecutor. the guy just wrote a letter and copied all of the other distributors -The court finds that the evidence established this agreement. p.

robbery (e.. Imperfect Self-Defense o Honest but unreasonable belief mitigates gradation of homicide (domesticating jury nullification in cases like Goetz?) East Dakotan Modifications o Exception for kidnapping.don’t worry about it. and  threat is imminent o Not always “objective” (Wanrow) MPC: Mens Rea limitation .g. forcible rape or sodomy.g. 1977. Wanrow (Wash. FL Statute)  Exception in cases of aggression by family members o Battered Woman Syndrome (Kelly & Norman) -East Dakota example: Human life is sacred to our law but so is individual dignity Refuse to adopt rule that would allow stronger to prey on weak by obliging them to submit to public thrashings Use of deadly force warranted only to secure “self-preservation” Appropriate standard has both subjective and objective elements but relationship should be stated more precisely than the instruction Honest belief is objectively reasonable so long as he was in fact subject to a physical assault by the victim-who can predict with accuracy the degree of danger he faces? Risk of error more justly assigned to the aggressor than the victim -Why not allow him to defend his dignity? Offends sense of proportionate response -Does it make a difference that the burden is on the defendant to prove that their perception was reasonable? -If honestly believed-encourages vigilante -Has to be something objective that people can agree on State v.. SELF DEFENSE     Common Law: Classic Formulation o Honest & reasonable belief that:  deadly force is necessary  to repel threat of death or GBH. the guy had a bad history and was freaking out the neighbors 45 .-Have to do more than show people are part of a group and someone in the group committed an offense a) Show a series of crimes that are somehow committed X. NY) o True Man (no duty to retreat) (Renner)  Majority position. though some require retreat where possible  From Home  Just about all hold no duty to retreat from one’s home (e. p.625) -D shot a man who was much bigger than her.

how the judge and jury look at the defendant or victim -Bentham: always try to grade the punishment so it seems commensurate to the crime at hand a) What you have with the doctrine of Imperfect Self defense Self Defense -Honest: reasonable belief that deadly force is necessary to repel an imminent threat or death Imperfect Self Defense -Honest nut unreasonable belief (Caps liability at manslaughter) East Dakotan Exceptions Kidnapping. not what Bernard thought was reasonable. Imperfect Self Defense (ISD) offers a reasonable alternative to the two possible extreme outcomes of murder 1 or acquittal People v.618) -Have a grand jury here. Rape. like in Wanrow -If courts aren’t willing to bend self defense doctrine.-Justification for self-defense is to be evaluated in light of all facts and circumstances. Goetz (NY 1986. NY high court overturns dismissal saying that it should be a reasonable person standard under the circumstances. Sodomy. more objective standard -NY statute allows use of deadly force to prevent forcible robbery a) Some cracks here in the liberal humanist approach. juries can -A lot of what’s going on in trials is based on social norms. Robbery -In Rama’s case. saying that values such as dignity are JUST as important as life. Rama message -Race a big issue in this case -Would the case have come out the same way if ISD was an option? -After the trial. a bit of East Dakota in NY -Is Goetz even being robbed here? Jury would say he’s about to get robbed -What kind of message is the acquittal sending to the public? Vigilante justice. dignity. including those known substantially before the killing -Jury should have been allowed to consider the degree of force which a reasonable person in the same situation would use -Respondent was entitled to have jury consider her actions in light of her own perceptions of the situation. p. under the classic doctrine. etc against the values of those attacking him -Saw some of East Dakota in Wanrow -There are jurisdictions that bend requirements of imminence and reasonableness. this approach would evaluate the character of the person defending his honor. convened to give indictments. like Wanrow 46 . Rama’s loss of dignity and so forth don’t justify his killings of the two men -East Dakota offers an alternative. drives Self Defense doctrine -In the case of Rama. including those perceptions which were the product of our nation’s history of sex discrimination -Liberal humanism values life above all else. NY expanded self defense to consider more of the surrounding circumstances.

p. Kelly (NJ 1984. what she should expect -Goes to whether Gladys had a reasonable fear for death when husband came at her -Why hasn’t the woman left if things are so bad? a) Part of BWS is that woman is helpless and is unable to change the situation. p.647) -D killed husband. husband beat her viciously before shooting and sheriff was afraid for her safety if he arrested the guy -AC finds the threat to be imminent because husband’s sleeping was just a break in his reign of terror and was her first opportunity to respond 47 . imminent threat) -No law of justifiable domestic homicide State v. Renner (TN 1995. 641) -See Beale (p. Years of frequent abuse and threats from husband. even by escape -Court finds BWS is scientifically reliable so the case is remanded State v. maybe about self preservation or self defense -One must retreat if the aggressor is a member of one’s own family TN v. He was coming at her and she stabbed him -History of battery means that victim is an expert of husband’s battery. also had expert testimony supporting BWS -TC finds there’s not enough evidence to support claim of self defense so no instruction on it for the jury -At issue in the case is whether there was an immediate threat to Judy.639) -True man doctrine did not apply here for the D because he made sure to leave in a manner that confrontation would ensue when he could have just left through a kitchen door with no problems -Interesting that deterrence is the grounds for justification but a little bit of East Dakota motivating no duty to retreat (duelist mentality) Battered Woman Syndrome (BWS) -Expert testimony bolsters SD argument (reasonable.654) -Judy was subjected to some heinous abuse for 25 years -Judy claims that she needed to kill her husband to save her own life.Duty to Retreat -If one has no ability to retreat then justified to use self defense -About half the jurisdictions have no duty to retreat -True man doctrine: man w/o fault is not obligated to retreat from an assailant (p. cowardly to retreat but 10 times worse to kill Castle Doctrine & Exception -Don’t have to flee your home.644). Norman (NC 1988. p. as she killed her husband while she was asleep -Certainly seemed to have reason to fear. if you’re assailed there you can hold your ground.

NECESSITY    Common Law o Choice of evils o Defendant chooses lesser evil o No contrary legislative intent o Imminent greater evil requires choice o Choice not created by defendant o Not a defense to homicide (Dudley & Stephens) MPC o Immanency not required (but bears on claim of no alternatives) o No bar on self-created choices.-The supreme court doesn’t find the immediacy necessary for self-defense here. but defendant may be liable for crimes of recklessness or negligence o Available in homicide prosecutions Protest Crimes o Generally fail under both Common Law and MPC because there is a democratic alternative (no end run around democratic process. (See Oakland Cannabis. and Hill) 48 . others would argue more of an East Dakotan approach -Syndrome talk hedges these two approaches. but how do they go about it? Question of what jurors are allowed to hear in terms of evidence and jury instructions i) So courts could relax the reasonableness standards (Wanrow) -Can just leave the law is and allow clemency in some circumstances a) The executive branch will be more attuned to people’s feeling on a case or issue -Some argue that the law is about privileging life and have a standard for everyone. why aren’t we willing to make an exception with BWS? -Could institute some kind of legislation for justifiable domestic homicide a) Unlikely legislature would take the lead on this b) The courts could take the lead. governor commuted her sentence -No solution to BWS in terms of self-defense a) Some courts institute subjective standard based on what that particular woman was going through (psychological evidence). reinstates TC court conviction -Right after trial. Dissent in Norman says the imminent harm requirement in these cases should be done away with -BWS can be used to show woman’s belief is reasonable -Under classic definition of self defense. women who attack their husbands when not being beaten fail to meet that standard -So what do we do with women who respond when not being beaten? a) BWS proponents say the threat is always there. and we need to adopt a different standard -Notion of justified domestic homicide? -If willing to make certain exceptions to self defense (East Dakotan ones). imminent threat required. Schoon. Doesn’t say the husband was deserving but explains what the woman was going through XI.

didn’t put it in there. want people to do the right thing. and points out the narrow holding of the Court and then says the rest is just dicta US v. there are legal alternatives to D’s action a) Democratic process for all of this -Many legal alternatives to Ds action (not like helping a prisoner out of a burning jail. Dudley and Stephens (1884. no sudden unexpected emergency here) Regina v. Fla. 1992. p. courts willing to hand it over to jury because the norms jury would be drawing on would be general ones. can’t go around the process to get what you want US v. p. p. so they trashed an IRS office) -A democratic enhancing rule.Necessity CL MPC Imminence Imminence a factor Not created by D Self-created choice tracks Mens Rea D chooses lesser evil No contrary legal intent No defense to murder No bar to Murder defense -Motivation behind necessity clear.g. Hill (N. shared by most people or at least not controversial ones -In Hill could you imagine a community where a jury might acquit? 49 .686) -Shipwreck survivors kill a weaker member so they can survive -Killing the weaker guy is the lesser of two evils -From a utilitarian calculus no problem here -Enforce the law might mean granting clemency -Men were convicted and sentenced to death but commuted to 6 months in prison Why in the prison escape case would it be good for the jury to have plenary powers but not in the abortion case (Hill) -Imagine in both cases judge gives jury necessity instruction and juries acquit a) What does that say? b) The norm at stake in Unger is that you can protect your own personal safety c) The norm in Hill would be justifiable homicide of abortion doctors (much more controversial) -So in Unger. even if it’s illegal US v. it was no accident -The Court goes farther saying no statute should allow for an unarticulated necessity defense.684) -D killed abortion doctor and others to prevent abortions -Similar to Schoon.D. 1994. self defense) -Concurring notes that the fact that it’s distributing marijuana is a problem. many alternatives to Ds actions (had a problem with El Salvador and US tax dollars going there. Schoon (9th Cir. Oakland Cannabis Buyers’ Cooperative (US SC 2001) -Congress thought about medical exceptions. but the concurring opinion notes this is an overstep as many defenses are not articulated in statute (e.681) -Act of indirect civil disobedience.

Morally speaking. So if you go through with it you get electric chair) -As for just dessert. What I did was wrong but I want you to excuse me because I could not make the right choice -Deterrence: can’t deter someone with a gun to their head unless you ratchet up deterrence all the way to the top (Electric chair. DURESS    Common Law o Threat of death or GBH o Against defendant or a close friend o That an ordinary person would yield o Threat must be imminent (Fleming. he had choices (didn’t report it to the police because he just wanted the whole thing to go away) -Is the standard how hard the choice is for Toscano? No. no culpability State v. Romero. they were justified in doing what they were doing (same is true in Self Defense) XII. no necessity defense. did the act.-Necessity is a justification defense. though this goes to whether a reasonable person would resist o Threat may be against any person o Defendant may not have recklessly put herself in the duress situation What would cause a reasonable person to yield? o Much of what determines whether a “reasonable” person would yield is cultural and value-laden (Toscano. does away with immanency. the standard is an objective standard -Under CL. Webb.693) -D makes out false insurance report but only did so out of fear/threats to his family -The TC doesn’t think D is entitled to duress jury instruction because threat was imminent -Was AR. Contento-Pachon) Duress CL MPC Death or GBH D or close friend Would cause ordinary person to yield Imminent No Murder Defense Unlawful force Anyone Person of ordinary firmness would not resist Must not have recklessly placed self I duress situation -Duress is an excuse defense. Fleming. the Toscano would not have had duress defense based on imminence -NJ goes with MPC. Toscano (NJ 1977. p. Contento-Pachon) o Duress situation not self-created o No defense for murder MPC o Threat of unlawful force o That a person of reasonable firmness would not resist o Threat need not be imminent. and reverse D’s conviction 50 .

697) -D claims duress in robberies with her boyfriend. Guy is found guilty -Part of military ethic requires you to put your country and soldiers above your own welfare US v.713) -POW D agrees to enemy’s orders for fear of punishment -Necessity defense was available to him.People v. understandable he values his family’s welfare more than drug laws -Character of choice being made is vital -Need a threat to be a against a personproperty or reputation won’t do -Nature of the threat itself -What is the effect of combining no defense to murder and requiring imminent threat of death or GBH under CL for duress? a) Can’t trade an innocent life for your own -A reasonable person will fear rightly and care rightly -Romero’s fear is an appropriate evaluation in weighing her fear and threat to strangers. p. p. she let it happenedno duress that bad to allow it -Not just a question of volition but also one of moral evaluation a) Parent expected to protect their child US v. Romero (Cal.714) -Imminent because he was followed and the threats were specific -Deterrence argument here? What happens to the war on drugs. but immanency again comes into question -What happens if the court doesn’t read imminence narrowly? You could claim imminence in many situations. but there are limits to this. p. p. her own kid died. Webb (5th Cir. anyone can claim duress -The hard choice also has to be a good choice -No military code here. 1984.701) -Charged with injury of child for beating Steve and refusing to get medical help for the child -Would not be as optimistic as the Romero’s lawyer a) For one. Contento-Pachon (9th Cir. but Webb inappropriately fears for her welfare over that of her child -Similarly. it is sometimes morally permissive in society to love ourselves. 1984. though. 1992. Fleming (Military 1957. the guy is just a cab driver. loved ones more than strangers (sometimes it would be immorally inappropriate not to do so). afraid she would be killed if she didn’t obey him -Debra contends she should be allowed the BWS defense a) BWS explains issue of duress. guy won’t be condemned for breaking a drug to protect his family but will be for collaborating with the enemy to save his own ass -Appropriate love of one’s own. Webb took part in the beatings b) More than that. Debra really didn’t have a choice -BWS would be a response to prosecutor’s contention that Debra could have left Terrence -She gets a new trial US v. and they depend on specific facts -The duress defense is abstract and ambiguous 51 .

729) -Freeman suffers from trauma that impairs his ability to control himself (undisputed). they pay attention to things like:  the defendant’s background/scariness (Green)  her relationship with the victim (Bobbit)  her intent to harm  her culpability before the act for bringing about her incapacity (Freeman & Lyons) o The doctrinal choices often come down to whether a judge or jury has the last say (Green) -The two traditional insanity defenses are above . INSANITY     Two Major Approaches o Historically many doctrines of insanity (see Finger) o Today mostly M'Naughten (the majority rule) or MPC o Trend (since Hinkley) has been towards M'Naughten M'Naughten o defendant had mental disease or defect that made her unable to know:  the nature of her act. which means their act just wasn’t excused. Courts really don't try to define it. court moves to MPC standard and remands -Kant would say we don’t punish people who aren’t in control of their own actions -Prosecutors would argue this guy voluntarily got into drugs. the 2nd prong is the volitional. 1966.a) Must look at specific case and look at character of choices -Seems that where a person had a duress defense they had a necessity defense. (Guido) o Juries don't focus on doctrine.M’Naughten has a cognition element (nature of the act (squeezing lemons when actually squeezing throat)). should’ve gone to rehab. Also undisputed. instead. it was justified a) The difference between duress and necessity virtually disappear XIII.01 o defendent lacks substantial capacity to either  appreciate the criminality (wrongfullness) of her act or  conform her conduct to the requirements of the law What is the Insanity Defense About? o Insanity remains an increadibly vague and difficult doctrine. quit drugs 52 . not knowing act was wrong = delusional thought they were repelling invasion when just shooting neighbors -MPC is more volitional test (1st prong cognitive. or  that her act was wrong MPC Section 4. Freeman (2d Cir. p. which is derived from irresistible impulse test) -Moved from M’Naughten to MPC and now going back to M’Naughten US v. sold drugs and did it knowing it was illegal -Jury given M’Naughten instruction and convicted -On appeal.

p. the court in Green found evidence to weigh so heavily in his favor -Then how did the jury convict Green? For one. Bobbitt seems virtuous. he was a crazy asshole that the people of TN were terrified of (but he would be involuntary committed on acquittal) a) If you’re defense attorney you would want to tell the jury that the guy is going to walk free. where jurors are eager to convict based on their bias/anxiety short of legal standard -Putting the burden on the defense is a form of judge control Bobbitt -Asserted defense of irresistible impulse. burden of proof for insanity is on the D -The TN scheme put the burden of proof on prosecution -After Hinkley many jurisdictions put the proof on defendant -Burden shifting is important for who gets to determine outcome -Putting the burden on the prosecution is a form of jury control. does not required complete impairment either. don’t have the final word here a) This case largely about jury control -Under M’Naughten. and the prosecution has extra motivation to burn this guy If a jury was free to disregard D’s experts. a brief reactive psychosis -Jury acquitted after asking for instruction if they had to accept court appointed psychiatrists opinion that Bobbitt did not have irresistible impulse. 1982.State v. let them know he will be committed to a mental hospital b) Only a few jurisdictions require jury instruction that lets jurors know acquittal will result in involuntary commitment -The big issue here is that Green killed a cop. the judge said no -Put on evidence of family/friends about how toxic the relationship was (BWS) and expert testimony -With testimony.732) -Prosecution maintained he wasn’t insane but just different -Defense witness were testifying his inability to conform to the law -Green said he killed the cop because god or Hitler was speaking to him -Prosecution argued he acted normally when he was arrested a) But witness says he could appear normal but still be a loon -At trial. Green (Tenn. convicted of first degree murder -Supreme Court reverses conviction because it wasn’t shown beyond a reasonable doubt that Green was sane -MPC excuses both impaired volition and cognition. how could it be concluded that the jury erred a) The prosecution has the burden of proof to prove that he’s sane. court doesn’t find that the prosecution did that (only evidence is that Green appeared sane after the murder) -Prosecution put on no expert testimony to show that Green was faking it -What does this tell us about who has authority to say what insanity is? Not the jury. jury afraid of Green less afraid of Bobbitt 53 . without she looks bad a) Act suddenly seems somewhat appropriate -Is Bobbitt distinguishable from Green? a) Green wasn’t sympathetic like Bobbitt.

Transforms medical impairment into a moral question. Ends up people infuse moral qualities into D’s action/who the victim was and then make decisions -Morally forgivable. not true w/ Green -Issue of general deterrence though.b) Don’t worry about Bobbitt acting again or doing this to you. unconscious. Guido (NJ 1963. p. p. -Moral intuitions of individuals will push standards in different directions in different cases Review -Don’t apply theoretical dimension for the most part except where there is ambiguity. Arguably didn’t put himself in this position. it’s obscure -Jurors will decide then if law not really sure what a disease is -Prosecutors don’t want everyone to get off on this disease defense -Issue of disease is something you’d like to see go to a jury rather than see it decided against you by a judge -Problem: we don’t know what disease is.749) -Defense would say court’s understanding of a disease different that psychiatrists -Medical insanity different than mental insanity a) Don’t really know what disease is. which is like sleep walking. evidence of addiction can be used to address cognitive claim of impairment -Reconcilable with Freeman? Got addicted through prescription drugs. Lyons (5th Cir. being prescribed painkillers whereas getting drunk is not -Not clear that juries are paying really close attention to the distinctions in M’Naughten and MPC -Is it ok to distinguish cases without medical grounds to do so? Central problem with the insanity defense. Courts recognize their definitions are legal and moral. 1984.742) -Gets addicted to drugs after being prescribed back pain drugs -Use M’Naughten standard. put their by his physicians -Signals shift away from volitional standard -Prosecutors and court here: how can we tell if someone really is suffering from volitional impairment or they’re faking it? -Defense would respond that there’s no reason to believe psychologists are better to understand M’Naughten standard than they are the volitional standard State v. but doesn’t doom P. not medical. Can’t let Bobbitt go free or other women will pick up a knife US v. etc -Specific IntentPurposefully wanted to commit that crime (tax crime) -General IntentPurposefully refusing to pay taxes but haven’t specifically said your going to break the law here (Cheek) 54 . etc -More important is the institutional dimension questionpower allocated across different institutions -Don’t confuse irresistible impulse with involuntary act.

that is an excuse because if the facts were as you imagined them you’d be innocent. wrong in and of itself) -Mistake of Law: never clear how collateral law has to be to be excusable.-Mistake of Fact: take the wrong umbrella leaving a diner. courts will make the decision based on character of accused (guy who is mistaken about divorce but not about polygamy). Not so clear you can rely on law from others than the court. But if your mistaken with who’s umbrella your taking no excuse because even if the facts were as you imagined them you’d be breaking the law (Prince case. the underlying actcould get him for reckless endangerment) 55 . really depends on the underlying activity -For Accomplice Liability can’t just inadvertently or knowingly engage in the act must have purpose to the underlying act (Quiz: So long has Orrin had purpose to the underlying act of driving recklessly.

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