OUTLINE FOR CRIMINAL LAW / PREPARED BY: J. William Snyder, Jr. Term: Fall 1992 Text: Kaplan & Weisberg, Criminal Law: Cases and Materials (2d ed. 1991). Instructor: Professor Bilionis NOTE: This outline was originally prepared for my own private study, and it is based primarily on my own class notes, handouts, and excerpts from the textbook, either in paraphrase or direct quote. When possible, I tried to indicate material that has been directly quoted, but it is possible that some material from the textbook has been directly quoted without indication. I. Justifications/Reasons for punishment 1. Deterrence - deter people from committing crime in the first place by using the threat of punishment. - Key assumption: humans are rational utility maximizers with a transitional ordering of preferences a. Specific Deterrence- deterring a certain individual from offending (again)- Deter A from offending again b. General deterrence- deter many people from offending, usually by making examples of individual offenders- Punish A to deter B, C, and D. 2. Incapacitation a. Incarcerate offenders to render them incapable of offending again for the duration of the incarceration; "Put 'em on ice." b. Does not require deep thought as to the ultimate reasons, justifications, or higher goals for punishment- it is in accord with common sense. 3. Rehabilitation a. True "correction"- "cure" the offenders of their inclinations to offend- mold them into decent and productive members of society- the ideal goal of punishment b. Goal of punishment- reform and correct the offender 4. Retribution a. Retaliation against the wrongdoer for his offense- a sort of "pay back" Retaliation for whom (1) Society (2) Victim (3) Victim's family/friends b. Extreme version: lex talionis: "an eye for an eye, a tooth for a tooth." 5. Denunciation a. Denounce offenders to show them and others that society abhors the offense b. A loud and public statement in the most emphatic terms, "This is WRONG!" 6. Other considerations a. When deciding punishment, should we limit our in inquiry to the present offense or look to the past history of the offender? b. Should punishment be proportionate to the crime or to some other measure? c. In the criminal law generally, do we want specificity of offenses or generality? Virtues and detriments to both approaches. II. Elements of a crime: Actus Reus, Mens Rea, attendant circumstances, result, causation A. The Actus Reus requirement 1. Actus Reus: an "overt act" indicative of a crime a. Outward action that manifests criminal intent. The act must be sufficiently related to the intent to constitute a crime. b. An omission or comission c. Culpable acts (1) Culpable: blameworthy to some degree. (2) Act: muscular movement or lack thereof d. Possession may be deemed an act. (1) Actual possession: to have something in your physical control- you procure it (2) Constructive possession- to have something in your dominion with intent to control. (3) One has an affirmative duty to dispossess contraband which comes into one's possession involuntarily- failure to dispossess can constitute possession. e. Pertinent case - Proctor v. State: an overt act is required, not just criminal intent or thought. B. Voluntary acts 1. An act that is an expression of one's will committed with full knowledge and control. 2. We do not want to punish people for mere thoughts or involuntary acts. (Martin v. State, People v. Newton) 3. Automatism and insanity: both have the potential to make someone act involuntarily. - As far as automatism, if someone is aware of his condition, knows what brings on an attack, and acts recklessly or wilfully to bring on an attack, then that person may be held criminally liable for what he does in that state. (People v. Grant) - Drinking ----> Attacking cop (vol act) (invol act) The culpable act 4. MPC defines a voluntary act in terms of what it is not. a. Reflex or convulsion b. Body motion while unconscious or asleep c. Hypnotism [This one is highly debatable] d. Movement not a product or the effort of the determination of the actor, either conscious or habitual 5. Drug addiction not deemed a voluntary act C. Omissions 1. The failure to act when a legally imposed duty (as opposed to a moral duty) requires one to act 2. The duty may arise out of a. Contract b. Statute c. Relational/Dependency (People v. Beardsley) d. Voluntary assumption (a-d: See Jones v. United States) e. Creation of the peril (Commonwealth v. Cali) 3. Determining what omissions should be punished a. Legislature is free to use the criminal sanction to punish any omission it wants within constitutional restraints. b. But, when statutes are ambiguous, the default is the common law- judge made law. - Judges don't like to make law, but they will do so on occasion and draw support for their conclusions by reaching out to other statutes and cases. If the courts are willing to recognize a duty in one sphere, they are likely to recognize it in related spheres as well. D. Strict Liability - Dispensing with the mens rea requirement; committing the actus reus alone makes you liable. 1. For what sort of offenses may strict liability be imposed? a. Traditional common law crimes or derivatives thereof: NO, strict liability is not permissible. Court will require an intent component for such crimes or other crimes mala in se. Traditionally, these crimes have had intent components, and courts are reluctant to dispense with them absent a clear statement from the legislature. (US v. Morissette) b. Regulatory offenses made mala prohibita that are manifestations of police powers or other regulatory powers. YES, strict liability is permissible here. c. In making these determinations, the courts will look at: (1) Intent of the legislature (2) Common law analog? (3) Language (4) Punishment d. Infractions/violations: small-time crimes usually carry SL elements, and courts usually have no problem applying SL in those situations. e. US v. Balint: Balint charged with violating narcotics act, though he did not intend to do so. No mention of intent in the statute, but did Congress intend for intent to be a requirement or not? After looking at the statute and its legislative history, the Court concluded Congress had weighed the possible risks of not having an intent requirement and concluded that the greater good required that the statute not have one. Additionally, this is not a traditional mala in se crime for which intent is an implicitly requirement. f. US v. Dotterweich: Dotterweich was an official of a company that shipped tainted and mislabeled drugs though interstate commerce. Though he had no hand in the actual shipping, the statute made him strictly liable. The court held him liable because a person with a responsible relation to the harm within the meaning of the statute. Statute imposed a duty on those in positions like Dotterweich's, and the law holds them liable w/o fault for any harm done. g. Judges often disturbed and reluctant to impose SL absent a clear statement by the legislature. But even then, questions over intent and state of mind tend to arise during other stages of the process, like at the decision to prosecute or not and at sentencing. Generally, the more severe the punishment, the more judges are reluctant to impose SL. 2. Legislatures love SL a. It can streamline trials by dispensing with individualized inquiries into states of mind. A predicated determination of fault; no individualized inquiries into fault b. SL can be a major deterrent to committing the wrong proscribed by the legislature. c. Sets up a dragnet which can catch many more "offenders" than an intent based statute. Sets up a high standard of care. d. Legislature can tailor SL statutes so that they can snag a fair amount of the persons they want to snag, and they can rely on prosecutorial discretion, judicial discretion, and gubernatorial clemency to further narrow the group that the statute could snag. 3. Concerns of commentators a. SL punishes persons without fault; to some that is morally reprehensible. b. SL punishes without an individualized inquiry into fault; legislatures should not be making generalizations like this. c. SL tends to strip the criminal law of its moral force. 4. Replies a. SL channels the fault inquiry to other actors and stages in the criminal justice system. (Frankfurter in Dotterweich) - Law enforcement officers - Prosecutors - Judges - Executive clemency b. Though SL is primarily a creation of the 20th century, we have had a version of SL for longer that seems less morally objectionable: the felony murder rule. 5. Judicial restrictions a. The court can use its sentencing power to mitigate the penalty and also to take into account those factors not admissible at the guilt/innocence stage. b. When SL starts involving omissions and imposing vicarious liability, courts begin requiring reasonable relationships to the harm. c. The objective impossibility of meeting an SL duty is a defense. d. What happens when court is confronted with a statute that proscribes a given act, but is silent on the mens rea requirement? (1) If the legislative intent to impose SL is clear, then the statute is applied as written. (2) If legislative intent is not clear, (a) Is it a modern police power regulatory offense? If so, court are willing to apply SL (b) If it is a crime with a common law analog, they are less likely to impose SL without more legislative guidance. (3) If the punishment is stiff, the legislature is less willing to impose SL. (4) If the offense the statute makes out amounts to an "infraction" or "violation" (minor breach of the law), then the courts find it easy to impose SL. (4) Court also look to policy: would imposing SL for this offense be good policy or not? If so, then they are willing to apply SL, otherwise, they are unwilling to apply SL without a more definite statement from the legislature. (5) People v. Hutchinson: Hutchinson is charged with illegally transporting an open container of alcohol [A tack on offense to DUI/DWI]. The bottle the cops found was stuffed between the seats, and Hutchinson claimed one of his passengers must have left it there and the he did not know the bottle was in the car. The statute makes out no level of mens rea. The court refuses to apply SL - Under a strict reading, SL imposes liability upon persons for an offense which by its very nature requires some sort of knowledge. - The statute would also punish someone for the "sins of his neighbors", for he can never know for sure what his passengers are carrying. Such a reading flies in the face of criminal law. Without more legislative guidance, court is unwilling to apply SL. - Strict interpretation would also impose an n effective requirement that drivers frisk their passengers is problematic from a policy standpoint. Given the problematic nature of that policy, more legislative guidance is needed. The dissent would have applied SL for several reasons: mala prohibita offense - legislative intent not to set a mens rea requirement - Deterrence/High level of care (drivers must be very careful of who and what they carry in their cars) E. Mens rea: the guilty mind 1. By imposing mens rea requirements for various offenses and grading them according to the offense, we attempt to articulate our view that certain states of mind are more guilty than others. 2. Up until 100 years ago, there were no detailed answers as to questions concerning mens rea. The CL had general ideas about culpable states of mind. The CL divided mens rea up into two broad categories: a. Specific intent: a higher level of mens rea is required to convict b. General intent: only a lower level of mens rea is required to convict. Beyond that, levels of mens rea were generally not graded in any consistent fashion. How then do the CL courts decide whether or not an offense calls for specific or general intent? Well, they "wing it" to some degree. The decision amounts to policy considerations in some instances (what amount of mens reas should be required). CL tended to require more mens rea for serious crimes and less mens rea for less serious crimes. Additionally, certain buzzwords in the statute may tip the court off as to the proper level of mens rea to apply (ie. "intent", "maliciously", "wilfully" usually trigger specific intent. Other crimes that do not use such explicit statements of mens rea are usually deemed general intent offenses. The CL was extremely imprecise about what mens rea was required for specific or general intent, so it attempted to do it by defining what did NOT constitute specific or general intent, or rather, what negated them (deal in the negative). 3. Many modern jurisdictions now employ graduated categories of mens rea. The MPC categories are the height of precision and systematic elegance with regard to gradations of mens rea as well as their articulation (purposeful, knowing, recklessness, negligence). 4. Mens rea under the Model Penal Code a. Purposefully (intentionally): With regard to q material element of the offense the perpetrator acts purposefully when (1) With regard to an element that involves the nature of the conduct or its result, "it is his conscious object to engage in conduct of that nature or to cause such result; and" (2) With regard to an element that involves the attendant circumstances, he is aware that they exist or believes or hopes they exist. b. Knowingly: With regard to a material element of the offense, the perpetrator acts knowingly when (1) With regard to an element that involves the nature of the conduct or its result or the attendant circumstances, "he is aware that his conduct is of that nature or that such circumstances exist; and" (2) With regard to an element that involves the result, "he is aware or practically certain that his conduct will cause such a result." c. Recklessly: With regard to a material element of the offense, the perpetrator acts recklessly when he "consciously disregards a substantial and unjustifiable risk that a material element exists or will result from his conduct... [a risk of a nature and degree] that amounts to a gross deviation from the standard of conduct that a law-abiding citizen would observe in the actor's situation." d. Negligence: With regard to a material element of the offense, when "he should be aware of a substantial and unjustifiable risk that the material element exists or will result from his conduct. The risk must be of such a nature and degree that the [perpetrator's] failure to perceive it, considering the nature and purpose of his conduct and the circumstances known to him, involves a gross deviation from the standard of care that a reasonable person would observe in the [perpetrator's] situation." e. Default level of negligence: If the statute does not specify a minimum mens rea requirement, the perpetrator must act with purpose, knowledge, or recklessness. f. Need only meet the minimum mens rea requirement in order to convict. Proving a higher mens rea does not exculpate the perpetrator when only a lower mens rea is specified. 5. In order to assess criminal liability, the offense must be broken down into a. Its elements (1) Conduct (2) Attendant circumstances (3) Result b. The mens rea requirement with regard to each element (and the level of mens rea required for each element can vary) c. Under MPC, if mens rea as to one element is specified, the code implies that the same mens rea applies to all other elements barring an explicit indication otherwise. d. The government has the burden of proving all elements of the offense showing guilt beyond a reasonable doubt. e. Steps involved in evaluating a problem in criminal law (1) What are the elements of the crime? (2) What states of mind are required for each element- they need not have the same mens rea for each. (3) Assess defendant's state of mind taking into account ignorance of mistake. (4) Does the defendant make it up to the requisite level of mens rea? Does he measure up, fall short, or is the element negated by ignorance or mistake? 6. Ascertaining what level of mens rea (if any) is required to convict: Regina v. Faulkner a. Faulkner made an unauthorized entry into the hold of the ship upon which he was serving with the intent of stealing rum. While trying to seal up with a spite one of the kegs he tapped, he set the rum on fire with a match and the ship burned down. Faulkner was charged with violation the Malicious Damages Act, which in part punishes those who "feloniously, unlawfully, and maliciously" burn certain items of property. b. Prosecution: Faulkner intended to commit a larceny, and that is enough intent to make him liable for burning the ship under the MDA. Jury was instructed not to take intent into account: if he was in commission of a felony at the time of the fire, he is guilty of violating the MDA. He is to be held liable for every result without regard to negligence, intent, knowledge, recklessness, etc. (A sort-of "vicious will" level of mens rea). He was found guilty. c. Faulkner challenged the jury instructions on appeal. The court ruled that in order to convict, the jury had to consider the level of mens rea required for the crime to see if Faulkner had it. [Intent can be transferred among intentional torts and targets, but not generally among crimes. In criminal law, we must make individualized inquiries into the fault of each actor for each offense. We focus in upon the person and crime in question.] d. Elements of the crime: (1) Conduct (setting the fire) (2) Result (ship burned down) (3) Attendant circumstances (ship, flammable rum) e. The court found decided that in order to be convicted, the jury must find that he had the requisite level of mens rea for each element of the offense (in this case, intent to burn the ship) f. MPC analysis (1) Did he intend to set fire to the ship? NO (certainly not his conscious object to burn the ship) (2) Did he purposefully set fire to the ship? - Was it practically certain that the result would come to pass? (degree of probability). NO (3) Did he act recklessly? - Did he disregard a substantial and unjustifiable risk That the element exists or result will occur that is indicative of a gross deviation of care that would be exercised by a law abiding citizen? (the thought must at least pass through his mind) [Who gets to make the call as to the risk? Under the MPC, the jury gets to decide, so the jury determines if the perpetrator is negligent or merely negligent or something less.] NO (4) Was he negligent? - Did he aver to the risk at all? - Was there a risk? - Should he have perceived it? - Was there a gross deviation from the standard of care a reasonable person in the same circumstances would have used? Possibly. 7. Mistakes of fact a. Generally, the mistake of fact is a defense if it tends to negate an element of the prima facie case. b. Honest mistake of fact/belief: (1) Under MPC, it negates purpose and knowingness (2) Under CL, it negates specific intent c. Honest and reasonable mistake of fact/belief: (1) Under MPC, it negates recklessness and negligence. (2) Under CL, it negates general intent d. Statutory Rape Cases: People v. Guest (1) Guest and Evan had sex with a 15 year old girl, but he honestly and reasonably believed she was older than 16. They had a reasonable good faith belief that she was not underage. (2) The court rules that the Alaska statute governing statutory rape does not impose SL, unlike other states that do impose SL for statutory rape. They hold some awareness of wrongdoing is an integral element of the offense. [not a police power regulation, but a serious felony]. The mistake of fact should at least mitigate the act down to a lesser offense. e. Under MPC, the defense of H&R mistake of fact is not available if the defendant would be guilty of a lesser offense were what he believed was actually true. In these instances, the mistake of fact automatically reduces the grade of the crime down to a lesser offense. [No manufactured dilemmas may be used get the defendant off.] f. Additionally, under the MPC, SL is imposed for having sex with a child under age 10, and no defense regarding mistake of fact is permitted. However, when the offense depends upon the child being below a higher age, defenses regarding mistakes of fact are permitted. [Homage to the common law] (Section 213.6) g. At CL, a mistake of fact defense is not available when the mistake only reduces the grade of the crime and the defendant's conduct is not materially different from the higher grade crime. Instead, the defendant remains liable for the higher grade crime. h. Age specifications under CL: In CL jurisdictions, age specifications of statutory rape victims are treated as SL. Persons who have sex with victims under the specified age do so at their peril. The policy argument for that position is to forestall frivolous defenses to a rather depraved act. i. Mistakes of fact-law hybrid: legal issues made elements of the crime. ie. mistakes as to legal status. - Generally, the same considerations as to mistakes of fact apply (1) People v. Bray: (a) Bray was charged with being a felon in possession of a handgun. Bray had pled guilty to a crime in KS, but he was unsure if he was a felon or not. (b) Prosecutor's argument: If he didn't know, he should have known (negligence). (c) Court holds that the requisite mens rea as to that element is knowingness. (From another case interpreting this statute and from a case construing a statute dealing with illegal aliens.) Not even the KS DA knew whether or not Bray was a felon, so Bray was in an even worse position to know. (Honest mistake of fact will be enough to get him off, so he will now want an instruction to that effect.) (2) Larceny (a) Three elements (1) Taking the property of another (2) Without consent of owner (3) With the intent to keep it. (b) The status of title to the article is a fact that is subject to mistake. Given that larceny is a specific intent offense, then only an honest mistake as to the ownership of the article is enough to negate the requisite mens rea. (c) Umbrella hypothetical: Just before deboarding a bus, you pick up an umbrella you think is yours and proceed to deboard the bus with it. (1) At CL, the mens rea requirement as to who has title to the umbrella is specific intent, so only an honest mistake is required to exculpate. (2) The MPC suggests a knowing mens rea, but it is possible to write a statute setting the requisite mens rea at recklessness. (3) In Regina v. Smith, tenants added fixtures to their landlord's property not knowing that under English law that the fixture once installed became the property of the landowner. A mistake of fact as to the ownership of the fixtures was treated as a defense to an action to recover for damages to the fixtures when the defendant smashed through them to remove wiring. (4) Bigamy statutes: (MPC Section 230.1) Bigamy statutes punish taking another spouse when one is already married, (a) Under the MPC where the requisite mens rea appears to be knowingness, an honest mistake as to one's marital status is sufficient to exculpate. (b) At CL, bigamy was treated as a general intent offense, so an honest and reasonable mistake is required to exculpate. (5) Consent and rape- Regina v. Morgan: (a) While out at a pub drinking and trying unsuccessfully to pick up women, Morgan, the senior of 4 RAF airmen suggested they go to his house and have sex with his wife. He noted that she was kind of "kinky" and probably would resist at first, but to pay her protestations no mind as that was how she got turned on. The 4 did have sex with the wife, and subsequently all four were charged with rape. (b) Morgan's three cohorts said in their defense that they honestly believed she had consented to having sex with them. (c) The House of Lords concluded that an honest mistake was sufficient to exculpate. They chose to regard rape as a specific rather than general intent offense, so an honest and reasonable belief was not required to exculpate. [The House of Lords, however, affirmed the convictions on the grounds that no reasonable jury could conclude that Mrs. Morgan in any way consented to sex with the four RAF airmen. (d) In the US, rape is a general intent offense in CL jurisdictions, so an honest and reasonable belief is required in order to negate the requisite mens rea. [Morgan was eventually reversed by statute in Britain.] (6) Rape (a) At CL, rape was defined as carnal knowledge against the will. The deck was continually stacked against women. (b) Gradually over time, the courts began interposing more and more restrictive requirements in order to satisfy the elements of the crime in an effort to weed out perceived false claims of rape. Additionally, the courts were fearful that juries would become overly sympathetic towards an alleged victim, so they moved to trim the jury's discretion. They purported to serve as evidence of consent. (1) Introduction of forcible requirement as a proxy for "against the will" (2) Later, the courts introduced the resistance requirement, the requirement that the victim have made some effort to fend off her alleged attacker. (3) After that, the defense of reasonable belief began to be entertained. (c) These additions made rape exceedingly difficult to prove. It has led to a backlash, as manifested in the NJ revision. (a) Altered the rape laws to remove the insinuation that to be rape it had to have been committed by an attacker jumping out of the bushes. (b) Eliminated the forcibleness requirement. Instead of proving a "no", the defendant is almost required to show a "yes", though it does not shift the BOP to the defendant for obvious DPC problems. 8. Mistakes of law (1) Mistakes of law can arise in 2 respects (a) The existence of the law (b) The interpretation of the law (2) State v. Hatch (a) Defendant, a citizen of MA, was driving through NJ on his way to PA when he was stopped for a traffic violation. The officer noticed that Hatch had a shotgun and a rifle in the backseat partially covered by blankets. Hatch lacked the required NJ documentation and was not transporting the weapons according to NJ law. An avid sportsman, Hatch explained that he had all the proper MA documentation, that his method of transporting the guns was consistent with MA law, and that he was unaware of any NJ laws governing his firearms. (b) The NJ S.Ct. concluded that the legislators probably never envisioned that an out-of-stater might be held liable for not having the NJ Fireams ID. Even so, Hatch should have been required to transport his firearms in a manner consistent with NJ law. [However, the court upheld the acquittal as understandable under the circumstances.] (3) Maxim: Ignorance of the law is no excuse. (a) Why is this so? (1) The maxim tends to discourage ignorance of the law and encourages an informed citizenry. (2) Discourages formations of individual law counter to public law. (3) Proving that the defendant knew about the law is next to impossible- it would become a lottery with the jury. (4) It provides a certain stability and certainty to the law. (5) It makes violators examples to the rest of society that such behavior is not condoned. (b) This creates a tension in the law. (1) The desire for certainty and evenhanded application of the law as well as the upholding of the rule of law, vs. (2) The desire to remedy injustice in individual cases. (a) Use of discretion (at many stages) (b) Write better statutes so that those who should know do know about its existence and that it applies to them. (c) Advice and mistakes of law: Hopkins v. State (1) Hopkins, a preacher in MD apparently engaged in the cottage industry of performing marriages, relied on a statement by the State's attorney that 2 signs he proposed erecting did not violate a statute against certain signs. Hopkins erected the signs, but subsequently the State's attorney had a change of heart and charged him with violating the statute. (2) The court invoked the maxim that ignorance of the law is no defense and upheld his conviction, refusing to accept the defendant's argument that advise from an authoritative and semi-official source should be a defense. It held that since advice of counsel is not a defense to the violation of the law, advice from the State's attorney could not be used as a defense. (3) Why not allow the defense of prosecutorial advice? (a) Bribery and conspiracy (b) Spurious and frivolous defenses (c) Keep prosecutors from rewriting the law (d) Advice, interpretation, and mistakes of law (1) Both the CL and the MPC recognize that mistakes of law can sometimes be defenses. (2) Under MPC, the defendant who wishes to make such a defense must show 2 things (the "damn good reasons") (a) She believed the conduct was legal, and. (b) She does not know about the statute and the statute has not been published (no fair notice), or (c) She reasonably relied on an official statement of the law that later turned out to be erroneous. (1) Statute or other enactment (2) Judicial decision (3) Administrative or governmental regulation or order (4) Official statement made by a public official charged with interpreting, administering or enforcing the law. (3) CL exception: limited defense for authorized reliance upon an erroneous or invalid (a) Judicial opinion, usually from the jurisdictions highest court (b) Statute (c) Official advice from the responsible agency (had to be REALLY official). e. Constitutional limitations on the maxim: Lambert v. California (1) Lambert, a convicted felon, was charged with violating a local LA ordinance requiring convicted felons residing in or frequenting the area to register. Failing to register was an omission, and the offense was SL, so it created a broad sweeping duty that potentially snared thousands of people. (This sort of ordinance was popular in the '20's and '30's as a means of keeping the riff-raff out.) (2) Lambert challenged her conviction under the ordinance on DPC grounds. (3) Justice Stewart and the Court found the ordinance did violate the DPC, but Stewart deemed the opinion "a derelict upon the waters of the law." He deemed the ordinance imposed a duty only because it was on the books. Those subject to the ordinance had no reasonable notice that they were under a duty to register. The court held that in order to convict, the defendant had to have been aware of the statute and still failed to register. [The DPC requires notice and an opportunity to be heard.] 9. Defense of diminished capacity a. Diminished capacity to (1) Control one's behavior (2) To appreciate the wrongfulness of the act (3) To form the requisite mens rea b. Diminished capacity negates (1) Under MPC, purposefulness, knowingness and recklessness, but not negligence (because of the application of the reasonable person standard, a person who has, of course, no diminished capacity, though the MPC does provide that diminished capacity can conceivably negate the mens rea.) (2) Under CL, specific intent and higher grades of general intent commensurate with MPC recklessness. b. People v. Wetmore (1) Shortly after being released from the Veterans' hospital, Wetmore enter the absent Cacciatore's apartment under the delusion that it was his. Cacciatore returned several days later to find Wetmore eating his food and wearing his clothes, and immediately called the police. Wetmore was charged and convicted of burglary, despite the defense of diminished capacity based on Wetmore's long history of mental illness. (2) The trial court drew a distinction between the capacity to entertain the requisite mens rea and the actual entertaining of the requisite mens rea, and from that convicted Wetmore. (3) The CA Supreme Court overruled the trial court, holding the distinction it made untenable. Capacity to entertain the requisite mens rea is extremely relevant to the question of whether or not defendant actually entertained it when the act was committed. Moreover, that evidence is subject to cross examination. c. The more the medical community as a whole accepts the debilitating effects of a diminished capacity, the more likely the court will accept it as a defense. (Bright case) 10. Defense of voluntary intoxication a. Voluntary intoxication that does inhibit the defendant's ability to entertain the requisite mens rea can negate (1) Under CL, specific intent (2) Under the MPC, purposefullness and knowingness, but not recklessness, though voluntary intoxication might indeed inhibit the defendant's ability to aver to the risk. The MPC explicitly takes recklessness out of the voluntary intoxication defense. Voluntary intoxication is not a defense unless it negates the mens rea requirement. It also does not negate MPC negligence, because the reasonable person is not drunk. So long as the defendant was drunk enough to have been incapable of entertaining the requisite mens rea. The degree of intoxication is extremely relevant to the determination. b. The defendant has the burden of production as to how much she drank and how drunk she was at the time the crime was committed. c. People v. Guillett: Guillett got drunk and made improper advances towards a woman. He was charged with assault with intent to commit rape. The court held that his drunken state negated specific intent. d. State v. Cameron: Cameron, allegedly in a drunken state, attacked one McKinney with a broken bottle. She was charged and convicted of 2d degree aggravated assault and other charged. She invoked the defense of involuntary intoxication, but the judge refused to instruct the jury on voluntary intoxication. That decision was affirmed on appeal. The court was not satisfied that the defendant had presented enough evidence that she was drunk enough to warrant the instruction that she may have not had the capacity to entertain the requisite mens rea due to her intoxicated condition. [Courts are extremely reluctant to let defendants invoke involuntary intoxication. Unless the evidence of severe intoxication is clear, they prefer to keep the jury in the dark. And even when they do give it, they phrase it in impossible terms as to prevent the raising of a reasonable doubt. (Is not the level of intoxication properly a jury question?)] e. Some states feel diminished states (diminished capacity and voluntary intoxication) should not be permitted to negate mens rea, especially when there is no general intent offense that could snag the defendant. f. At CL, involuntary intoxication and pathological intoxication (unpredictable side effect of a medication) exculpated completely on actus reus grounds. III. Homicide A. Definition: The killing of a human being by another human being. Only humans can commit homicides. B. Lawful homicides 1. Killing the enemy by soldiers in time of war 2. Self-defense 3. Executioners C. MPC defines Criminal Homicide (Section 210.1) as the purposeful, knowing, reckless, or negligent killing of a human being. D. Broad categories of unlawful homicides: Murders and manslaughters 1. Homicides are usually defined with reference to murder. Lesser homicides are viewed as murder with something subtracted from the offense. 2. At early CL, all unlawful homicides were punishable by death (as were most felonies). The initial rationale behind distinguishing between murder and manslaughter was to remove less culpable defendants from the class of killers subject to the death penalty. In making this distinction, the courts developed the concept of malice, which they deemed to be characteristic of murders and not of manslaughters. We have continued this line of thinking by distinguishing between first and second degree murders and finally by further distinguishing between first degree murders that warrant the death penalty. 3. In the 1790's, PA started the trend to separate extremely culpable murders that warranted the death penalty from murders that did not warrant it by distinguishing between 1st and 2nd degree murders. 1st degree murders continued to get the death penalty while 2nd degree murders did not. E. Murder - How it is defined depends on the jurisdiction. - Much of homicide law revolves around the result, especially when the mens rea is less than the specific intent to kill. 1. Core idea of what murder is: The unlawful killing of a human being with "malice aforethought". [In NC, a homicide fitting this description would be a 2nd degree murder.] [Also, this is the classical articulation of CL murder.] a. Some states refer to "malice aforethought" in their statutes. b. Other states use language comparable to "malice aforethought" or implicitly recognize CL requirement that malice be associated with murder. c. Other states specify the states of mind which constitute malice. 2. Malice aforethought - A legal "term of art" [read: oxymoron] because, strictly speaking, it does not mean "malice" or "aforethought". Rather, it is a term that captures several related mens reas. 3-4 states of mind which qualify as malice: The law regards each of these as moral equivalents. a. Intent to kill (aka: "express malice" [others aka: "implied malice") b. Extreme recklessness- phenomenally reckless behavior manifesting an extreme disregard for the value of human life. (aka: Depraved heart murder/"abandoned and malignant heart" murder) c. Intent to inflict serious bodily injury (This is so similar to extreme recklessness that some don't consider it a separate species of malice.) d. Felony murder: Those who perpetrate certain violent felonies where death results are liable for murder in most jurisdictions without any showing of intent to kill or any analogous sort of mens rea with respect to the killing. (This category is also commonly absorbed into extreme recklessness.) 3. Intent to kill: the classic mens rea associated with murder a. Intentional killings are regarded as high-level crime. The law values human life highly [The criminal justice system really gets going when there is a stiff on the floor!]. So when someone intentionally kills another, the desire for retribution, denunciation, etc. is especially strong. b. Is there a worse mens rea than intent to kill (that might, say, invoke the death penalty?) 1. How serious was the intent (a) Spontaneous (b) Premeditated and deliberated (P&D) 2. Did the murderer enjoy committing the deed? 3. Was the killing especially "heinous, atrocious, and cruel"? c. Tension in the system (1) Desire to define the levels of mens rea in advance, vs. (2) Leaving the jury with some discretion. d. Rarely will a defendant fess up and admit intent. Accordingly, intent to kill is extremely difficult to prove with direct evidence. Accordingly, circumstantial evidence is sufficient to show intent to kill. (1) Francis v. Franklin: (a) Franklin was charged with the murder of one Collie. Franklin, who was incarcerated for previous crimes, escaped during a trip to the dentists office. He took a dentist's assistant as a hostage, took the gun of a guard, and proceeded to demand car keys from several persons during his flight. He knocked on Collie's door and when Collie opened the door, demanded his car keys. Collie refused and slammed the door. Subsequently, Franklin's gun went off and 2 shots went through the door: one killed Collie, and the other went through the ceiling. Franklin was charged with malice murder and kidnapping. (b) Franklin's defense: he lacked the required intent to kill. He maintained that nothing in the evidence even remotely suggested that he intended to kill Collie. Though he admits shooting Collie, he denied he did it "voluntarily or intentionally." (c) The judge instructed the jury that (1) BOP on prosecutor to prove all elements of the offense beyond a reasonable doubt, including intent to kill, but (2) There is a presumption that he intended the natural and probable consequences of his acts, but that presumption can be rebutted. (d) The US S.Ct. ruled that this essentially shifted the BOP to the defendant to prove that he did not intend to kill his victim. Accordingly, defendant was denied due process. If the state makes something an element of an offense, the prosecutor must prove it beyond a reasonable doubt. To instruct the jury that the law "presumes" certain elements prejudices the jury against the defendant in violation of the DPC. The prosecutor cannot make his job easier at the expense of the DPC by shifting burdens of proof for difficult to prove elements. (e) Franklin was a habeas corpus case (f) Franklin was convicted on a "general verdict" of murder (as opposed to "specific verdict") [He's guilty of murder, but we are not sure what grade.] To get a new trial, all the has to do is knock out one of the mens reas (because that could have been the one that prompted the jury to convict the defendant.) He knocked out intent to kill, so he gets a new trial. (General verdicts are almost always misused in criminal cases.) (2) Problems for the prosecutor with intent elements (a) Difficult to prove (b) Difficult to argue how to draw inferences (c) Criticalness of the jury instructions (d) Other devices can be constructed to snag defendants, like FM. (3) Alternative theories of malice make the prosecutor's job easier. (4) The state is free, of course, to redefine the elements of an offense as it sees fit subject to broad constitutional restraints. (5) The prosecutor will come to trial armed with several different theories of culpability and she will try to get them all submitted to the jury. (6) The case will be submitted to the jury on several theories and they will be asked to determine which, if any, apply to the defendant's act (Murder 1? if not, Murder 2? if not, VM? if not INVM?) e. Doctrine of transferred intent: If A shoots at B intending to kill her, but instead the shot misses B and kills C, A is liable for C's murder. The law "transfers" his intent to kill B to C and holds him liable for the intentional killing. Extreme recklessness is also transferrable among victims. f. Voluntary intoxication will negate P&D, thus knocking down what would otherwise be a 1st degree murder to a 2nd degree murder. 4. Extreme recklessness a. The touchstone for extreme recklessness is reckless conduct which manifests an extreme disregard for the value of human life. We deem utter indifference or callous disregard for human life to be an especially culpable state of mind. High risk behavior also warrants the label of extreme recklessness. b. Mayes v. People (1) Mayes came home one night from the local saloon drunk. He proceeded to give his wife, daughter, and mother in law a hard time. While his wife was shuffling her daughter off to bed, Mayes threw a beer glass at his wife. It broke the lighted lamp she was carrying, spraying burning oil all over her. Mayes made no attempt to put the flames out. She later died from the severity of the burns. Mayes was charged and convicted of her murder. (2) The prosecutor argued his case on an extreme recklessness theory. The judge refused to give the defendant's instruction that the jury must find that he acted with intent to inflict bodily injury upon his wife in order to convict him. (He argued that he had intended to throw the beer glass out a nearby door and not at his wife.) Instead, the judge instructed the jury that if they found that he acted with an "abandoned and malignant heart", they could convict him. (3) The IL S.Ct found nothing wrong with the "abandoned and malignant heart" instruction, for the IL murder statute explicitly deems this state of mind to constitute malice. It found that anyone who would throw a beer glass at one's wife without the slightest care if it would hit her or not has a state of mind culpable enough to warrant a finding of malice on a murder charge. Even if he did not intend to kill her, he is liable for the result of his extremely reckless action. c. Russian roulette/Russian poker cases: the law holds there the is NO justification or excuse for playing such "games". Such conduct has zero social utility. Playing them manifests an extreme disregard for the value of human life. d. MPC recklessness requires that the actor at least have averred to the risk before acting. The actor must "consciously [aver to and] disregard a substantial and unjustifiable risk." e. However, with extreme recklessness, courts tend to play fast and loose with the requirement that the actor have consciously disregarded the risk. In doing so, they will have accepted (1) Knowledge or awareness of the risk (2) Knowledge or awareness of society's disapproval of the unjustifiably dangerous conduct as surrogates for conscious disregard of a substantial and unjustifiable risk. - In determining whether or not a defendant has acted extremely recklessly, different jurisdictions will apply three different tests (a) RPS (objective standard of what is extremely reckless) (b) Subjective standard: the defendant must have appreciated the risks that accompanied his conduct. (c) Pseudo-subjective/objective formula. f. Voluntary intoxication will not negate extreme recklessness. (MPC explicitly provides that voluntary intoxication will not negate recklessness.) - Court generalization: intoxication does not negate malice. g. Intent to inflict serious bodily injury: a subset of extreme recklessness that is often absorbed into extreme recklessness. ["I want to beat you to within an inch of your life!] h. In many jurisdictions, intentionally using a dangerous or deadly weapon is enough for the jury to find malice. The rationale behind this seems to be that the actor by using such a weapon risks serious bodily injury, and accordingly, is extremely reckless behavior. i. Other items, like cars, can be deemed dangerous weapons under certain circumstances. j. Drunk driving cases: Pears v. State; People v. Watson. (1) In these cases, drunk drivers caused accidents in which people died, and they were charged with murder. How could such cases ever result in murder convictions? The courts found basically that their conduct did manifest an extreme disregard for the value of human life. (2) Watson at least took actions that did manifest such a disregard, but Pears may not have. (3) In Watson, the court held that Watson's reckless behavior was driving to a bar and getting drunk knowing that he would have to drive home. (4) Justice Bird dissented in Watson, arguing that under the court's ruling, charges of murder under extreme recklessness theories would just "creep up" upon evidence of drinking. She believed that simply getting behind the wheel of a car drunk was insufficient to establish an act that was "likely to kill". Moreover, it does not follow from that he manifested an extreme disregard for human life at the time of the accident; any inference that he did does not follow. (5) The courts were basically using 200 year old common law murder to snag drunk drivers who kill. 5. First degree murder a. PA in the 1790's was the first jurisdiction to distinguish between 1st and 2nd degree murderers as a way of removing less culpable murderers from the class of homicides punishable with the death penalty. b. Procedure to get a 1st degree murder conviction (1) The defendant must be guilty of murder, that is, the killing had to have been committed with malice aforethought, in this case with the specific intent to kill. (2) Must meet one of the following criteria (a) Subjective criteria: Was there Premeditation & deliberation? (P&D) (b) Objective criteria: Special type of weapon or method of killing. When one of these is shown, the judge will not instruct the jury that specific intent to kill is required in order to convict for 1st degree murder. - torture - poison - lying in wait - armor piercing ammunition - starvation (1) People v. Benjamin: Benjamin was convicted of 1st degree murder for killing a guy he got into a quarrel with in a bar by lying in wait. The court held that the state need not prove specific intent to kill or that he P&D'ed the killing because it had proved that he had committed the murder in one of the statutorily prescribed manners. (2) Proceeding under an objective category of killings that warrant a 1st degree murder conviction make the prosecutor's case much easier. (A) Closes out spurious or frivolous defenses (B) Easier proof: all you have to show is that the defendant did the deed in one of the enumerated manners. (c) 3rd criteria: sentencing discretion on part of judge or jury. (d) First degree felony murder c. Mercy killers get sucked into the P&D category. Do we consider them culpable enough to warrant a conviction for 1st degree murder? Some courts have refused to hold them liable for that level of culpability. d. Danger: by punishing homicides that fit into particular objective categories as 1st degree murders, we open up the possibility that we could execute someone who did not intend to kill. e. Premeditation & deliberation (P&D) (1) P&D requires a specific intent to kill. (2) Premeditation: forming the specific intent to kill (3) Deliberation: reconsidering and reaffirming that decision to kill in cold blood. (Passion and fear may inhibit the perpetrator's ability to deliberate.) (4) In theory, it distinguishes heat of the moment formation of intent murders from those where there is an opportunity where the actor could have and did reflect on his decision to kill and that he affirmed that decision. However, courts no longer enforce that distinction strictly. They do not second-guess the jury on the question of P&D. Additionally, since not all 1st degree murders are punishable by death anymore, P&D is not the critical distinction it used to be. (5) United States v. Watson (a) Watson was convicted of the 1st degree murder of a police officer. [This is the "It's not worth it" case.] He attempted to argue that there was insufficient evidence to find he committed the killing with P&D. (b) The court found there was an appreciable elapse of time in which the jury could have found that he did turn over his decision to kill in his mind and did reaffirm it, and therefore, there was P&D. . (1) By hesitating after the officer for the second time said "It's not worth it." (2) By grabbing the loose gun and pointing it at the officer's chest instead of fleeing. (immobilizing the officer). Therefore, the state had enough evidence to get to the jury. (6) Generally, in order to show P&D, there had to have been some appreciable lapse of time in which the actor pondered over his decision to kill and reaffirmed it. The time need not be long. In NC, P&D can occur in the blink of an eye, and P&D can occur in an elevated state. Other states, like CA, have required some evidence of planning or motive in order to prove P&D. (7) However, lapse of time is not enough. You also must show that the actor turned his decision to kill over in his mind during the lapse of time. (8) Voluntary intoxication can negate P&D, thus knocking down an otherwise 1st degree murder to 2nd degree murder, but judges still leave P&D to the juries. (9) The jury may infer the specific intent to kill from the surrounding circumstances. 6. Felony murder (FM) a. According to the felony murder doctrine, if a death occurs during the commission of a felony inherently dangerous to human life in which you participate, you are liable for murder (1st and/or 2nd degree, depending on the jurisdiction) in addition to the felony. b. FM is essentially SL; by imposing it we deviate from individualized inquiries into fault and culpability. c. Not even the MPC could shake the FM rule. However, the MPC treats FM as a proxy for extreme recklessness: participation in an inherently dangerous activity that manifests extreme disregard for the value of human life. d. FM drags in accomplices who participated in the commission of the felony but who had little if nothing to do with the killing, and it makes them liable for 1st degree murder. e. FM shoots through (1) Malice (2) Aggravating factors normally required for 1st degree murder upgrade. (3) A&A/derivative liability restrictions (4) Individualized inquiry Malice is established by the fact that you committed an inherently dangerous felony as well as the aggravation to 1st degree murder. f. Not all states have an automatic upgrade to 1st degree murder for felony murder. Those states regard felony murder as equivalent to 2nd degree murder. In NC, 1st degree murder is automatic for felony murder. g. FM also softens the causation requirements normally needed for murder. Prosecutor need not show but for causation surrounding the murder. h. Felonies that come under FM rule (1) Some states have expansive lists of felonies that will invoke the rule. These lists usually include some of the more dangerous felonies, like arson, rape, burglary, robbery, etc.) (In many jurisdictions, a death that occurs during the commission of one of these felonies counts as a 1st degree FM's whereas deaths occurring other felonies are 2nd degree FM's.) (2) Other states have short lists of felonies and a "catch all" phrase that brings in inherently dangerous felonies not enumerated in the statute and possibly some distinction between 1st and 2nd degree felony murders. (a) Inherently dangerous felony and/or (b) Other crime committed in an inherently dangerous manner (3) NC's FM statute mentions 7 felonies (big-ticket felonies, like robbery, arson, 1st degree rape, etc.) which can invoke the FM rule if a death occurs during their perpetration plus a catch-all phrase that brings any other felony in which a weapon is used into the coverage of the FM rule. i. Two perspectives on FM (1) Is it good policy? What principles underlie it? Are those principles good ones? (Same problems with SL) (2) How do you as a court build a body of rules around FM to properly apply it? j. Policy: what are the rationales behind the FM rule? (1) General deterrence of felonies? (But why then wait for a murder to occur before bringing the full weight of the criminal sanction down upon the perpetrators?) (2) Deterrence of botched felonies: if you are going to do the deed, do it safely. (3) The fact that someone committed a felony inherently dangerous to human life is ipso facto evidence that someone acted with extreme recklessness. Commission of such a felony is not a bad proxy for actual malice or real aggravation. (4) Retributivist vein: Lets not waste our time with someone who had done this deed with an individualized inquiry into fault and culpability. (Denunciation too) (5) It closes the possibility of loopholes through which culpable murderers do not get the punishment they deserve. (6) However, the history of the FM rule strongly suggests it was put on the books because it was politically popular, and it continues to remain popular. Now, it's basically an accepted practice. (Jesse Helms defeated Harvey Gantt in part with a felony murder argument.) (7) FM resonates in the community, and it has some legal rationale, albeit not a whole lot. Accordingly, it is tough for courts to build rules governing the application of the FM rule. (8) Is it overinclusive for (a) Murder itself? (b) 1st degree murder? (17 year old wheelman ends up on death row.) k. People v. Stamp (1) Stamp, Koory, and Lehman committed an armed robbery of a business. Though they directly harmed no one, one Honeyman had a heart condition, and shortly after the defendant's departed (15-20 minutes), Honeyman had a heart attack from which he died. All three were charged with felony murder. At trial, three doctors testified to Honeyman's condition, and they concluded that his heart attack was caused by a sudden and traumatic experience that upset his system. (Robbery was but for cause of death.) (2) Defendants argued that the FM rule did not apply. The court disagreed, finding that the case was under the plain meaning of the statute. The killing need not be wilful or deliberate; it can be a wholly accidental killing and still be covered under the FM rule. Malice is presumed by committing an inherently dangerous felony. Furthermore, there is no requirement that the death be foreseeable; the perpetrators are held strictly liable for all deaths that occur during the course of the commission of the felony. (3) They probably did act with extreme recklessness, but there are no aggravating factors. Do they really deserve to be convicted of 1st degree murder? 2nd degree murder may have been more appropriate. (4) Without the FM rule, the prosecutor would have had to prove (a) death (b) causation, and (c) malice And along with causation, the prosecutor would have had to prove that the death was foreseeable in order make the death a proximate cause of the defendants's conduct. (5) Should the wheelman get the same punishment as his fellow perpetrators though he was not immediately present when the death occurred? - If he knew his cohorts were armed and intended to commit an armed robbery, then maybe so. His culpability is essentially on par with theirs. l. Role of proximate causation in FM (1) Majority rule: Causation is relevant, but FM limits its role (a) But-for causation (b) One continuous transaction (c) [Inherently dangerous felony] (2) Minority rule: proximate cause (foreseeability of the death and possibly the manner of death) is required in addition to the other elements listed in l.(1). (Some courts apply proximate cause with a vengeance in order to reign in the application of the FM rule.) *. Doctrine of merger - If the underlying offense in included in the elements of murder, the underlying crime is subsumed into murder, and the felony will not suffice for application of the FM rule. m. Carolyn Cautious hypothetical on page 356: She's a gonner under CA's expansive FM statute; she would be guilty of 1st degree murder. She committed a burglary by breaking into Tom's trunk, and it was the but for cause of his death in that but for her crime he would not have run out into the street in an effort to stop her. The foreseeability that Tom might do this or that he might die from getting hit is irrelevant to the question. How to remove her case from the expansive coverage of the statute. (1) Remove automatic upgrade to 1st degree murder (2) Remove burglary from the list of offenses subject to the FM rule n. People v. Gladman and the nexus between the killing and the felony committed; when does the felony end?. (1) Gladman held up a deli and fled on foot. About 15 minutes later while walking through the parking lot of a bowling alley, he spotted a cop and hid under a car. The cop spotted and accosted him, at which point Gladman shot and killed the cop. He was charged and convicted of FM, whereby he committed a killing within his immediate flight from a felony. (2) Defendant argued on appeal that as a matter of law, he did not kill the officer in the immediate flight from a felony, and permitting the jury to conclude that he did was erroneous. (3) After considering older, arbitrary rules where the FM doctrine was limited in killings that occurred after the commission of the felony (abandoning the loot: no FM, Killing on premises: FM), the court noted that it is now within the province of the jury to determine whether or not the killing done during escape and flight from the scene of the crime was done "as part of the underlying transaction"...unity of "time, manner and place". (4) The court also noted that most of the states have adopted the "res gestae" formula, whereby the perpetrators have to make it to a place of relative safety before the crime can be said to be over. (5) FM applies when the killing occurs (a) During the perpetration of the felony, or (b) During immediate flight therefrom (6) NY now uses the "immediate flight" formula for determining whether or not FM is applicable. It found that the jury could properly conclude that Gladman did the deed in the immediate flight from the felony given the time and space proximity as well as other factors, including whether or not he had reached a place of relative safety (he had not) and whether or not he knew he was being pursued (he did). (7) If the prosecutor had wanted to, he could have probably gotten him without the FM rule by using standard murder analysis (death, causation, malice, aggravating circumstance) o. Accomplice liability (1) People v. Calbatero (a) Payroll robbery committed by 6 guys. After procuring the loot, one of their number (Dasalla) shot another of their number (Ancheta) when the latter fired at two third parties who happened on the scene. Ancheta later died. The whole gang was charged and convicted of FM (b) Defendants argued that the death of cofelon to the felony did not fall within the scope of the FM rule, and therefore the prosecutor should have charged them under another section, putting to the jury the question of whether or not the death was accidental. The court rejected this argument, holding that the statute makes any killing that occurs during the commission of a felony subject to the FM rule. (c) Defendants also tried to argue that accomplices should not be held liable when one of their number deviates from the plan and commits the homicide. The court held that the doctrine of deviation from the plan was not available under the FM rule, as the killing was done during the course of a felony in which they participated. (2) Does the fact that one of the perpetrators got killed remove the case from FM? (a) Majority rule: Not enough to remove the case from FM (b) Minority rule: Yes, it is enough (Waters, pg. 374: heroic act by cofelon to save the life of a victim at the hands of his crazy partner.) (3) People v. Hickman: Minority rule holding that identity of the shootee is the identity that matters in assessing FM liability. (a) Two burglars were fleeing unarmed from the scene of a crime. A cop in pursuit mistook a shadow for one of the burglars, fired, and killed a police detective. (b) Court find they are liable for the FM. It rejects the defendants' argument that the focus be placed on the shooter, and in doing so, restricting FM to those instances when the shooter is the one who did the deed. Instead, the court holds that the identity of the shooter is irrelevant and instead focuses on the shootee. [This is the minority rule.] (1) If shootee is an innocent victim, liable for FM (2) If shootee is one of the cofelons, then no FM liability. (4) People v. Washington: Majority rule that the identity of the shooter is the identity that matters for purposes of assessing FM liability. (a) 2 men hold up a gas station. The owner upon detecting the holdup grabs his gun. When one of the felons enters his office, the owner shoots and kills the felon. The owner shot and wounded the other felon as he was trying to escape. (b) The court held that the surviving felon could not be held liable for the FM of his cohort in that he was not the one who shot and killed him. The identity of the shooter is the identity that matters; the identity of the shootee is not important. Who gets killed is largely fortuitous, and thus not indicative of culpability. (c) Was this killing justified, and thus, not murder? 7. Capital punishment/Death Penalty a. For facts and figures, see notes from 29-OCT-92. b. Policy arguments for the death penalty (1) The death penalty allows society to vent its retributivist impulses. Convicts may think life imprisonment is worse, but society thinks otherwise. Denunciation is also served somewhat by the DP. [I am personally not convinced that the death penalty serves retributivist goals. The desire for retribution seems to be an emotional response, the magnitude of which is inversely proportional to the distance (in a figurative sense) from the victim. If our goal is truly a rational inquiry into culpability and dispensation of punishment, such an emotional response may not be justified.] Lex Talionis (2) The death penalty serves to deter would be killers. [The evidence that the DP is a deterrent is at best inconclusive, but is suggests DP is NOT a deterrent.] (3) It certainly incapacitates murderers. (4) Although it might serve to rehabilitate other criminals, is certainly does not rehabilitate the one put to death. (5) Cost of life imprisonment vs. death penalty [But, litigation costs are so high that DP may actually be more expensive than life imprisonment w/o parole. Society is unwilling to have a DP without the procedural safeguards, and those safeguards are expensive. c. Policies against death penalty (1) A waste of economic resources by plowing them into protracted DP litigation instead of investing in the country. (2) Danger of putting an innocent person to death. (3) Biased administration, principally against blacks. This was a major impetus behind the S.Ct's decision to declare the pre-1972 implementation of the death penalty unconstitutional and to stimulate the states to reform their statutes. (4) Arbitrariness: some get it, some don't. This offends our sense of justice. (5) The ones who have to make the decision are fallible human beings who make mistakes. d. History (1) At early CL, all unlawful homicides along with most felonies were punishable by death. People often sought clerical clemency. (2) Later, the courts began distinguishing between murders and manslaughters: murderers still got the DP, but manslaughterers did not. (3) PA chimed in during the late 1700's by distinguishing between 1st and 2nd degree murder, again as a way of curbing the imposition of the DP (4) Through the 19th century, most states still imposed an automatic DP for 1st degree murder. This led to such aberrations as false acquittals by juries that did not believe the accused should get the DP. The discretion that was employed was under the surface and not officially recognized or countenanced. (5) By the 20th century, most states had moved to a discretionary system whereby the jury decided whether or not the accused would get the DP at the same time they decided guilt or innocence. This was known as the era of unbridled jury discretion, as the jury was given absolutely no guidance on how or when to apply the DP. (6) In the S.Ct. case Furman v. GA, the S.Ct. struck down all unbridled discretion statutes, citing the irregularity and inconsistency in the application of the DP under these formula as well as the shear arbitrariness of its application. (7) The states hurriedly reenacted their DP statutes in an attempt to comply with Furman. 2 approaches (a) Guided discretion: After a trial on guilt or innocence, a second sentencing trial would be held where aggravating and mitigating factors would be presented to a jury (including evidence that would have been inadmissible at trial) and the jury would then weigh the factors against one another and decide on whether or not to impose the DP. Upheld in Gregg v. GA. However, states are not required to use juries at this stage. The court has also refused to impose a list of definitive aggravating and mitigating circumstances, leaving the states with the discretion to formulate their own. Most states have non- exclusive lists of agg and mit factors. (b) Return to mandatory DP for 1st degree murder. (NC did this) This formula was struck down in Woodson v. NC because it permitted no inquiry into moral culpability that might warrant or not warrant the DP. (false acquittals and a return to underground unbridled discretion). Not even a mandatory DP for killings done by persons serving long prison terms is constitutional. (c) Hybrid scheme: Flavor of guided discretion, but the questions put to the finder of fact are rather rigid. (Constitutional under Jurek v. TX.) (1) Was there intent to kill? (2) Does the killer pose a future danger? (3) [Did the victim not bring on the attack?] If so, DP is automatic. However, gradually this scheme is being transformed back into a guided discretion scheme. e. What crimes should warrant the DP. Well, certainly not parking or traffic violations. The S.Ct. basically has said that DP is warranted only when a death is involved. When the DP was used to punish rape, the evidence overwhelmingly indicated black men who raped white women got the DP a disproportionate amount of the time. (Coker v. GA). But inside the broad limits of constitutionality, the S.Ct. is not in the business of telling the states what punishments they can or cannot prescribe for crimes. f. Explicit "super-mitigating" factors (1) Euthanasia (2) Vengeance (3) Age of perpetrator S.Ct. has visited this issue (a) 16 & up: may be executed under current statutes (b) Under 16: legislatures must be absolutely clear they intend for persons under 16 to be covered under their DP statutes. (4) Mental incompetence: S.Ct.- not a compulsory supermititgator, but merely one of several mitigating factors that may be considered. Executing a mentally incompetent person is not illegal as a matter of law. (5) Felony murder (a) Minimum amount of mens rea is required (b) The killing must be wildly disproportionate to the crime. (c) If the individual did not kill, then he is not subject to DP, unless (1) He was a major player in the crime (2) Showing of malice/minimum mens rea Wheelmen are not good DP candidates. g. Tension in DP (1) Need for discretion, especially guided discretion since humans are fallible beings. (2) Curbing the abuse of discretion. h. It is constitutional to discriminate in jury selection on the basis of the ability to evaluate aggravating and mitigating circumstances. But in cases with racial overtones, prosecutors who reject jurors have an additional burden to show that they did not discriminate on the basis of race. i. There are limitations on what the prosecutor can say to the jury that might inflame their passions and move them away from the rational inquiry. j. Unfortunately, poorly educated public defenders are the ones who must put mitigating circumstances to the jury. Evidence concerning a person's background is not usually understandable to a defense atty. However, upon a showing of special need, a defendant can hire at government expense an expert to examine evidence regarding the accused's background and synthesize it into a presentable form. (Aker v. OK) k. In order to kick the offense up to capital murder, there must be some aggravating factor. However, states are given wide latitude in determining what those factors should be. Examples: (1) Cop killers (2) Peculinary gain/contract murder (3) Felony murder (4) "Especially heinous, atrocious, or cruel": too nebulous and expansive- could be found in most any murder case. Further definition is needed. The higher the hurdles the legislature sets up, the less likely the jury will be able to use its discretion in order to refuse to impose the death penalty. F. Manslaughter 1. Voluntary manslaughter a. Definition: an unlawful intentional homicide committed without malice in the heat of passion upon sudden and adequate provocation. - The defendant must be so guided by passion that he is unable to form the deliberate purpose to kill. b. This distinction developed initially as a way of curbing the use of the DP. Now, it no longer serves its original function now that we have other mechanism for deciding who gets the DP; all that matters is how much time a defendant will do. c. 4 elements of voluntary manslaughter (1) Sudden and adequate provocation measured in some objective way (a) Decided by the jury (b) According to the reasonable person standard (2) Must have in fact been provoked (3) Defendant did not cool off (4) No lapse of time in which a reasonable person would have cooled off. d. NC alternative: Imperfect self-defense: The defendant appears to have acted in self-defense, but for some reason the defense is unavailable. (1) Defendant started the fray in which he had to use self-defense. (2) Unreasonable and mistaken belief that he had to act in self-defense. e. The intent alluded to by the offense of voluntary manslaughter is not malicious intent (which would invoke the charge of murder), so it is not always the case that intentional killings are malicious. f. People v. Walker: (case where John Stenneth approached several people sitting on a porch, and when they refused to gamble with them, proceeded to try to cut 2 of them. Walker eventually overpowered Stenneth and slashed Stenneth's throat with his own knife.) Why should Walker not be punished as a murderer? - He was adequately provoked (1) Stenneth attacked him first (2) Stenneth actually cut him, drawing blood. g. People v. Berry: (case where husband's new wife return from a trip to Israel declaring she's in love with another man who proceeds to sexually taunting and tormenting her husband. He attempts to strangle her twice, and he finally succeeds after she returns from the hospital after the second attempt. He was convicted of murder, but appeals, charging the jury should have been instructed on voluntary manslaughter.) The court holds that the provocation inciting him to kill her was cumulative and sufficient to cause a reasonable person to lose his cool. [In most jurisdictions, the provocation has to be sudden as well as adequate: cumulative provocation will not invoke the defense.] h. At CL, the judges decided what was and was not adequate provocation; they were extremely reluctant to let juries decide these issues. The ended up recognizing several categories of provocation that would kick the offense down to VM. (1) Physical attack (imperfect self-defense) (2) Involvement in mutual combat (chance medley) (3) Witnessing one's wife's (spouse's) adultery The cuckhold's killing of his (a) Wife (spouse) (b) Paramour Would invoke VM. However, at CL, it was not clear if the defense was a 2 way street. (This exception arose out of the archaic idea that women were the property of their husbands. In some jurisdictions, killing of an unfaithful wife and/or her lover was completely justified, and thus, exculpating) (4) Mere words are insufficient to mitigate an unlawful homicide to VM. (now and then) - Common themes running through these categories. (5) Intense emotion, principally anger. (6) Male ego/pride (7) Physical violence (8) Loss of marital integrity g. Under the modern approach, juries get to decide what is and what is not adequate provocation according to the reasonable person standard. Under this approach, cumulative provocation is being recognized more and more as capable of invoking VM. (1) Would a reasonable person have been provoked to exceed the bounds of reason and act irrationally? (2) Was the actor actually provoked? h. What role individual characteristics play in the determination of provocation: (1) Majority: Consistent with the RPS, individual infirmities (mental conditions, etc.) can play no role in determining whether or not a person was suddenly and adequately provoked. (2) Minority and MPC: Individual infirmities may play a role in the determination. h. Should a case in which a battered wife/girlfriend who kills her abusive spouse/boyfriend go to the jury on VM? [I would say yes, as this is clearly a case of cumulative and sustained provocation.] (The battered wives cases have been treated under the doctrine of self-defense, which exculpates completely is proven by the defense. However, SD requires that the threat of death or severe physical injury be imminent. Thus, battered wives who kill their husbands when their husbands are in a vulnerable state cannot invoke the defense.) - Should the emotions of fear and anger make a difference under the law? Both are intense emotions that prompt one to act rashly and without due deliberation. However, fear usually involves some thought and deliberation. (Fear can certainly arise during mutual combat.) i. VM has an undertow that suggests that the victim's conduct somehow brought about the defendant's irrational conduct: the victim's own actions somehow reduce the mens rea of the defendant. In some circumstances, the defense effectively puts the victim on trial in order to get a voluntary manslaughter conviction in lieu of a murder conviction. j. [See notes for 06-NOV-92 for a discussion on the reasonable person standard.] 2. Involuntary manslaughter a. Definition: An unintentional (and probably accidental) killing committed without malice as a result of the defendant's grossly negligent or reckless behavior. b. INVM is usually the lowest grade of unlawful homicide punishable in many jurisdictions, though some jurisdictions retain their lower grades of culpable homicide. [Dealing with this area of the criminal law raises policy questions as to where does criminal law end and tort begin.] c. State v. O'Brien: (case in which a train rail switch operator negligently fails to attend to his duties, resulting in a train derailment. One passenger died as a result of the injuries he sustained in the derailment. He was convicted of INVM.) O'Brien was basically guilty of an omission based on failure to carry out a contractual duty to the RR company, the third party beneficiaries being the passengers on the train. Accordingly, he has no actus reus defense. The only question is what was his mens rea? O'Brien attempted to argue that in order to be convicted the jury had to have found that his will concurred with his act. However, the court found that he was grossly or culpably negligent, and that level of mens rea was sufficient to convict him for INVM; wilfulness is not required, and an omission is a sufficient act upon which to convict him. d. "Gross negligence" (1) A level of culpability somewhere between tortious negligence and MPC recklessness. (2) A person is grossly negligent when he fails to aver to a substantial and unjustifiable risk constituting a gross deviation from the standard of a reasonable person. (A neatly packaged description of a mens rea requirement ready to be presented to a jury. It expresses the minimum level of culpability required for conviction of the offense.) e. Commonwealth v. Welansky: (case involving a fire in a popular night club; 491 people died. The fire exits were inadequate and obstructed in violation of the fire code. Though the owner was in the hospital at the time of the accident, and had been there for several weeks, he was charged and convicted of the involuntary manslaughter of the victims nearest the inoperable fire exits (easy but- for cause attribution.)) Welansky is guilty of a statutory omission [akin to negligence per se]. The court opts for a "recklessness" standard of culpability. Despite the court's colorful language ("wanton and reckless conduct"), they do not articulate MPC recklessness, which requires that the actor have at least averred to the risk before consciously disregarding it. Instead, they consider failure to aver to the risk when he should have as reckless behavior; this is a cut below MPC recklessness. Given that he was preparing to open a new room, Welansky was well aware of fire codes and regulations regarding the number and adequacy of the fire exists. Thus, it affirmed his conviction. f. CL courts do not distinguish or clearly articulate the various levels of culpability. The judges writing these opinions are not steeped in the MPC. Thus, they usually do not clearly distinguish between negligence and recklessness. g. The law treats near miss culpabilities as kicking the offense up to the next level. (1) Extreme negligence is almost intent, so we treat it as malice aforethought in murder cases. (2) Gross negligence approximates recklessness, so offenses requiring recklessness can potentially snag grossly negligent defendants. h. State v. Williams: (case of Indian couple who did not take their baby who had an abscessed tooth to the doctor for fear that social services would put the baby in foster care. The baby eventually died from complications from the abscessed tooth, and the parents were charged and convicted of involuntary manslaughter.) Though the court concedes that in most jurisdictions the minimum level of culpability is gross negligence, but by statute in WA the level of culpability is ordinary negligence. The court found that they breached the duty of care to be expected of a reasonable person by not taking the baby to the doctor when it became clear that the baby was severely ill, and so they are criminally responsible for the baby's death. - Williams presents the problem of people from diverse cultural backgrounds being held to laws and standards laid down by white Anglo-Saxons. Was their fear that social services would take their baby away from them justified?] - As a statement to its own character, the state frown on arguments asserting "reasonable beliefs of governmental inadequacy". The law hesitates to make this concession. - There is no consensus on how to deal with these cultural quandaries. i. Strong v. People: The leader of a cult who believes in mind over matter is convicted of involuntary manslaughter when he plunges three knives and a hatchet into the chest of a new follower, resulting in the follower's death. He professed that he honestly believed that the wounds would not harm him, and therefore he did not aver to the risk. The court agrees with him and reverses his conviction. The court talks about negligence in the language of recklessness. [Now, did he probably aver to the risk? DEFINITELY!!! Even though he probably took steps to mitigate the risk (indicative of the fact that he probably averred to the risk.)] - At what point to beliefs become aberrant enough to merit the criminal sanction? When these cases involve children, the courts are especially willing to come down hard on parents who hold non-mainstream beliefs regarding medical care. 3. Misdemeanor manslaughter a. MM is essentially "bush-league" felony murder. It punishes persons for deaths that occur during their commission of certain types of misdemeanors, usually dangerous misdemeanors. However, there are (1) Proximate cause limitations (2) Foreseeability limitations b. The MPC flatly rejects misdemeanor manslaughter: under the MPC, the lowest level of culpable homicide is negligent homicide. In fact, many jurisdictions no longer recognize it as a crime, though some cling to the rule. c. This crime makes it possible to convict someone who has virtually zero culpability of criminal homicide. This somehow offends our sense of justice. 4. Vehicular homicide a. A statutory offense enacted to effectuate convictions of drivers who kill where a conviction could not otherwise be obtained. b. NC has both felony and misdemeanor vehicular homicide legislation. [The felony vehicular homicide statute is usually used to snag drunk drivers who kill.] c. The existence of these statutes does not preclude a malice murder charge against a driver who kills. IV. Causation A. Causation in criminal law is roughly akin to causation in tort law; it is a part of the same mishmash of law. B. Philosophical and practical issues 1. Criminal law is not interested in shifting liability to compensate monetarily victims of harm or encourage economic efficiency; that is the realm of tort law. 2. Criminal law has different goals from tort, like moral condemnation, deterrence, etc. 3. Causation is usually not the issue in criminal law that it is in tort law. Primarily this is because many crimes have no result element. And when it does matter, it is usually fairly obvious that causation is present, and so the inquiry will shift to other areas. [We grade crimes according to - mens rea - result] C. Causation has two dimensions 1. Cause in fact (but-for causation) 2. Proximate causation ("legally relevant" causation) D. Cause-in-fact/but-for causation 1. Regina v. Martin Dyos a. This was the case of a group of 5 youths attacking a group of 7 youths after discovering they were messing around with the girlfriend of one of their number. During a street brawl, one of the 7, RM, died from multiple head wounds. One of those wounds was caused by MD when he threw a brick at RM's head. RM died from two wounds: one to the forehead, and one behind his ear. b. The coroner testified in part that (1) He could not determine which wound came first (2) RM might have recovered from either injury if it were the first to have been caused. [cringe!] c. The court poses the but-for cause question, asking whether RM would have died when he did but for MD's act? The court concludes that it cannot say, so MD walks. d. Actually, had the prosecutor had been better prepared, he still could have gotten MD. For example, if he could have shown that in injuring RM MD put him in a more vulnerable position making him more susceptible to injury, say, from a passing bus, then he could have gotten the conviction he sought (RM was lying in the roadway after the first injury). 2. Generally speaking, you must prove but-for the actor's action the victim would not have died when he did in the way he did. At minimum, you must show that the defendant's act accelerated the victim's demise. 3. Hypothetical a. John shoots Bill in the foot, intending to kill him. Bob shoots Bill in the heart, killing him. b. John is not a but for cause of Bill's death, and though he did not succeed in killing Bill, his conduct is culpable enough to warrant punishing him. (1) Attempted murder (2) Assault with intent to kill (3) Criminal battery [?] c. Bob, however, is the but for cause of death, so he is open to a murder charge and conviction. 4. Hypothetical a. John and Bob shoot Bill while he is alive. Either wound alone would have been sufficient to kill him. b. Both go up for murder. 5. Hypothetical a. John and Bob shoot Bill while he is alive. Neither wound alone would have been sufficient to kill him, but the two together caused Bill's untimely demise. b. Both go up for murder (both are sufficient material causes of Bill's death). c. Same hypothetical, but Bill does not die immediately: they both are still liable. 6. But-for cause analysis works by hypothesizing that the cause did not occur and asking the question, "Would the result have occurred anyway?" Answering "No" means that the cause was a but-for cause. 7. If one injury weakens a victim, making him more susceptible to a second injury, and he later dies from a subsequent injury, the first is liable for his murder. 8. Hypothetical a. John shoots Bill, killing him. Bob comes along and shoots Bill's dead body, hoping to kill him. b. John is solely liable for Bill's murder. Bob is liable at most for an attempt. 9. Hypothetical a. John knifes Bill, severely injuring him but not killing him. Bob comes along and finishes Bill off. b. Bob is clearly liable for Bill's murder. As for John, it will depend on his mens rea. E. Proximate causation 1. Cause-in-fact is not enough to establish the causation element. You must show additionally that the defendant was the proximate cause of the result, that is, his cause is legally relevant. 2. Unlike cause-in-fact, proximate cause entails questions of policy, mainly at what point do we cut off the causal chain and hold defendant's liable for the causes they inflict after the cutoff. 3. People v. Benge a. Benge was the foreman of a RR rail repair gang. He misread a train arrival time book and sent his crew out on the tracks to replace part of the rail. He did not have enough time to finish the job. A train came down the tracks and derailed as a result of the rails being taken up; one passenger died. Benge was charged with involuntary manslaughter (grossly negligent conduct). b. Benge was a but-for cause, because the accident would not have happened had he read the time book correctly. However, he pointed to other but-for causes that could have equally been responsible for the accident. (train engineer, flagman, supervisor. c. The court finds against Benge. They conclude that his culpable negligence was the primary substantial cause of the accident. His negligence created the risk of death, and accordingly, he is the one most at fault. 4. Commonwealth v. Rhoades a. Defendant set fire to a Chelsea apartment, and a firefighter sent to fight the blaze collapsed and died from the heat. Rhoades was charged with arson and murder 2 (FM). b. The court reverses his conviction on the grounds that the jury instruction were overbroad in that they permitted the jury to convict if they found that Rhoades was in any way responsible for the firefighter's death, no matter how remote the cause. He had to have been the substantial/"efficient material" cause of death in order to be convicted. [Proximate causation is a limitation on the application of the FM rule.] 5. De minimus injury: an injury which makes the victim especially susceptible to a subsequent injury, whether that subsequent injury be due to negligence by the health care provider or some other cause. (finger cut vs. broken arm) 6. US. v. Hamilton a. The defendant beat up a man in a bar brawl. While at the hospital, the victim pulled out his tubes and subsequently died of asphyxiation. He was charged and convicted of manslaughter. b. Defendant argued that the victim caused his own death by pulling out his tubes, and accordingly, he should not be held liable for the victim's death. c. The court disagreed. It believed that the injuries the defendant inflicted upon the victim were the cause of death, and therefore he is guilty of manslaughter. He started a chain of causal events that led to the defendant's taking of his own life. 7. When intervening causes are dramatically culpable on their own, courts are more willing to cut off the liability chain and not hold the defendant liable. 8. The defendant's culpability is especially relevant in whether or not the defendant will be held liable for the result of intervening causes. (A higher mens rea fortifies the causal inertia of the defendant's act). V. Accomplice liability/Complicity A. Accomplice liability concerns intentional assistance in criminal conduct. If is a way of snagging all defendants who divided the elements of the crime among their number as well as those who assisted in the perpetration, concealment, etc. of a crime. B. Derivative liability: the principle behind accomplice liability. A defendant who aids and abets is guilty of the target offense itself. The offense is not a separate crime in and of itself. The range of first line liability for the offense is expanded. C. At CL, four distinctions between accomplices were made. 1. Accessory before the fact: These persons incited, encouraged, ordered, or incited the actual perpetrator(s) but did not directly assist in the commission of the crime. 2. Principal in the 1st degree: The actual perpetrator(s) of the crime- direct liability. a. Personal commission b. Use of an innocent instrumentality 3. Principal in the 2nd degree: Did not actively participate, but was present, either actually or constructively. 4. Accessory after the fact: Did not an accomplice in the crime itself, but who inhibits the detection of the crime and/or apprehension of its perpetrators. Most jurisdictions no longer care about the common law distinctions. D. Common law procedural twists 1. If you were an accessory before the fact, you could only be tried in the jurisdiction in which you committed the assisting acts. A procedural quirk. 2. Accomplices could not be tried before the principals. a. If the principals were convicted, your punishment was capped at the punishment for the offense itself. b. If the principals were not convicted, the accomplices could not be tried (extreme application of derivative liability). E. Classifications used in modern jurisdictions 1. Principals 2. Aiders & abetters a. Advised the principals b. Encouraged, incited the principals c. Any other kind of contributory acts d. Present with the criminal intent of the principals where you either actually assist, or the perpetrators are aware of your presence and willingness to help. - The same liability for the target crime is imposed on aiders and abettors as well as the principals. The principal that you are liable for your own acts must yield to reality. F. 2 dimensions in the law of accomplice liability 1. Actus reus dimension a. In order to satisfy the actus reus dimension, you must commit an act or omission strongly corroborative of criminal intent and commonality of design. b. The act or omission of assistance need not be large. (1) Known allegiance to the perpetrator (2) Ability and willingness to assist in the commission (3) Standing ready to assist (4) An act which is intended to assist in the commission of the crime, no matter how small the assistance turns out to be. c. Pace v. State (1) Pace, his wife, Rootes, and Pace's infant child were riding in Pace's car. Pace pulled over and picked up a hitchhiker. Rootes robbed the hitchhiker at knifepoint before discharging him. Pace made no comments and committed no acts which could tie him to Rootes's criminal intent. (2) The court concludes that there was insufficient evidence for an A&A conviction; the case should not even go to the jury. The prosecutor needs to be able to point to an affirmative act (or conduct or words) from which the commonality of criminal purpose can be reasonably inferred. (reasonable inference of common design.) (3) Pace also had no duty of care towards the hitchhiker, so he cannot be guilty of an omission. (If Rootes had been beating Pace's child and Pace did nothing, then he would have been guilty of an omission (relational duty to his child). d. State v. Walden: A mother who fails to stop her boyfriend from beating her kid is held guilty of assault with a deadly weapon inflicting serious bodily injury. She was under a relational duty to protect her son, and her failure to do so was a culpable omission. e. Murray v. Commonwealth (1) Murray and Grace are out on the street one night testing car doors. Grace robs a man of his wallet while Murray was standing really close to the victim. They both bolted after Grace secured the victim's wallet. (2) Mere presence at a crime is not enough to be convicted as an A&A. But if you are present with the same criminal intent, then presence does become an act. (3) Murray's presence assisted Grace in the mugging. (a) Available to assist is he was needed. (b) Encouragement (c) Blocking escape routes (d) Intimidation (e) Present and shared common design (overt act) f. State v. Tally (1) Judge Tally is accused of assisting his brothers- in-law to kill Ross, a man who had carnal knowledge of their sister. Judge Tally staked out the telegraph station to make sure no one tried to send a telegram that might warn Ross of the impending attack. The brothers-in-law had no knowledge of Tally's help. (2) Three questions the court addresses (a) Did Tally commit an act or forbearance in furtherance of a common design? (b) If so, must it act actually assist the principals in order for Tally to be convicted? (c) Did the act actually assist the brothers- in-law? (3) Tally is not an accessory before the fact because he had no knowledge of the criminal intent prior to the commission. (4) The court concluded that Tally was constructively present at the scene of the crime because he acted as an effective lookout by staking out the telegraph station. (5) An incredibly trivial assistance is all that is required. The court found that Tally's message to the telegraph operator on the other end of the link to delay delivery of the warning telegram to Ross decreased Ross's chances of survival, if only minutely. No but for cause is needed to adjudge Tally's conduct to be culpable. (Accessory liability circumvents but for cause problems) (6) Because of his assisting act, Tally was convicted of [1st degree] murder. (7) Suppose the Skeltons attempted to kill Ross but failed (a) Skeltons: Attempted murder (b) Tally: Attempted murder as an A&A (8) Suppose the Skeltons desisted before the attempt (a) Skeltons: Not guilty of anything (b) Tally (1) At CL, since the principals were not convicted, Tally could not be convicted as an A&A. (Majority rule: derivative liability) (2) Under the MPC, he is guilty of attempted murder because he has the mens rea and has committed an overt act aimed at bringing the intended result to pass. Fortuity is rejected under the MPC. (Minority rule: independent liability) (c) Tally himself might have committed attempted murder in his own right based on an independent analysis of the elements (solicitation, procurement, facilitating, acquiring) (9) The MPC is structured around culpability. Culpability is what makes the MPC tick. (a) Suppose Western Union's lines went down, and Tally did not incite, encourage, or aid the principals. Is he guilty as an A&A? (1) CL: No, Tally would not be an A&A. He would be acquitted even if he had the mens rea. (2) MPC: Yes, he would be guilty as an A&A. He did have the requisite mens rea, and attempt to aid is sufficient under the MPC to obtain a conviction. (b) Suppose the Skeltons desist before killing Ross. (1) CL: No, Tally would not be an A&A because the principals could not be convicted of any crime, and A&A is derivative liability. (2) MPC: Yes, Tally would be guilty of attempted murder via A&A. (c) Suppose Tally encourages the Skeltons to pursue Ross and kill him, but everything is stopped in the preparation stage. No one took any substantial step corroborative of criminal intent towards completion of the crime. (1) CL: Tally is not guilty of A&A. (2) MPC: Tally is guilty of attempted murder via A&A (See MPC 5.01(3)) g. Hyp: Egging on a deaf assailant. Would this be an A&A? At CL, it would probably go to the jury because the conduct may have demoralized the victim making her more susceptible to harm. Under the MPC, attempting to aid is sufficient to be convicted. h. Hyp: Paying customer to an illegal cockfight. Is he an A&A? YES. Paid money to the promotor. (Also, just by his presence he assisted in the illegal endeavor; cockfights are usually performed before an audience) i. The actus reus dimension is a continuum: The more confident we are that the actor intended to assist, the more likely we are likely to find an assisting act that lends some assistance to the principals. 2. Mens rea dimension a. In order to be convicted as an A&A, you must (1) Have the mens rea (specific intent) to commit an act to assist in the perpetration of the crime, and (2) The mens rea for the target crime itself. b. Mens rea for the target crime required: Wilson v. People (1) After becoming convinced that his companion Pierce, a burglar, had stolen his watch, Wilson, son of the Dep. DA, talked Pierce into committing a burglary with him. After helping Pierce to break the glass of a business and helping him in, Wilson called the police in the hopes of getting them to catch Pierce in the act. (2) At the trial level the judge instructed the jury that if Wilson intended to assist in the commission of the burglary, then he was guilty. This effectively nullified his defense of decoy and detection (he lacked the mens rea for the crime itself). On appeal, the court accepted Wilson's argument that he had to have shared in the mens rea for the underlying crime itself in order to be held liable as an A&A. (3) Did he have the mens rea for the ultimate crime? He may have depending upon which offense you charge him with. (a) Burglary: Breaking and entering with the intent to commit a crime inside. (b) Larceny: Intent to permanently deprive an owner of his property. (Wilson did not have this intent). - Both burglary and larceny are specific intent offenses. (c) Misdemeanor B&E: A general intent crime (meant to break in and meant to enter) (d) Destruction of property: Intentionally destroying property without permission. - With the previous two offenses, we could get him under direct liability and avoid the problems of A&A. c. In reality, a series of offenses is presented to the jury. (1) A&A theories (2) Direct liability theories d. Andy/Dan hypothetical (liquor store owner tells a customer where to find the customer's worst enemy so that he may perpetrate an assault on the enemy. The owner then calls the police, but they do not arrive until the enemy has taken a good beating.) Is the store owner guilty of an assault? The intent to assist is clear. Since not much mens rea is required for an assault (recklessness is sufficient under the MPC), then he may be guilty of an assault as an A&A. If the victim died, the store owner might be guilty of malice murder. e. Voluntary manslaughter A&A hypothetical. (See 19-NOV-92) f. A&Aers cannot be held more liable than the principals Three exceptions (1) Homicide: The law is at least willing to heighten liability if the A&Aer has a higher mens rea. (2) Direct liability if the A&Aer uses the "principal" as an innocent instrumentality. (3) If the perpetrator has an excuse, the A&A may not be permitted to tap into that defense. g. Debate in the law: Must the assisting act have been done with (1) Majority rule: Intent/purpose to aid (2) Minority rule: Knowledge of criminal intent of principals - This rule troubles some, but not others. Pro: He is out to make a buck. Con: This makes him tread on too thin ice to be fair. The rule could conceivably drag in everyone trying to make a buck in the economic system. It also opens the possibility for dragging in persons guilty of only ordinary negligence. The purposeful/intent line is much more acceptable in this regard. People v. Beeman: Must the defendant have the mens rea for the object crime in order to be convicted as an A&A? (1) This case involved the robbery of the defendant's aunt by two friends of the defendant. The evidence indicated that he at least supplied some information about his aunt and her house to the 2 robbers, but it was unclear if he meant to assist or participate in their endeavor. During his testimony, the defendant indicated that he told his two friends that he wanted no part of the crime and that he did not believe that they would actually go through with it. (2) The court holds that the defendant had to have shared in the criminal purpose of the principals in order to be convicted as an A&A. The CA pattern jury instruction that knowledge of the criminal intent is sufficient for an A&A conviction is erroneous. Knowledge of the criminal purpose plus intent to aid, assist, or encourage is required for an A&A conviction. h. An A&A can be liable for a lesser offense than are the principals because the A&A might not have the mens rea for the object crime, but also the intent to aid. i. Felony-felony doctrine: a sort of CL FM rule. In a minority of jurisdictions, the courts hold that an A&A is liable for other crimes flowing naturally and probably from the initial crime (foreseeable collateral crimes), (CA and NC recognize this doctrine). In People v. Beeman, Beeman was charged with felonious destruction of telephone equipment because his two friends cut the telephone lines in his aunt's house. Negligence, it appears, is enough to obtain conviction of the A&A for the collateral crimes, even if those crimes require a specific intent. (1) Critics are leery of this rule because we rarely wish to punish people for ordinary negligence. (2) Prosecutors usually try to make use of this rule in cases involving a death where the committed felony is not included within the FM statute. (3) This nebulous doctrine surfaces in the case law from time to time. (Judges hitting F7 on their word processors.) (4) The courts that really screw up in applying this doctrine say that the A&A is guilty of the collateral crimes even if he does not have the mens rea for those crimes and even if the collateral crimes require a specific intent. Purpose to assist in criminal conduct is applied mercilessly. G. Withdrawal and renunciation - This arises when the A&A for some reason wishes to withdraw from the criminal enterprise. 1. Minority rule: If the A&A defendant abandons the endeavor and communicates his intentions to the other perpetrators, the defendant gets off. 2. Majority rule: The A&A defendant must also try to neutralize the dangers produced by the a. A&A's acts, and b. The perpetrators' acts EX: Calling the police, resisting the principals, etc. VI. Attempt A. An attempt takes place when he takes a "substantial step strongly corroborative of criminal intent" towards committing an offense. 1. Attempt is a specific intent offense (Purpose and many Knowing under MPC). 2. Attempt is an inchoate crime (unfinished crime). 3. All completed crimes include attempts, so courts tend to allow the attempt to be subsumed as a lesser included offense. B. Why punish attempt? 1. Revisit Day 1: reasons for punishment of criminals. We desire to punish attempt because we feel that those who attempt to commit crimes have committed transgressions against society. They have harmed society in some way, and therefore they deserve punishment. 2. The attempter has evidenced his mens rea by this attempt. He is blameworthy and merits punishment. He has also exhibited his predisposition to commit the crime. 3. Attempt gives police a device they can use to intervene before the perpetrator actually succeeds in committing the ultimate crime. In this way, attempt is a sort of preventative medicine. 4. Before we can punish attempt, we must have some sort of touchstone that will allow the criminal justice system to step in and prevent the perpetrator from proceeding any further. EX: Possessing burglary tools: provides a nice focal point for stopping burglars before they actually commit burglaries. Though harm does matter, dangerosity matters as well. 5. Society may feel that attempts should be punished. In this way, attempt law may be a product of political society, much like the FM rule. 6. Counterarguments: a. No one sets out to commit an attempt. Can punishing attempts deter attempts? (Maybe, but I believe what that the actual deterrent value of punishing attempts comes from deterring the actual commission of the target crime itself. If people realize that they will be punished for a mere attempt to commit the object crime, they might be deterred from trying in the first place. b. Harm does matter. Is society actually damaged if the would be criminal is unsuccessful in his endeavor? Proportionality of the crime and the punishment as well as fairness also play a role. c. Hard to fashion a doctrine to make attempt law work correctly. Defining what is and is not an attempt can be tough. d. Ought to provide some room and incentive for people to desist. C. How much should we punish attempts? 1. At CL, all attempts were deemed misdemeanors. 2. Today, attempts can be felonies, but they are usually punished less than the completed crime. 3. MPC: Target crime and attempts are punished the same except at the extreme levels of punishment. Attempts to commit capital crimes are knocked down to 1st degree felonies. D. Attempt law has 2 dimensions: Mens rea and actus reus 1. Mens rea a. One must have the specific intent to commit the target crime in order to be convicted of an attempt: State v. Lyerla (1) Lyerla was charged with attempted second degree murder after he fired his gun at a truck driven by three girls who were playing games with him on the road. One girl was killed (2nd degree murder: extreme recklessness manifesting extreme disregard for the value of human life.). (2) Lyerla argued, and the court accepted, that in order to be convicted of attempted murder, he had to have had the specific intent to kill; "attempted extreme recklessness" is effectively a legal oxymoron. Attempted murder in this case violates common sense. Attempt necessarily involves an intent and effort to bring the final result about. Since his goal was not to kill, he cannot be convicted of the offense. [Much of homicide law revolves around the result, especially when the defendant lacks the specific intent to kill.] b. In order to be convicted of an attempt, you must have (1) Intentionally engaged in conduct that constitutes a substantial step towards the commission of a crime, and (2) Specifically intended to bring about the desired result. - Minority: Castro: The court bought the prosecutor's argument that attempted extreme reckless murder was a punishable crime. c. Specific intent to commit the crime (purpose to commit) (1) if the offense involves only conduct, attempt analysis is easier (assault is a crime where conduct is sufficient to convict.) (2) But if offense involves an additional result, you must specifically intend to bring about the result. d. Attendant circumstances in the offense: Courts are a little more laid back on this point. - Suppose you attempt to have sex with a girl that is underage, only you do not succeed. Are you guilty of an attempt? Under the MPC, we need only look at the mens rea, and for statutory rape you need not intend the attendant circumstances in order to be convicted. e. Defense of abandonment and renunciation: If you break off before crossing the "attempt line" (cease and desist before taking a substantial step, then you cannot be convicted of an attempt. - This often requires an actual and honest second thought to the crime itself and not merely a fear of detection. 2. Actus reus: where the bulk of the attempt case law lies. a. Key issue: Where to draw the line between attempt and non-attempt. Courts have used various formulas over the years to draw the line. b. 2 views of thought (1) Subjectivists (quasi mens rea): Has the defendant committed an act that sufficiently manifests his culpability? (2) Objectivists: Draw the line clearly and sufficiently close to the crime. Once the line is crossed, society has incurred some harm, and the defendant deserves to be punished accordingly. - There is more going on in these cases than just the tension between subjectivists and objectivists. (a) We wish to guard against convicting innocent persons. The farther away from the crime we draw the line the closer and closer we come to punishing innocent persons. (b) We cherish our civil liberties, especially our freedom of thought. (Proctor) But, we do not want to draw the line too close so as to preclude interference by law enforcement before harm is actually wrought. c. Tests used by courts over the years (See page 524 for a full description of each. (1) Physical proximity test: The attempt must be physically proximate to the completed crime. (2) Dangerous proximity test (Justice Holmes): The greater the gravity and probability of the offense and the nearer the act to the crime, the stronger the case for an attempt designation. (3) Indispensable element test: Has the defendant acquired control over any indispensable element yet? (4) Probable desistance test: The conduct is an attempt if in the ordinary and natural course of events, without interruption, the crime will be brought about. (5) Abnormal step approach: An attempt occurs when the conduct crosses a line over which a normal citizen would reconsider and desist. (6) Res ipsa loquitur: An attempt occurs when his conduct manifests an intent to commit a crime. d. Substantial factor test: the test adopted by the MPC and other jurisdictions. Has the defendant taken a substantial step towards commission of the offense strongly corroborative of criminal intent? If so, then the defendant has committed an attempt. However, the MPC enumerates a list of steps which are not insubstantial as a matter of law (MPC 5.01(2) pg. 1197). (entering a building, reconnoitering the scene, procurement, etc.) - The MPC is culpability driven: It does not require that act be the only or definitive indicator of culpability, but act must be strongly corroborative of the requisite mens rea. e. Where exactly to draw the line (1) CL distinction between preparations and attempts: People v. Murray (a) Murray tries to marry his niece. In furtherance of his goal, he sends a friend to get the magistrate. However, he is stopped before the ceremony commences. (b) The court distinguishes between preparations and attempts. (Has he taken the last step in the marriage act?) "Preparation consists in devising or arranging the means or measures necessary for the commission of the offense; the attempt is the direct movement towards the commission after the preparations are made." (c) Drawing the line closely to the completed crime gives the Proctors of the world every last chance to quit (an old fashioned approach). (d) Murray probably would have been guilty of attempted incest under the MPC (he had the mens rea and he did take substantial steps towards the completion of the crime strongly corroborative of criminal purpose.) (2) People v. Rizzo: The defendants "attempted" a payroll robbery, but they could not locate their intended victim. Though they are dripping with mens rea, they have committed no punishable attempt. The court applies the dangerous proximity test. [Under the MPC, they would be guilty.] (3) US v. Jackson: Drawing the line further back. (Substantial factor test: reconnoitering the bank in preparation for a bank robbery and possession of paraphenelia for the commission of the crime/2 of three co-conspirators nailed though only one of them actually conducted the surveillance.) (4) Pushing the line too far out: McQuirter v. State: McQuirter was convicted of attempted attempted rape. (5) Expect confusion among jurisdictions on this issue, but focus on the substantial step test. f. Hyp: Trying to kill a man who is already dead. Attempted murder? (1) Under the MPC, he would be guilty (if the attendant circumstances were as he believed them, then he would be liable. Accordingly, he is liable for attempted murder even though the guy is already dead.) (2) Factual vs. Legal impossibility: Mopering (throwing a steak in the garbage can is not a crime no matter how wrong you think it is.) VII. Necessity - Necessity is an affirmative defense to a crime. The defendant raising the defense argues that he committed the crime in order to avoid an objectively greater evil. A. CL necessity defense test 1. Natural emergency 2. H&R belief that the act is necessary to avoid imminent harm. 3. The defendant is not at fault in some way 4. Objectively, the choice had to have been correct 5. NONE of this applies in cases of homicide. Application- maritime cannibalism: Dudley & Stephens a. Dudley, Stevens, Brooks, and a cabin boy were sailing a yacht to Australia when it capsized near the Cape of Good Hope. After almost 2 weeks at sea on a lifeboat with scant provisions, Dudley and Stephens decided to kill the cabin boy, who was sickly and who had no family of his own to care for, and eat him. They were rescued a few days later, and it was clear none of them would have survived had they not killed and eaten the cabin boy. b. D&S were charged with 1st degree murder (clearly P&D). The jury returned a special verdict (penned by the judge), but returned no finding of guilt. They passed the buck back to the judge/ The judge adjourns, but the prosecutor moves for a 5 judge panel. c. Considerations (1) Should they have drawn lots? (recall the case where an Italian boy for some reason kept drawing the short straw) (2) Social utility (objective value of persons to society) vs. random choice d. The court holds that we must sometimes lay down rules we sometimes cannot meet ourselves. The murder law is one of these rules. e. Are D&S being used for some ulterior purpose? The court seems to focus on denunciation: Society abhors murder whenever and wherever it is committed. The best way for society to make its abhorrence clear is to punish D&S despite the fact that faced with the same situation we might have acted similarly. f. The Crown ultimately commuted their death sentences to 6 months in prison. B. MPC: a broader definition of necessity 1. Seeking to avoid a greater evil objectively 2. No other law that provides exceptions for the situation. 3. No legislative purpose to exclude the justification 4. Defendant did not negligently or recklessly bring about the situation that gave rise to the choice of evils or negligently or recklessly appraised the necessity of the act. - If the defendant had an honest belief that the harm he was seeking to avoid was greater than the harm prohibited by law, you have the beginnings of a necessity defense. a. Objectively, the act had to have been correct b. No legislative preclusions c. Reasonable belief NOT REQUIRED, but if the defendant is reckless or negligent in bringing about the situation or in appraising the necessity of the conduct, then he can be charged with a crime with a mens rea requirement of recklessness or negligence. He cannot be convicted of a purposeful or knowing crime. - The MPC passes on a. Who decides, and b. By what criteria - Under the MPC, D&S probably would have met the necessity defense requirements. a. Objectively correct decision (3 lives are worth more than one. b. Reasonable belief C. Justification vs. Excuse 1. Justification: Unlawful conduct which we applaud and do not wish to punish or condemn. Criminal laws are written with the assumption that the emergency situation is not present. - Suppose a citizen sees a fire heading towards town burns down a farm as a firebreak in order to check the progress of the fire. Though he is a prima facie arsonist, we would deem his actions to be justified, and thus, would allow him a necessity defense. (The "grand schemer" scenarios tend to alter this determination.) 2. Excuse: Unlawful conduct of which we disapprove, but we understand the situation and excuse the defendant. (Insanity, duress, etc.) D. Proportionality: The harm you seek to avoid must be no less than the harm that is caused. Usually (and at CL) the harm to be avoided must be greater than the harm inflicted by the questioned act. Ties are usually resolved against the defendant. E. Safety seat case: A couple was cited for failing to keep their child in a safety seat while the car was in motion. Their defense was the baby was hungry, so the mother had to feed it. The court bought the defendants' argument and acquitted them. This is a preposterous decision- the evil that could be caused is certainly greater than the evil avoided (dead child vs. hungry child). Also, why didn't the husband just stop the car, let the mother feed her baby, and then proceed down the road again? (Negligent appraisal of the necessity.) - Policy question: Do we want people to second guess the legislature by allowing them to make their own judgments about the balance of evils? Judges are usually unwilling to allow juries to deal with social questions that have already been before the legislature. F. Eddie Hatcher case 1. The defense lawyers managed to get evidence of necessity before the jury, but they were barred from invoking a necessity defense. 2. During their closing arguments, they argued that in order to be convicted of the crime, the defendants had to have had mens rea, and moreover, in order to have mens rea they had to have had some bad motive or evil purpose. Hatcher was acquitted. G. Necessity defenses are rare, and courts are not especially keen on allowing necessity or duress defenses to intentional homicides. VIII.Duress A. Duress is an affirmative defense to a crime where the defendant argues that though he committed the crime, he did so under illegal coercion or threat and therefore he should be excused. B. At CL, duress can be an excuse (but not for murder). The defendant must: 1. Reasonably perceive a threat 2. Reasonably believe that it will come to pass unless he cooperated and commits the unlawful act, and 3. He is not at fault. C. Most jurisdictions have required that the threat must be of death or serious bodily harm in order for the defendant to qualify for the duress defense. Some jurisdiction have allowed a threat of death or serious bodily harm to another, in particular, a close relative, to be sufficient. D. Most jurisdictions hold that duress cannot be a defense to murder. However, the MPC might allow the defense of duress to a murder charge under some circumstances. (See MPC 2.09) (The Lynch case left open the question of duress and pulling the trigger.) IX. Defensive force - Formalized use of necessity - Applies to crimes against the person/unlawful force element A. Self-defense: a privilege to commit what otherwise would be an assault or murder in order to save oneself against a similar harm. 1. Non-deadly force: As a general rule, you are privileged to use non-deadly force against an unlawful use of force so long as it appears reasonably necessary to prevent immediate infliction of harm to yourself. 2. Deadly force: As a general rule, you are privileged to use deadly force (force capable of causing death or serious bodily injury) so long as it is appears reasonably necessary to defend yourself against an unlawful use of deadly force that may cause death or serious bodily injury, and there is no requirement to retreat. ("necessary and proportionate") 3. The law in this area is extremely hazy. What constitutes self defense varies from jurisdiction to jurisdiction. Formulations of the defense differ as well. 4. The battered wife syndrome: People v. Leidholm a. In this case, Leidholm and her husband went to a gun club party and came home drunk. They got into an argument which escalated into a beating upon the defendant by her husband. She attempted to call the police, but her husband stopped her by pulling the telephone out of the wall. After he fell asleep, she stole to the kitchen, procured a kitchen knife, and stabbed her husband to death. b. The prosecutor could easily get the case to the jury for Murder 1: she clearly intended to kill and also P&Ded. Though she was intoxicated, she evidently was not so intoxicated that she could not form the specific intent to kill. The problem with getting a voluntary manslaughter conviction is that she had time to cool off. c. As a defense to a charge of 1st degree murder, she plead self-defense and sought to use the expert testimony concerning the battered wife syndrome to augment her defense. When this defense is invoked, the defendant puts an expert witness on the stand to educate the jury on the syndrome and helps the jury to understand the defendant's situation. Battered women experience three stages that culminates with a feeling of "learned helplessness." The defense will then try to get a BWS instruction. However, courts are reluctant to give a BWS instruction when they feel the self-defense instruction is adequate. d. The judge in this case gave a strictly objective self- defense instruction which allowed the jury to take into account only the external circumstances (similarly situated), and that effectively destroyed her BWS defense. The ND S.Ct. reversed, holding that the objective standard of reasonableness is too narrow. It opts for the subjective standard of reasonableness which does take into account the subjective motives and mindset of the defendant. But in denying the BWS instruction, the court argues that the subjective standard of reasonableness instruction requires the jury to consider the BWS evidence presented at trial. If the jury finds she acted in self-defense, she walks. [The trend in this country is towards a subjective evaluation or reasonableness.] e. NC has been cold to the use of self-defense in BWS cases. NC courts hold that as a matter of law, if the husband is sleeping, no further harm can be imminent. 5. Self-defense straddles justification and excuse a. Justification SD: Honestly and correctly believed that the use of force was necessary to prevent imminent unlawful harm b. Excuse SD: Honest, reasonable, but incorrect belief that force was necessary to prevent imminent unlawful harm. - Suppose you are attacked by a mugger who you mistakenly but reasonable conclude is armed with a deadly weapon. You shoot him dead. Why should we allow the defense to lie here? (1) We do not think the defendant should put himself at further risk by trying to make a correct determination. It would be impractical as well as unsafe. (2) Also, the person who acts in self-defense is less culpable than the perpetrator of the aggression. 6. Rationales for SD as an affirmative defense. a. We cannot deter people from acting in defense of their own lives and safety. So, punishment is not appropriate. b. Forfeiture theory: By attacking another with deadly force, the perpetrator forfeits his own right to life (Cf. John Locke.) By focusing on the unlawfulness of the force necessitating self defense, the perpetrator's life can be devalued. c. Retribution against the aggressor for his aggressive conduct. 7. Where the law draws the line: Unreasonable perceptions and reactions (Imperfect self-defense). a. Under the MPC, the defendant will be guilty of reckless or negligent homicide. b. CL (1) In some jurisdictions, imperfect SD mitigates the offense down to voluntary manslaughter. (2) In other jurisdictions, an unreasonable mistaken perception or reaction that deadly force is necessary to repel the perceived attack nullifies the defense, and the actor is open to a charge of murder. c. In NC, the defense is voided if the force used was excessive. d. Aggressors and self defense: In general, aggressors cannot raise perfect self defense as a defense unless they have withdrawn and renounces their previous assault whereby they may raise the defense at a later time. (1) Defendant commits a non-deadly assault upon victim. Victim responds with deadly force, and defendant responds by killing victim Result: (a) CL: Defendant is guilty of voluntary manslaughter. (b) MPC: Defendant retains perfect self defense, but he is still open to a charge of battery. (2) Defendant assaults victim with a deadly weapon. Victim responds by trying to kill defendant with a deadly weapon, but the defendant then kills the victim to keep victim from killing him. Result: Defendant is guilty of malice murder; SD is not available. (3) Defendant attacks victim, but victim defends himself with deadly force. Defendant then attempts to withdraw and communicates his intent to the victim. Victim continues to pursue, and after defendant is cornered, defendant kills victim. Result: Defendant has perfect SD defense, though he probably would still be liable for the first assault. 8. Requirement to retreat a. Where the requirement exists, you are not privileged to use deadly force to repel a deadly attack if you have an avenue of safe retreat. b. Exceptions: (1) The requirement only applies to use of deadly force to repel an attack. There is no requirement to retreat before using non-deadly force. (2) There is no duty to retreat unless you know you can do so safely (a subjective evaluation). (3) Castle/workplace exception: you are not required to retreat from your home or place of work if you are attacked there, unless you know the assailant lives/works there. c. Majority rule: Retreat not required before using deadly force. You may stand your ground. (Western states are noted for their non-adoption of the retreat requirement.) Minority rule & MPC: Retreat is required before using deadly force subject to the above listed exceptions. 9. At early CL, peace officers did not exist. Citizens bore the primary responsibility for law enforcement. Though we have transferred most law enforcement functions to law enforcement officers, citizens still retain limited powers of arrest and detention. 10. Defense of others a. No longer limited to a particular class of persons related to you (spouse, children, servants). You are privileged to use force in defense of third parties in those situations in which you would be privileged to use force to defend yourself. b. Majority rule- Alter ego theory: You may not raise this defense if you are mistaken. You act at your own peril if the person you sought to defend was in fact being lawfully arrested or detained. (You stand in the shoes of the party you are attempting to assist, and if he was not privileged to use defensive force, neither are you.) c. Minority rule and MPC: Reasonable mistakes permitted. 11. Resisting unlawful arrest a. Majority and MPC: You may not use force to defend yourself against an unlawful arrest even if you know the arrest is unlawful *** Problem with Necessity, Duress, and Self Defense: The black letter law seeks to confine the doctrines in ways that policy may not require. It makes much more sense to revisit the balance of evils, social utility, punishment, etc. There may be controversial cases where an excuse may be warranted but an element of the defense is missing (ie. battered wife syndrome where the element of imminence of death or severe bodily harm is usually missing, especially if the husband is sleeping at the time of the killing.)