Crim Law Flashcards

Question

* Papachristou v. City of Jacksonville (SCOTUS, 1972)

Answer 1

o Facts * Margaret Papachristou and others (defendants) were arrested and charged with vagrancy. * Florida’s vagrancy ordinance prohibited several general activities, among them loafing, wandering or strolling without any lawful purpose, hanging around places where liquor is sold, common night walking, and men “habitually living upon the earnings of their wives or minor children,” despite being able to work. o Rule * Under the U.S. Constitution, a law must (1) give a person of ordinary intelligence fair notice that the person’s conduct is forbidden by the law and (2) must not give unfettered discretion of enforcement to police.  If a law does not fulfill both of these requirements, then the law is void for vagueness o Application * A vagrancy prosecution may be merely the cloak for a conviction which could not be obtained on the real but undisclosed grounds for the arrest * In this case, Florida’s vagrancy statute originates from early English law, and much of the language is antiquated and not applicable in today’s society.  The statute is not specific about what it renders a crime. * As such, the statute does not give individuals notice of what conduct the statute prohibits. * The statute also gives unfettered discretion to police officers in enforcement. * This ordinance is void for vagueness, both in the sense that it “fails to give a person of ordinary intelligence fair notice that his contemplated conduct is forbidden by the statute,” and because it encourages arbitrary and erratic arrests and convictions o Conclusion * Florida’s vagrancy statute is unconstitutional and void for vagueness.

Answer 2

o Facts * Lawson (defendant) was detained or arrested fifteen times between 1975 and 1977 for violation of a California statute requiring street loiterers to provide “credible and reliable identification” to officers who asked for the identification.  Of these fifteen detainments and arrests, Lawson was convicted only once. * After his conviction, he brought a civil action in district court in order to have the statute declared unconstitutional. o Rule * A criminal statute is constitutional only if it can be fairly enforced and if it gives individuals fair and adequate notice of the type of conduct prohibited by the statute. o Application * The statute is too vague to be constitutional because it does not state what an individual must do in order to be a suspect under the statute. * Here, individuals must present proper identification to officers on the street if the officer believes that the individual is “suspicious.”  The word suspicious in this statute is too vague and arbitrary because it does not state what the officer needs to be suspicious of regarding the individual in order to ask for his identification. * The term “credible and reliable identification” is also up for interpretation. o Conclusion * Therefore, the statute is unconstitutional on its face due to its vagueness, and Lawson’s conviction under the statute is vacated.

Answer 3

o Massachusetts statute was overly broad * Criminalized things like disorderly acts, annoying the opposite sex, etc o Massachusetts Court narrowed the scope of the statute's application * Court defines disorderly as requiring some degree of purposeful or reckless mens rea * the Commonwealth must prove the defendant committed at least one of the following actions: he either engaged in fighting or threatening; engaged in violent or tumultuous behavior; or created a hazardous or physically offensive condition by an act that served no legitimate purpose. * Second, the Commonwealth must prove the defendant’s actions were reasonably likely to affect the public * the Commonwealth must prove the defendant either intended to cause public inconvenience, annoyance, or alarm, or recklessly created a risk of public inconvenience, annoyance, or alarm o Crowley was a black police officer, got a call about two black men breaking in o Crowley goes to the house and sees Gates, a black man inside the home, and asks to speak with him * Gates is a Harvard professor * Crowley says Gates was yelling and engaging in disorderly conduct. Crowley arrests Gates. o Gates' view * Gates' house door was jammed, so he had to force it open when Crowley came to his house * Gates asked Crowley for his name and badge, but Crowley refused * Gates says he was never yelling or engaging in disorderly conduct o Obama's comment * Crowley was dumb for arresting someone who was in their own home * Obama's approval ratings fell among whites * Obama invited the parties to the White House for a "beer summit"

Answer 4

* Mass criminalization includes the criminalization of relatively non-serious activities * because the above crimes are non-serious or vague, police officers will have little difficulty establishing the requisite probable cause to justify arresting people for committing them * the more law criminalizes activities in which many people engage, the wider the pool of people from which police officers may pull to make arrests * Option 1: social control pathway to arrest o The two critical features of social control policing, then, are monitoring and spatial management, including the interruption, questioning, and directing of people in public spaces. o mass criminalization provides a kind of legal cover for police officers to engage in social control policing * Option 2: direct pathway to arrest o Arrest the person at the outset of the interaction * Option 3: predatory policing pathway to arrest o When one adds the problem of money bail to the problems of mass criminalization and predatory policing, we end up with a criminal justice system in which too many people are effectively required to buy their freedom

Answer 5

o The law needs: 1. Notice 2. Some type of standard to protect against arbitrariness, but not much is needed.

Answer 6

o Facts * James Dimaya (defendant) was a native of the Philippines and a lawful resident of the United States. * Immigration and Nationality Act (INA) -- if you are an alien convicted of an aggravated felony, you can be deported  Aggravated felony includes violent crime with at least one year of imprisonment term  Crime of violence defined as: * (a) any offense w/ an element of use, attempted use, or threatened use of physical force against a person or property * (b) any other felony offense that involves a substantial risk of physical force against person or property * Following Dimaya’s second conviction for first-degree burglary, the government (plaintiff) initiated a removal proceeding against Dimaya. * Both an immigration judge and an appeals board held that first-degree burglary was a crime of violence under 18 U.S.C. § 16(b). * However, while Dimaya’s appeal was pending, the Supreme Court held in Johnson v. United States, 135 S. Ct. 2551(2015), that the definition of “violent felony” in another federal law was unconstitutionally vague.  The relevant section of that law was worded similarly to the law being applied to Dimaya. * Relying on Johnson, the court of appeals ruled that § 16(b) was also unconstitutionally vague. o Rule * The void-for-vagueness doctrine prohibits laws that require courts to identify the type of conduct the ordinary case of a crime involves and to judge whether that abstraction presents an unspecified degree of risk. o Application * To decide whether a party’s conviction falls under this clause, court use the categorical approach.  Under this approach, the question is not whether the particular facts of a conviction posed the risks stated in Section 16(b).  Instead, courts look to the nature of the offense more generally.  Courts must ask whether the ordinary case of an offense possesses the requisite risk.  The § 16(b) inquiry instead turns on the “nature of the offense” generally speaking. More precisely, § 16(b) requires a court to ask whether “the ordinary case” of an offense poses the requisite risk o Conclusion * The lower court’s ruling is affirmed. o Gorsuch concurrence * Void for vagueness doctrine is rooted in the 5th and 14th due process clause and separation of powers o Thomas dissent * Says the void for vagueness doctrine is not in the constitution

Answer 7

o (1) a voluntary act (or omission when there is a legal duty to act) that results in some kind of social harm (in legalese, an “actus reus”); o (2) a prohibited mental state (in legalese, a “mens rea,” or guilty mind); o (3) a chain of causation that links the defendant’s actions with the social harm; and o (4) concurrence between the mens rea and the actus reus.

Answer 8

o Facts * Mitchell (defendant) was a young black man who, along with a group of friends, beat up a white boy in Wisconsin (plaintiff). * Mitchell instigated the attack after viewing a movie in which a white man beat up a black boy, asking his friends, “Do you all feel hyped up to move on some white people?” o Procedure * Mitchell was convicted of aggravated battery, which has a maximum sentence of 2 years  Enhanced penalty intentionally selects the person against whom the crime is committed because of the race, religion, color, disability, sexual orientation, national origin or ancestry of that person. * Mitchell argued that the statute was unconstitutional under the First Amendment, because it punished the motives behind the attack. The United States Supreme Court considered the statute’s constitutionality. o Rule * The First Amendment permits states to enact statutes imposing stricter penalties on defendants who choose victims based on their membership in a protected class, such as race. o Application * While Mitchell argues that Wisconsin’s hate crimes statute is unconstitutional, because it punishes motive, this Court has held in prior cases that federal and state antidiscrimination laws may address discriminatory motives as long as the targeted conduct is not protected speech under the First Amendment. * Wisconsin determined that crimes motivated by racial bias deserve enhanced penalties, because those crimes are more harmful to the victims and society at large. o Conclusion * Therefore, the penalty-enhancement statute does not violate the First Amendment and is upheld.

Answer 9

* Legislatures cannot punish thoughts/beliefs alone just because legislature disagrees with them. Constitution does not erect a barrier to the admission of evidence considering beliefs simply because they are protected by first amendment. Legislatures may impose greater punishment base on greater harm and may punish inchoate conduct as long as it moved beyond pure thought.

Answer 10

1. Prohibits certain types of punishment as too cruel 2. Prohibits punishment grossly disproportionate to crime a. Some crimes can never be punished with death b. Some categories of people can never be punished with death or life without possibility of parole i. EX: children, mentally disabled people 3. Prohibits criminalization of some things because any punishment is too severe o You cannot punish status

Answer 11

o Facts * A California statute makes it a criminal offense for a person to “be addicted to the use of narcotics.” * Robinson (defendant) was convicted under a California statute that made it illegal for someone to be addicted to drugs. * Four months prior to his conviction, a Los Angeles officer had found scars and needle marks on both of Robinson’s arms. * Robinson at the time admitted that he had previously used narcotics. o Rule * A state statute that imprisons a defendant solely on account of the defendant’s addiction to narcotics is in violation of the Eighth Amendment. o Application * This statute, therefore, is not one which punishes a person for the use of narcotics, for their purchase, sale or possession, or for antisocial or disorderly behavior resulting from their administration.  Rather, we deal with a statute which makes the “status” of narcotic addiction a criminal offense, for which the offender may be prosecuted “at any time before he reforms.” * A state exercises considerable discretion in regulating drug traffic throughout the state. It may pass laws criminalizing the sale or possession of drugs, as well as establish compulsory treatment programs or public health education programs.  However, a state statute that makes drug addiction a criminal offense is in violation of the Eighth Amendment’s proscription against cruel and unusual punishment. * Here, the trial judge instructed the jury that even if it found Robinson had not used drugs, it could still find him in violation of the statute if it found Robinson was addicted to drugs.  The possibility that the statute can punish solely on the basis of drug addiction renders it unconstitutional under the Eighth Amendment. o Conclusion * The conviction is reversed. o Clark dissent * Because the trial court’s jury instructions defined addiction to include only volitional use of illegal drugs, the state statute was not unconstitutional as applied.  Additionally, California’s civil commitment statute only applies to addicts who have lost control over their volition concerning illegal drug use.  A state may properly enact criminal laws seeking to control volitional drug use. * Furthermore, the primary purpose of California’s criminal statute is treatment rather than punishment of drug addicts, and the statute is also constitutional for that reason.

Answer 12

o Facts * Leroy Powell (defendant) was arrested for public intoxication, in violation of state law. * Powell argued that his conduct was unavoidably caused by his disease of chronic alcoholism. He further argued that punishing him for conduct that was symptomatic of his disease would constitute cruel and unusual punishment, in violation of the Eighth and Fourteenth Amendments. o Rule * The punishment of conduct that is symptomatic of chronic alcoholism is not in violation of the Eighth and Fourteenth Amendments’ proscription against cruel and unusual punishment. o Application * Powell relies on Robinson v. California (1962) to argue that punishing a defendant for conduct that results from a disease results in cruel and unusual punishment. However, Robinson dealt with a defendant who was punished for merely having an addiction, not for participating in any criminal conduct. It did not touch upon situations where actual criminal conduct occurs. * Here, Powell is not punished for being a chronic alcoholic. He is punished for breaking the law by going out in public while intoxicated. o Conclusion * The conviction is affirmed. o White concurrence * Under Robinson, if a defendant cannot be punished for being a drug addict, it follows that he cannot be punished for succumbing to that addiction. Similarly, a chronic alcoholic should not be punished for drinking. * Here, however, Powell was not convicted for drinking. He was convicted for being drunk in a public place. It is possible that some chronic alcoholics, particularly the homeless, do not have the option of drinking in a private place. In these situations, the statute would effectively punish the homeless chronic drinker for drinking. This would be in violation of the Eighth Amendment. o Fortas dissent * The statute does not punish solely on the basis of status. But it does punish Powell for being in a condition that he could not avoid due to his chronic alcoholism. * The trial judge’s findings imply and the Eighth Amendment requires that one should not be punished if his crime is symptomatic of a disease.

Answer 13

* Facts o The City of Boise (defendant) had two city ordinances related to homeless persons. * The camping ordinance prohibited camping on public property. * The disorderly conduct ordinance banned sleeping in any public or private place without permission. o The state conducted a count of homeless individuals in the county in which Boise sits, Ada County. * The results indicated that there were about 867 homeless persons in the county. * At the time of the count, 125 individuals were unsheltered. o Ada County had three homeless shelters, all located in Boise. The three shelters had 354 beds and 92 overflow mats combined. Two of the shelters had restrictions on who may stay. * Rule o The government may not criminalize conduct that unavoidably stems from a person’s involuntary status. * Application o In Robinson v. California, 370 U.S. 660 (1962), the court advanced the principle that the Eighth Amendment prohibits the government from criminalizing an involuntary status like narcotics addict. * Narcotics addiction is an illness which could be contracted involuntarily, so a person’s status as a narcotics addict may be unavoidable due to the person’s state of being. * The court found a state may criminalize conduct or actions, not an individual’s status or being. o Therefore, the government may not criminalize camping in public or sleeping in places without permission because the prohibited conduct is effectively involuntary due to an individual’s status as homeless in a locale without sufficient shelter sleeping space. * Conclusion o The district court judgment is reversed.

Answer 14

* Legislatures may not punish “a person for being in a condition he is powerless to change” (Powell v. Texas dissent) and may not punish “an involuntary act or condition if it is the unavoidable consequence of one’s status or being” ( Jones v. City of L.A./Martin v. City of Boise), but they may punish conduct not unavoidably tied to status. NO PUNISHMENT FOR STATUS

Answer 15

o Actus reus * Voluntary act * Causes social harm o Mens rea, or culpable mental state o Causation between act and harm o Concurrence between act and mental state

Answer 16

o Low bar o What about unconscious acts? Drunken acts? Forced acts> o What about attempted but incomplete acts? How far must attempt progress to be an act

Answer 17

o Omission counting as an act is an exception.

Answer 18

o Volitional, not unconscious o Not forced, coerced, or performed by the state o More than a thought o More than a status o Not simply a failure to act, or omission (except where D has a legal duty to act)

Answer 19

o D Violates legal duty to act o D Physically capable of acting but does not o D Aware of need to act but does not o D Will not put self in danger by acting

Answer 20

o Statute imposes a duty * Statute defining the crime, or * General good Samaritan statute o D's special relationship to V gives rise to duty o Contract gives rise to duty o D voluntarily assumes care of V * (A person may voluntarily assume the care of a helpless human being… the duty assumed being that of a caretaker and protector to the exclusion of others. - Beardsley o D creates the risk of harm

Answer 21

o Hoaward: Parent has legal duty to protect child, and discharge of this duty requires affirmative performance o Beardsley: No legal duty is created based upon a mere moral obligation. V being in D's house creates no such legal duty o Pestinikas: Duty to act imposed by contract is legally enforceable and creates a legal duty. Failure to perform a duty imposed by contract may be the basis for a charge of criminal homicide.

Answer 22

o Facts * Martin (defendant) was arrested at his home by police officers and placed in a police vehicle where he was separately charged for being drunk and using loud and profane language on a public highway. * Martin was convicted under a state statute which held that any person who, while intoxicated or drunk, appeared in “any public place where one or more persons are present, and manifests a drunken condition by boisterous or indecent conduct, or loud and profane discourse, shall, on conviction, be fined.” o Rule * Criminal liability may only be imposed when the unlawful conduct is committed voluntarily. o Application * Under the plain language of the statute, one convicted of being drunk in a public place must have voluntarily placed himself there. * If the accused is taken involuntarily and forcibly carried to a public place by an arresting officer, a charge of being drunk in a public place cannot stand. o Conclusion * The judgment of conviction is reversed.

Answer 23

o Facts * Decina (defendant) suffered an epileptic attack while driving which caused his vehicle to travel at a high rate of speed, jump a curb, and strike four individuals, killing them. * Decina was charged with, and convicted of, “criminal negligence in the operation of a vehicle resulting in death.”  Decina's doctor testified that they previously spoke about his epilepsy history  The indictment states essentially that defendant, knowing “that he was subject to epileptic attacks or other disorder rendering him likely to lose consciousness for a considerable period of time,” was culpably negligent “in that he consciously undertook to and did operate his Buick sedan on a public highway” o Rule * A criminal defendant who disregards the consequences that can result from driving a vehicle with knowledge of a health condition that can produce involuntary actions may be found guilty of vehicular homicide. * Make the window of time of the act bigger to find the moment where the accused may have made a voluntary decision. o Application * Here, Decina had prior knowledge that he was subject to epileptic attacks at any time and that driving, giving his condition, was very dangerous.  However, Decina disregarded this knowledge and chose to drive his vehicle anyway.  Consequently, Decina’s awareness of his epileptic condition coupled with a disregard of the consequences renders him liable for culpable negligence. o Conclusion * The judgment of the appellate division is affirmed.

Answer 24

(1) A person is not guilty of an offense unless his liability is based on conduct which includes a voluntary act or the omission to perform an act of which he is physically capable. (2) The following are not voluntary acts within the meaning of this Section: (a) a reflex or convulsion; (b) a bodily movement during unconsciousness or sleep; (c) conduct during hypnosis or resulting from hypnotic suggestion; (d) a bodily movement that otherwise is not a product of the effort or determination of the actor, either conscious or habitual. (3) Liability for the commission of an offense may not be based on an omission unaccompanied by action unless: (a) the omission is expressly made sufficient by the law defining the offense; or (b) a duty to perform the omitted act is otherwise imposed by law. (4) Possession is an act, within the meaning of this Section, if the possessor knowingly procured or received the thing possessed or was aware of his control thereof for a sufficient period to have been able to terminate his possession.

Answer 25

o (1) when there is a special relationship between the defendant and the victim, such as the relationship between husbands and wives, parents and children, and masters and servants; o (2) when the defendant enters into a contract which requires him or her either explicitly or implicitly to act in a particular way (e.g., a contractual duty to provide care to an elderly individual); o (3) when there is a statutory duty to act (such as the duty to pay federal taxes found in the Internal Revenue Code); o (4) when the defendant creates the risk of harm to the victim; and o (5) when the defendant, who otherwise would not have a duty to act, voluntarily assumes care of a person in need of help.

Answer 26

o Facts * Respondent Beardsley (defendant) was a married man who arranged to meet with an acquaintance, Blanche Burns, at his apartment while his wife was away. * Beardsley and Burns had known each other for a while and had spent the night together on two prior occasions. * Burns arrived at his home on Saturday, March 18, 1905, and they began drinking. * Burns stayed there continuously until the following Monday. * Unknown to Beardsley, Burns asked a coworker of Beardsley’s to purchase morphine tablets for her. (Burns was suicidal) * Beardsley later saw her consume a few tablets and attempted to knock them out of her hand. * Burns went unconscious and Beardsley could not revive her. * Beardsley took her to a neighbor and asked him to look after Burns until she awoke. * That night, the neighbor became concerned about Burns’ condition and called the authorities. * After an examination, Burns was proclaimed dead. o Rule * One is not under a legal duty to care for a houseguest such that the failure to do so makes one criminally punishable for any resulting harm. o Application * Here, there was no statute or contract imposing a duty of care on Beardsley, nor was there a special relationship between Beardsley and Burns which required Beardsley to take measures to prevent Burns’ death. Burns was merely a guest in Beardsley’s home. * The fact that they had been acquaintances for a while or that she stayed in Beardsley’s home for several days did not change the status of their relationship.  The fact that this woman was in his house created no such legal duty as exists in law and is due from a husband towards his wife, as seems to be intimated by the prosecutor’s brief  Had Burns been a male drinking companion, it is unlikely anyone would impose a duty of care on Beardsley. * The fact that Burns was a woman does not change the legal relationship between Burns and Beardsley. o Conclusion  The conviction is set aside and Beardsley is ordered released.

Answer 27

o Facts * Darcel Howard (defendant) and her five-year-old daughter lived with Howard’s boyfriend, Edward Watts. * For several weeks, Watts regularly and severely beat and tortured Howard’s daughter with a belt or strap. * At no time did Howard attempt to stop Watts or report him to the authorities. * During the course of one beating, Howard’s daughter fell and hit her head on a piece of furniture, and died as a result. o Rule * A parent may be convicted of involuntary manslaughter for a child’s death if  (1): the parent failed to protect the child from a known and substantial risk of harm that directly caused the child’s death; and  (2): the child's death was a direct result of this harm o Application * Here, Howard and her daughter shared a special relationship as parent and child.  Howard consequently had a legal duty to affirmatively protect her daughter, but failed to do so.  While the immediate cause of the child’s death was multiple injuries to the head and trunk, inflicted on the child by Watts over a period of several weeks, appellant may still be held culpable for her continuing failure to protect the child during all that time  Howard consciously disregarded the regular physical abuse that was routinely inflicted upon her daughter by Watts. * this is sufficient to show that appellant consciously disregarded a manifestly apparent risk to the health and safety of her young child and that this neglect was a gross deviation from the standard of conduct the reasonable parent would observe under the circumstances  Howard’s failure to protect her daughter from this known and substantial risk of harm posed by Watts was a direct cause of her daughter’s death.  The overwhelming evidence shows that Howard had full knowledge of a continuing pattern of harm that was regularly inflicted upon her daughter by Watts. * Despite this knowledge, Howard failed to act to protect her daughter pursuant to her legal duty. * Therefore, Howard’s failure to act was reckless and grossly negligent under the circumstances and was a direct cause of her daughter’s death, thus giving rise to criminal culpability for involuntary manslaughter. o Conclusion * Accordingly, the judgment of the trial court is affirmed.

Answer 28

o Facts * Joseph Kly met Walter and Helen Pestinikas (defendants) when he contacted them about prearranging his funeral. * Kly was living with his stepson and was later hospitalized and diagnosed with a disease that made it difficult for him to swallow food. When he was discharged, Kly said he did not want to return to his stepson’s home, and arrangements were instead made for the Pestinikases to care for Kly in their home. * On the day of Kly’s discharge, the Pestinikases were given care instructions and a prescription to fill for Kly. * The Pestinikases orally agreed to follow the instructions and provide Kly with food, shelter, care, and the required medicine. * According to the evidence at trial, the prescription was never filled. Instead of allowing Kly to live in their home, the Pestinikases placed him in a small, enclosed porch of a distant building, where there was no insulation or bathroom and he was exposed to outside weather conditions. * The Pestinikases took Kly to the bank where they had their names added to his account. * Over time, the Pastinikases withdrew over $30,000 from the account. * About two years after Kly’s discharge from the hospital, he was found dead, and an autopsy revealed starvation and dehydration as the causes of death. o Rule * A failure to perform a duty imposed by a private contract may be the basis for a criminal charge. o Application * An omission to act may support a criminal prosecution if (1) such a failure causes the death of another person, and (2) all other elements of the offense are satisfied. * It is clear that when a duty is imposed by law, and a statute makes an omission to perform a legal duty sufficient for criminal liability, there was a purposeful distinction between a legal duty to take affirmative action and a mere moral duty to act. * A contractual duty to act is legally enforceable and therefore forms a legal duty. As a result, failing to perform a duty undertaken in a contract may properly support a criminal murder charge. * However, the omission to act must also be joined by the requisite mens rea.  In the absence of malicious intent, an omission to perform private contractual duties will not suffice for a murder conviction. * Our holding is not that every breach of contract can become the basis for a finding of homicide resulting from an omission to act.  A criminal act involves both a physical and mental aspect.  An omission to act can satisfy the physical aspect of criminal conduct only if there is a duty to act imposed by law * Here, there was evidence that Kly’s death had been caused by the Pestinikases’ failure to provide food and medical care, which they had agreed to do by oral contract with hospital personnel.  If the jury found that the Pestinikases maliciously deprived Kly of required food and care, a murder conviction would be appropriate.  Therefore, the Pestinikases’ omission to act was sufficient to support a conviction for murder, and the trial court’s jury instructions were correct. o Conclusion * The convictions are affirmed.

Answer 29

* The first type of statute protects from civil liability those who help or rescue others in emergency situations * A second type of good samaritan statute imposes an affirmative duty on ordinary people to assist others in need. Failure to provide such assistance may result in criminal punishment.  Only a handful of states have enacted laws that require non-professional persons to act under penalty of criminal prosecution

Answer 30

o Facts * Roy Cunningham (defendant) ripped off the gas meter in the cellar of an unoccupied home and stole the money inside. * Cunningham did not turn off the gas, which seeped into an adjacent house where an elderly woman named Sarah Wade was sleeping. Wade was partially asphyxiated. * In addition, Cunningham was indicted under § 23 of the Offenses against the Person Act, 1861, which provides that it is a felony to “unlawfully and maliciously” administer to or cause another person to take poison in a manner that endangers his or her life or causes serious injury. o Rule * The term malice in a criminal statute means that the person acted with either (1) an actual intention to do the particular kind of harm that was in fact done or (2) reckless disregard of a foreseeable risk that the harm would result, meaning the person was aware of the risk of harm and did the act anyway. o Application * In this context, malice does not mean mere wickedness as it does colloquially.  There is no doubt that Cunningham behaved badly when he took the gas meter. * However, the real issue here is whether Cunningham foresaw that taking the gas meter could seriously harm someone but did it anyway. That question should properly have been submitted to the jury. * There is no way to know whether a reasonable jury, instructed on the correct definition of malice, would have convicted Cunningham. o Conclusion * As a result, Cunningham’s appeal is allowed; the conviction is quashed.

Answer 31

o Guilty mind * Older usage: moral guilt generally * Modern usage: mental state that is an element of the crime o Some form of mens rea generally applies to all material elements of a crime (act and conditions) * Under common law, different mens rea might apply to different elements * See Yermian and Holloway for examples of how courts read mens rea terms in statutes * Under MPC, stated mens rea applies to all material elements unless statute shows clear intent otherwise

Answer 32

o Specific intent o General intent/knowledge o Recklessness/criminal negligence o Civil negligence o Strict liability * No mental state at all

Answer 33

o First, one acts with the requisite intent if it is his or her conscious object or purpose to cause a certain result or to engage in certain prohibited conduct. o Alternatively, one intends a particular social harm if one knows to a virtual certainty that one’s actions will cause that social harm

Answer 34

o Facts * Herbert Fugate (defendant), a 19-year-old man, entered a commercial parking garage with a loaded shotgun. * Fugate intended to rob the owner of the parking garage, Sylvester Leingang, who was 66 years old. * Fugate struck Leingang two times with the barrel of the shotgun, causing severe head wounds. * Fugate then ordered Leingang into the basement of the garage, where Fugate shot and killed him. o Rule * Intent = conscious object or knowledge to a virtual certainty * Court approved two methods of interring intent:  Circumstances surrounding the act must be examined, including the instrument used and the manner of inflicting a fatal wound  Intent to kill may be presumed where the natural and probable consequence of a wrongful act is to produce death o Application * The element of intent may be determined from the circumstances surrounding the crime and from the evidence developed during trial. * In this case, Fugate’s intent to kill may be presumed, because the natural and probable consequence of his wrongful actions toward Leingang was to cause the older man’s death. o Conclusion * Therefore, the judgment of the trial court is affirmed. * Conditional intent -- I meant to do X, but Y happened. Is this intent? Generally, courts say yes.

Answer 35

o Facts * Jewell (defendant) was convicted of knowingly transporting 110 pounds of marijuana worth $6,250 in a secret compartment between the trunk and the rear seat of an automobile, from Mexico into the United States. * At trial, Jewell testified that he did not know the drugs were there.  There was circumstantial evidence that showed Jewell had knowledge of the drugs and was therefore lying.  And there was also circumstantial evidence that showed although Jewell knew of the presence of the secret compartment and that it likely contained marijuana, he deliberately avoided positive knowledge of the presence of the drugs in order to avoid responsibility in the event he was caught. o Rule * “Knowingly” includes positive knowledge as well as a defendant’s awareness of the high probability of an illegal act but purposely fails to investigate the presence of the illegal act in order to remain ignorant. * Knowledge = knowing a fact or being aware of and correctly believing it exists * If a crime requires knowledge, willful blindness is included in that o Application * To act “knowingly,” therefore, is not necessarily to act only with positive knowledge, but also to act with an awareness of the high probability of the existence of the fact in question. When such awareness is present, “positive” knowledge is not required o Conclusion * The judgment of conviction is affirmed.

Answer 36

* You can deduce intent form surrounding circumstances (Fugate) * D presumed to intent the natural and probable consequences of actions (Fugate) o Not same as taking (reckless or negligent) risk of death * Knowledge includes willful blindness (Jewell) o Not enough to show indifference to known risk but requires subjective belief of high probability fact exists & deliberate steps to avoid learning it o Conditional intent is usually enough to satisfy intent (Holloway) * Usually if someone intends to do one crime, but another crime occurs, the intent does not transfer. But, if someone intends to kill person A and accidentally kills person B, that usually satisfies intent. Intent can usually be transferred across people, but not across different offenses. * General rule: intent to do one kind of harm cannot transfer to intent to do another kind of harm * Exception: Intent to kill one person can "transfer" to supply intent necessary t kill an unintended victim o Usually at issue in bad aim homicide cases, but can also apply to other crimes o Not applicable to different types of acts/harms o Is not generally used to supply intent for an attempt on the wrong person * Alternate formulations: o Legal fiction: * Shooting act + intent to kill A(MR1) + A not dead; result = no crime * Shooting act + no intent to kill B (no MR1) + B dead; result = no crime * Transfer MR1 into equation 2 to make a completed crime * Dressler formulation: reframing intent to "intent to kill a person" eliminates need to engage in fiction of transfer * MPC incorporates in causation definitions (2.03(3))

Answer 37

o Facts * The romantic relationship between Calvin Hughes and Elaine Scott soured, and their interactions became increasingly hostile, resulting in a physical altercation one evening. * Scott’s adult sons, Damien Scott and Derrick Brown (defendants), came to their mother’s aid and forced Hughes from the shared apartment. * A few days later, Hughes and a friend drove to a neighborhood park. The defendants followed Hughes, drove into the park, and sprayed the area with bullets from an automatic weapon, intending to kill Hughes. * Instead, a bystander was killed, and several others were injured by the gunfire. o Rule * Common law allows fiction of transfer, but intent is not "used up" when transferred because it is really grounded in a policy of not allowing D to escape liability for bad aim. * The doctrine of transferred intent may be used to assign criminal liability to a defendant who kills an unintended victim, even if the defendant is also prosecuted for the attempted murder of the intended victim. o Application * Here, the defendants shot at one person with an intent to kill Hughes, missed him, and killed a bystander instead. * Consequently, under Suesser, the defendants may be held criminally liable for the death of the bystander and the attempted murder of Hughes and his friend. o Conclusion * The judgment of the court of appeals is affirmed.

Answer 38

* Specific intent o Intent to commit a further act OR intent to achieve a specific result * General intent o Intent to act * Look for clues in the language * Common law distinction only (abolished in MPC) * Why does it matter? Voluntary intoxication and unreasonable mistake of fact are defenses to specific intent crimes only (they can negate the mens rea for specific intent crimes only)

Answer 39

o Facts * Robert Atkins (defendant) told his friends that he was going to burn down the house of Orville Figgs. * The next day, a fire was reported in the canyon where Figgs lived.  A soil sample collected by the fire marshal revealed the presence of gasoline, and Atkins’s wallet was found near the site where the fire had originated. * When interviewed by the fire marshal, Atkins said that he and his brother had been drinking all day and then drove to the canyon and kept drinking. * Atkins said that the area was overgrown with weeds, which he decided to burn with gasoline. The fire spread quickly, and after Atkins and his brother tried unsuccessfully to extinguish the fire, they panicked and fled. * Atkins said that he did not mean any harm by setting the fire, and maintained that the fire was an accident. o Rule * A criminal defendant may not introduce evidence of voluntary intoxication to negate the existence of general criminal intent. * Arson is a general intent crime, not a specific intent crime, so evidence of intoxication cannot be offered. Determination based on language and structure of statute. o Application * Specific-intent crimes and general-intent crimes are distinguishable.  If a criminal statute does not refer to an intent to commit a further act in addition to the particular criminal act, the crime is a general-intent crime. * A general-intent crime is committed when the defendant intends to commit the criminal act but nothing more. * General intent only requires an intent to perform the act that causes the harm.  If a criminal statute refers to an intent to commit a further act or achieve an end beyond the particular criminal act, the crime is a specific-intent crime.  In essence, general intent only requires an intent to commit the act that causes the harm, while specific intent requires an intent to commit the act and to cause the harm that results from the act. * The mens rea for arson is a general intent to cause a fire on forest land.  The arson statute only requires an intent to set the fire that results in the burning of forest land, not an additional intent to burn the land.  Because arson is not a specific-intent crime, the trial court was correct when it instructed the jury that voluntary intoxication is not a defense to arson. o Conclusion * Accordingly, the judgment is reversed, and the case is remanded to the court of appeal.

Answer 40

* What is negligence in criminal law? * Common law unintentional crimes o Generally, criminal law wants more culpability than tort law (worse negligence) o Recklessness and criminal negligence may mean the same thing o Negligence usually means criminal or gross negligence, but state statutes can provide for civil (simple) negligence liability * How is the model penal code different? Common law: Specific intent General intent/knowledge Recklessness/criminal negligence Civil negligence MPC Purpose Knowledge Recklessness negligence Strict liability

Answer 41

* 2.02 – Defines mens rea terms; prescribes rules for statutes lacking mens rea term; prescribes rules for interpreting mens rea terms * 2.04 – Mistakes of law and fact (see also 2.02(9) regarding mistakes about illegality of conduct) * 2.05 – Strict liability * 1.13 – Defines “material element” * 1.04 – Difference between violations and crimes

Answer 42

* Purpose o Conscious object to engage in conduct or cause result o Aware of conditions, believes conditions exist, or hopes conditions exist o Conditional purpose is enough -- 2.02(6) * Knowledge o Aware of the nature of conduct o Aware of circumstances o Practically certain that conduct will cause result o Knowledge satisfied if D aware of high probability of existence of a circumstance is enough, unless actually D believes it does not exist - 2.02(7) o (version of willful blindness) o Knowledge satisfies “willfully” - 2.02 (8) * Recklessness: o Conscious disregard of a substantial and unjustifiable risk o Disregard of risk involves gross deviation from standard of conduct of law abiding person o Must be aware of risk in order to disregard o Default mental state for MPC * Negligence o Should be aware of substantial and unjustifiable risk o Failure to perceive risk is gross deviation from standard of care of reasonable person in same situation o Defined but rarely used in MPC (except in homicide) o Not civil negligence

Answer 43

o Facts * A scrap metal and junk dealer, Morissette (defendant), entered an Air Force bombing range and took several spent bomb casings that had been lying around for years exposed to the weather and rusting. * Morissette subsequently flattened the casings out and sold them for an $84 profit. o Procedure * Morissette was indicted for violating 18 U.S.C. § 641 which made it a crime to “knowing convert” government property.  At trial, Morissette admitted he knew he was taking Air Force property but honestly believed the government had abandoned the casings.  The trial judge rejected Morissette’s defense and instructed the jury that “the question on intent is whether or not he intended to take the property.” Morissette was convicted and he appealed. o Rule * Statutes codifying "infamous common law crimes" should be read to incorporae common law mens rea requirement. Balint and Berman distinguishable because they involved new "public welfare offenses" o Application * Congressional silence as to the mental element in § 641 will not be construed as eliminating that element from the crimes denounced. * Here, the trial judge wrongly instructed the jury that it was not allowed to consider Morissette’s honest belief that he thought the casings were abandoned as a defense. o Conclusion * The judgment of conviction is reversed.

Answer 44

o Facts * Elonis (defendant) posted violent language directed at his estranged wife online. * The United States (plaintiff) charged Elonis with making interstate threats in violation of 18 U.S.C. § 875(c).  Section 875(c) did not contain any required mens rea. o Procedure * Elonis argued he did not violate section 875(c) because he did not intend to threaten anyone.  The district court instructed the jury to use a reasonable person standard in determining whether Elonis’s postings constituted threats. The jury convicted Elonis. o Rule * The meaning of Congress's omission of an intent requirement is not plain. Morissette rule of construction governs. * What mens rea should be read in? Only that required to separate wrongful from innocent conduct. Negligence (reasonable person would have perceived it as a threat) is generally not enough. Intent is. Recklessness might be. * Criminal statutes generally include a requirement that a person is aware that he or she is committing a crime, even if the statute does not explicitly contain such a mens rea requirement. o Application * In this case, Elonis’s conviction must be reversed.  Although section 875(c) does not explicitly contain a required mens rea, it implicitly includes a requirement that a person is aware that he or she is violating the statute.  Elonis was found guilty of violating section 875(c) because of how a reasonable person would view his postings.  The reasonable person standard is suited for civil actions but is not appropriate for criminal statutes. * The lower courts effectively reduced the culpability requirement for section 875(c) to a negligence standard. o Conclusion * The conviction is reversed.

Answer 45

o Facts * While driving to work on a clear and dry morning, Theresa Barone (defendant) approached a stop sign located at an intersection of a busy street. Traffic was heavy. * As Barone crossed the intersection to turn left, a motorcycle struck the right side of Barone’s vehicle, killing the operator.  Facts establish Barone was not negligent * Barone was charged with a violation of § 3732 of the state’s motor vehicle code, which provided that any person who unintentionally caused the death of another person while engaged in a violation of state law or a municipal ordinance during the operation of a vehicle was guilty of homicide by vehicle, a first-degree misdemeanor punishable by up to five years imprisonment and a possible fine. o Procedure * Barone filed a motion to demurrer to the charge.  The trial court granted Barone’s motion, holding that the evidence was insufficient to be heard by a jury. The Commonwealth of Pennsylvania appealed.  The court finds additional support in the code's similarity to the MPC, which strongly implements the common law tradition against strict penal responsibility unless legislative intent "plainly appears" o Rule * Even though the word "unintentional appears, whether it is plain should be determined with reference to common, traditional usage. This suggests "unintentional" means criminally negligent. The word "unintentionally" in the context of homicide means "without purpose" but does not encompass non-negligent accidents. At minimum, it is ambiguous. Leg intent" seems to be aimed at criminally (grossly) negligent homicide (previously unpunished under homicide laws). * A state criminal law imposing a conviction for homicide and an unduly harsh sentence upon a defendant for unintentionally causing the death of another during the commission of a violation of traffic laws shall not be interpreted as a strict-liability offense. o Application * Here, the evidence clearly shows that Barone acted reasonably under the circumstances. * Given that a jury could not have found Barone’s actions amounted to a gross deviation from the standard of care that a reasonable person would observe in the same situation, no violation of § 3732 occurred. * Therefore, the trial court properly granted Barone’s motion to demurrer to the charge. o Conclusion * The judgment of the trial court is affirmed.

Answer 46

* Crime does not require a mental state at all for some material element * Common law: o SL may apply to "public welfare offenses" lacking mens rea term (Morissette) or where legislative intent to eliminate mental state is otherwise plain o Some traditional crimes have always been SL as to a particular element (adultery, statutory rape, bigamy) * MPC Strict Liability o Disfavors SL, so recklessness will be supplied unless clear intent to impose SL * Mens rea may be inferred even if statute encompasses “unintentional” conduct (Barone) o SL can only apply to “violations” or offenses defined by non-criminal law where leg intent is plain - 2.05 o “Violations” are offenses punishable by fines only - 1.04 (different than common law)

Answer 47

Common law * Traditional crime - mens rea inferred in accordance with common law understanding (Morissette) * Rule of construction for these is to interpret statutes to include “broadly applicable scienter requirements,” reading in only the MR necessary to separate wrongful from innocent conduct (Elonis) * (New) “public welfare offense” - may be “strict liability” but check for constitutional problems (see Barone) Model penal code * Recklessness is the default and will be inferred - 2.02(3) * Criminal negligence is exceptional basis for liability under MPC

Answer 48

1. What did the legislature intend? Consider an offense is traditional or public welfare (and whether it is more appropriate to read in a MR or construe it as imposing SL), consider these factors: a. History of offense b. Standard CL definition c. Harm d. Level of public condemnation e. Harshness of penalty (but CL courts have permitted some imprisonment for SL, see Barone concurrence) f. Practices of other courts 2. If legislature intended SL (if it is a public welfare offense or intent is otherwise clear), consider whether there is a due process problem

Answer 49

* Mistake is generally a case-in-chief defense (plaintiff proves it, defendant can poke holes in it) * Common law: mistake of fact v. mistake of law * MPC: Single rule for mistakes -- 2.04

Answer 50

* Mistake of fact (Navarro) o Specific intent negated by good faith mistake o General intent negated by good faith and reasonable mistake o Mistake of fact may not be a defense if conduct is morally wrong or legally wrong anyway * Mistake of law o Not an excuse, except: * Reliance on official interpretation of law (Marrero; Clegg; Tallmadge; Fridley) * Knowledge of illegality is element of crime (Cheek; Bryan) * Lack of fair notice (Lambert; Bryant)

Answer 51

* Does not distinguish fact/law or specific/general intent * Ignorance or mistake of any kind is a defense if it negates the mens rea -- 2.04(1) * In general, knowledge of (or even negligence regarding) the specific law is not required -- 2.02(9) * Affirmative defense for official interpretation of law or where law marking it a crime is not available -- 2.04(3) o D must prove by preponderance of the evidence * Only a partial defense if the mistaken situation would still be a crime, but conviction can be reduced to lesser included offense 2.04(2)

Answer 52

1. Actus reus a. (was the act voluntary? If an omission, how is duty established? Did the act cause the result, if required?) 2. Mens rea a. (must a mens rea be supplied? Did a mistake (or intoxication) affect mens rea? What kind of mistake? Consider CL v. MPC) 3. Concurrence a. (which mens rea applies to each condition? If there was a mistake, which element/MR does it apply to? Consider moral/legal wrong rule) * = CRIME

Answer 53

* People v. Navarro (LA County Superior Court, 1979) o Facts * Appellant Navarro (defendant) took four wooden beams from a construction site. He was convicted of petty theft. * The relevant statute says that anyone who steals another person’s property with a felonious motive is guilty of theft. o Procedure * At trial, Navarro proposed jury instructions saying that if he took the wood beams with the good faith belief they were abandoned or that he had permission to take them, he was not guilty of theft, even if his good faith belief was unreasonable.  The court instead instructed the jury that if Navarro took the wood beams with the good faith belief that they were abandoned or that he had permission to take them, he was not guilty of theft as long as his good faith belief was reasonable. o Rule * An honest mistake of fact is a defense to a specific intent crime regardless of whether the mistake was unreasonable.  For specific intent crimes, a mistake of fact does not need to be reasonable. o Application * Here, Navarro is accused of the crime of theft. Theft is a specific intent crime. It requires Navarro to possess the felonious intent to steal another’s property.  In order to possess a felonious intent to steal, Navarro must have known that what he was taking was not his to take. * If for any reason, Navarro truly believed the beams were abandoned or that he had permission to take them, he did not possess the necessary felonious intent. o Conclusion * The judgment is reversed.

Answer 54

1. “official interpretation of the law” and is also known as “entrapment by estoppel  a person who reasonably relies on an official interpretation of the law that turns out to be erroneous can be exonerated. This defense is often called 2. ignorance of the law can be a defense to a crime if knowledge that the prohibited conduct is unlawful is an element of the crime 3. the U.S. Supreme Court has held that under certain limited circumstances, the prosecution of a person who lacks fair notice of a legal duty imposed by law can violate due process

Answer 55

o The defendant must have * (1) reasonably relied on * (2) an official interpretation of the law, * (3) later determined to be erroneous, * (4) contained in a statute or other enactment or obtained from a person or public body with responsibility for the interpretation, administration, or enforcement of the law defining the offense

Answer 56

o Facts * Marrero (defendant), a federal corrections officer, was arrested in Manhattan at a social club for unlicensed possession of a loaded .38 caliber pistol in violation of state law. * Penal Law § 265.02(a)(1)(a) expressly exempted “peace officers,” from the statute. The term “peace officers” was defined by the statute to include “correction officers of any state correctional facility or of any penal correctional institution.” o Rule * One who violates a statute may not raise a good faith mistaken belief as to the meaning of the law as a defense. o Application * Marrero argues that his mistaken belief about his conduct was founded upon an “official statement” of the law contained in the statute itself. * the interpretation of the statute relied upon must be “officially made or issued by a public servant, agency or body legally charged or empowered with the responsibility or privilege of administering, enforcing or interpreting such statute or law.” We agree with the People that the trial court also properly rejected the defense under Penal Law § 15.20(2)(d) since none of the interpretations which defendant proffered meets the requirements of the statute o Conclusion * The order of the appellate division is affirmed.

Answer 57

o Facts * Eugene Ray Clegg (defendant), a teacher at an American school in Pakistan, was charged with exporting firearms in violation of federal law. * During pretrial proceedings, Clegg requested that the federal government produce documentary evidence that Clegg claimed authorized his conduct, namely the smuggling of weapons through Pakistan to Afghan rebels so that the rebels could resist Soviet occupation of their country. * Clegg alleged the documents would show that two high-ranking United States Army officers assisted Clegg in contacting the rebels, obtaining weapons and ammunition, and planning a large, secret arms shipment that never took place. * Clegg was eventually arrested in Pakistan, imprisoned, and subsequently released to U.S. officials, who transported Clegg back to the United States for prosecution in federal district court. o Rule * A defendant may raise mistake of law as a defense if the defendant relied in good faith on the representations of federal military officials authorizing the exportation of firearms, despite those actions being a violation of federal law. o Application * In U.S. v. Tallmadge, 829 F.2d 767 (9th Cir. 1987), the court entertained a similar case involving a defendant charged with violating a federal law that prohibits a convicted felon from receiving a firearm. 18 U.S.C. § 922(h)(1) (1982).  Tallmadge raised a mistake-of-law defense on the ground that his state felony conviction had been reduced to a misdemeanor, and after disclosing that information to a licensed firearm dealer, the dealer nonetheless sold Tallmadge a firearm.  The court exonerated Tallmadge, in part, because a firearm dealer is required by the U.S. Department of the Treasury to collect certain information from customers purchasing firearms.  Thus, the Tallmadge court concluded that the licensed firearms dealer was a de facto federal agent, and Tallmadge had a right to rely on the representations of the dealer who should have known the federal law governing ownership of a firearm. o Conclusion * The judgment of the district court is affirmed.

Answer 58

o Facts * During a traffic stop for speeding, police officers conducted a routine check of Gaylord Duane Fridley’s (defendant) driver’s license and learned that it had been revoked. * Fridley was arrested and charged with driving with a revoked license, a class B misdemeanor and strict-liability offense. * Prior to trial, the prosecution filed a motion in limine to prevent Fridley from introducing evidence at trial of his telephone conversation with a driver’s license division (division) employee named Debbie.  During a hearing on the motion, Fridley testified that Debbie told him that in order to obtain a work permit to drive, Fridley was required to take the driver’s test and forward the appropriate documentation and payment to the division.  Fridley further testified that Debbie told him that while the paperwork was being processed, Fridley would be without a license for seven days.  Fridley stated that he interpreted the conversation with Debbie to mean that he was permitted to drive in the interim.  Fridley argued that he intended to introduce the evidence of his conversation with Debbie to raise a mistake-of-law defense at trial. o Rule * The defense of excuse based upon mistake of law is not applicable to a strict-liability offense for which proof of culpability is not required. o Application * However, state law provides that the mistake-of-law defense does not apply to criminal violations for which proof of culpability is not required. o Conclusion * The judgment of the trial court is affirmed.

Answer 59

o Facts * John Cheek (defendant) was involved with an anti-tax advocacy group that claimed that federal tax laws were unconstitutional. * Based on the group’s advice, Cheek stopped filing federal tax returns. * Cheek was charged with several counts willfully failing to file a federal income tax return for a number of years in violation of 26 U.S.C. § 7201 and 26 U.S.C. § 7203(1), which are specific intent crimes. * At trial, Cheek’s defense rested on his sincerely held belief that he owed no taxes on his wages. o Rule * Whether a purportedly good-faith misunderstanding of the law will negate the specific intent requirement of willfulness under criminal tax laws is a question of fact for the jury; there is no legal requirement that the belief be objectively reasonable. o Application * The complexity of federal tax regulations has made it difficult for average citizens to keep up.  Consequently, Congress made specific intent to violate the law an element of criminal offenses.  A defendant will satisfy the willfulness requirement if she made a “voluntary, intentional violation of a known legal duty.” * This means that the defendant must * (1) know about the duty and * (2) purposely violate it. * A trial judge may instruct a jury that it should not consider claims like Cheek’s that the tax code is unconstitutional.  Cheek’s beliefs that wages did not constitute income and that he was not a taxpayer should have been put to the jury. o Conclusion * The judgment of conviction is vacated, and the matter is remanded. * [On retrial, the jury was instructed to consider “whether the defendant’s stated belief about the tax statute was reasonable as a factor in deciding whether he held that belief in good faith.” Cheek was convicted. United States v. Cheek, 3 F.3d 1057 (7th Cir. 1993)].

Answer 60

o Facts * Bryan (defendant) was convicted of “willfully” selling firearms in violation of various federal firearms statutes. * Bryan had individuals go purchase firearms for him in Ohio and bring them back to him in New York, where he filed off the serial numbers and sold them. * Bryan claimed that he could not be convicted of “willfully” selling the firearms as prohibited by the statute because he did not know of the specific legislation for the federal licensing of firearms dealers. o Rule * An individual “willfully” commits a crime if he acts with the knowledge that his actions are unlawful. o Application * To fulfill the mens rea for a crime with a “willful” requirement, the individual must have “acted with knowledge that his conduct was unlawful.”  Except for certain tax statutes, this does not mean that the individual had to be aware of the specific law that he is breaking in order to have done so willfully. * Here, the statute at issue is not a tax statute, and Bryan knew what he was doing was wrong and against the law, no matter which subsection of the statute it was against. * Ignorance of the law is almost never a valid defense to the commission of a crime or tort. o Conclusion * Therefore, Bryan’s conviction for “willfully” selling firearms is upheld.

Answer 61

o Facts * A Los Angeles, California city ordinance required any individual, living within the city limits, convicted of an offense “punishable as a felony” in the state or who would otherwise be punishable in the state if convicted in a different state, to register with the Chief of Police. * No element of willfulness was included in the ordinance. * Lambert (defendant) was charged with violating the ordinance. * At trial, Lambert attempted to show that she had no knowledge of the requirement, but the trial judge refused to allow the evidence. o Rule * In accordance with due process, an individual may not be convicted of a criminal offense requiring a duty to register as a convicted person unless it is shown that the individual had actual knowledge of the duty, or should have known, as well as the consequences for failing to comply. o Application * When Lambert was first made aware of the registration requirement, she was not afforded the opportunity to comply and avoid criminal punishment. Instead she was immediately arrested. o Conclusion * The judgment of conviction is reversed.

Answer 62

o Facts * During a term of imprisonment in South Carolina, Roy Eugene Bryant (defendant) was notified of, and acknowledged in writing, his obligation to register with the state as a convicted sex offender upon his release. * Bryant was also informed of a duty to notify the county sheriff of an intent to relocate to another state within 10 days of the move. * After his release from incarceration, Bryant relocated to Winston-Salem, North Carolina and moved into a home with a woman and her two young daughters. * Bryant never registered as a sex offender in South Carolina, did not inform state authorities of his intent to move to North Carolina, and never registered as a sex offender in North Carolina. * Later, Bryant was arrested for failing to register as a sex offender in North Carolina in violation of state law and charged as a habitual convicted felon. * Bryant argued that the North Carolina registry statute violated the Due Process Clause of the Fifth Amendment, because the law deprived him of sufficient notice of the requirement to register as a sex offender. o Rule * A state’s strict-liability law requiring a convicted sex offender to register with a statewide registry does not violate the Due Process Clause of the Fifth Amendment if the defendant has been given sufficient notice of the requirement. o Application * However, Bryant’s reliance on Lambert is misplaced.  Bryant * (1) had general knowledge of state sex-offender registry laws and programs, given his admission that he was a convicted sex offender in Florida; * (2) had received actual notice that he must register as a sex offender in South Carolina and had a duty to inform local authorities of a relocation out of the state; and * (3) failed to register in South Carolina and in North Carolina.  This was sufficient to put Bryant on notice to inquire into the laws of North Carolina regarding a duty to register as a sex offender. * Thus, the Due Process Clause was not violated. o Conclusion * The judgment of the court of appeals is reversed, and the matter is remanded for further proceedings consistent with this opinion.

Answer 63

* Actus reus (that causes result) + mens rea + any conditions = crime * Actus reus + mens rea + [conditions] + [result] = crime o Where act causes result/harm o And mens rea concurrence with the act

Answer 64

1. Was D's act a but-for cause of harm to V? a. No --> D is not liable b. Yes --> 2. Was there an intervening cause? i. No --> D's act is direct and sole cause --> D is liable ii. Yes --> 3. Was the intervening cause… 1. DEPENDENT/RESPONSIVE --> 4a. But was it bizarre? a. NO, not bizarre --> D is liable b. YES, bizarre --> D not liable 2. INDEPENDENT/COINCIDENTAL --> 4b. But was it foreseeable? a. NO, not foreseeable --> D not liable. b. YES, foreseeable --> D liable. * When it’s a third party other than the D acting, then we like to say it's independent

Answer 65

* If D's act was but-for cause of harm to V and there was no intervening cause, D's act is sole and direct cause of harm * If there was an intervening cause, ask whether the intervening cause relieves D of liability: o A dependent (responsive) intervening cause will not relieve D of liability unless it was bizarre o An independent (coincidental) intervening cause will relieve D of liability unless it was still foreseeable

Answer 66

* D's act must be a but-for cause of harm to V [result] and additional causation requirements must be satisfied: o Purpose or knowledge crime: result must be within D's purpose or contemplation o Reckless crime: result must be within risk of which D was aware o Negligent crime: result must be within risk of which D should have been aware

Answer 67

* Where D did not contemplate the precise harm/risk, causation requirements satisfied if: o Only difference between contemplated and resulting harms is identity of person or property (covers transferred intent situations) o Intended harm is worse than resulting harm o Same type of harm was contemplated or probable and result is "not too remote or accidental" (replaces proximate cause analysis with common sense foreseeability inquiry) * If statute is strict liability as to result, causation not established unless result is probable consequence of D's act

Answer 68

o Facts * Charles Rementer (defendant) and his girlfriend, Mary Berry, left a bar one evening in the middle of a heated argument. * Berry got into the driver’s seat of her cab, which she drove for work. * Rementer pushed Berry into the passenger’s seat, climbed into the cab, and drove off. * Several witnesses saw Rementer punch and beat Berry and pull her hair as she attempted to escape through the passenger-side window. * Berry escaped and ran from the cab twice. Each time, Rementer stopped the vehicle, caught Berry, hit her, and dragged her back to the cab. * Berry was able to escape the cab a third time and ran to a passing vehicle for help. The driver became scared, pushed Berry away, locked the doors, and sped off. * Berry was crushed to death beneath the wheels of the vehicle. As a result of Berry’s death, Rementer was charged with murder in the third degree. o Rule * A defendant may be held criminally liable for a victim’s death if his conduct was a direct, substantial, and operative cause of the death, without an intervening act breaking the chain of causation. o Application * Court applies a general fairness/foreseeability inquiry, not a strict intervening cause analysis * Was D's conduct so directly and substantially linked to V's death as to make D liable, or was it remote and attenuated that liability would be unfair? * Emphasizes foreseeability of harm in general, not the specific harm in question  Do not do this on the exam. Think of the specific harm that happened, not just general harm. * Therefore, Rementer may be held criminally liable for Berry’s death. o Conclusion * The judgment of the trial court is affirmed.

Answer 69

o Facts * Kibbe (defendant) and his co-defendant saw Stafford at a bar, intoxicated and displaying money. The defendants agreed to give Stafford a ride and decided to rob him. * Kibbe slapped Stafford, took his money, and made him lower his pants and remove his boots. The defendants abandoned Stafford on a dark road in the snow, without his coat, shoes, and glasses, where he got hit and killed by a speeding truck. * The driver testified that he was traveling 10 miles over the speed limit and did not understand warnings about Stafford from other cars. The driver saw Stafford in the road, but did not swerve or stop before hitting him. Kibbe and his co-defendant were convicted pursuant to N.Y. Penal Law § 125.25(2), which provides that a person is guilty of second-degree murder when “under circumstances evincing a depraved indifference to human life, he recklessly engages in conduct which creates a grave risk of death to another person, and thereby causes the death of another person.” o Rule * The definition of recklessness includes a causation element. o Application * Because a determination of recklessness includes a conclusion that a defendant was “aware of and consciously disregarded a substantial risk,” it necessarily includes a finding that the defendant foresaw the ultimate harm that the risk presented and therefore caused the result. * The jury’s determination that Kibbe acted recklessly inescapably included a finding that the ultimate harm was foreseeable and that therefore, Kibbe caused Stafford’s death. o Conclusion * Accordingly, the judgment is reversed.

Answer 70

* Temporal concurrence (act causing harm and culpable mens rea occurred at the same time) + motivational concurrence (culpable mental state motivated the act that caused harm)

Answer 71

1. What was act1? 2. What was D's mental state at the time of act1? 3. What was act2? 4. What was D's mental state at the time of act2? 5. Which act caused the harm? 6. Did the culpable mental state happen at the same time as the act that caused harm? 7. If not, can the window of time be enlarged? 8. Did the culpable mental state motivate the act that caused the harm?

Answer 72

* Murder o Killing with malice aforethought o Divided into 1st and 2nd degree * Manslaughter o Mitigated murder o Killing without "malice aforethought" but with criminal negligence (with some type of culpable mental state) * Not purely accidental killing

Answer 73

* Murder o Killing with intent, knowledge, or extreme recklessness o No distinction between 1st and 2nd degree * Homicide o Mitigated murder o Reckless killing * Different from criminal negligence

Answer 74

* Broadly, murders are intentional killing and manslaughters are unintentional killings * But the law treats certain unintentional killings as if they were intentionally. It also treats certain intentional killings as if they were unintentional (via a partial defense)

Answer 75

* 1st (malice+) o Premeditation & deliberation o FMR with listed felony o Other listed circumstance * 2nd (malice alone) o Killing with malice, not premeditated/deliberated, and without adequate provocation o Malice may be express (intent to kill) or implied (intent to commit SBI, depraved heart, non-listed felony murder) o This is where we default * On an exam, first ask if there was murder at all, then we go into 1st versus 2nd o A killing can be intentional with only 2nd degree murder * Voluntary manslaughter o Mitigated murder (1st or 2nd degree), usually an intentional killing resulted from legally adequate provocation o This is just a 1st or 2nd degree murder that is knocked down-- it's not something on its own * Involuntary manslaughter o Unintentional (reckless or criminally negligent) killing o Misdemeanor manslaughter

Answer 76

* Aggravated murder o Murder with speciial circumstances * Murder o Intent o Knowledge o Extreme recklessness (implied for certain felonies) * Manslaughter o Mitigated murder * Manslaughter o Reckless killing o Misdemeanor manslaughter does not exist in the code * Negligent homicide o Criminally negligent killing

Answer 77

1. Is it murder? (Was there malice aforethought in CL? Or was there purpose/knowledge/extreme recklessness for MPC?) A. If yes, go to 2nd degree murder B. If no, go to (involuntary manslaughter) 2. Can it be elevated to 1st degree murder (see statute)? 3. Regardless of answer to Q2, can it be knocked down to manslaughter via a partial defense? 4. For (involuntary manslaughter), was D reckless or criminally negligent (see statute)?

Answer 78

* This can replace the abstract mens rea analysis, but remember to address other elements (act, causation, concurrence, result) * Malice aforethought? o Yes: Murder * First degree?  Yes, 1st degree * Provocation (for partial defense)? * Yes: voluntary manslaughter * No: 1st degree murder  No, 2nd degree * Provocation (for partial defense)? * Yes: voluntary manslaughter * No: 2nd degree murder o No: involuntary manslaughter

Answer 79

* Common law o Requires intent to kill o But intent can be implied from intent to commit SBI, depraved heart murder rule, or felony murder rule * MPC o Intent, knowledge, or recklessness "manifesting an extreme indifference to human life" o Extreme recklessness can be presumed in felony murder situations (rebuttable presumption)

Answer 80

* Express malice = intent to kill, OR o What is express malice? * D had the specific intent to cause V's death, which can be proven by direct or circumstantial evidence * E.g., Nevada law defines express malice as "deliberate intention unlawfully to take away the life of a fellow creature, which is manifested by external circumstances capable of proof" * MPC addresses express malice through "purpose" or "knowledge" mens rea o How is express malice proven? * Statement/confession * Circumstantial evidence  Natural and probable consequences rule * We assume that you intend the natural and probable consequences of your action  Deadly weapon rule * If you point a deadly weapon at a vital bodily organ, we assume intent to kill * Implied malice o When is malice implied? * Intent to inflict serious bodily injury = implied intent to kill  Certain states have statutes saying this, to address that * Depraved heart murder  "extremely reckless disregard for the value of human life" * Felony murder rule  Intent to commit a felony during the commission of which death results

Answer 81

* For an intentional killing or a killing in the course of a felony, second degree murder is the default * More must be proven for first degree murder o Poison, lying in wait, or some other willful, premeditated and deliberate means o Felony murder in the course of a listed felony (listed in the statute) * State law may designate other situations as first degree murder (e.g., terrorism) * Common law only! o In MPC, we don't even ask if its 1st or 2nd degree o On exam, say that "in CL, here is the analysis. If this was not CL, I wouldn’t do this analysis because doesn't exist."

Answer 82

* Look at the statute first, because maybe that's one way to get to 1st degree murder * Did the D think about it beforehand and consider the course of action? Yes --> 1 st degree murder * D thought about killing beforehand + measured and evaluated the course of action * Premeditation -- thought about it beforehand o Some courts have held premeditation can occur "in the wink of an eye," see Brown, while others criticize this approach as collapsing premeditation into intent and require more * Deliberation -- measured and evaluated o Usually will require some time, but passage of time alone not enough (see Bingham) o Some courts emphasize that this requires a cool head * Premeditation may occur during the course of an act

Answer 83

o Facts * Brown (defendant) was the father of a child with severe speech problems and general global developmental delay. * One night, a neighbor heard a fight between Brown and his wife that ended with a loud thump against one of their house’s walls. * Hours later, Brown’s wife called for an ambulance, stating that their son had fallen down some stairs and was struggling to breath. Brown’s child was dead when the paramedics arrived. * Posthumous exams showed that Brown’s child had suffered multiple skull fractures and brain swelling. * Brown says mom and dad spanked son and that he snapped and blacked out * Brown says he did not hit with right fist because it is injured * At trial, a neurological surgeon testified that the child’s injuries were caused by severe shaking.  Further exams showed that the child had various injuries that were consistent with child neglect and abuse.  Brown was charged with and convicted of first-degree murder and child neglect for his role in his child’s death. Brown appealed to the state supreme court. o Rule * An individual can only be convicted of a crime if the prosecution demonstrates that he has fulfilled every element of the crime beyond a reasonable doubt. o Application * Brown cannot be convicted of first-degree murder because first-degree murder requires the killing of another to be premeditated, and Brown’s killing of his child was not premeditated. * An individual can only be convicted of a crime if it is determined that he has fulfilled every element of the crime beyond a reasonable doubt.  If even one element is missing, the individual cannot be found guilty of that crime. * Here, Brown’s actions were heinous and his treatment of his child was nothing short of despicable, but he did not premeditate that his child would die on the night in question. * He intended to harm his child, as he had done many times in the past, but he did not ever intend to cause his child’s death. * Because his child’s death was not premeditated, Brown cannot be found guilty of first-degree murder. * However, Brown’s actions were malicious toward his child, and he can be found guilty of second-degree murder. * Second-degree murder has no premeditation element, and is thus the proper charge and conviction. o Conclusion * Brown’s conviction is reduced to second-degree murder and the case is remanded for sentencing proceedings.

Answer 84

* Some states specify that intent to commit SBI constitutes malice aforethought, preventing D from arguing that intent was only to seriously injure o What constitutes serious injury may be defined by statute o Usually risk of death, extreme pain, disfigurement, but may be broadly defined * Same act likely to be captured by depraved heart murder or deadly weapon rule

Answer 85

1. Subjective knowledge of(or D "realized or reasonably should have realized" a. Courts usually require actual knowledge, not "should have known" 2. An extreme risk/grave risk a. Malone: discusses statistical likelihood b. Knoller: awareness of statistical likelihood not required c. Beckwitt: reasonably likely, if not certain, to cause death 3. Of death (or sometimes serious injury) a. Knolle: knowledge of death risk required b. Beckwitt: seems to contemplate risk of injury as enough 4. Indifference to human life a. Aggravated form of recklessness b. May be established simply by the taking of an extreme risk c. Other factors may indicate especially callous indifference (e.g., Knoller) * Note that specific standards vary, e.g. Knoller (knowledge of death risk required, but not awareness of a statistical likelihood)

Answer 86

* Did D have a good reason for taking the risk? o EX: if no, this weighs in favor of factor #W4: that there was indifference to human life * Did D do anything to mitigate the risk or respond afterward? * Was the risk-taking inadvertent (D was not aware) * MPC incorporates as "recklessly under circumstances manifesting an extreme indifference to human life" (not defined in 2.02)

Answer 87

* Conduct shows intent rather than general malice: "particular person exclusion" or "more-than-one-person" requirement (Noor) * Conduct covered by a specific statute mandating another type of homicide

Answer 88

* The mental state necessary for depraved mind murder is a generalized indifference to human life and… cannot exist when defendant's conduct is diected with particularity at the person who is killed * “Particular person exclusion” (or a “more than one person requirement”) = conduct must endanger a lot of people, not one specific person (Noor, but NOT the rule in every state).

Answer 89

1. Accidental 2. Ordinary negligence 3. Criminal negligence 4. Recklessness 5. Extreme recklessness manifesting indifference to human life 6. Intent 7. Premeditated or deliberate intent

Answer 90

o Facts * Malone (defendant), age 17, and his mother were staying with the family of William H. Long, age 13. * Malone obtained a gun from his uncle and Long obtained a cartridge from his father’s room. * Both say in the rear of a store when Malone suggested that they play “Russian poker” (also known as Russian roulette).  Long consented and Malone then placed the revolver against the right side of Long’s head and pulled the trigger three times.  The third time Malone pulled the trigger, the cartridge fired striking Long.  Long eventually died from his wounds. Malone was charged with murder. o Procedure * At his trial, Malone testified that he had no intention of harming Long. Malone was found guilty of second-degree murder and he appealed, arguing that the facts only warranted a conviction for involuntary manslaughter. o Rule * If an individual commits an act of gross recklessness for which he must reasonably anticipate that death to another is likely to result, he exhibits that wickedness of disposition and cruelty which proves he possessed malice. o Conclusion * The judgment of conviction is affirmed.

Answer 91

o Facts * Marjorie Knoller (defendant) and her husband Robert Noel were attorneys who acquired four large dogs from a client. * A veterinarian who examined the dogs for Knoller warned her that the dogs lacked any training or discipline and that they would be dangerous to keep at a home. He also implied that the dogs might attack humans. * Despite the warnings, Knoller and Noel picked up the dogs from their former owner. * While with the former owner, two of the dogs had attacked and killed the owner’s sheep and cat, and another ate his own doghouse. * The former owner expressed her concern about all the dogs and suggested that two of them be shot. * On April 30, 2000, Knoller and Noel brought two of the dogs to stay at their apartment. On January 26, 2001, the dogs attacked and killed Diane Whipple, who lived on the same floor. * Between the date Knoller and Noel brought the dogs home and the date of Whipple’s death, there were approximately thirty incidents in which the dogs were out of control or displayed threatening behavior. o Rule * A finding of implied malice requires that one act with a conscious disregard to human life. o Conclusion * Because it based its order granting a new trial on an erroneous definition of implied malice, the trial court must reconsider its order granting a new trial in accordance with this court’s opinion.

Answer 92

* Facts o Ruszcycyk (victim) called police after hearing a woman screaming behind her house. o When victim approached police car responding to her call, Noor fired his service weapon at her from the passenger seat and she died at the scene. * Noor did not know he was shooting the victim, he thought it was an ambush by somebody else. * Rule o the mental state required for depraved-mind murder cannot exist when the defendant's actions are directed with particularity at the person who is killed. * Application o The issue being appealed here is not whether Noor is criminally responsible for victim's death-- he is, and the second degree manslaughter conviction stands. o Issue here is whether, in addition to 2nd degree manslaughter, he can be convicted of depraved-mind murder. * Because conduct that is directed with particularity at the person who is killed cannot evince "a depraved mind, without regard for human life," Minn. Stat. § 609.195(a), and because the only reasonable inference that can be drawn from the circumstances proved is that Noor directed his single shot with particularity at Ruszczyk, we conclude that he cannot. o Noor is correct in arguing that a person does not commit depraved-mind murder when the person's actions are directed at a particular victim. The particular-person exclusion is simply another way of saying that the mental state for depraved-mind murder is one of general malice. * Conclusion o SCT reversed defendant's conviction for depraved mind murder because state presented insufficient evidence to prove that he acted with a depraved mind, without regard for human life o Accordingly, we reverse Noor's conviction of depraved-mind murder and remand the case to the district court for Noor to be sentenced on the second-degree manslaughter conviction.

Answer 93

* Facts o Khafra died in a fire while trying to escape from workplace conditions of his employer Beckwitt's home o Khafra worked digging tunnels at Beckwitt's home * Khafra met Beckwitt online where Khafra sought investors forhis business idea. Beckwitt invested but business failed. Khafra needed to repay the investment. Beckwitt feaared nuclear war so he would dig tunnels in his home. * Rule * Application o The evidence in this case shows that Beckwitt demonstrated a reckless disregard for human life by hiring Khafra to dig tunnels underneath his home where Khafra was completely dependent upon Beckwitt for food and supplies, there was a history of electrical failures in the tunnels, the basement was completely cluttered with trash and debris making escape difficult in the event of an emergency, Khafra could not easily call for or receive emergency assistance because Beckwitt had sought to conceal his location, and the door leading from the basement to the outside may have been locked. * Accordingly, the evidence was sufficient to support the conviction for gross negligence involuntary manslaughter o Although the case law fails to draw a clear line of demarcation between "reckless disregard" and "extreme disregard," the cases discussing the sufficiency of evidence for depraved heart murder intimate that the likelihood or certainty of death distinguishes it from mere gross negligence involuntary manslaughter. * Although the circumstances in this case were dangerous enough to sustain a conviction for gross negligence involuntary manslaughter, they were not so egregious as to indicate that death was the likely, if not certain result, so as to satisfy the malice element of depraved heart murder. Accordingly, the evidence was insufficient to support the conviction for depraved heart murder. * Conclusion o Conviction for second-degree depraved heart murder reversed. Conviction for gross negligence involuntary manslaughter affirmed. The evidence is insufficient to support a conviction for depraved heart murder, but is sufficient to support a conviction for gross negligence involuntary manslaughter. * Whereas gross negligence involuntary manslaughter, the "junior varsity" of depraved heart murder, requires a reckless disregard for human life, second-degree depraved heart murder requires an extreme disregard for human life

Answer 94

* Common law o Usually a killing with 'criminal negligence' * D should have been (or was) aware of a risk o Definitions of criminal negligence vary, from recklessness to gross negligence (more than civil) o Statutes may criminalize killing with ordinary (civil) negligence (see Williams) * MPC o Reckless killing = "consciously disregards a substantial and unjustifiable risk" of death * D must be aware of the risk and consciously disregard it o Note that a criminally negligent killing = "should be aware of a substantial and unjustifiable risk" of death --> negligent homicide, not manslaughter

Answer 95

* Recklessness and criminal negligence refer to a D's deviation from a "reasonable person" standard * MPC -- either conscious disregard or failure to perceive risk "involves a gross deviation from the standard of care that a reasonable person would observe in the actor's situation" * Depraved heart recklessness requires an even greater deviation * Begin by constructing the RP and then discuss degree of deviation

Answer 96

o Facts * Barnett Welansky (defendant) spent most of his evenings running a night club he owned in Boston. * The nightclub was a mix of various rooms, narrow hallways, and poorly marked exit doors. * Three of the emergency exits were in obscure locations, poorly marked, and accessible only to knowledgeable employees. * One of the emergency exits was blocked by a screen and several dining tables. Another exit was kept locked to prevent patrons from leaving without paying their bill. * Failure to stay under maximum capacity * During a three-week period, Welansky was in the hospital. * One evening during that period, a nightclub bartender asked an employee to turn on a light in a dark area of a room. * The employee lit a match to see the bulb, turned the bulb in its socket to light it, and blew out the match. * However, the flame of the match ignited a nearby palm tree, which then ignited a nearby low-hanging cloth. The fire spread rapidly. * The crowd of around 1,000 panicked and unsuccessfully tried to get out of the nightclub. Many patrons and employees were killed. o Rule * If a defendant owes a duty of care for the safety of business visitors invited to premises controlled by the defendant, the defendant acts wantonly or recklessly if the defendant intentionally fails to take appropriate care in disregard of the probable harmful consequences to the business visitors, even if the defendant did not subjectively foresee the risk posed by the unsafe conditions. o Application * Wanton or reckless conduct is intentional conduct, by way either of commission or omission where there is a duty to act, which involves a high degree of likelihood that substantial harm will result to another. * The standard for what constitutes wanton or reckless conduct is both objective and subjective.  A person does not need to subjectively foresee the deadly consequences of his omission to engage in wanton and reckless behavior.  Rather, it is enough that the person is subjectively aware of conditions that would cause a reasonable person to foresee a high likelihood of deadly consequences. * In this case, to convict Welansky, the prosecution was not required to prove that he caused the fire by some wanton or reckless conduct. It was sufficient for the prosecution to prove that death resulted from Welansky’s wanton and reckless disregard of the safety of the patrons. * Although Welansky was not present at the nightclub on the night of the fire, he still controlled its management.  He also was aware of the unsafe nature of the nightclub, including its lack of a sufficient number of accessible exits and its inoperative fire doors. * Welansky did not need to specifically foresee the risk of death caused by the unsafe conditions, so long as a reasonable person in his place would have foreseen it.  A reasonable person in Welansky's position would have foreseen the risk. o Conclusion * Accordingly, the judgment of conviction is affirmed.

Answer 97

o Facts * Native Americans Walter and Bernice Williams (defendants) were married. Walter was 24 years old, and Bernice was 20 years old. Before they were married, Bernice had two children. * The younger child, William, became sick when he was about 17 months old. William had an abscessed tooth that developed into an infection of the mouth and cheeks. * Walter and Bernice attempted to treat the problem using aspirin.  William’s cheek started swelling up, and he was not able to keep his food down. William’s cheek also started turning a bluish color. William’s tooth then became gangrenous, and his resistance was reduced due to malnutrition. After this, William suffered from pneumonia and died. * Walter and Bernice did not take William to the doctor because they did not realize how sick he was. Walter did not believe that a doctor or dentist would pull the tooth when the cheek was swollen. * Walter and Bernice were also afraid that if they went to the doctor, they would be reported to the welfare department, and William would be taken away from them. * If William had received medical treatment soon after developing gangrene, which has a particular odor, then the doctors could have treated his abscessed tooth and saved his life. o Rule * If a person commits ordinary negligence, i.e. fails to exercise ordinary caution that a reasonable person would exercise under the same or similar circumstances, and such negligence proximately causes the death of another, the person is guilty of involuntary manslaughter. o Application * If an individual fails to take the kind of caution that a reasonable person would exercise under similar circumstances, regardless of his ignorance, good intentions and good faith, he is guilty of ordinary negligence.  If such negligence proximately causes the death of another, then the individual is guilty of manslaughter. * Here, Walter and Bernice failed to take the kind of caution that a reasonable person would exercise under similar circumstances. * Here, the infant’s infection lasted for about two weeks.  During that period of time, Walter and Bernice had noticed that the child was fussy, could not keep food down, and that the child's cheek was swelling and eventually turned a “bluish” color. * Walter and Bernice gave the child aspirin during this critical two-week period thinking that the swelling would go down.  The evidence produced at trial showed that the Williamses did not understand the seriousness of the infant’s symptoms.  Further, there was no evidence that they were physically or financially unable to obtain the services of a physician to treat the child.  There was, however, sufficient evidence to prove that Walter and Bernice were sufficiently put on notice concerning the child’s symptoms and lack of improvement during the two-week period to have required them to obtain medical care for the child. * Their failure to do so is ordinary negligence. o Conclusion * The judgment of conviction is affirmed.

Answer 98

* Old common law-- categorical approach * Modern common law -- reasonable person approach * MPC -- "extreme mental or emotional disturbance" (EMED)

Answer 99

* Adequate o Aggravated assault/battery o Mutual combat o Commission of a serious crime against family member o Illegal arrest o Caught wife in act of adultery * Inadequate o Learning of adultery o Observing cheating by non-spouse o Trivial battery o Words alone (yet, exceptions were made…)

Answer 100

* Acted in heat of passion * Provoking event * D must have been subjectively provoked o Look at if the D was saying nonsensical things, red in the face, etc. * Reasonable person would have been provoked o Usually enough to show RP would be provoked (into some kind of emotional state, not just to kill) o Some courts ask if provocation "would have provoked an ordinary person to kill someone" * D must not have "cooled off" * Reasonable person would not have had time to "cool off" * Causal link between provocation, passion, and killing (generally V must be provoker) * "mere words" generally still insufficient, but this standard leaves room for words to be enough

Answer 101

1. D was suffering from an extreme mental or emotional disturbance (subjective) a. Can be emotional (heat of passion) or mental (diminished capacity) disturbance 2. Reasonable explanation or excuse for the EMED (semi-objective) a. Reasonableness determined "from the viewpoint of a person in the actor's situation under the circumstances as he believed them to be"

Answer 102

* EMED is broader o No requirement of failure to cool off (can be built up emotion) o No requirement of specific provocative act (can be combination of acts) o Need not be aimed at provoker * EMED is more (but not entirely subjective) o ""from the viewpoint of a person in the actor's situation under the circumstances as he believed them to be" * Individual history or characteristics more likely to be considered under EMED o But trend in CL has been to interpret reasonableness in an increasingly subjective manner

Answer 103

* Recklessness and criminal negligence refer to a D’s deviation from a “reasonable person” standard * MPC - either conscious disregard or failure to perceive risk “involves a gross deviation from the standard of care that a reasonable person would observe in the actor’s situation” * Depraved heart recklessness requires an even greater deviation * Begin by constructing the RP and then discuss degree of deviation

Answer 104

* Objective standard * Ordinary person, not ideal person * Role/context matters (reasonable married person, reasonable cop, reasonable parent) * Cultural context might matter * Age/demographic characteristics may be included (i.e., the reasonable 15-year-old) * Unique characteristics that make D especially excitable not usually included (i.e., not the reasonable person with a terrible temper or particular psych history)

Answer 105

* Even a neutral/objective standard is not truly neutral o Will jury imagine themselves? Who is on the jury? o Will jury imagine a hypothetical norm? Who is that? * Can you provide context to expand the scope of the reasonable person? o Incorporate information about cultural variety or specificity * Can you introduce evidence to show that the RP standard is biased against D? o Is D’s life experience difference from that of judge or jury? o Can you introduce evidence of implicit bias? o Has the legal standard historically protected a group different from D?

Answer 106

o Facts * George Ambro (defendant) and his wife, Ruth Ambro, were in constant marital discord for many months. During a group marital-counseling session, Ruth told George that she no longer loved him and wanted a divorce. * Ruth hired an attorney to start the process of marriage dissolution. * One evening, after the Ambros put their two children to bed, Ruth and George argued while they were cleaning the kitchen.  George was drying knives when Ruth yelled at him and said that the children were not his, that she was going to take the kids away from him, and that he would never see them again.  Ruth also called George an alcoholic and said that she had been having an affair with another man.  Ruth goaded George to kill her.  George stabbed Ruth in the heart, killing her. o Rule * Mere words are sufficient to cause serious provocation to support a conviction of manslaughter if they are the culmination of a series of adverse events. o Conclusion * Therefore, the judgment of the trial court is reversed, and the matter is remanded for a new trial.

Answer 107

o Facts * Albert Berry (defendant) and Rachel Pessah were married in May 1974.  Three days after their marriage, Rachel traveled alone to her home country of Israel.  Rachel returned on July 13.  Upon her return, Rachel announced to Albert that she had fallen in love with another man, he was coming to America to retrieve her, and she wanted a divorce. * Over the ensuing two weeks, Rachel alternated between taunting Albert with her involvement with the other man and expressing her desire to remain with Albert. * During one disagreement, Albert choked Rachel. She responded by deeply scratching him. The two continued to live together. * On July 22, Rachel initially told Albert that she wanted to engage in sexual intercourse with him, but then said she was saving herself for the other man. * When Albert prepared to leave the apartment, Rachel began yelling at him. Albert then choked Rachel into unconsciousness. Rachel was hospitalized, and Albert spent the next several nights away from the apartment. * On July 25, Rachel informed Albert that a warrant had been issued for his arrest. Albert returned to the apartment to talk to Rachel, but she was not there. Albert spent that night alone in the apartment. * On July 26, Rachel returned to the apartment. Upon seeing Albert, Rachel said, “I suppose you came here to kill me.” Albert responded with “yes,” then “no,” then “yes” again, before finally saying, “I have really come to talk to you.” Rachel began screaming.  Albert grabbed her by the shoulder to stop her from screaming. They struggled, and Albert strangled Rachel. The next day, police found Rachel dead. o Rule * Provocation by a defendant’s spouse that could arouse a passion of jealousy, pain, and rage in an ordinary man of average disposition supports a finding that the defendant was in the heat of passion during the homicide of the spouse. o Conclusion * The conviction of first-degree murder is overturned.

Answer 108

o Facts * Vidado Dumlao (defendant) shot and killed his mother-in-law. * At trial, Dumlao’s expert witness testified that Dumlao suffered from a paranoid personality disorder, which included pathological jealousy concerning his wife. * Dumlao’s trial testimony regarding his perceptions of the night of the shooting confirmed the extreme nature of his jealousy. o Rule * A murder charge may be reduced to manslaughter where the defendant was, at the time he caused the death of another, under the influence of extreme mental or emotional disturbance for which there was a reasonable explanation, where the reasonableness of such an explanation is determined from the viewpoint of a person in the defendant’s situation under the circumstances as the defendant believed them to be. o Conclusion * Accordingly, the case is reversed and remanded for a new trial.

Answer 109

* Facts o Defendant Michael Slager ("Defendant"), a former officer with the North Charleston Police Department, admitted that he "willfully" shot and killed Walter Scott ("Scott"), when Scott was unarmed and fleeing arrest. Defendant further admitted that his decision to shoot Scott was "objectively unreasonable." Based on those admissions, Defendant pleaded guilty to depriving Scott of his civil rights under color of law. o Slager stopped Scott's vehicle because brake light was out. Scott fled on foot, Defendant chased, and tasered Scott. o Scott got up and ran again, and, while Scott was unarmed, Defendant fired shots at Scott and killed him. * Rule o A defendant cannot negate his malice through sudden quarrel or heat of passion when he previously testified he was neither provoked nor angry. * Application o A defendant cannot negate his malice through sudden quarrel or heat of passion when he previously testified he was neither provoked nor angry. o Additionally, Defendant admitted that he "fired eight shots at Scott, and each of those eight shots were fired while Scott was unarmed and running away." Defendant's voluntary, intentional, and repeated discharge of his firearm at Scott as he attempted to run away "may be expected naturally and probably to cause death." * Conclusion o Finding no reversible error, we affirm Defendant's sentence.

Answer 110

* Act + no intent to kill/risk consistent with RP + (causation + concurrence) + death = no crime * Act + ordinary negligence + (causation + concurrence) + death = no crime unless statute * Act + gross negligence + (causation + concurrence) + death = involuntary manslaughter/negligent homicide * Act + recklessness + (causation + concurrence) + death = involuntary manslaughter * Act + extreme recklessness + (causation + concurrence) + death = 2nd degree murder/murder * Act + intent that is provoked or result of EMED + (causation + concurrence) + death = voluntary manslaughter/manslaughter * Act + unprovoked intent to kill + (causation + concurrence) + death = 2nd degree murder/murder * Act + premeditated/deliberate intent + (causation + concurrence) + death = 1st degree murder/murder

Answer 111

* Killing during the commission of a felony is murder (1st degree for specified felonies; 2nd degree for others) * Malice is implied from intent to commit felony

Answer 112

* Act: can apply to any participant in a felony, even if that person did not commit the act that directly resulted in death * Mens rea: Elevates recklessness, negligence, or even accidental killings to murder by implying malice from felonious intent * Causation: can apply to any death that occurs during felony, even if not proximately caused * Concurrence: can apply to act and results not motivated by the felonious intent

Answer 113

* Deterrence * Sanctity of life * Easing the burden of proof * Retribution * Tradition

Answer 114

* No separate felony murder rule * Recklessness manifesting an extreme indifference to human life is presumed if killing happen in course of specific felonies o Robbery, rape, deviate sexual intercourse by force or threat, arson, burglary, kidnapping, or felonious escape o Flight and attempt included o Presumption can be rebutted

Answer 115

* Limitless application of the felony murder rule would cover (a) any offense designated a felony; (b) any death, no matter how accidental, unforeseeable, or unconnected; (c) caused by any person in the vicinity --> what is left of the elements of murder and the difference between murder and manslaughter o States have adopted several rules to limit its reach

Answer 116

1. Only inherently dangerous felonies 2. Res gestae rule o Temporal and geographical proximity * But flight included o Causal connection 3. Some felonies can’t be used for FMR because they “merge” with homicide (requires independent felony) 4. Not used when killing carried out by third party, unless third party is co-felon (agency relationship)

Answer 117

* Only inherently dangerous felonies can be the basis for FMR prosecution. Approaches: o Facial: determine dangerousness by the elements. People v. James o As committed: determine dangerousness based on the facts of that case. Hines v. State

Answer 118

* The killing must be connected (time and place) to the felony & have a sufficient causal connection * Temporal/geographic: o Intent to commit felony must arise before or during the conduct causing death (Nay v. State) (no liability if D formed intent to rob after V was dead) o Flight is included in felony time People v. Bodely * Causal connection: o Causation approaches * But/for only (People v. Stamp) * Proximately caused by felony * In furtherance of or necessary for the felony (King v. Commonwealth)

Answer 119

* An assaultive felony cannot be the basis for a felony murder conviction (Rose v. State). * Approaches: o Question of fact for the jury (Rose) o Question of law for the judge (People v. Chun) o Even if assaultive, felony won’t merge if motivated by independent felonious purpose * A minority of states (Washington and Minnesota) reject the merger rule * RCW 9A.32.050 makes a killing 2nd degree murder when it occurs in the course “any felony, including assault, other than those enumerated in [first degree statute]”

Answer 120

* FMR does not extend to killings directly attributable to a third party (not D or accomplices) o Agency theory: D not responsible for acts of third parties, except those in an agency relationship (co-felons) o Proximate cause theory: D responsible for any death that is proximate result of felony because D set chain of events in motion (will depend on facts) * Some courts using this approach won’t hold D liable for death of co-felon at hands of V because the V’s act was justifiable (so no crime) o Note on “provocative act” rule: A form of depraved heart murder applied where D’s provocative act proximately caused the death (e.g., gun battle)

Answer 121

* What is the underlying felony? (How is it defined? Is it in 1st degree statute?) * How would the FMR apply? * Make sure you also identify other homicide theories. * Explain how FMR helps. (e.g., does it help you get around an act problem?) * Address each possible limit, including varying approaches * Emphasize and fully discuss the limits that you think might make the rule inapplicable * Note the differences between using accomplice, FMR, or both

Answer 122

1. Trespassory taking/carrying away personal property (asportation) o Assertion of control + some movement o If possession is lawful and intent to steal comes later --> no larceny (concurrence) 2. From the possession of another 3. With the intent to permanently deprive the owner o Honest belief in claim of right enough o Need not be reasonable (specific intent crime)

Answer 123

* If owner entrusts property to an employee or agent, owner retains "constructive possession" and taker receives only "custody" --> any later conversion (from custody to possession) of the property is still larceny despite the initial consented taking  Possession = sufficient control to use it in reasonably unrestricted manner  Custody = physical control but use substantially restricted by person in constructive possession * Created to address deceitful taking by agent who received custody by consent, but really intended to permanently deprive (see Rex v. Pear)

Answer 124

* Breaking bulk -- if someone has lawful possession of a package or container (such as for transport), he may still have only custody of the contents * If D opens the container and uses or sells the contents, he has taken possession (violated the owner's constructive possession) --> larceny

Answer 125

* Problem: what if D tricks V into giving her title, not just possession or custody? 1. D makes false statement (D must know of falsity) o Causes victim (causation) o To pass title to defendant (result) o Misrepresentation of fact, not just hollow promise 2. With intent to defraud victim via use of false statement * Fills a gap in larceny law because transfer of title would have defeated a larceny or larceny by trick charge

Answer 126

* Problem: what if the transfer of possession was lawful (not accomplished by deceit)? 1. Intentional conversion o Any act that seriously interferes with owner right to use it o Mere asportation/movement is not enough 2. Of property of another 3. By someone in lawful possession (or someone "entrusted") o E.g. bank teller who lawfully receives money from customers * Different from larceny by trick or false pretenses because initial taking not done via deceit (and so is lawful possession)

Answer 127

* Disability pension structure: o D receives pension B o Board sets income cap o D reports income o If over cap, board issues bill for amount due back o D pays back amount due * D earned income through an investigation business, withdrew a large amount each year from business account for personal use, then reported income below the cap * "whoever steals, or with intent to defraud obtains by a false pretense, or whoever unlawfully, and with intent to steal or embezzle, converts, or secretes with intent to convert, the property of another…, whether such property is or is not in his possession at the time… shall be guilty of larceny" * Is this larceny? o No, because he took the income before the board set the cap. So while there was intent to permanently deprive, he didn't take the property from the possession of another. * Is this larceny by trick? o He had possession, not custody, because he has basically unrestricted use. * Breaking bulk? o No, no containers. * False pretenses? o There is a false statement by underreporting his income, and this was with the intent to defraud the victim. * Embezzlement? o Not embezzlement because while he is in lawful possession of the money, but he is not an entrusted person in lawful possession

Answer 128

1. Was transfer of title involved? o Yes --> check for false pretenses o No --> check for larceny or embezzlement 2. Did the defendant obtain the property by consent/lawfully? o Yes --> check for embezzlement or larceny by trick o No --> check for larceny 3. Did the defendant obtain the property by deceit? o Yes --> check for false pretenses or larceny by trick o No --> check for larceny or remember, there is probably a statutory crime that covers it

Answer 129

* Trespassory entry or "breaking" o Some jurisdictions require only unconsented entry o Some retain force requirements o Some retain night requirement * Into a structure o A residential structure always counts * With (specific) intent to commit a crime o Usually larceny or another felony o No need to consummate crime * The burglary is finished through the breaking-- it doesn’t matter if the underlying felony is not completed o Complete once entry occurs

Answer 130

* Felonious intent o Generally intent to permanently deprive the owner of property * Force or putting in fear as a means to effectuate intent o Without the force or fear, this is larceny o Doesn't have to be actual violence, but threat * EX: something as simple as looking meanly at someone * Taking or carrying away property of another o Requires completion, but you don't have to get very far away (same asportation as for larceny)

Answer 131

* Jose went into a changing room at a they beach and accidentally left his pants in the stall. The pants held a wallet with $200 in it. Jose went back to get them, but they were gone. He heard someone opening Velcro in another stall, so he peeked over the top. Miller, who was in the stall, would not come out. He kept asking people for toilet paper. Jose’ friend Dennis knocked and demanded Miller come out. Dennis threatened to call a lifeguard. Miller came out of the stall and charged Jose and Dennis, shoving them as he tried to leave. Dennis put Miller in a headlock, and Miller handed over the empty wallet * “The felonious taking of personal property in the possession of another, from his person or immediate presence, and against his will, accomplished by means of force or fear” * Is there enough evidence to support a robbery conviction if the jury believes Miller took the money? o Two perspectives: * The taking was complete when the wallet was picked up. The force was long after that, so it was not robbery because no force during the taking. * The whole event was one long transaction of taking. The whole part of picking up the wallet and running away with it was part of the taking, and there was force during this, so it was robbery.

Answer 132

* Dale Thibeault entered the apartment of David and Debbie Gardner with intent to take valuables (which he successfully took). David testified that he was friends with Dale and had given him “blanket permission” to enter apartment anytime. David did not give Dale permission to take any property. Does the intent to take, if proven, negate any consent given to enter? * “enters or surreptitiously remains in a structure knowing that he is not licensed or privileged to do so, with the intent to commit a crime therein”

Answer 133

o Justification: Did D do the right thing (the thing society would have wanted) in a given situation?  Necessity  Self-defense  Defense of others  Imperfect self-defense  Defense of habitation  Defense of property o Excuses: Is the individual D culpable?  Duress  Insanity  Diminished capacity * Can be both case-in-chief defense and affirmative defense  Infancy  Intoxication * Can be both case-in-chief defense and affirmative defense  Entrapment

Answer 134

Common law 1. Balance of harms 2. Clear and imminent danger * From nature/circumstance 3. Reasonable belief that act will alleviate harm (causal link) 4. No legal alternative 5. Legislature has not spoken * Has the legislature anticipated the situation you are in and criminalized it? * D not at fault * Not available for homicide MPC 3.02 1. Balance of harms * No imminence requirement 2. Reasonable to believe act is necessary to avoid harm 3. Legislature has not spoken * Not available for reckless or negligent offenses if D was reckless or negligent in getting into situation.

Answer 135

Common law 1. Threat of imminent death/grievous injury * From a human being * To D or family member (old rule) 2. Reasonable belief that threat was real 3. No reasonable escape through compliance * Threat continues * Must submit to authorities at first chance * D not at fault for exposure to threat * Not available for homicide * Except felony murder MPC 2.09 1. Use or threat of unlawful force against D or third party * No imminence or deadliness requirement * Need not be family member 2. Reasonable person would not be able to resist coercion * Imminence may matter here * Ability to escape may matter * D didn't recklessly place himself in situation * D who negligently places himself in situation has no defense to negligent crime

Answer 136

Duress * Threat must come from human being * Excuse defense -- act is a crime, but D is not culpable because of threat * Can be a complete defense * CL requires imminent threat * CL requires that threat be deadly * MPC defense not available where D recklessly placed self in danger * CL defense not available for murder, but MPC may be * Personal threat to D Necessity * Threat can come from events or situations (sometimes can be from a human) * Justification defense -- when D chooses lesser of two evils, result is not a crime * Can be a complete defense * CL requires imminent threat * No deadliness requirement -- balance of harms * MPC defense may be available to reckless D (no no-fault requirement) * CL defense not available for murder, but MPC may be * D acted in interest of general welfare

Answer 137

* Evidence of involuntary intoxication generally admitted o As case in chief defense to negate the mens rea o Sometimes as affirmative defense (cause of temporary insanity) * Voluntary intoxication o Historically disallowed o Common law jurisdictions now generally allow it for specific intent crimes as relevant show lack of mens rea * MPC 2.08 o Voluntary intoxication admissible only to negate mens rea (not recklessness or negligence) o Involuntary intoxication can be affirmative defense

Answer 138

* D less culpable because of mental or emotional defect not legally sufficient for insanity o Mens rea variant: If D lacked requisite mens rea because of mental defect à element not proven à complete defense o Partial responsibility variant: D less blameworthy than others à partial affirmative defense * Incorporated into MPC via “extreme mental or emotional disturbance” * “Other” defenses, including “cultural defense,” may fit here * Under CL, not really any structure of this. A lot of things that don't fit anywhere else may fit in here.

Answer 139

o Imminent threat (fear + immediacy) o Force is proportional to threat (deadly threat = deadly force)  Still must be necessary  Deadly force not justifiable to prevent harm to property  Even if deadly force is the only way to stop non-deadly force, it is not justified o Force is necessary to stop threat (retreat, de-escalation, requires lesser force all required)  Defense cannot be used if retreat is possible  Deadly force cannot be used if non-deadly force would suffice  Cannot be used if D was initial aggressor, unless V escalates non-deadly conflict to deadly one o Fear/belief in above factors is reasonable  Some characteristics and situational factors specific to D may be considered o [procedural: affirmative defense)

Answer 140

o Imperfect/unreasonable self-defense o Defense of others o Defense of habitation o Defense of property o Prevention of crime o Apprehension of criminals o Castle doctrine o stand your ground

Answer 141

o Imminence – force must be immediately necessary o Necessity  Force must be immediately necessary  Deadly force not justifiable if D was initial deadly aggressor (if D provoked force with purpose of causing death or SBI)  Defense not available if safe retreat is possible, unless in dwelling or workplace o No reasonableness requirement – force is justified when actor believes it is necessary for protection o Imperfect self defense

Answer 142

o Facts: Goetz on train. Kids asked for money and had screwdrivers. Goetz shot all of them. o Rule: Right to use deadly force in self-defense has an element of objective reasonableness

Answer 143

o Facts: Simon’s neighbor was Asian and Simon thought he was a martial arts expert. Simon fired shots at neighbor. o Rule: For self-defense, trier of fact should use an objective standard.

Answer 144

* We consider physical size, age, physical surroundings, prior knowledge. * Usually consider D’s stereotypes unless explicitly addressed * Usually don’t consider circumstances prior to altercation, but can be argued. * Might consider race, gender, and culture of D. * Don’t consider unique psychological characteristics.

Answer 145

o Facts: Wife beaten by husband. Ran away and was caught again and he threatened her. He went to sleep and she killed him. o Rule: In cases involving battered-woman syndrome, self-defense jury instruction is warranted only if facts show that wife was in imminent danger close to time of killing.

Answer 146

o Facts: D left son with friend. Son almost abducted by neighbor. Neighbor enterd neighbor’s home when D was there. D was startled and shot victim. D was 5’4 woman with broken leg. o Rule: The justification of self-defense requires a subjective standard of reasonableness that takes into account all facts and circumstances known to defendant.

Answer 147

o D can come to 3rd party’s aid if 3rd party would have self-defense claim o Some jurisdictions have an act-at-peril rule: if D is wrong and 3rd party doesn’t have right of self-defense, D loses defense. o Modern rule: a reasonable mistake of fact as to 3rd party’s right of selfe defense.

Answer 148

o Defense of habitation & defense of automobile o Killing:  To stop any forcible felony  In defense of home  In defense of automobile  To stop a fleeing felon o Castle doctrine, stand your ground laws o Bare fear laws o Presumption of justidication: Defendant can skip proving that suspect was going to pose a threat o Civil immunity

Answer 149

o EXAM: run through self defense first, then ask if jurisdiction has defense of habitation or property rule, then discuss what would happen then. o It depends on the statute. But usually it is the same self-defense elements, but with proportionality relaxed so you can respond to force against property with physical force.

Answer 150

o The imminence requirements may be relaxed by:  Use of BWS/social framework testimony to explain why ongoing threat may exist even if it appears no threat is imminent at that moment (Stewart)  Defense of habitation (presumption of deadly threat when intruder enters home)  Presumption of deadly threat in other circumstances, such as entry into vehicle

Answer 151

V raised a hammer at D on D’s porch. D argued rebuttable presumption of reasonable fear when intruder in home. Court said no presumption because V was not in D’s home. So, D is left with the standard self-defense instruction.

Answer 152

o Think of it as skipping the imminence threat. Or, it could relax the proportionality element. Legislature is saying if there is an intruder, you can respond with deadly force.  In contrast to skipping the imminence threat, relaxing proportionality is not saying that we presume all intruders pose an imminent threat. o Defense of automobile laws are similar to defense of habitation o Whether it relaxes imminence and/or proportionality:  It depends on the statute, it depends on how the statute is written and phrases it.  Every state has some version of defense of habitation, but they vary in some way. Some include attempt, some don't. o Same as castle doctrine? o Some jurisdictions require unauthorized entry for purposes of committing a felony o Others require unauthorized entry for purposes of committing a dangerous ("forcible and atrocious") felony (Ceballos)  Burglary would not suffice unless circumstances made it dangerous (Ceballos; Quesada) o Home usually requires occupied dwelling (Ceballos; Quesada) and excludes unenclosed porches (Brown) o Does not permit use of deadly mechanical devices in lieu of personal self-defense (Ceballos)

Answer 153

o The proportionality requirement is relaxed by laws that permit the use of deadly force in situations besides those where an imminent deadly threat is present o Deadly force justified in response to rape, kidnapping, robbery (Goetz) o Deadly force justified to stop commission of felony or apprehend a fleeing felon  Generally limited to dangerous felonies, e.g., rape, kidnapping, robbery, mayhem, or others if dangerous by their circumstances  Burglary when no person is present likely not a dangerous felony for these purposes (Ceballos, Quesada) o Deadly force justified to prevent unlawful entry to home (where no threat of violence is required) o Deadly force justified to prevent entry into motor vehicle o Deadly force permitted to protect property

Answer 154

D set trap gun in garage to defend property. V was shot when D wasn’t home. Self-defense didn’t apply because nobody in garage. No fear of great bodily harm, so deadly force was not proportional.

Answer 155

D killed burglar after house was burglarized. Court said burglary committed when nobody is home isn’t an included felony that makes self-defense justifiable.

Answer 156

o The necessity requirement may be relaxed by:  Use of social framework/BWS testimony to show why alternatives were not actually available  No duty to retreat in home ("castle doctrine")  No duty to retreat in workplace or vehicle  Retreat not required anywhere ("stand your ground")  Removing initial aggressor limitation

Answer 157

o The right of self-defense may be expanded by shifting the burdens or altering procedural rules.  Shift the burden: instead of D showing that killing was justified, P has to prove that it wasn’t once self-defense has been raised  Protection against criminal and civil liability for self-defense cases

Answer 158

o Principal -- the person that meets the element of the target crime. * EX: Group of people doing a robbery. The principal is the one actually doing the robbery. o Accomplice -- anyone who is helping the principal o Innocent instrumentality -- someone that helps the principal but doesn't know it.

Answer 159

* Attempt -- failed or thwarted crime. o Lesser included offense by principal actor; punished less severely than target crime. * Solicitation -- asking X to commit a crime. Separate offense by third party; usually a misdemeanor * Conspiracy -- agreeing to commit a crime. Separate offense by principal & third party.

Answer 160

1. What is the target crime? 2. What are its elements? 3. MR: Did D have the specific intent to commit the target? 4. AR: did the acts committed satisfy the applicable actus reus standard? (Would it be different in another jurisdiction?) 5. Check for a request or agreement with others (solicitation or conspiracy) 6. Check for abandonment or impossibility issues

Answer 161

* Specific intent to commit the target crime (mens rea) + o If target crime X requires only recklessness or negligence, attempted X still requires specific intent (People v. Harris) * Substantial step towards commission (actus reus) o Step must be more than "mere preparation" o CL and MPC rules are different

Answer 162

* Intent to agree (mens rea1) + * Specific intent to commit target crime (mens rea2) + * Agreement to commit target crime (actus reus) + * Overt act in furtherance of the conspiracy (MPC approach)

Answer 163

o Specific intent that a third party commit target crime (mens rea) + invite, request, command, hire, or encourage a third party (actus reus) * = attempted conspiracy * = attempted crime if 3rd party is ‘innocent instrumentality’

Answer 164

* CL attempt: standards such as 'dangerous proximity' or 'immediate nearness' look forward at how much is left before crime is completed (People v. Rizzo) * MPC attempt: "substantial step" that is "strongly corroborative of criminal purpose" looks backward at what has already been accomplished and permits conviction for acts further away from completion (State v. latraverse) * Conspiracy: time of the offense is time of the agreement, so conspiracy liability may attach earlier than attempt liability * Solicitation: offense is completed upon asking, but does not require agreement

Answer 165

D and friends planned to rob V. They drove around looking for V but didn’t find him. Court said there was no attempted robbery because they didn’t find the V.

Answer 166

D drove around with tools, looking for V that was going to testify against him. o Actus reus of attempt was proven. D took substantial step sufficient for attempt. o Criminal plan was abandoned. MPC recognizes abandonment defense "when circumstances manifest a complete and voluntary renunciation of criminal purpose" so LaTraverse can argue it. Rejected the view that abandonment cannot be a defense once attempt is completed. Not voluntary if a response to risk of detection; not complete if simply postponed to another place or time

Answer 167

* MR = purposely * AR = either o Engages in conduct that would be a crime if circumstances were as D believed (no mistake/impossibility defense), or o Does or omits to do anything that constitutes a substantial step in a course of conduct planned to culminate in commission of offense * Substantial step must be "strongly corroborative of" criminal purpose * 5.01(2) lists acts that are substantial steps as a matter of law, but other acts may be too

Answer 168

* Pure legal impossibility (i.e. target act is not a crime) o Factual impossibility (not tested) or hybrid legal impossibility may be a defense (but not under MPC and not in most states) (US v. Thomas) (MPC 5.01) o Inherent factual impossibility (there is no way acts can actually result in the crime) also recognized at CL and MPC 5.05(2) retains flexibility in these circumstances * Abandonment recognized by some courts (mostly MPC) as defense o Of an attempt requires voluntary and complete renunciation of criminal purpose (State v. latraverse) (MPC 5.01) o Of solicitation requires voluntary and complete renunciation + dissuade/prevent 3rd party (MPC 5.02) o Of conspiracy requires communication of withdrawal to co-conspirators (and sometimes dissuading or thwarting them) (MPC 5.03) and may only be a defense to derivative liability for later crimes

Answer 169

V passed out at bar. Ds raped her, but she was dead. Rape required live victim, but attempt/conspiracy did not. Court adopted MPC position that impossibility is not a defense to attempt/conspiracy.

Answer 170

* Defense 2: criminal plan was abandoned * MPC recognizes abandonment defense "when circumstances manifest a complete and voluntary renunciation of criminal purpose" so LaTraverse can argue it o Rejected the view that abandonment cannot be a defense once attempt is completed. * Purpose is "the hope that individuals will desist from pursuing their criminal designs." * Not voluntary if a response to risk of detection; not complete if simply postponed to another place or time.

Answer 171

* Accomplice who assists P in crime is liable for same crime. Usually punished equally o Accessory after the fact (assistance after crime is already done) may receive lighter punishment. o Accomplice is not its own crime.

Answer 172

o 1. What crimes were committed? (Separate them & analyze each) o 2. Which D actually committed the AR of the crime? –(this is the P)  Different Ps for different crimes? Someone might be a P in one crime and an A for another. o 3. Did P commit the target crime?  Analyze P’s crime element by element.  If not, then no accomplice liability. If P has a complete defense, then no accomplice liability. o 4. Does A satisfy the elements of accomplice liability?  MR is same as target offense. o 5. Check for alternatives (conspiracy, felony murder, reckless homicide)

Answer 173

o Intent to render assistance (MR1) + o Intent that P commit target crime (MR2) +  Does not require specific intent. MR just has to match the MR of the target crime.  Majority says knowledge that P plans to commit target crime is not enough. Some jurisdictions say knowledge is enough.  MPC requires purpose.  Knowledge of specific circumstances is not required.  MR of target offense is all that is required for accomplice liability. Could be only recklessness or negligence. * State v. Foster: State had to prove MR for criminally negligent homicide. o Assistance (AR)  AR is a low bar.  AR = assistance  Presence + failure to stop crime is not enough UNLESS P has legal duty or provides encouragement * Pace v. State: Negative acquiescence is not enough to constitute a person guilty of aiding and abetting  not an accomplice  CL: A must actually help, but doesn’t need to cause outcome of the crime.  MPC: Attempt to aid is enough. Doesn’t need actual assistance.  Trivial assistance is enough (no requirement that assistance be a but-for cause of the crime) o MPC:  AR = soliciting, aiding or agreeing or attempting to aid, or failing to make a proper effort to prevent crime where A has legal duty to do so. * Does not apply to victim or inevitably incident conduct.  MR = with purpose of promoting or facilitating commission of the offense * In a result crime, A need only act with the kind of culpability, if any, with respect to that result that is sufficient for the commission of the offense.  A can be convicted even if P is not, or P’s offense is different offense or degree

Answer 174

o If P feigns criminal intent and A assists, A is not liable if P is not liable. o If A feigns criminal intent to assist P, A may not have MR2.

Answer 175

o Abandonment  CL: requires communication and efforts to neutralize  MPC: terminating complicity prior to commission of offense and either wholly depriving the aid of effectiveness or making proper effort to prevent the crime o A lacked MR for target offense (even if A assisted P) o No crime was committed (P lacked mens rea or P was justified)

Answer 176

* Conspirator may be liable for crime committed by co-conspirator in furtherance of conspiracy, and it is also a separate offense.

Answer 177

o Intent to agree (MR1) + specific intent to commit target crime (MR2) + agreement to commit target crime (AR) + overt act in furtherance of conspiracy (CL did not require this; MPC does not require for certain felonies)

Answer 178

o AR = “agrees with such other person or persons that they or one or more of them will engage in conduct that constitutes” target crime or attempt or solicitation, or “agrees to aid . . . in the planning” of the offense.  One agreement for multiple target crimes = single conspiracy  No conviction unless “overt act in furtherance” by one C is proven (except for 1st and 2nd degree felonies) o MR = with the purpose of promoting or facilitating its commission” o Scope: If two sets of conspiracies are linked by common C and the others know of this, all are conspirators of each other, even if they don’t know each other or meet. o Duration: Ends when objective accomplished, conspiracy is abandoned by all, or no overt done is specified time. One Cs involvement may terminate if she advises co-Cs of abandonment or tells police. o Conspiracy merges with target offense (1.07(1)(b)).

Answer 179

o AR = agreement (+ overt act) o Who must agree? * Bilateral (CL) approach: meeting of minds required, so at least two people must agree and C2 can’t be convicted if C1 is not also convicted à feigning co-conspirator (if there are only two conspirators) invalidates conspiracy * You only need at least 2 people to conspire * Unilateral (MPC) approach: focuses on intent of D, so it is enough that one person believed an agreement was made even if the other is feigning * Person that believed they were conspiring would be convicted. o Wharton’s rule: crimes requiring two people cannot be the basis for conspiracy charge, except if third party is involved * EX: Adultery requires 2 people. You can't charge them with adultery and conspiracy. o What counts as an overt act? * Anything at all that confirms the criminal purpose (need not be enough for attempt) * MPC requires overt act for all but 1st & 2nd degree felonies

Answer 180

o MR = intent to agree + intent that target crime be committed  As long as all Cs intend that target crime will be committed by one of them, all Cs have MR2  Requires specific intent to commit target crime, as in attempt * People v. Swain: Conspiracy to commit murder cannot be based on theory ofimplied malice. Needs intent to kill. o Intent may be inferred from knowledge in limited circumstances (People v. Lauria)  People v. Lauria: * Intent can be inferred from knowledge based on (1) special interest in the activity or (2) the aggravated nature of the crime. o Knowing about and failing to report serious crimes is sometimes treated as criminal. These obligations may allow “knowledge of criminal intent use alone may justify an inference of … intent” in some cases. o Concerning the liability of a supplier whose services are used for a misdemeanor, ”positive knowledge of the supplier that his products or services are being used for criminal purposes does not, without more, establish an intent of the supplier to participate.” o Special interest may be shown by (1) excessive charges, (2) services without a legitimate purpose, (3) unusual quantity.

Answer 181

o Abandonment requires voluntary and complete renunciation + effort to thwart success of conspiracy (MPC)  Common law may not recognize o Impossibility (MPC rejects, most CL jurisdictions do too) o Case in chief defenses: no bilateral agreement; no intent that target crime be committed

Answer 182

o Attempt usually merges if target is completed. CL: Conspiracy does not merge. (MPC: Conspiracy does merge.) o Act requirement for attempt may require near-completion. Act requirement for conspiracy is the agreement. Even in an overt act jurisdiction, the act required for conspiracy may be minimal and far from completion. o Both are specific intent crimes (no attempt or conspiracy for a reckless or negligent offense), but conspiracy can sometimes be based on knowledge (in situations where you can infer purpose from knowledge) o Code never recognizes defense of impossibility; common law sometimes does. o An accomplice must assist, but conspirator does not. o EX: C agrees to work with B to produce counterfeit money. B procures the equipment and prints the bills at B’s house. C is not an accomplice but is a conspirator. o A conspirator must agree, but accomplice does not. o EX: A, who is B’s roommate, was not part of C and B’s agreement to manufacture counterfeit money. While B is printing a batch of money, the power strip he is using breaks. B asks A to run out and buy a new power strip. A does so, knowing that B needs it to finish his counterfeiting print job. A is an accomplice, but not a conspirator. o A conspirator must have specific intent to commit the target crime, while an accomplice just needs to have the target crime's mens rea. o EX: A and B decide to borrow A’s mother’s sports car and go joyriding around the suburbs. A sneaks the keys. A and B are both drinking and doing cocaine. B is driving, and A is cheering B on. B fails to slow at a flashing crosswalk sign, hitting and killing a pedestrian. A is an accomplice to B’s homicide, but not part of a conspiracy to commit homicide. o Only one conspirator must commit an overt act. o EX: A, B, and C agree to break into a closed shopping mall in order to steal clothes. A schedules a Zoom meeting between all three participants and screen-shares maps of the mall’s layout. After the meeting, C becomes ill and does not participate further. A and B finish planning, enlist the assistance of a getaway driver, and procure the tools. A walks with B to the entrance and acts as a decoy/lookout while B carries out the burglary and larceny. A, B, and C are conspirators. Only A (and the getaway driver) are accomplices.

Answer 183

* How might a person be liable for the crimes of a third party? 1. As an accomplice. 2. As a co-conspirator. 3. As a participant in a felony via the felony murder rule.

Answer 184

A. Accomplices are liable for (1) any crimes where they assist and have MR and, in some jurisdictions, (2) any crime that is a natural and probable consequence of the initial assistance. B. Co-conspirators are liable for (1) the crime of conspiracy and, in some jurisdictions, (2) any crime that is committed by a member of conspiracy that in furtherance of it and reasonably foreseeable. C. Direct participants in a felony may be liable for any death that results under the FMR , no matter who caused the death. D. A person might also be an accomplice to a felony (but not a direct participant) and liable through accomplice + FMR.

Crim Law Flashcards

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