WPC 22BQZ1Prestige 12cpi#|fdp@JhX@Panasonic KX-P1123PAKXP112.PRSdp@JhVX@#dp@JhX@#2Yd3t ZX#|fCourier 10cpiPrestige 12cpiPrestige 12cpi ItalicPanasonic KX-P1123PAKXP112.PRSx  @VX@ ?xxxh7x6X@8X@=dddhdp@JhX@=dddhedph]!XH2 = #dp@JhX@#@|Outline prepared by J. William Snyder, Jr.@OUTLINE FOR CRIMINAL LAW / PREPARED BY: J. William Snyder, Jr. AU This page was printed: D3 1, 4D؏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. XJustifications/Reasons for punishment(# X1.X` ` Deterrence(#` XX` ` ©X deter people from committing crime in the first place by using the threat of punishment.(# XX` ` ©X Key assumption: humans are rational utility maximizers with a transitional ordering of preferences(# XX` ` a.X Specific Deterrence deterring a certain individual from offending (again) Deter A from offending again(# XX` ` b.X General deterrence deter many people from offending, usually by making examples of individual offenders Punish A to deter B, C, and D.(# X2.X` ` Incapacitation(#` XX` ` a.X Incarcerate offenders to render them incapable of offending again for the duration of the incarceration; "Put 'em on ice."(# XX` ` b.X Does not require deep thought as to the ultimate reasons, justifications, or higher goals for punishment it is in accord with common sense.(# X3.X` ` Rehabilitation(#` XX` ` a.X True "correction" "cure" the offenders of their inclinations to offend mold them into decent and productive members of society the ideal goal of punishment(# XX` ` b.X Goal of punishment reform and correct the offender(# X4.X` ` Retribution(#` XX` ` a.X Retaliation against the wrongdoer for his offense a sort of "pay back"(# XX` ` X Retaliation for whom(# XX` ` X (1) Society(# XX` ` X (2) Victim(# XX` ` X (3) Victim's family/friends(# XX` ` b.X Extreme version: lex talionis : "an eye for an eye, a tooth for a tooth."(# X5.X` ` Denunciation(#` XX` ` a.X Denounce offenders to show them and others that society abhors the offense(# XX` ` b.X A loud and public statement in the most emphatic terms, "This is WRONG!"(# X6.X` ` Other considerations(#` XX` ` a.X When deciding punishment, should we limit our in inquiry to the present offense or look to the past history of the offender?(# '0*((ԌXX` ` b.X Should punishment be proportionate to the crime or to some other measure?(# XX` ` c.X In the criminal law generally, do we want specificity of offenses or generality? Virtues and detriments to both approaches.(# II.XElements of a crime: Actus Reus, Mens Rea, attendant circumstances, result, causation(# XA.X` ` The Actus Reus requirement(#` XX` ` 1.X Actus Reus: an "overt act" indicative of a crime(# XX` ` X a.X#Outward action that manifests criminal intent. The act must be sufficiently related to the intent to constitute a crime.(# XX` ` X b.X#An omission or comission (# XX` ` X c.X#Culpable acts(# XX` ` X X#(1)Xhh)Culpable: blameworthy to some degree.(#h XX` ` X X#(2)Xhh)Act: muscular movement or lack thereof(#h XX` ` X d.X#Possession may be deemed an act.(# XX` ` X X#(1)Xhh)Actual possession: to have something in your physical control you procure it(#h XX` ` X X#(2)Xhh)Constructive possession to have something in your dominion with intent to control.(#h XX` ` X X#(3)Xhh)One has an affirmative duty to dispossess contraband which comes into one's possession involuntarily failure to dispossess can constitute possession.(#h XX` ` X e.X#Pertinent case(# XX` ` X X#©Xhh)Proctor v. State: an overt act is required, not just criminal intent or thought.(#h XB.X` ` Voluntary acts(#` XX` ` 1.X An act that is an expression of one's will committed with full knowledge and control.(# XX` ` 2.X We do not want to punish people for mere thoughts or involuntary acts. (Martin v. State, People v. Newton)(# XX` ` 3.X Automatism and insanity: both have the potential to make someone act involuntarily.(# XX` ` X ©X#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)(# XX` ` X ©X#Drinking > Attacking cop(# XX` ` X X#(vol act) (invol act)(# XX` ` X  The culpable act(# XX` ` 4.X MPC defines a voluntary act in terms of what it is not.(# XX` ` X a.X#Reflex or convulsion(# XX` ` X b.X#Body motion while unconscious or asleep(# XX` ` X c.X#Hypnotism [This one is highly debatable](# XX` ` X d.X#Movement not a product or the effort of the determination of the actor, either conscious or habitual(#H&0*''@@ԌXX` ` 5.X Drug addiction not deemed a voluntary act(# XC.X` ` Omissions(#` XX` ` 1.X The failure to act when a legally imposed duty (as opposed to a moral duty) requires one to act(# XX` ` 2.X The duty may arise out of(# XX` ` X a.X#Contract(# XX` ` X b.X#Statute(# XX` ` X c.X#Relational/Dependency (People v. Beardsley)(# XX` ` X d.X#Voluntary assumption(# XX` ` X (ad: See Jones v. United States)(# XX` ` X e.X#Creation of the peril (Commonwealth v. Cali)(# XX` ` 3.X Determining what omissions should be punished(# XX` ` X a.X#Legislature is free to use the criminal sanction to punish any omission it wants within constitutional restraints.(# XX` ` X b.X#But, when statutes are ambiguous, the default is the common law judge made law.(# XX` ` X X#©Xhh)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.(#h XD.X` ` Strict Liability(#` XX` ` ©X Dispensing with the mens rea requirement; committing the actus reus alone makes you liable.(# XX` ` 1.X For what sort of offenses may strict liability be imposed?(# XX` ` X a.X#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)(# XX` ` X b.X#Regulatory offenses made mala prohibita that are manifestations of police powers or other regulatory powers. YES , strict liability is permissible here.(# XX` ` X c.X#In making these determinations, the courts will look at:(# XX` ` X X#(1)Xhh)Intent of the legislature(#h XX` ` X X#(2)Xhh)Common law analog?(#h XX` ` X X#(3)Xhh)Language(#h XX` ` X X#(4)Xhh)Punishment(#h XX` ` X d.X#Infractions/violations: smalltime crimes usually carry SL elements, and courts usually have no problem applying SL in those situations.(# XX` ` X e.X#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 concludedH&0*''@@ 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.(# XX` ` X f.X#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.(# XX` ` X g.X#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.(# XX` ` 2.X Legislatures love SL(# XX` ` X a.X#It can streamline trials by dispensing with individualized inquiries into states of mind. A predicated determination of fault; no individualized inquiries into fault(# XX` ` X b.X#SL can be a major deterrent to committing the wrong proscribed by the legislature.(# XX` ` X c.X#Sets up a dragnet which can catch many more "offenders" than an intent based statute. Sets up a high standard of care.(# XX` ` X d.X#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.(# XX` ` 3.X Concerns of commentators(# XX` ` X a.X#SL punishes persons without fault; to some that is morally reprehensible.(# XX` ` X b.X#SL punishes without an individualized inquiry into fault; legislatures should not be making generalizations like this. (# XX` ` X c.X#SL tends to strip the criminal law of its moral force.(# XX` ` 4.X Replies(# XX` ` X a.X#SL channels the fault inquiry to other actors and stages in the criminal justice system. (Frankfurter in Dotterweich)(# XX` ` X X#©Xhh)Law enforcement officers(#h XX` ` X X#©Xhh)Prosecutors(#h XX` ` X X#©Xhh)Judges(#hH&0*''@@ԌXX` ` X X#©Xhh)Executive clemency(#h XX` ` X b.X#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.(# XX` ` 5.X Judicial restrictions(# XX` ` X a.X#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.(# XX` ` X b.X#When SL starts involving omissions and imposing vicarious liability, courts begin requiring reasonable relationships to the harm.(# XX` ` X c.X#The objective impossibility of meeting an SL duty is a defense.(# XX` ` X d.X#What happens when court is confronted with a statute that proscribes a given act, but is silent on the mens rea requirement?(# XX` ` X X#(1)Xhh)If the legislative intent to impose SL is clear, then the statute is applied as written.(#h XX` ` X X#(2)Xhh)If legislative intent is not clear,(#h XX` ` X X#Xhh)(a)X/Is it a modern police power regulatory offense? If so, court are willing to apply SL(# XX` ` X X#Xhh)(b)X/If it is a crime with a common law analog, they are less likely to impose SL without more legislative guidance.(# XX` ` X X#(3)Xhh)If the punishment is stiff, the legislature is less willing to impose SL.(#h XX` ` X X#(4)Xhh)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.(#h XX` ` X X#(4)Xhh)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.(#h XX` ` X X#(5)Xhh)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. (#h XX` ` X X#Xhh)The court refuses to apply SL(#h XX` ` X X#Xhh)©X/Under a strict reading, SL imposes liability upon persons for an offense which by its very nature requires some sort of knowledge.(# XX` ` X X#Xhh)©X/The statute would also punish someone forH&0*''@@ 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. (# XX` ` X X#Xhh)©X/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.(# XX` ` X X#Xhh)The dissent would have applied SL for several reasons:(#h XX` ` X X#Xhh)©X/mala prohibita offense(# XX` ` X X#Xhh)©X/legislative intent not to set a mens rea requirement(# XX` ` X X#Xhh)©X/Deterrence/High level of care (drivers must be very careful of who and what they carry in their cars)(# XE.X` ` Mens rea: the guilty mind(#` XX` ` 1.X 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.(# XX` ` 2.X 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.(# XX` ` X The CL divided mens rea up into two broad categories:(# XX` ` X a.X#Specific intent: a higher level of mens rea is required to convict(# XX` ` X b.X#General intent: only a lower level of mens rea is required to convict.(# XX` ` X Beyond that, levels of mens rea were generally not graded in any consistent fashion.(# XX` ` X 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).(# XX` ` 3.X Many modern jurisdictions now employ graduated categories ofH&0*''@@ 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).(# XX` ` 4.X Mens rea under the Model Penal Code(# XX` ` X a.X#Purposefully (intentionally): With regard to q material element of the offense the perpetrator acts purposefully when(# XX` ` X X#(1)Xhh)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"(#h XX` ` X X#(2)Xhh)With regard to an element that involves the attendant circumstances , he is aware that they exist or believes or hopes they exist.(#h XX` ` X b.X#Knowingly: With regard to a material element of the offense, the perpetrator acts knowingly when(# XX` ` X X#(1)Xhh)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"(#h XX` ` X X#(2)Xhh)With regard to an element that involves the result , "he is aware or practically certain that his conduct will cause such a result."(#h XX` ` X c.X#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 lawabiding citizen would observe in the actor's situation."(# XX` ` X d.X#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."(# XX` ` X e.X#Default level of negligence: If the statute does not specify a minimum mens rea requirement, the perpetrator must act with purpose, knowledge, or recklessness.(# XX` ` X f.X#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.(#H&0*''@@ԌXX` ` 5.X In order to assess criminal liability, the offense must be broken down into(# XX` ` X a.X#Its elements(# XX` ` X X#(1)Xhh)Conduct(#h XX` ` X X#(2)Xhh)Attendant circumstances(#h XX` ` X X#(3)Xhh)Result(#h XX` ` X b.X#The mens rea requirement with regard to each element (and the level of mens rea required for each element can vary)(# XX` ` X c.X#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.(# XX` ` X d.X#The government has the burden of proving all elements of the offense showing guilt beyond a reasonable doubt.(# XX` ` X e.X#Steps involved in evaluating a problem in criminal law(# XX` ` X X#(1)Xhh)What are the elements of the crime?(#h XX` ` X X#(2)Xhh)What states of mind are required for each element they need not have the same mens rea for each.(#h XX` ` X X#(3)Xhh)Assess defendant's state of mind taking into account ignorance of mistake.(#h XX` ` X X#(4)Xhh)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?(#h XX` ` 6.X Ascertaining what level of mens rea (if any) is required to convict: Regina v. Faulkner(# XX` ` X a.X#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. (# XX` ` X b.X#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 sortof "vicious will" level of mens rea). He was found guilty.(# XX` ` X c.X#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 individualizedH&0*''@@ inquiries into the fault of each actor for each offense. We focus in upon the person and crime in question.](# XX` ` X d.X#Elements of the crime:(# XX` ` X X#(1)Xhh)Conduct (setting the fire)(#h XX` ` X X#(2)Xhh)Result (ship burned down)(#h XX` ` X X#(3)Xhh)Attendant circumstances (ship, flammable rum)(#h XX` ` X e.X#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)(# XX` ` X f.X#MPC analysis(# XX` ` X X#(1)Xhh)Did he intend to set fire to the ship? NO (certainly not his conscious object to burn the ship)(#h XX` ` X X#(2)Xhh)Did he purposefully set fire to the ship?(#h XX` ` X X#Xhh)©X/Was it practically certain that the result would come to pass? (degree of probability). NO(# XX` ` X X#(3)Xhh)Did he act recklessly?(#h XX` ` X X#Xhh)©X/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.](# XX` ` X X#Xhh)X/NO(# XX` ` X X#(4)Xhh)Was he negligent?(#h XX` ` X X#Xhh)©X/Did he aver to the risk at all?(# XX` ` X X#Xhh)X/©X4Was there a risk?(# XX` ` X X#Xhh)X/©X4Should he have perceived it?(# XX` ` X X#Xhh)©X/Was there a gross deviation from the standard of care a reasonable person in the same circumstances would have used? Possibly.(# XX` ` 7.X Mistakes of fact(# XX` ` X a.X#Generally, the mistake of fact is a defense if it tends to negate an element of the prima facie case.(# XX` ` X b.X#Honest mistake of fact/belief:(# XX` ` X X#(1)Xhh)Under MPC, it negates purpose and knowingness(#h XX` ` X X#(2)Xhh)Under CL, it negates specific intent(#h XX` ` X c.X#Honest and reasonable mistake of fact/belief:(# XX` ` X X#(1)Xhh)Under MPC, it negates recklessness and negligence.(#h XX` ` X X#(2)Xhh)Under CL, it negates general intent(#h XX` ` X d.X#Statutory Rape Cases: People v. Guest(#H& 0*''@@ԌXX` ` X X#(1)Xhh)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.(#h XX` ` X X#(2)Xhh)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.(#h XX` ` X e.X#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.] (# XX` ` X f.X#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)(# XX` ` X g.X#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.(# XX` ` X h.X#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.(# XX` ` X i.X#Mistakes of factlaw hybrid: legal issues made elements of the crime. ie. mistakes as to legal status.(# XX` ` X X#©Xhh)Generally, the same considerations as to mistakes of fact apply(#h XX` ` X X#(1)Xhh)People v. Bray:(#h XX` ` X X#Xhh)(a)X/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.(# XX` ` X X#Xhh)(b)X/Prosecutor's argument: If he didn't know, he should have known (negligence).(# XX` ` X X#Xhh)(c)X/Court holds that the requisite mens rea as to that element is knowingness. (From another case interpreting this statute andH& 0*''@@ 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.)(# XX` ` X X#(2)Xhh)Larceny(#h XX` ` X X#Xhh)(a)X/Three elements(# XX` ` X X#Xhh)X/(1)X4Taking the property of another(# XX` ` X X#Xhh)X/(2)X4Without consent of owner(# XX` ` X X#Xhh)X/(3)X4With the intent to keep it.(# XX` ` X X#Xhh)(b)X/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. (# XX` ` X X#Xhh)(c)X/Umbrella hypothetical: Just before deboarding a bus, you pick up an umbrella you think is yours and proceed to deboard the bus with it.(# XX` ` X X#Xhh)X/(1)X4At 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.(# XX` ` X X#Xhh)X/(2)X4The MPC suggests a knowing mens rea, but it is possible to write a statute setting the requisite mens rea at recklessness. (# XX` ` X X#(3)Xhh)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.(#h XX` ` X X#(4)Xhh)Bigamy statutes: (MPC Section 230.1) Bigamy statutes punish taking another spouse when one is already married, (#h XX` ` X X#Xhh)(a)X/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.(# XX` ` X X#Xhh)(b)X/At CL, bigamy was treated as a general intent offense, so an honest and reasonable mistake is required to exculpate.(# XX` ` X X#(5)Xhh)Consent and rape Regina v. Morgan:(#h XX` ` X X#Xhh)(a)X/While out at a pub drinking and tryingH& 0*''@@ 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.(# XX` ` X X#Xhh)(b)X/Morgan's three cohorts said in their defense that they honestly believed she had consented to having sex with them.(# XX` ` X X#Xhh)(c)X/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.(# XX` ` X X#Xhh)(d)X/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.](# XX` ` X X#(6)Xhh)Rape(#h XX` ` X X#Xhh)(a)X/At CL, rape was defined as carnal knowledge against the will. The deck was continually stacked against women.(# XX` ` X X#Xhh)(b)X/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.(# XX` ` X X#Xhh)X/(1)X4Introduction of forcible requirement as a proxy for "against the will"(# XX` ` X X#Xhh)X/(2)X4Later, the courts introduced the resistance requirement, the requirement that the victim have made some effort to fend off her alleged attacker.(# XX` ` X X#Xhh)X/(3)X4After that, the defense of reasonable belief began to be entertained.(#H& 0*''@@ԌXX` ` X X#Xhh)(c)X/These additions made rape exceedingly difficult to prove. It has led to a backlash, as manifested in the NJ revision.(# XX` ` X X#Xhh)X/(a)X4Altered 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.(# XX` ` X X#Xhh)X/(b)X4Eliminated 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.(# XX` ` 8.X Mistakes of law(# XX` ` X (1)X#Mistakes of law can arise in 2 respects(# XX` ` X X#(a)Xhh)The existence of the law(#h XX` ` X X#(b)Xhh)The interpretation of the law(#h XX` ` X (2)X#State v. Hatch  XX` ` X X#(a)Xhh)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.(#h XX` ` X X#(b)Xhh)The NJ S.Ct. concluded that the legislators probably never envisioned that an outofstater 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.](#h XX` ` X (3)X#Maxim: Ignorance of the law is no excuse.(# XX` ` X X#(a)Xhh)Why is this so?(#h XX` ` X X#Xhh)(1)X/The maxim tends to discourage ignorance of the law and encourages an informed citizenry.(# XX` ` X X#Xhh)(2)X/Discourages formations of individual law counter to public law.(# XX` ` X X#Xhh)(3)X/Proving that the defendant knew about the law is next to impossible it would become a lottery with the jury.(# XX` ` X X#Xhh)(4)X/It provides a certain stability and certainty to the law.(#H& 0*''@@ԌXX` ` X X#Xhh)(5)X/It makes violators examples to the rest of society that such behavior is not condoned.(# XX` ` X X#(b)Xhh)This creates a tension in the law.(#h XX` ` X X#Xhh)(1)X/The desire for certainty and evenhanded application of the law as well as the upholding of the rule of law, vs.(# XX` ` X X#Xhh)(2)X/The desire to remedy injustice in individual cases.(# XX` ` X X#Xhh)X/(a)X4Use of discretion (at many stages)(# XX` ` X X#Xhh)X/(b)X4Write better statutes so that those who should know do know about its existence and that it applies to them.(# XX` ` X X#(c)Xhh)Advice and mistakes of law: Hopkins v. State(#h XX` ` X X#Xhh)(1)X/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.(# XX` ` X X#Xhh)(2)X/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 semiofficial 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.(# XX` ` X X#Xhh)(3)X/Why not allow the defense of prosecutorial advice?(# XX` ` X X#Xhh)X/(a)X4Bribery and conspiracy(# XX` ` X X#Xhh)X/(b)X4Spurious and frivolous defenses(# XX` ` X X#Xhh)X/(c)X4Keep prosecutors from rewriting the law(# XX` ` X X#(d)Xhh)Advice, interpretation, and mistakes of law(#h XX` ` X X#Xhh)(1)X/Both the CL and the MPC recognize that mistakes of law can sometimes be defenses.(# XX` ` X X#Xhh)(2)X/Under MPC, the defendant who wishes to make such a defense must show 2 things (the "damn good reasons")(# XX` ` X X#Xhh)X/(a)X4She believed the conduct was legal, and.(# XX` ` X X#Xhh)X/(b)X4She does not know about the statute and the statute has not been published (no fair notice), or (#H&0*''@@ԌXX` ` X X#Xhh)X/(c)X4She reasonably relied on an official statement of the law that later turned out to be erroneous.(# XX` ` X X#Xhh)X/X4(1)Xpp:Statute or other enactment(#p XX` ` X X#Xhh)X/X4(2)Xpp:Judicial decision(#p XX` ` X X#Xhh)X/X4(3)Xpp:Administrative or governmental regulation or order(#p XX` ` X X#Xhh)X/X4(4)Xpp:Official statement made by a public official charged with interpreting, administering or enforcing the law.(#p XX` ` X X#Xhh)(3)X/CL exception: limited defense for authorized reliance upon an erroneous or invalid(# XX` ` X X#Xhh)X/(a)X4Judicial opinion, usually from the jurisdictions highest court(# XX` ` X X#Xhh)X/(b)X4Statute(# XX` ` X X#Xhh)X/(c)X4Official advice from the responsible agency (had to be REALLY official).(# XX` ` X X#e.Xhh)Constitutional limitations on the maxim: Lambert v. California(#h XX` ` X X#Xhh)(1)X/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 riffraff out.)(# XX` ` X X#Xhh)(2)X/Lambert challenged her conviction under the ordinance on DPC grounds.(# XX` ` X X#Xhh)(3)X/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.](# XX` ` 9.X Defense of diminished capacity(# XX` ` X a.X#Diminished capacity to(# XX` ` X X#(1)Xhh)Control one's behavior(#h XX` ` X X#(2)Xhh)To appreciate the wrongfulness of the act(#hH&0*''@@ԌXX` ` X X#(3)Xhh)To form the requisite mens rea(#h XX` ` X b.X#Diminished capacity negates(# XX` ` X X#(1)Xhh)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.)(#h XX` ` X X#(2)Xhh)Under CL, specific intent and higher grades of general intent commensurate with MPC recklessness.(#h XX` ` X b.X#People v. Wetmore(# XX` ` X X#(1)Xhh)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.(#h XX` ` X X#(2)Xhh)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.(#h XX` ` X X#(3)Xhh)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.(#h XX` ` X c.X#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)(# XX` ` 10.X Defense of voluntary intoxication(# XX` ` X a.X#Voluntary intoxication that does inhibit the defendant's ability to entertain the requisite mens rea can negate(# XX` ` X X#(1)Xhh)Under CL, specific intent(#h XX` ` X X#(2)Xhh)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 notH&0*''@@ drunk.(#h XX` ` X X#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.(# XX` ` X b.X#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.(# XX` ` X c.X#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.(# XX` ` X d.X#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?)](# XX` ` X e.X#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.(# XX` ` X f.X#At CL, involuntary intoxication and pathological intoxication (unpredictable side effect of a medication) exculpated completely on actus reus grounds.(# III.XHomicide(# XA.X` ` Definition: The killing of a human being by another human being.(#` XX` ` X X# Only humans can commit homicides.(# XB.X` ` Lawful homicides(#` XX` ` 1.X Killing the enemy by soldiers in time of war(# XX` ` 2.X Selfdefense(# XX` ` 3.X Executioners(# XC.X` ` MPC defines Criminal Homicide (Section 210.1) as the purposeful, knowing, reckless, or negligent killing of a human being.(#` XD.X` ` Broad categories of unlawful homicides: Murders and manslaughters (#` XX` ` 1.X Homicides are usually defined with reference to murder. Lesser homicides are viewed as murder with something subtracted(# H&0*''@@ԌXX` ` X from the offense.(# XX` ` 2.X 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.(# XX` ` 3.X 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.(# XE.X` ` Murder(#` XX` ` ©X How it is defined depends on the jurisdiction.(# XX` ` ©X Much of homicide law revolves around the result, especially when the mens rea is less than the specific intent to kill.(#  =h XX` ` 1.X Core idea of what murder is: The unlawful killing of a human  =0 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.](# XX` ` X a.X#Some states refer to "malice aforethought" in their statutes.(# XX` ` X b.X#Other states use language comparable to "malice aforethought" or implicitly recognize CL requirement that malice be associated with murder.(# XX` ` X c.X#Other states specify the states of mind which constitute malice.(# XX` ` 2.X Malice aforethought(# XX` ` X ©X#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.(# XX` ` X X#34 states of mind which qualify as malice: The law regards each of these as moral equivalents.(# XX` ` X X#a.Xhh)Intent to kill (aka: "express malice" [others aka: "implied malice")(#h XX` ` X X#b.Xhh)Extreme recklessness phenomenally reckless behavior manifesting an extreme disregard for the value of human life. (aka: Depraved heart murder/"abandoned and malignant heart" murder)(#h XX` ` X X#c.Xhh)Intent to inflict serious bodily injury (This is so similar to extreme recklessness that some don't consider it a separate species of malice.)(#h XX` ` X X#d.Xhh)Felony murder: Those who perpetrate certain violent felonies where death results are liableH&0*''@@ 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.)(#h XX` ` 3.X Intent to kill: the classic mens rea associated with murder(# XX` ` X a.X#Intentional killings are regarded as highlevel 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.(# XX` ` X b.X#Is there a worse mens rea than intent to kill (that might, say, invoke the death penalty?)(# XX` ` X X#1.Xhh)How serious was the intent(#h XX` ` X X#Xhh)(a)X/Spontaneous(# XX` ` X X#Xhh)(b)X/Premeditated and deliberated (P&D)(# XX` ` X X#2.Xhh)Did the murderer enjoy committing the deed?(#h XX` ` X X#3.Xhh)Was the killing especially "heinous, atrocious, and cruel"?(#h XX` ` X c.X#Tension in the system(# XX` ` X X#(1)Xhh)Desire to define the levels of mens rea in advance, vs.(#h XX` ` X X#(2)Xhh)Leaving the jury with some discretion. h XX` ` X d.X#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.(# XX` ` X X#(1)Xhh)Francis v. Franklin:(#h XX` ` X X#Xhh)(a)X/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.(# XX` ` X X#Xhh)(b)X/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."(#H&0*''@@ԌXX` ` X X#Xhh)(c)X/The judge instructed the jury that(# XX` ` X X#Xhh)X/(1)X4BOP on prosecutor to prove all elements of the offense beyond a reasonable doubt, including intent to kill, but(# XX` ` X X#Xhh)X/(2)X4There is a presumption that he intended the natural and probable consequences of his acts, but that presumption can be rebutted.(# XX` ` X X#Xhh)(d)X/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.(# XX` ` X X#Xhh)(e)X/Franklin was a habeas corpus case(# XX` ` X X#Xhh)(f)X/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.](# XX` ` X X#Xhh)X/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.)(# XX` ` X X#(2)Xhh)Problems for the prosecutor with intent elements(#h XX` ` X X#Xhh)(a)X/Difficult to prove(# XX` ` X X#Xhh)(b)X/Difficult to argue how to draw inferences(# XX` ` X X#Xhh)(c)X/Criticalness of the jury instructions  XX` ` X X#Xhh)(d)X/Other devices can be constructed to snag defendants, like FM.(# XX` ` X X#(3)Xhh)Alternative theories of malice make the prosecutor's job easier.(#h XX` ` X X#(4)Xhh)The state is free, of course, to redefine the elements of an offense as it sees fit subject to broad constitutional restraints.(#h XX` ` X X#(5)Xhh)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.(#h XX` ` X X#(6)Xhh)The case will be submitted to the jury on severalH&0*''@@ 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?)(#h XX` ` X e.X#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.(# XX` ` X f.X#Voluntary intoxication will negate P&D, thus knocking down what would otherwise be a 1st degree murder to a 2nd degree murder. (# XX` ` 4.X Extreme recklessness(# XX` ` X a.X#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.(# XX` ` X b.X#Mayes v. People(# XX` ` X X#(1)Xhh)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.(#h XX` ` X X#(2)Xhh)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.(#h XX` ` X X#(3)Xhh)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 recklessH&0*''@@ action.(#h XX` ` X c.X#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.(# XX` ` X d.X#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."(# XX` ` X e.X#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(# XX` ` X X#(1)Xhh)Knowledge or awareness of the risk h XX` ` X X#(2)Xhh)Knowledge or awareness of society's disapproval of the unjustifiably dangerous conduct h XX` ` X X#as surrogates for conscious disregard of a substantial and unjustifiable risk.(# XX` ` X X#©Xhh)In determining whether or not a defendant has acted extremely recklessly, different jurisdictions will apply three different tests(#h XX` ` X X#Xhh)(a)X/RPS (objective standard of what is extremely reckless)(# XX` ` X X#Xhh)(b)X/Subjective standard: the defendant must have appreciated the risks that accompanied his conduct.(# XX` ` X X#Xhh)(c)X/Pseudosubjective/objective formula.(# XX` ` X f.X#Voluntary intoxication will not negate extreme recklessness. (MPC explicitly provides that voluntary intoxication will not negate recklessness.)(# XX` ` X X#©Xhh)Court generalization: intoxication does not negate malice .(#h XX` ` X g.X#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!](# XX` ` X h.X#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.(# XX` ` X i.X#Other items, like cars, can be deemed dangerous weapons under certain circumstances.(# XX` ` X j.X#Drunk driving cases: Pears v. State; People v. Watson.(# XX` ` X X#(1)Xhh)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 basicallyH&0*''@@ that their conduct did manifest an extreme disregard for the value of human life.(#h XX` ` X X#(2)Xhh)Watson at least took actions that did manifest such a disregard, but Pears may not have.(#h XX` ` X X#(3)Xhh)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.(#h XX` ` X X#(4)Xhh)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.(#h XX` ` X X#(5)Xhh)The courts were basically using 200 year old common law murder to snag drunk drivers who kill.(#h XX` ` 5.X First degree murder(# XX` ` X a.X#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.(# XX` ` X b.X#Procedure to get a 1st degree murder conviction(# XX` ` X X#(1)Xhh)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 .(#h XX` ` X X#(2)Xhh)Must meet one of the following criteria(#h XX` ` X X#Xhh)(a)X/Subjective criteria: Was there Premeditation & deliberation? (P&D)  XX` ` X X#Xhh)(b)X/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.  XX` ` X X#Xhh)X/©X4torture(# XX` ` X X#Xhh)X/©X4poison(# XX` ` X X#Xhh)X/©X4lying in wait(# XX` ` X X#Xhh)X/©X4armor piercing ammunition(# XX` ` X X#Xhh)X/©X4starvation(# XX` ` X X#Xhh)X/(1)X4People 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 hadH&0*''@@ proved that he had committed the murder in one of the statutorily prescribed manners.(# XX` ` X X#Xhh)X/(2)X4Proceeding under an objective category of killings that warrant a 1st degree murder conviction make the prosecutor's case much easier.(# XX` ` X X#Xhh)X/X4(A)Xpp:Closes out spurious or frivolous defenses(#p XX` ` X X#Xhh)X/X4(B)Xpp:Easier proof: all you have to show is that the defendant did the deed in one of the enumerated manners. p XX` ` X X#Xhh)(c)X/3rd criteria: sentencing discretion on part of judge or jury.(# XX` ` X X#Xhh)(d)X/First degree felony murder (# XX` ` X c.X#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.(# XX` ` X d.X#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.(# XX` ` X e.X#Premeditation & deliberation (P&D)(# XX` ` X X#(1)Xhh)P&D requires a specific intent to kill .(#h XX` ` X X#(2)Xhh)Premeditation: forming the specific intent to kill(#h XX` ` X X#(3)Xhh)Deliberation: reconsidering and reaffirming that decision to kill in cold blood. (Passion and fear may inhibit the perpetrator's ability to deliberate.)(#h XX` ` X X#(4)Xhh)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 secondguess 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.(#h XX` ` X X#(5)Xhh)United States v. Watson(#h XX` ` X X#Xhh)(a)X/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. (# XX` ` X X#Xhh)(b)X/The court found there was an appreciableH&0*''@@ 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. .(# XX` ` X X#Xhh)X/(1)X4By hesitating after the officer for the second time said "It's not worth it."(# XX` ` X X#Xhh)X/(2)X4By grabbing the loose gun and pointing it at the officer's chest instead of fleeing. (immobilizing the officer).(# XX` ` X X#Xhh)X/Therefore, the state had enough evidence to get to the jury.(# XX` ` X X#(6)Xhh)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.(#h XX` ` X X#(7)Xhh)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.(#h XX` ` X X#(8)Xhh)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.(#h XX` ` X X#(9)Xhh)The jury may infer the specific intent to kill from the surrounding circumstances.(#h XX` ` 6.X Felony murder (FM)(# XX` ` X a.X#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.(# XX` ` X b.X#FM is essentially SL; by imposing it we deviate from individualized inquiries into fault and culpability.(# XX` ` X c.X#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.(# XX` ` X d.X#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.(# XX` ` X e.X#FM shoots through(# XX` ` X X#(1)Xhh)Malice(#h XX` ` X X#(2)Xhh)Aggravating factors normally required for 1st degree murder upgrade.(#hH&0*''@@ԌXX` ` X X#(3)Xhh)A&A/derivative liability restrictions(#h XX` ` X X#(4)Xhh)Individualized inquiry(#h XX` ` X X#Malice is established by the fact that you committed an inherently dangerous felony as well as the aggravation to 1st degree murder.(# XX` ` X f.X#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.(# XX` ` X g.X#FM also softens the causation requirements normally needed for murder. Prosecutor need not show but for causation surrounding the murder.(# XX` ` X h.X#Felonies that come under FM rule(# XX` ` X X#(1)Xhh)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.)(#h XX` ` X X#(2)Xhh)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.(#h XX` ` X X#Xhh)(a)X/Inherently dangerous felony and/or(# XX` ` X X#Xhh)(b)X/Other crime committed in an inherently dangerous manner(# XX` ` X X#(3)Xhh)NC's FM statute mentions 7 felonies (bigticket felonies, like robbery, arson, 1st degree rape, etc.) which can invoke the FM rule if a death occurs during their perpetration plus a catchall phrase that brings any other felony in which a weapon is used into the coverage of the FM rule.(#h XX` ` X i.X#Two perspectives on FM(# XX` ` X X#(1)Xhh)Is it good policy? What principles underlie it? Are those principles good ones? (Same problems with SL)(#h XX` ` X X#(2)Xhh)How do you as a court build a body of rules around FM to properly apply it? h XX` ` X j.X#Policy: what are the rationales behind the FM rule?(# XX` ` X X#(1)Xhh)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?)(#h XX` ` X X#(2)Xhh)Deterrence of botched felonies: if you are going to do the deed, do it safely.(#h XX` ` X X#(3)Xhh)The fact that someone committed a felony inherently dangerous to human life is ipso factoH&0*''@@ evidence that someone acted with extreme recklessness. Commission of such a felony is not a bad proxy for actual malice or real aggravation.(#h XX` ` X X#(4)Xhh)Retributivist vein: Lets not waste our time with someone who had done this deed with an individualized inquiry into fault and culpability. (Denunciation too)(#h XX` ` X X#(5)Xhh)It closes the possibility of loopholes through which culpable murderers do not get the punishment they deserve.(#h XX` ` X X#(6)Xhh)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.) h XX` ` X X#(7)Xhh)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.(#h XX` ` X X#(8)Xhh)Is it overinclusive for(#h XX` ` X X#Xhh)(a)X/Murder itself?(# XX` ` X X#Xhh)(b)X/1st degree murder? (17 year old wheelman ends up on death row.)(# XX` ` X k.X#People v. Stamp(# XX` ` X X#(1)Xhh)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 (1520 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.)(#h XX` ` X X#(2)Xhh)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.(#h XX` ` X X#(3)Xhh)They probably did act with extreme recklessness,H&0*''@@ 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.(#h XX` ` X X#(4)Xhh)Without the FM rule, the prosecutor would have had to prove (#h XX` ` X X#Xhh)(a)X/death(# XX` ` X X#Xhh)(b)X/causation, and(# XX` ` X X#Xhh)(c)X/malice(# XX` ` X X#Xhh)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.(#h XX` ` X X#(5)Xhh)Should the wheelman get the same punishment as his fellow perpetrators though he was not immediately present when the death occurred? (#h XX` ` X X#Xhh)©X/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.(# XX` ` X l.X#Role of proximate causation in FM(# XX` ` X X#(1)Xhh)Majority rule: Causation is relevant, but FM limits its role(#h XX` ` X X#Xhh)(a)X/Butfor causation(# XX` ` X X#Xhh)(b)X/One continuous transaction(# XX` ` X X#Xhh)(c)X/[Inherently dangerous felony](# XX` ` X X#(2)Xhh)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.)(#h XX` ` X *.X#Doctrine of merger(# XX` ` X X#©Xhh)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.(#h XX` ` X m.X#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.(# XX` ` X X#How to remove her case from the expansive coverage of the statute.(# XX` ` X X#(1)Xhh)Remove automatic upgrade to 1st degree murder(#h XX` ` X X#(2)Xhh)Remove burglary from the list of offenses subject to the FM rule hH&0*''@@ԌXX` ` X n.X#People v. Gladman and the nexus between the killing and the felony committed; when does the felony end?.(# XX` ` X X#(1)Xhh)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.(#h XX` ` X X#(2)Xhh)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. (#h XX` ` X X#(3)Xhh)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".(#h XX` ` X X#(4)Xhh)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.(#h XX` ` X X#(5)Xhh)FM applies when the killing occurs(#h XX` ` X X#Xhh)(a)X/During the perpetration of the felony, or(# XX` ` X X#Xhh)(b)X/During immediate flight therefrom(# XX` ` X X#(6)Xhh)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).(#h XX` ` X X#(7)Xhh)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)(#h XX` ` X o.X#Accomplice liability(# XX` ` X X#(1)Xhh)People v. Calbatero(#h XX` ` X X#Xhh)(a)X/Payroll robbery committed by 6 guys. After procuring the loot, one of their number (Dasalla) shot another of their numberH&0*''@@ (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(# XX` ` X X#Xhh)(b)X/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.  XX` ` X X#Xhh)(c)X/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.  XX` ` X X#(2)Xhh)Does the fact that one of the perpetrators got killed remove the case from FM?(#h XX` ` X X#Xhh)(a)X/Majority rule: Not enough to remove the case from FM(# XX` ` X X#Xhh)(b)X/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.)(# XX` ` X X#(3)Xhh)People v. Hickman: Minority rule holding that identity of the shootee is the identity that matters in assessing FM liability.(#h XX` ` X X#Xhh)(a)X/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.(# XX` ` X X#Xhh)(b)X/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.](#H&0*''@@ԌXX` ` X X#Xhh)X/(1)X4If shootee is an innocent victim, liable for FM(# XX` ` X X#Xhh)X/(2)X4If shootee is one of the cofelons, then no FM liability.(# XX` ` X X#(4)Xhh)People v. Washington: Majority rule that the identity of the shooter is the identity that matters for purposes of assessing FM liability.(#h XX` ` X X#Xhh)(a)X/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.(# XX` ` X X#Xhh)(b)X/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.(# XX` ` X X#Xhh)(c)X/Was this killing justified, and thus, not murder?(# XX` ` 7.X Capital punishment/Death Penalty(# XX` ` X a.X#For facts and figures, see notes from 29OCT92.(# XX` ` X b.X#Policy arguments for the death penalty(# XX` ` X X#(1)Xhh)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(#h XX` ` X X#(2)Xhh)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.](#h XX` ` X X#(3)Xhh)It certainly incapacitates murderers.(#h XX` ` X X#(4)Xhh)Although it might serve to rehabilitate other criminals, is certainly does not rehabilitate the one put to death.(#h XX` ` X X#(5)Xhh)Cost of life imprisonment vs. death penalty [But, litigation costs are so high that DP may actually be more expensive than life imprisonment w/oH&0*''@@ parole. Society is unwilling to have a DP without the procedural safeguards, and those safeguards are expensive.(#h XX` ` X c.X#Policies against death penalty(# XX` ` X X#(1)Xhh)A waste of economic resources by plowing them into protracted DP litigation instead of investing in the country. (#h XX` ` X X#(2)Xhh)Danger of putting an innocent person to death.(#h XX` ` X X#(3)Xhh)Biased administration, principally against blacks. This was a major impetus behind the S.Ct's decision to declare the pre1972 implementation of the death penalty unconstitutional and to stimulate the states to reform their statutes.(#h XX` ` X X#(4)Xhh)Arbitrariness: some get it, some don't. This offends our sense of justice.(#h XX` ` X X#(5)Xhh)The ones who have to make the decision are fallible human beings who make mistakes.(#h XX` ` X d.X#History(# XX` ` X X#(1)Xhh)At early CL, all unlawful homicides along with most felonies were punishable by death. People often sought clerical clemency.(#h XX` ` X X#(2)Xhh)Later, the courts began distinguishing between murders and manslaughters: murderers still got the DP, but manslaughterers did not.(#h XX` ` X X#(3)Xhh)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(#h XX` ` X X#(4)Xhh)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.(#h XX` ` X X#(5)Xhh)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.(#h XX` ` X X#(6)Xhh)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.(#h XX` ` X X#(7)Xhh)The states hurriedly reenacted their DP statutes in an attempt to comply with Furman. 2 approaches(#hH& 0*''@@ԌXX` ` X X#Xhh)(a)X/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 nonexclusive lists of agg and mit factors.(# XX` ` X X#Xhh)(b)X/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.(# XX` ` X X#Xhh)(c)X/Hybrid scheme: Flavor of guided discretion, but the questions put to the finder of fact are rather rigid. (Constitutional under Jurek v. TX.)(# XX` ` X X#Xhh)X/(1)X4Was there intent to kill?(# XX` ` X X#Xhh)X/(2)X4Does the killer pose a future danger?(# XX` ` X X#Xhh)X/(3)X4[Did the victim not bring on the attack?](# XX` ` X X#Xhh)X/If so, DP is automatic. However, gradually this scheme is being transformed back into a guided discretion scheme.(# XX` ` X e.X#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.(# XX` ` X f.X#Explicit "supermitigating" factors(# XX` ` X X#(1)Xhh)Euthanasia h XX` ` X X#(2)Xhh)Vengeance(#hH&!0*''@@ԌXX` ` X X#(3)Xhh)Age of perpetrator(#h XX` ` X X#Xhh)S.Ct. has visited this issue(#h XX` ` X X#Xhh)(a)X/16 & up: may be executed under current statutes(# XX` ` X X#Xhh)(b)X/Under 16: legislatures must be absolutely clear they intend for persons under 16 to be covered under their DP statutes.(# XX` ` X X#(4)Xhh)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.(#h XX` ` X X#(5)Xhh)Felony murder(#h XX` ` X X#Xhh)(a)X/Minimum amount of mens rea is required(# XX` ` X X#Xhh)(b)X/The killing must be wildly disproportionate to the crime.(# XX` ` X X#Xhh)(c)X/If the individual did not kill, then he is not subject to DP, unless(# XX` ` X X#Xhh)X/(1)X4He was a major player in the crime(# XX` ` X X#Xhh)X/(2)X4Showing of malice/minimum mens rea(# XX` ` X X#Xhh)Wheelmen are not good DP candidates.(#h XX` ` X g.X#Tension in DP(# XX` ` X X#(1)Xhh)Need for discretion, especially guided discretion since humans are fallible beings.(#h XX` ` X X#(2)Xhh)Curbing the abuse of discretion.(#h XX` ` X h.X#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.(# XX` ` X i.X#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.(# XX` ` X j.X#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)(# XX` ` X k.X#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.(# XX` ` X X#Examples:(# XX` ` X X#(1)Xhh)Cop killers(#h XX` ` X X#(2)Xhh)Peculinary gain/contract murder(#h XX` ` X X#(3)Xhh)Felony murder(#hH&"0*''@@ԌXX` ` X X#(4)Xhh)"Especially heinous, atrocious, or cruel": too nebulous and expansive could be found in most any murder case. Further definition is needed.(#h XX` ` X X#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.(# XF.X` ` Manslaughter(#` XX` ` 1.X Voluntary manslaughter(# XX` ` X a.X#Definition: an unlawful intentional homicide committed without malice in the heat of passion upon sudden and adequate provocation.(# XX` ` X X#©Xhh)The defendant must be so guided by passion that he is unable to form the deliberate purpose to kill.(#h XX` ` X b.X#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.(# XX` ` X c.X#4 elements of voluntary manslaughter(# XX` ` X X#(1)Xhh)Sudden and adequate provocation measured in some objective way(#h XX` ` X X#Xhh)(a)X/Decided by the jury(# XX` ` X X#Xhh)(b)X/According to the reasonable person standard(# XX` ` X X#(2)Xhh)Must have in fact been provoked(#h XX` ` X X#(3)Xhh)Defendant did not cool off(#h XX` ` X X#(4)Xhh)No lapse of time in which a reasonable person would have cooled off.(#h XX` ` X d.X#NC alternative: Imperfect selfdefense: The defendant appears to have acted in selfdefense, but for some reason the defense is unavailable.(# XX` ` X X#(1)Xhh)Defendant started the fray in which he had to use selfdefense.(#h XX` ` X X#(2)Xhh)Unreasonable and mistaken belief that he had to act in selfdefense.(#h XX` ` X e.X#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.(# XX` ` X f.X#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.)(# XX` ` X X#Why should Walker not be punished as a murderer?(# XX` ` X X#©Xhh)He was adequately provoked(#h XX` ` X X#Xhh)(1)X/Stenneth attacked him first(# XX` ` X X#Xhh)(2)X/Stenneth actually cut him, drawing blood.  XX` ` X g.X#People v. Berry: (case where husband's new wife returnH&#0*''@@ 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.)(# XX` ` X X#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.](# XX` ` X h.X#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.(# XX` ` X X#(1)Xhh)Physical attack (imperfect selfdefense)(#h XX` ` X X#(2)Xhh)Involvement in mutual combat (chance medley)(#h XX` ` X X#(3)Xhh)Witnessing one's wife's (spouse's) adultery(#h XX` ` X X#Xhh)The cuckhold's killing of his(#h XX` ` X X#Xhh)(a)X/Wife (spouse)(# XX` ` X X#Xhh)(b)X/Paramour(# XX` ` X X#Xhh)Would invoke VM. However, at CL, it was not clear if the defense was a 2 way street.(#h XX` ` X X#Xhh)(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)(#h XX` ` X X#(4)Xhh)Mere words are insufficient to mitigate an unlawful homicide to VM. (now and then)(#h XX` ` X X#©Xhh)Common themes running through these categories.(#h XX` ` X X#(5)Xhh)Intense emotion, principally anger.(#h XX` ` X X#(6)Xhh)Male ego/pride(#h XX` ` X X#(7)Xhh)Physical violence(#h XX` ` X X#(8)Xhh)Loss of marital integrity(#h XX` ` X g.X#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.(# XX` ` X X#(1)Xhh)Would a reasonable person have been provoked to exceed the bounds of reason and act irrationally?(#h XX` ` X X#(2)Xhh)Was the actor actually provoked?(#h XX` ` X h.X#What role individual characteristics play in the determination of provocation:(# XX` ` X X#(1)Xhh)Majority: Consistent with the RPS, individual infirmities (mental conditions, etc.) can play noH&$0*''@@ role in determining whether or not a person was suddenly and adequately provoked.(#h XX` ` X X#(2)Xhh)Minority and MPC: Individual infirmities may play a role in the determination.(#h XX` ` X h.X#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 selfdefense, 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.)(# XX` ` X X#©Xhh)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.)(#h XX` ` X i.X#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.(# XX` ` X j.X#[See notes for 06NOV92 for a discussion on the reasonable person standard.](# XX` ` 2.X Involuntary manslaughter(# XX` ` X a.X#Definition: An unintentional (and probably accidental) killing committed without malice as a result of the defendant's grossly negligent or reckless behavior.(# XX` ` X b.X#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.](# XX` ` X c.X#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 toH&%0*''@@ 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.(# XX` ` X d.X#"Gross negligence"(# XX` ` X X#(1)Xhh)A level of culpability somewhere between tortious negligence and MPC recklessness.(#h XX` ` X X#(2)Xhh)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.)(#h XX` ` X e.X#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 butfor 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.(# XX` ` X f.X#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.(# XX` ` X g.X#The law treats near miss culpabilities as kicking the offense up to the next level.(# XX` ` X X#(1)Xhh)Extreme negligence is almost intent, so we treat it as malice aforethought in murder cases.(#h XX` ` X X#(2)Xhh)Gross negligence approximates recklessness, so offenses requiring recklessness can potentially snag grossly negligent defendants.(#hH&&0*''@@ԌXX` ` X h.X#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.(# XX` ` X X#©Xhh)Williams presents the problem of people from diverse cultural backgrounds being held to laws and standards laid down by white AngloSaxons. Was their fear that social services would take their baby away from them justified?](#h XX` ` X X#©Xhh)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.(#h XX` ` X X#©Xhh)There is no consensus on how to deal with these cultural quandaries.(#h XX` ` X i.X#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.)](# XX` ` X X#©Xhh)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 nonmainstream beliefs regarding medical care. (#h XX` ` 3.X Misdemeanor manslaughter(# XX` ` X a.X#MM is essentially "bushleague" felony murder. It punishes persons for deaths that occur during their commission of certain types of misdemeanors, usually dangerous misdemeanors. However, there are(# XX` ` X X#(1)Xhh)Proximate cause limitations(#h XX` ` X X#(2)Xhh)Foreseeability limitations(#h XX` ` X b.X#The MPC flatly rejects misdemeanor manslaughter: underH&'0*''@@ 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.(# XX` ` X c.X#This crime makes it possible to convict someone who has virtually zero culpability of criminal homicide. This somehow offends our sense of justice.(# XX` ` 4.X Vehicular homicide(# XX` ` X a.X#A statutory offense enacted to effectuate convictions of drivers who kill where a conviction could not otherwise be obtained.(# XX` ` X b.X#NC has both felony and misdemeanor vehicular homicide legislation. [The felony vehicular homicide statute is usually used to snag drunk drivers who kill.](# XX` ` X c.X#The existence of these statutes does not preclude a malice murder charge against a driver who kills.(# IV.XCausation(# XA.X` ` Causation in criminal law is roughly akin to causation in tort law; it is a part of the same mishmash of law.(#` XB.X` ` Philosophical and practical issues(#` XX` ` 1.X 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.(# XX` ` 2.X Criminal law has different goals from tort, like moral condemnation, deterrence, etc.(# XX` ` 3.X 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.(# XX` ` X ©X#[We grade crimes according to(# XX` ` X X#©Xhh)mens rea(#h XX` ` X X#©Xhh)result](#h X(# XC.X` ` Causation has two dimensions(#` XX` ` 1.X Cause in fact (butfor causation)(# XX` ` 2.X Proximate causation ("legally relevant" causation)(# XD.X` ` Causeinfact/butfor causation(#` XX` ` 1.X Regina v. Martin Dyos(# XX` ` X a.X#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.(# XX` ` X b.X#The coroner testified in part that(# XX` ` X X#(1)Xhh)He could not determine which wound came first(#h XX` ` X X#(2)Xhh)RM might have recovered from either injury if it were the first to have been caused. [cringe!](#hH&(0*''@@ԌXX` ` X c.X#The court poses the butfor 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.(# XX` ` X d.X#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).(# XX` ` 2.X Generally speaking, you must prove butfor 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.(# XX` ` 3.X Hypothetical(# XX` ` X a.X#John shoots Bill in the foot, intending to kill him.(# XX` ` X X#Bob shoots Bill in the heart, killing him.(# XX` ` X b.X#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.(# XX` ` X X#(1)Xhh)Attempted murder(#h XX` ` X X#(2)Xhh)Assault with intent to kill(#h XX` ` X X#(3)Xhh)Criminal battery [?](#h XX` ` X c.X#Bob, however, is the but for cause of death, so he is open to a murder charge and conviction.(# XX` ` 4.X Hypothetical(# XX` ` X a.X#John and Bob shoot Bill while he is alive. Either wound alone would have been sufficient to kill him.(# XX` ` X b.X#Both go up for murder.(# XX` ` 5.X Hypothetical(# XX` ` X a.X#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.(# XX` ` X b.X#Both go up for murder (both are sufficient material causes of Bill's death).(# XX` ` X c.X#Same hypothetical, but Bill does not die immediately: they both are still liable.(# XX` ` 6.X Butfor 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 butfor cause.(# XX` ` 7.X 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.(# XX` ` 8.X Hypothetical(# XX` ` X a.X#John shoots Bill, killing him. Bob comes along and shoots Bill's dead body, hoping to kill him.(# XX` ` X b.X#John is solely liable for Bill's murder. Bob is liable at most for an attempt.(# XX` ` 9.X Hypothetical(# H&)0*''@@ԌXX` ` X a.X#John knifes Bill, severely injuring him but not killing him. Bob comes along and finishes Bill off.(# XX` ` X b.X#Bob is clearly liable for Bill's murder. As for John, it will depend on his mens rea.(# XE.X` ` Proximate causation(#` XX` ` 1.X Causeinfact 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.(# XX` ` 2.X Unlike causeinfact, 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.(# XX` ` 3.X People v. Benge(# XX` ` X a.X#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).(# XX` ` X b.X#Benge was a butfor cause, because the accident would not have happened had he read the time book correctly. However, he pointed to other butfor causes that could have equally been responsible for the accident. (train engineer, flagman, supervisor.(# XX` ` X c.X#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.(# XX` ` 4.X Commonwealth v. Rhoades(# XX` ` X a.X#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).(# XX` ` X b.X#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.](# XX` ` 5.X 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)(# XX` ` 6.X US. v. Hamilton(# XX` ` X a.X#The defendant beat up a man in a bar brawl. While at the hospital, the victim pulled out his tubes andH&*0*''@@ subsequently died of asphyxiation. He was charged and convicted of manslaughter.(# XX` ` X b.X#Defendant argued that the victim caused his own death by pulling out his tubes, and accordingly, he should not be held liable for the victi