crimlaw in a pinch Flashcards
(131 cards)
1
Q
diff between mens rea of negligently and recklessly?
A
Recklessly: [Subjective, Objective] [S] Acts recklessly when Δ consciously disregards a substantial and unjustifiable risk that the material element exists or will result from Δ’s conduct; [O] disregard must involve a gross deviation from the standard of conduct that a law-abiding citizen would observe
Negligently: [Objective] Acts negligently when Δ should be aware of a substantial and unjustifiable risk; must involve a gross deviation from standard of care that a reasonable person would observe
2
Q
what’s transferred intent?
A
• MPC §2.03: Causality
o (2)(a) transferred intent (if you accidentally kill wrong person, intent transfers)
3
Q
what’s the Terrible Choice Doctrine?
A
Stephenson v. State (IN, 1932)
Δ abducts women and tortures her sexually; women bought poison tablets and took them; Δ delayed in getting emergency medical treatment; Δ loses for murder
• Preslar: D is not guilty for murder when his wife left without necessity and died from exposure to the cold.
• Valade: D is guilty for murder when his sexual assault victim jumped out the window out of necessity to escape him to her death.
• Holding: Women was rendered mentally irresponsible as a result of the environment that Δ created; woman’s suicide was necessary, natural, and probable cause of Δ’s abuse
• Masur: Terrible Choice Doctrine – Women was not mentally irresponsible, she just had to choose between terrible options. This does not cut off the causal chain. SEE KERN
• Discussion: Court had to rule that victim was rendered mentally irresponsible by Δ’s actions to find that her suicide did not cut off the causal chain
People v. Kern (NY 1989)
Δ and friends assaulted group of black men, Kern et al. chased the men with weapons, threatened to kill them, Griffith tried to escape by crossing parkway, was hit by a truck
• Holding: Terrible Choice Doctrine – Kern guilty because created the situation: Griffith stuck between two terrible choices (stop and be possibly killed by Kern or run across road and possibly be hit and die), Griffith’s choice and eventual harm were foreseeable
4
Q
how does intoxication affect mens rea?
A
Voluntary intoxication may negate a mental state of purpose or knowledge but not a mental state of criminal recklessness or negligence. Voluntary intoxication may negate a specific intent but not a general intent to commit a crime.
5
Q
Model Penal Code on actus reus
A
• MPC §2.01(1): Not guilty unless liability is based on conduct which includes a voluntary act or omission to perform an act the actor is physically capable of
• MPC §2.01(2): Acts that are not voluntary: (a) reflex / convulsions; (b) movement during sleep / unconsciousness; (c) hypnosis; (d) not from effort or determination of actor (either conscious or habitual)
o Masur: overinclusive ex: hypnosis, underinclusive ex: trauma
6
Q
Contemporary Circuit Split on Martin’s application when an individual is arrested for another reason and brought to jail with a controlled substance on their person
A
• Possession Voluntary:
o Example: In California, Low: Δ had opportunity to avoid the prohibited act by relinquishing the controlled substance prior to arriving at jail, so guilty
o Example: In North Caroline, Barnes: necessary voluntary act occurred “when the Δ knowingly possess[ed] the controlled substance”
o Rationale: Do not want to enable the drug trade in jails or prisons
• Possession Involuntary:
o Example: In Washington, Easton: Δ’s only option to relinquish the controlled substance would result in a different prosecution, so no volitional choice
o Rationale: Do not want to force people to incriminate themselves in America
7
Q
MPC on possession
A
• MPC §2.01(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
o Under MPC: guilty because was capable of terminating possession
8
Q
a few reasons why we don’t punish thoughs?
A
- Cogitationis poenam nemo patitur: No one is punishable solely for their thoughts
- Blackstone: Crime requires both the will and the act because courts cannot search hearts
- Stephen: If thought crime was real crime, all men would be criminals – unadministrable
- Dworkin & Blumenfeld: Hazy continuum of indistinguishable wishes and intentions (fav)
- Williams: Individuals have the power and will to restrain from actualizing wishes
- Goldstein: excluding successfully prevented crimes key to deterrence – otherwise no point
9
Q
when is omission allowed?
A
• MPC §2.01(3): Liability may not be based on omissions unless: (a) omission is expressly made sufficient by the law defining the offense, or (b) Δ has a duty to perform the omitted act otherwise imposed by law
10
Q
when do relationships mandate a duty of care?
A
• Special relationships
o 1 way: Parents to minor child; Captain to crew/passenger; bartender to drunk
o 2 way: Spouses to each other; not siblings (only enforce relationships chosen)
• De Facto Special Relationships Circuit split:
o Beardsley: Man lets mistress overdoes in his presence. NL – not de facto spouse
o Carol: Stepmother fails to stop dad from killing his child. L – de facto mom
o Miranda: Live-in bf fails to stop gf from killing her child. NL – not de facto dad
o Difference: (1) gender bias (2) Do not want to disincentivize third parties from taking an interest in an at-risk child for fear of liability via special relationship (Masur disagrees: no one considers liability in forming relationships) (3) Carol married, so some form of legal relationship unlike Miranda and Beardsley
• Additional duty to aid from torts: MPC §2.01(3)(b)
o If one has put another in a dangerous position, she owes that person a duty to aid
Omitting aid establishes a higher mens rea, and greater penalty
E.g., if A recklessly runs into B and B falls into the water. A has a duty to save B. If A chooses not to, this implies a much more culpable state of mind, enabling the prosecutor to increase A’s level of liability
11
Q
what happens when a law doesn’t describe the level of culpability required?
A
o §2.02(3): Culpability of purposefully, knowingly, or recklessly is required if the law does not prescribe the required level of culpability
12
Q
what culpability is required for each element?
A
o §2.02(4): If law prescribes culpability and does not distinguish among material elements, MPC assumes it applies that level of culpability to all elements
13
Q
what level of culpability suffices based on which is listed in an act?
A
o §2.02(5): Substitutes; each higher level of culpability is valid if statute only requires a lower level
14
Q
what diff MR exist in the Model Penal Code?
A
Purposefully: [Subjective] Acts purposefully when: (i) if element involves nature of conduct or result thereof, Δ’s conscious object is to engage in conduct of that nature or cause that result; or (ii) if element involves attendant circumstances, Δ is aware of such circumstances or hopes/believes that they exist
Knowingly: [Subjective] Acts knowingly when: (i) if element involves conduct or attendant circumstances, Δ is aware that Δ’s conduct is of that nature or that such circumstances exist; or (ii) if element involves result of conduct, Δ is aware that it is practically certain Δ’s (2.02(7)) conduct will cause such a result
Recklessly: [Subjective, Objective] [S] Acts recklessly when Δ consciously disregards a substantial and unjustifiable risk that the material element exists or will result from Δ’s conduct; [O] disregard must involve a gross deviation from the standard of conduct that a law-abiding citizen would observe
Negligently: [Objective] Acts negligently when Δ should be aware of a substantial and unjustifiable risk; must involve a gross deviation from standard of care that a reasonable person would observe
15
Q
what’s a mens rea of knowledge in the Model Penal Code?
A
o §2.02(7): When knowledge of the existence of a particular fact is an element of an offense, such knowledge is established if a person is aware of a high probability of its existence, unless he actually believes that it does not exist.
16
Q
what’s a mens rea of knowingly?
A
o §2.02(8): Offense is committed willfully if Δ committed it knowingly
17
Q
what if you don’t know the law?
A
o §2.02(9): Not knowing the law is not a defense unless so provided
18
Q
what happens when your mens rea is diff for diff material elements of the crime?
A
o §2.02(10): When grade or degree depends on whether offense is purposefully, knowingly, recklessly, or negligently, its grade or degree is the lowest for any material element
19
Q
what happens when your mens rea is conditional?
A
o §2.02(5): Substitutes; each higher level of culpability is valid if statute only requires a lower level
commentaries:
Subsection (5) makes it unnecessary to state in the definition of an offense that the defendant can be convicted if it is proved that he was more culpable than the definition of the offense requires. Thus, if the crime can be committed recklessly, it is no less committed if the actor acted purposely.
20
Q
what do you do when a statute has no mens rea listed?
A
Steps of Analysis for Statutes without Mens Rea requirements
- Determine what mens rea the statute calls for
- Apply mistake of fact principles to the statute
21
Q
when is it appropriate to not have a mens rea for a crime in common law?
A
Is it a traditional common law crime? Then mens rea should be required, unless (1) it’s a lesser legal wrong; (2) it’s a public welfare offense; (3) the statute explicitly rejects mens rea requirement
22
Q
what does the Model Penal Code say about strict liability crimes?
A
MPC §2.05:
(1) Culpability requirements don’t apply to:
• offenses that are violations o (b) offenses defined by statutes and legislative purposes
(2) Notwithstanding other provisions and unless a statute so provides:
• (a) When SL is imposed for any material element, if conviction is based on that, offense is a violation only
• (b) Although SL imposed by law, culpable commission of offense may be charged / proven when negligence is sufficient to establish liability
o Superimposes no strict liability on entire penal system
MPC §1.04(5): Offense is a violation if:
(1) statute explicitly says; (2) no punishment other than a fine / civil penalty; (3) is defined by a non-MPC statute re: offense is not a crime. Violation =/ crime. No civil disability.
23
Q
when is mistake of fact or law a defense according to the MPC?
A
• §2.04(1): Ignorance or mistake of matter of fact or law is defense if: (a) ignorance or mistake negates the purpose, knowledge, belief, recklessness, or negligence required; or (b) the law provides that such ignorance or mistake is a valid defense
24
Q
what’s the lesser crime principal and what’s its status?
A
• When one knowing commits a crime, they run the risk of committing a greater crime
o Dissent in Prince + some states
• Most states + MPC disavow this principle:
o §2.04(2): Even if ignorance or mistake is a defense, is invalid if Δ would have been guilty of another offense if the situation was as Δ had thought; however, degree / grade of offense is lowered to the one that the Δ thought Δ was guilty of
o Only 1-way: If you accidentally committed a lesser crime, held accountable for it
25
when does mistake of law matter?
* §2.04(3): Belief that conduct does not legally constitute an offense is a defense when: (a) statute defining the offense is not known to the actor, has not been published, and has not been otherwise reasonably made available, or (b) acts in reasonable reliance on official statement of law, later determined to be invalid or erroneous, from certain authorities
* §2.04(4): Δ must prove a §2.04(3) defense by POE
26
what does the Model Penal Code say about causality?
o (1)(a) “but for” cause (1)(b) proximate cause rules specific to state
o (2) purposely or knowingly proximate cause rules
o (2)(a) transferred intent (if you accidentally kill wrong person, intent transfers)
o (3) recklessly or negligently proximate cause rules
o (4) when offense has absolute liability, element not established unless result is a “probable consequence” of the actor’s conduct
27
what are the important requirements for proximate cause?
o Retributivists use this to ensure punishment is proportional to blameworthiness
o Requirements: (1) foreseeability; (2) within the zone of danger; (3) no intervening act of free will that breaks chain of causation
o Note: could be seen as test of whether actus reus is “legally sufficient” – use policy arguments to justify line drawing in close cases – uncertain fact finding/jury verdicts
28
deal w/intervening actors?
Generally: Intervening causes do not break the causal chain—must be seriously outlandish
Generally: When proximate cause of death was individual independent action, they are liable
Exception: Terrible Choice Doctrine
29
intervening acts that don't break chain of causation?
Some intervening acts that do not break the causal chain:
• When one acts out of self-defense and misses assailant
• When one is confused on fact and targets the incorrect party
• When one is acting pursuant of public duty
• When one acts instinctively, especially on account of fear
30
common law murder
Murder: Killing with malice aforethought
• Aforethought: Premeditation; subjective, but determined through objective evidence
• Malice: Either: intention to kill another, intention to inflict grievous bodily injury, extreme reckless disregard for value of human life
(depraved heart), intention to commit a felony during the commission, or FMR
31
common law murder defenses
: Self-defense, provocation (reduce), intoxication, insanity, mistake of fact, negation of mens rea, causation, involuntary act
• No duress / necessity defense
32
Model Penal Code murder
MPC §210.2: Murder
• (1) Except as in §210.3(1)(b), criminal homicide is murder when:
(a) Committed P/K; or (b) Committed R if extreme indifference to human life; presumed if during robbery, rape, arson, burglary, kidnapping, or felon escape
• (2) Murder is 1st degree felony (can have death sentence under §210.6)
33
Model Penal Code murder defenses
Possible defenses: Self-defense, EMED (reduce), intoxication (reduce), duress, necessity, insanity, mistake of fact, causation, negation of mens rea, involuntary act
34
common law manslaughter
Manslaughter: Unlawful killing without malice aforethought
• Voluntary: Intentional killing committed in: heat of passion, as the result of adequate provocation, no cooling off time, and a causal link between provocation, passion, and
homicide
• Involuntary: Unintentional killing that is a gross deviation from reasonable standard of care (looking to degree, justification, and awareness of risk)
35
common law manslaughter defenses
Possible defenses: Insanity, diminished capacity, self-defense, imperfect self-defense (mitigating), involuntary intoxication, mistake of fact, causation, involuntary act
• No duress / necessity defense
36
Model Penal Code manslaughter
MPC §210.3: Manslaughter
• (1) Criminal homicide is manslaughter when it’s:
o (a) Committed recklessly; or (b) If it would otherwise be murder, but if committed under influence of extreme mental or emotional disturbance (EMED-subjective) for which there is reasonable explanation (objective); if objective standard is used, whether reasonable in actor’s situation as he believes them to be
• (2) Manslaughter is 2nd degree felony
37
Model Penal Code manslaughter defense
Possible defenses: Insanity, self-defense, causation, necessity, duress, involuntary act
38
Girouard v. Maher provocation doctrines
* Both: attain evidence of their s/o cheating of them without directly witnessing it
* Girouard: Only a select set of circumstances previously recognized by precedent may suffice to assess objective provocation. NO direct witnessing—only oral testimony
* Maher: Provocation need not conform to any preexisting categories and is a question of fact that is best left to the jury to decide if the circumstances were sufficient to induce the ordinary man to act by passion rather than reason
* Girouard’s rules are the majority view, but some jurisdictions opt for Maher’s standards
* Masur: Mixed approach is possible (judge decides admissibility, jury decides fact)
39
sexual infidelity as impetus
• Courts tend to interpret the boundaries of sexual infidelity category very narrowly
o Simonovich: Talking about previous infidelities=/witnessing intercourse
o Dennis: Sexual contact =/ sexual intercourse
o Turner: Long term couple were not married
• Tide is shifting against using one’s witnessing adultery as sufficient basis to mitigate murder to manslaughter because the rule is largely protecting homicidal men
40
same sex provocation?
no - Same-sex advances as provocative acts (tide turns against this)
41
what's cooling time?
common law only
• Significant lapses in time between the provocation and the assault renders the provocation defense inadequate as a matter of law
o Bordeaux: D assaulted his mom’s rapist several hours after learning about it at an all-day drinking party. D left and came back to kill him. Court did not permit provocation defense.
42
what's common law rekindling?
• Cooling-time limitation may be overcome by arguing that an event immediately prior to the killing “rekindled” the provocation
o Judges may not permit the rekindling defense as a matter of law if the rekindling event is not legally sufficient
Gounagias: D was sodomized by a man. He was repeatedly teased for it. The accumulative effects of the teasing led him to kill the man. Court did not permit rekindling because teasing was not legally sufficient rekindling and the provocation occurred weeks earlier.
o LeClair: Judge did not permit rekindling defense since pre-existing suspicions were there and sudden events confirmed them
Man suspected wife of infidelity for weeks, his suspicions were suddenly confirmed and he killed her.
43
who can provoke?
Non-provoking Victims and Provoking Defendants
• Misdirected reaction:
o Mauricio: Bouncer forcefully removed man. Man later shot who he thought to be bouncer but was not. Murder charge reversed.
o Mitigation to manslaughter is thought about from the perspective of the killer
• Intentionally killing a non-provoking victim
o Scriva: Man killed bystander who tried to restrain him from going after a provoker. Court did not permit provocation defense.
Distinguished from Mauricio b/c of knowledge of who you harmed
• Intentionally killing a victim who you provoked
o Welsh: D threatened man. Man pinned him to the wall and punched him. D drew a knife and killed him. CoA held that jury should be given the manslaughter instruction on account of provocation.
o Masur: Courts don’t dig too deeply into how the fight began
44
what's the eed defense?
• EED Test (MPC §210.3)
o Subjective element: “committed under the influence of extreme mental or emotional disturbance”
o Objective element: “for which there is reasonable explanation or excuse. The reasonableness of such explanation or excuse shall be determined [by a RPP] in the actor's situation under the circumstances as he believes them to be.”
Masur: more possibilities than common law provocative acts
45
unintentional killing in common law
Involuntary manslaughter: Gross deviation from standard of care a reasonable person would exercise in same situation
• Based on degree, justification, and awareness of risk
• See Welansky
Jerome Hall: Common law formulation of criminal negligence often uses a triple contradiction of terms: willful, wanton negligence
46
Model Penal Code unintentional killing
Levels of unintentional killing:
• Not liable: Δ acted reasonably
• Tort liability: Δ deviated from reasonable person (ordinary negligence)
• Negligent homicide: Gross deviation from reasonable person
• Manslaughter: Gross deviation from law-abiding person (recklessness)
• Murder: Recklessness manifesting extreme indifference to human life
MPC §210.4: Negligent homicide
• (1) Criminal homicide is negligent homicide (should be aware of a substantial and unjustifiable risk);
§2.02(2)(c))
• (2) Felony of the 3rd degree
47
MPC Criminal Negligence
• Disregard of the risk (MPC - Subjective standard)
o If you actually disregarded, then reckless and manslaughter
o If you did not actually disregard, but should have reasonably known of the risk, then that is enough for negligent homicide
o Deviation from the law-abiding person for criminal liability
o Deviation from the reasonably prudent person for tort liability
• How much risk did you create (Objective standard)
o Substantial and unjustifiable risk
o BPL analysis is used as a guide to determine how much risk was being created and therefore how gross a deviation occurred
48
Common Law Criminal Negligence
• Really just involuntary manslaughter – See Welansly
49
contributory negligence?
Contributory negligence: Not a defense in criminal law (difference civil v criminal negligence)
50
MPC Criminal Negligence vs Manslaughter
• MPC distinguishes criminal negligence from involuntary manslaughter on the basis of whether D was reckless or negligent
o Recklessly: [Subjective, Objective] [S] Acts recklessly when Δ consciously disregards a substantial and unjustifiable risk that the material element exists or will result from Δ’s conduct; [O] disregard must involve a gross deviation from the standard of conduct that a law-abiding citizen would observe
o Negligently: [Objective] Acts negligently when Δ should be aware of a substantial and unjustifiable risk; must involve a gross deviation from standard of care that a reasonable person would observe
• Difference in terms of subjective awareness of risk
o Negshould have known, but didn’t
o MSdid know, recklessly disregarded it
o MS also requires objectively a greater deviation from the conduct of a RPP
51
Model Penal Code murder v. manslaughter
• MPC §210.2(1)(b): Murder requires proof that Δ acted recklessly under the circumstances, with extreme indifference to the value of human life. Recklessness+ is assumed if committing one of the enumerated felonies.
• MPC §2.08(2): Recklessness need not be shown if the reason Δ was unaware of the risk was Δ’s voluntary intoxication [THIS INCLUDES MURDER]
• MPC §210.3(1)(a): Manslaughter is committed when a killing is done recklessly
• MPC §2.02(2): Acts recklessly when Δ consciously disregards a substantial and unjustifiable risk that the material element exists or will result from Δ’s conduct; disregard must involve a gross deviation from the standard of conduct that a law-abiding citizen would observe
• Line between recklessness and recklessness+ is “extreme indifference to human life”
o Masur: Really just the level of risk created in practice
52
felony murder common law
```
Felony murder: Elements required
• Legality
• Actus Reus
• Felony Commission
• Causation
```
Note: Felony murder in common law is strict liability; no mens rea requirement
• Death does not have to be foreseeable
```
Additional considerations:
• Proximate cause
• Inherently dangerous felony”
• Merger doctrine
• “In furtherance of the felony”
```
53
felony murder in Model Penal Code?
MPC §210.2(b): Crime if Δ committed act recklessly under circumstances manifesting extreme indifference to human life; this is presumed if actor is engaged in the commission while attempting to commit a crime
MPC v. common law: MPC is permissive inference, whereas common law is mandatory inference
• MPC: If killing is by cofelon during highly dangerous felony, can be held for “implied malice” on the grounds that Δ acted with conscious disregard for human life
54
felony murder - proximate cause
• Proximate cause: Felonious nature of conduct must cause the death; eggshell skull
55
inherently dangerous - felony murder
• “Inherently dangerous felony” limitation: Does the nature of the crime create a substantial risk of death? (See Serne) (compare: Phillips and Hines) (obj. v. subj.)
56
merger doctrine?
• Merger doctrine: If an offense is included in fact within the offense of murder, can’t apply FMR (e.g., battery included in murder) (Independent purpose vs. Assaultive rule)
57
in furtherance of felony
• “In furtherance of the felony”: Basic requirement is that killing must have been done in furtherance of the felony; depends on foreseeability o If armed, probably will find foreseeability o Does not apply when:
(1) Lethal act occurs after felony has terminated and can’t further it (getaway); continues until felon has reached a place of temporary safety
(2) Co-felon causes death by act unconcerned to felony and not in service of it (“frolic of his own”)
(3) Act immediately responsible for causing death is committed by a person opposing the felony
58
killing by non-felon
Proximate cause: Liable for any death that is the proximate result of felony, regardless of who did the killing (requires foreseeable risk)
Agency theory: Identity of the killer is critical (has to be co-felon); FMR does not extend to a killing if it’s directly attributable to the act of someone other than Δ or Δ’s associates in the unlawful enterprise
59
Phillips v. Hines standards
• Former prevents every felony resulting in homicide to be charged with murder and turns on what the legislature delineates as a crime (Henderson – false imprisonment =/ I.H.)
• Latter removes the arbitrariness of the former, but turns a lot of things into murder
o Howard – Invalidated law allowing FM for fleeing police IFF 3 prior tickets
60
reason for merger doctrine?
Policy justification: Merger doctrine exists because we don’t like the idea that many different sorts of felonies can result in the same conviction
• E.g., shoving someone and they die and hitting someone with a chainsaw and they die are both chargeable under felony-murder
61
in furtherance - unrelated to felony
Cabaltere Lookout panicked and shot a people. Leader killed the lookout. Fellow co-conspirators also guilty for first degree murder of the lookout.
• Holding: Killing the lookout was a foreseeable event in furtherance of a common objective. All parties were liable.
• Co-conspirators are culpable for acts of their co-conspirators when those acts are
o (1) encouraged or intentionally aided by the co-conspirators or
o (2) reasonably foreseeable and in furtherance of a common goal
• Masur: We look to concepts of what people signed up for and what they can reasonably expect NOT whether it made crime more likely to succeed b/c courts are bad at that
o Is there causal connection between the frolic of homicide and agreed upon felony
o When you go into an armed robbery, you can reasonably foresee violence
62
in furtherance - after felony
Gillis Owner detected Gillis breaking in. He drove off. 10 miles later a cop tried to pull him over. He sped into a car, killing passengers. Court found him guilty of FM.
• Holding: This act was still in furtherance of a felony because he drove fast to evade the police and hit someone
• Masur: Felony continues until felon reaches a place of temporary safety (e.g., drive-thru)
63
MPC on Killings by Those Resisting
Provocative Acts Theory
Gilbert: When a D or accomplice, with conscious disregard for life and in furtherance of a felony, commits an act that is likely to cause death, and his victim or a police officer kills an innocent in reasonable response, the killing is attributable to the original act of the defendant—no intervening act. (MPC illustration at sect. 2.03 supports this view)
64
Proposed Model Penal Code rape
o Consent: context-dependent, revocable
o Forcible Rape: more severe gradation for rape with deadly weapons, accomplices, injury to victim, physical force, threat of physical force (to victim of third party), or physical restraint – second degree felony
o Sexual penetration by coercion or exploitation: felony of the third degree
knowingly or recklessly obtaining consent by threatening criminal or immigration accusations, taking or withholding action in an official capacity, inflicting economic harm that would not benefit the perpetrator
knows or recklessly disregards the victim’s detention/restricted freedom
65
tests for attempt - common law
Tests for attempt:
• Last act: Criminal attempt only occurs
when Δ performed all of the acts that Δ believed were necessary to commit (Eagleton test – rejected in Barker)
• [struck thru] Physical proximity: Δ’s conduct must be proximate to the completed crime,
i.e. if Δ were unhindered, crime would be committed
• Dangerous proximity: Δ’s conduct is in dangerous proximity to success; court looks to (1) nearness of danger; (2) greatness of harm; (3) degree of apprehension felt (See Rizzo)
• [struck thru] Indispensable element: Not an attempt if Δ has not yet obtained control of an indispensable element of the crime
• [struck thru] Probable desistance: Based on how far
Δ proceeded; attempt where Δ reached a point where Δ is unlikely to desist
• Unequivocally: Δ’s conduct, standing alone, must unambiguously manifest Δ’s criminal intent (See McQuirter)
66
common law criminal attempt
Criminal attempt: When Δ, with intent to commit a criminal offense, engages in conduct which tends to effect the commission of the crime
Δ’s required intentions:
• The intent to commit the acts that constitute acteus reus, with
• The specific intent (purpose) of committing substantive crime (unless strict liability crime) (see Smallwood)
67
Model Penal Code attempt
MPC criminal attempt requires both the (1) P/K to commit the target offense and (2) conduct constituting a substantial step towards commission of that offense
MPC §5.01: Criminal attempt
• (1) Guilty of attempt if, acting with kind of culpability otherwise required for commission, Δ:
o (a) Purposefully engages in conduct that would constitute crime if the attendant circumstances were what Δ believed them to be
o (b) Does or omits doing something with purpose of causing result or belief that it will cause the result (knowing)
o (c) Purposefully does or omits something that is a substantial step in planning to culminate commission of crime
• (2) Must be strongly corroborative of criminal purpose to be a substantial step; includes:
o (a) Lying in wait, searching for, or following victim
o (b) Enticing or seeking to entice victim to crime place
o (c) Reconnoitering crime place
o (d) Unlawful entry of place
o (e) Possession of specific materials designed for crime
o (f) Possession of unlawful materials at crime place
o (g) Soliciting innocent agent to conduct the crime element
• (3) Aiding another person in committing a crime is guilty of attempt even if other person did not commit
• (4) Affirmative defense to completely and voluntarily renounce crime and criminal purpose
MPC §5.05(1):
Except as otherwise provided in this Section, attempt, solicitation, and conspiracy are crimes of the same grade and degrees as the most serious offense.
68
Justifications for requiring higher mens rea (specific intent) for attempt
* Linguistic: You cannot intend to bring about a result if your purpose was not to bring about that result
* Moral: One who intends to commit a wrong is worse morally than one who does so accidentally or recklessly
* Utilitarian, Justice Oliver Holmes, Jr.: Importance of intent is not to show that the action was wicked but that it was likely to be followed by harmful consequences
69
attempt -Justifications for the danger-proximity rule:
• Courts desire to preserve D’s locus penitentiae (opportunity to repent)
o We do not want to convict people who may not have taken those final steps towards the completion of a crime
• D could fully abandon a crime and be convicted later of attempt
o We do not want to decentivize people from abandoning criminal designs on the basis that they can be convicted as soon as they begin to prepare
• Young, Robins: Ds cannot abandon an attempt once it has been completed
o To minimize unfairness, courts place the threshold for attempt very close to the actual crime itself
o Alternatively, just to make abandonment a complete defense see MPC §5.01(4)
70
abandonment MPC
it is an affirmative defense that he abandoned his effort to commit the crime or otherwise prevented its commission, under circumstances manifesting a complete and voluntary renunciation of his criminal purpose…renunciation of criminal purpose is not voluntary if it is motivated, in whole or in part, by circumstances, not present or apparent at the inception of the actor’s course of conduct, that increase the probability of detection or apprehension or which make more difficult the accomplishment of the criminal purpose. Renunciation is not complete if it is motivated by a decision to postpone the criminal conduct until a more advantageous time or to transfer the criminal effort to another but similar objective or victim.
• When paired with substantial step requirement, MPC attempts to correct the underinclusive nature of dangerous proximity test w/o limiting locus penitentiae
71
complicity
Complicity is not its own offense, it’s a way of committing a crime. If you are complicit in a murder, you are guilty of murder.
Accessory before the fact: Δ intentionally assists in the commission of the offense, but is not actually or constructively present during the commission
Accessory after the fact: Δ knowingly assists a felon to avoid arrest, trial, or conviction; lesser offense
72
complicity mens rea (re: principal actions) common law
Accomplice (A) must have specific intent to assist primary party (P); knowledge is probably not enough
An accomplice must (1) intentionally engage in the acts of assistance (2) act with the level of culpability required in the definition of the offense she assisted in.
Hicks v. US (USSC 1893) Δ indicted for murder for being on a horse with shooter and allegedly saying “take off your hat and die like a man”
• Holding: Ambiguous words alone cannot constitute aid without evidence of prior conspiracy. There must be specific intent that those words encourage the principal’s crime
State v. Gladstone (Wash. 1970) Δ told undercover cop who and where to buy weed from. Δ drew a map.
• Holding: Δ must do something to associate himself with the venture indicating Δ wants it to succeed. Knowing is insufficient mens rea
• Wilson Δ commented “weed was good”, Guilty
• McKeown Δ contacted seller + present at sale, Guilty
73
complicity mens rea (re: principal actions) Model Penal Code
MPC § 2.06(3): You’re an accomplice if
(a) with the purpose of promoting or facilitating the commission of the offense you
MPC proposed an additional mens rea option: “knowingly, substantially facilitated its commission”
ALI rejected above because “knowing” was too low of a standard—people are entitled to carry on with the ordinary course of business w/o deviating every time it is necessary to thwart a crime
Especially concerned with vendors of objects that can be used in crimes
74
complicity mens rea result common law
Commonwealth v. Roebuck (Pa. 2011) Δ found guilty of luring the victim to an apartment complex where the victim was shot and killed by another person.
• Holding: Δ was reckless with regards to the chance someone might die while accomplishing the ends he directed. A person is an accomplice if he/she acts with the level of culpability that equals the level required to support criminal liability by the principal actor in a situation whereby a particular result is caused as an element of an offense.
Hypos
You convince taxi driver to drive 100mph and hit another car to their death
• Can you be convicted or reckless manslaughter?
o Conduct requirement purposeful encouragement of reckless action (intended driver to drive recklessly)
o Result requirement Reckless w/ re: to safety of others
o Guilty
You allow drunk friend to borrow your car
• Can you be convicted or reckless manslaughter?
o Conduct requirement purposeful encouragement of reckless action (gives car)
o Result requirement Reckless w/ re: to safety of others
o Not Guilty – Knowledge of possible reckless driving is insufficient; must try to induce reckless driving
75
complicity mens rea result common law
[MENS REA – Result]
MPC § 2.06(4): For results-based crimes, an accomplice in conduct is an accomplice in commission of an offense if he has the necessary mens rea for the result required by statute.
76
complicity common law actus reus
Wilcox v. Jeffrey (England 1951) Δ bought ticket to illegal jazz performer’s show, wrote an article about the show.
• Holding: Aiding can be found by the mere encouragement of criminal activity—however slight. Encouragement need not be directly communicated where an audience is a necessary part of the crime.
Different crimes are treated differently in terms of sufficient acts
• Rape: Presence and words of encouragement insufficient
• Murder: Presence and ambig. words insufficient
• Animal fighting spectator prohibition act – presence suffices
Voloch: Concerned that words are often equally consistent with knowing and purpose, so they should not be conclusive evidence of specific intent
77
Model Penal Code complicity actus reus
MPC § 2.06(3)(a): purposely -
(i) solicit the other person to commit it OR
(ii) aid or attempt to aid the other person in planning to commit it
(iii) have a legal duty to prevent commission of the offense and fails to make proper efforts to do so
(b) you’re complicit by law
78
complicity community of purpose common law
[Community of Purpose]
An accomplice is guilty not just of the crime they intended to encourage, but any crimes that are “reasonably foreseeable” as a result
Objective standard
If community of purpose was to kill one person
• Blowing up the entire school is not clearly envisaged
• Poisoning multiple people could be clearly envisaged
People v Russell All gang members changed with accomplice liability for depraved indifference murder for innocent man shot during gun fight when they can’t identify who actually shot him. All intended to fight, creating a zone of danger, and were reckless+ with regard to the possibility of resulting death.
• Holding: Multiple Δs may be charged for the murder committed by only one Δ where there is evidence that each defendant “intentionally aided” the Δ who actually fired the fatal bullet. The fact that they were adversaries does not defeat their “community of purpose” in partaking in a gun battle
• Masur: Δ doesn’t really have the specific intent of perpetuating a shootout because others shoot back
State v Abbott Drag race intentional participation.
• Community of purpose in drag racing. Specific intent to drive recklessly. Reckless for the result of death.
79
complicity causation common law
State ex. rel. Attorney General v. Tally, Judge (Ala. 1894) Δ sent a telegram to a telegram officer telling him not to warn a man that people were coming to kill him. The man died. Δ convicted for aiding and abetting
• Aiding need not be the but-for cause of the crime
• Tally Test: Aiding and abetting simply must make crime probabilistically more likely by removing even a single chance that it would not be committed, EVEN IF it is more likely than not to occur regardless
Tally Hypos
• Is Tally liable if the operator hadn’t followed his instruction?
o Tally: Not Guilty – his actions could not have increased risk of crime
o MPC: Guilty -- 2:06(3)(a)(ii) says that attempts to aid is sufficient
• Is Tally liable if pursuers caught up with the intended victim but were effectively resisted by him?
o Tally: Guilty of attempt- there is causation because the judge made the murder more likely to occur
o MPC: Guilty of attempt
5.01(3) – his conduct was designed to aid another
2.06(3)(a)(ii) – he was complicit in the attempted murder
• Is Tally liable if pursuers never caught up with the intended victim but telegram worker did not warn?
o Talley: Not Guilty – Talley took one chance away
Dangerous proximity test—not close enough to finding victim, so pursuers were not committing a crime
Substantial step—pursuing him seems like a substantial step
o MPC: Even if there is no attempt, 5.01(3) Talley is still guilty because he is attempting to aid
80
complicity causation mpc
MPC § 2.06(3)(a): purposely -
(i) solicit the other person to commit it OR
(ii) aid or attempt to aid the other person in planning to commit it
Accomplice if just attempt to aid
MPC § 5.02(2): solicitation is established even if the actor fails to communicate with the person he solicits to commit the crime
Accomplice if just tried to solicit a crime
MPC § 5.01(3): A person who engages in conduct designed to aid another to commit a crime that would establish his complicity under Section 2.06 if the crime were committed by such other person, is guilty of an attempt to commit the crime, although the crime is not committed or attempted by such other person.
Guilty of attempt to commit the crime if you tried to aid/solicit a crime and no crime came to fruition
81
differences - Model Penal Code/common law: complicity
Differences with the common law:
1. Actus Reus: Under the common law a person needs to “aid in fact,” however under the MPC, a person can just either
1. Agree to aid (ex: you said you’d help but not show up)
2. Attempt to aid (ex: try and help but fail)
2. Mens Rea: The common law had similar results, but held you liable for any crimes that were “foreseeable” as a result of the conduct you intended to aid.
82
conspiracy
• (1) the agreement to commit a crime before it matures into a substantive offense
• (2) A form of accessory liability if the principal commits an offense
o You can be charged with a co-conspirator’s crime on the theory of complicity
83
stand alone offense of conspiracy
• Unlike the other inchoate offenses, Conspiracy does not merge with the completed offense—you can be charged with both
• MPC § 5.05(1) punishes conspiracy the same way as the object crime
• Justification for heightened punishment for conspiracy:
o The “special danger” that accompanies people working together
o Want to be able to intervene to prevent a conspiracy coming to fruition before the crime is committed
• Sentencing consequences of conspiracy
o Sentences typically vary with the amount of money or drugs at stake
o Co-conspirators tend to be held equally liable given sum of money/drugs
Unjust results: Those higher up in the organization receive lower sentences because they have more info to give the government, despite being more culpable
84
procedural advantages to conspiracy
o Prosecutors have wide discretion over where to charge the crime because the crime of conspiracy is too vagrant to be limited to any one place
o The charge of conspiracy is so sprawling that a judge will have trouble reigning in prosecutors from strategically presenting evidence
o Spillover effects also present whereby evidence that clearly incriminates one D can implicitly tend to incriminate another, even when it is improper to do so
Judges generally protect against this with limiting instructions: but in cases with many Ds, it can be hard for jury to keep track of what evidence they are allowed to consider with what D
o Co-defendants can easily be prodded to incriminate each other
85
common law conspiracy actus reus
At common law only agreement is required
Mulcahy when two agree to act, the plot is an act in itself
Whitfield USSC held that courts should not read in overt act when statute is silent
86
common law Model Penal Code actus reus
The actus reus of conspiracy is the agreement between 2+ people and an overt act.
MPC § 5.05(1):
(a) agrees with such other person or persons that they or one or more of them will engage in conduct that constitutes such crime or an attempt or solicitation to commit such crime; or
(b) agrees to aid such other person or persons in the planning or commission of such crime or of an attempt or solicitation to commit such crime.
MPC § 5.05(5): Overt Act. No person may be convicted of conspiracy to commit a crime, other than a felony of the first or second degree, unless an overt act in pursuance of such conspiracy is alleged and proved to have been done by him or by a person with whom he conspired.
Overt act < Substantial step
only 1 member of conspiracy need take over act
87
overt act requirement conspiracy
For crimes other than first and second-degree felonies, there is an overt act requirement under the MPC. Someone in the conspiracy (can be any one person) must make an overt act towards the commission of the crime. It doesn’t have to be a big act at all. The goal is to make sure that the conspiracy is actually real and not punish thought crimes.
US v Yates (explains reasoning) “The function of the over act in a conspiracy prosecution is simply to manifest that the conspiracy is at work…and is neither a project resting in the minds of the conspirators nor a fully completed operation no longer in existence.”
US v Bertling Court concludes that the same telephone conversation served as both the agreement and the overt act, because in the first part they talked about the need to murder a witness and the second part they talked about how to murder him.
88
MPC Justification for low overt act requirement:
* Danger in waiting for truly equivocal behavior is lessened when agreement alone suffices
* The small step would have sufficed for a complicity charge should the crime had occurred, so should permit liability if crime doesn’t occur as well for sake of consistency
* Act of combining with another crosses the threshold of arousing expectations of criminal activity by the accomplice AND increases likelihood that offense will be carried out
89
Test for inferring purpose from knowledge:
1. Stake in the venture
Regina v Thomas Δ rents a room to B he knows is a sex worker 9pm-2am for a high rate
2. Knowledge that no legitimate use for the goods exists
Shaw v Director of Public Prosecutions Δ publishes directory of sex workers numbers and little else
3. Volume grossly disproportionate to any legitimate demand
1. Disproportionate number of users were criminals
2. Quantity of business with certain individuals makes it unlikely it was for a legitimate purpose
Direct Sales v US Δ wholesaler of drugs selling 300x normal amount of prescription drugs to a doctor. Disproportionate number of clients guilty of violating Harrison Act
US v Falcone Δ wholesaler of sugar and yeast not part of moonshine conspiracy because not same susceptibility to illegal uses as pharmaceuticals
90
accessory/vicarious/pinkerton liability
Under the common law but not the MPC, members of a conspiracy can be convicted for crimes done by other members of the conspiracy (MPC § 5.03(1) crimes require purpose mens rea)
91
merits of pinkerton
o Sophistication of modern-day conspiracies, like those of stock frauds and narcotics, justify retaining the expansive liability of the conspiracy charge
o Many who form and control conspiracies can only be held accountable for their wrongful acts by a charge of conspiracy
o Charging low-level offenders with high sentence charge of conspiracy is
Information forcing for police and prosecutors
A self-regulation mechanism for hyper-dangerous actions b/c now everyone in the group can be held accountable for them
Increasing cost of labor for low-level members to compensate them for the risk, increasing operating expenses of a criminal regime
92
args against pinkerton
o Repugnant to our sense of justice to hold co-conspirators accountable not for the agreement they made but for the substantive offenses carried out by another that merely foreseeable
o Conspiracy is already generally based on rather dubious evidence, so unjust to expand liability beyond accessory liability
o Unlimited liability in cases of LARGE conspiracies—everyone goes to jail for life
o MPC reject Pinkerton: imposing accomplice liability on co-conspirators for the the substantive offenses of their co-conspirators only when strict conditions for accomplice liability are met (specific intent, actus reus)
93
Vicarious liability of a new conspirator for prior acts
Blackmon Pinkerton liability for substantive offenses committed by co-conspirators prior to joining conspiracy is not retroactive. The previous actions of co-conspirators CAN be used as evidence of the stand-alone crime of conspiracy
94
scope of conspiratorial relationship Model Penal Code
MPC § 5.05(2): Scope of Conspiratorial Relationship. If a person guilty of conspiracy, as defined by Subsection (1) of this Section, knows that a person with whom he conspires to commit a crime has conspired with another person or persons to commit the same crime, he is guilty of conspiring with such other person or persons, whether or not he knows their identity, to commit such crime.
95
conspiracy duration
In general, a conspiracy ends when its ends have been accomplished or everyone abandons it. An individual can only abandon an ongoing conspiracy by (a) telling his co-conspirators or (b) telling law enforcement. (Starts statute, prevents additional Pinkerton liability) He can renounce a conspiracy only by successfully thwarting its objectives. (Then not guilty for conspiracy)
96
conspiracy Abandonment and Renunciation
Abandonment and Renunciation
Abandonment weaker (stops the clock, prevents additional Pinkerton liability)
Group abandonment MPC § 5.03(7)(a,b) A conspiracy terminates
a. When its object has been accomplished
b. When everyone abandons it (statute will begin running at the last overt act)
Personal abandonment MPC § 5.03(7)(c) You can personally abandon a conspiracy by
a. Telling your co-conspirators or
b. Telling law enforcement about conspiracy and her participation
US Gymsum Co. D’s affirmative acts inconsistent with the conspiracy and communication of intent to withdraw was communicated to police or co-conspirators constitutes withdrawal
Smith Burden is on D to prove that they actively withdrew from the conspiracy
Renunciation stronger (makes you NL for conspiracy too per MPC)
MPC § 5.03(6) You are not liable for a conspiracy if you successfully thwart its objective under circumstances manifesting complete and voluntary renunciation
• In common law, renunciation of a conspiracy only protects you from vicarious liability NOT the charge of conspiracy
97
justification v. excuse
Justifications and Excuses
• Justifications (e.g., self-defense): Not culpable because actions you are responsible for were permissible under the circumstances – perpetrator centered approach
• Excuses (e.g., insanity): Not culpable because cannot be held responsible for the impermissible actions – victim centered approach
98
Four types of Defenses
1. Self-defense
2. Law Enforcement
3. Necessity
4. Duress
5. Insanity
99
common law self defense test
Self-Defense Test:
US v. Peterson (DC Cir. 1973) Self-defense springs from and is limited by the justification of necessity
• Unlawful threat, actual or apparent
• Subjective belief of imminent peril of death or serious bodily injury
• Subjective belief that her response was necessary to save herself from serious injury
• These beliefs must be both subjectively entertained and objectively reasonable with respect to attendant circumstances
If genuine, but not objectively reasonable, may be able to claim “imperfect self-defense” and have conviction mitigated
100
Personalization of Reasonableness test - self defense/common law
Personalization of Reasonableness test:
Courts allow in: (Goetz)
- Relevant knowledge D has about assailant
- Physical attributes of people involved
- Prior experiences that provide D a reasonable basis for believing that reasonable force is necessary
Courts do not allow
- Evidence of cultural norms or beliefs (Romero)
- Evidence of intoxication (McKlune)
Masur: these are more excuses than justifications, which is why they are not permitted
101
Model Penal Code self defense test
Self-Defense Test:
MPC § 3.04(1):
• Unlawful threat, actual or apparent
• Immediate necessity
• Subjective belief that her response was necessary to save herself from serious injury
MPC § 3.09(2)
If actor was negligent or reckless in their subjective belief, they may be charged with offenses for which negligence or recklessness suffice.
102
Model Penal Code personalization self defense
Personalization in the MPC: N/A
Courts and juries decide on an ad hoc basis what circumstances (Δ’s background, experiences, personality) count as part of the defendant’s “situation”
103
common law immanence requirement common law
Imminence:
Danger must be immediate not inevitable (Ha)
“Overt act by the victim that presented imminent danger at the time he was killed” (Sands) (Schroeder)
Threat usually insufficient as an overt act (Schroeder)
• Exception: If the threat is known to be the prelude to an assaultive episode based on patterns of abuse (Jones)
104
Model Penal Code immediate necessity self defense
Immediate Necessity:
MPC § 3.04(1)
Self-defense can be available as a defense if the actor subjectively believed that the use of defensive force was “immediately necessary”
Masur: More relaxed standard – Shroeder probably could have raised this defense
105
common law proportionality test self defense
Proportionality test: (Goetz)
A person can only use deadly force if he reasonably believes that the other person is using (1) deadly force or (2) to stop kidnapping, rape, or robbery
106
Model Penal Code proportionality test
Proportionality test: MPC § 3.04(2)(b)
Escalation to deadly force only when “such force is necessary to protect himself against (1) death or serious bodily injury or (2) kidnapping or compelled sexual intercourse
107
common law duty to retreat
Duty to Retreat: [No prevailing Common Law Principle]
Historical rule: No Retreat – “True Man” doctrine
• Modern iteration = Stand Your Ground Laws
Need not retreat if you meet other rqmts
• ABA: These laws have no deterrent effect and are used disproportionately against POCs
Castle Exception: (Tomlins – Cardozo)
No one is required to retreat from their own dwelling
108
Model Penal Code duty to retreat
Duty to Retreat: MPC § 3.04(2)(b)(ii)
Only have the duty to retreat if you know you can do so with complete safety (Abbott)
• Whether one “knows” is dependent on their mental state and attendant circumstances
• Narrow duty: broad right self-defense
Castle Exception: MPC § 3.04(2)(b)(ii)(1)
Not required to retreat from dwelling or place of work UNLESS initial aggressor or attacked by coworker – bigger “castle” under the MPC
109
self defense aggressor limitation - common law
Aggressor Limitation: Peterson
Any act reasonably calculated to start a fight forfeits the right to self-defense (fatal AND non-fatal)
• Can only regain right to self-defense by retreating
• Even if your adversary escalates the level of violence, you may not use self-defense
Free from fault requirement: Initial act need not be unlawful (see Andrews)
• Any crime causally related to victim’s death forfeits the privilege of self-defense (Mayes)
110
self defense aggressor limitation - Model Penal Code
Aggressor Limitation: MPC § 3.04(2)(b)(i)
MPC denies the use of deadly force when the actor provoked the use of force against himself in the same encounter (non-fatal force still permitted)
• If you start the fight with something more minor and the other person escalates, you are not counted as the initial aggressor
• You may regain right to deadly force if you retreat
• Broader right to self-defense than common law
111
law enforcement use of force
General principle: force must never be excessive in relations to the harm it seeks to prevent – 4th and 14th amendment
Whenever there is no state statute against certain police conduct but it violates the constitution, the police may be face tort liability on the Section 1983
112
notes on POC and use of force
• Black youth are 21x as likely as white youth to be shot by the police
• Sendhil Mullainathan: primary problem is that black people have more encounters with the police since police are disproportionately present in low-income areas. Conditioned on arrest, usage of deadly force is the same regardless of race.
o Masur: Buuut police systematically arrest more black people based on racial bias
• Masur: Policing results from many nested decisions of where to deploy resources, who to stop, how to conduct an encounter, when to escalate, etc. Racial prejudice is likely present at every step along the way.
113
common law police use of force - misdemeanors
Misdemeanors
Officers may use non-deadly force to effect a misdemeanor arrest or prevent escape when necessary
At common law deadly force was never allowed to prevent a misdemeanor or effect a misdemeanor arrest
Exception: When their flight increases risk to others
• see Scott and Plumhoff
Exception: When the suspect’s behavior gives the officer “reasonable” fear of death or bodily harm
114
common law police use of force - felonies
Felonies
Deadly force restricted to situations involving “forcible and atrocious crimes” (Ceballos)
• Modified old common law rule that deadly force was permitted to prevent any felony or effect any felony arrest
Constitutional Limits:
Police must have probable cause to believe that the felon poses a threat of serious physical harm to the officer or others to shoot them as they flee (Garner)
115
officer use of force - Model Penal Code - felonies
MPC § 3.07(2)(b):
Deadly force permitted only when:
(i) arrest is for a felony
(ii) actor is a cop or assisting presumed police
(iii) action does not increase risk to innocents
(iv) the actor believes that:
(1) arrest involves use or threat of deadly force
(2) substantial risk that the suspect will cause death or serious bodily injury if his apprehension is delayed
Masur: MPC is about belief; Garner requires reasonableness, i.e., probable cause
116
officer use of force - Model Penal Code - misdemeanors
MPC § 3.07(1):
Non-deadly force: Officers and private citizens can use non-deadly force when they believe it is immediately necessary to effectuate arrest, (2) so long as purpose of arrest is known or reasonably cannot be made known AND any warrant is valid or believed to be so
Deadly force only permitted for felonies
117
Driver sped away from a traffic stop. Police shot 15 times before the driver and the passenger died.
• Holding: Officers need not stop shooting until public threat eliminated
Plumhoff v. Rickard
118
necessity
General principle: The actor chose the lesser of two evils, making the world a better place
Necessity is a justification not an excuse
119
common law necessity
Illinois Rule: (Unger)
• D must be without blame in creating situation
• D reasonably believes actions necessary to avoid public or private injury
• D thinks the harm he seeks to avoid is greater than harm achieved by his conduct
Many states have clean hands provisions like IL
In most states, the defense of necessity is unavailable when it has been explicitly foreclosed by deliberate legislative choice
Some states have an imminence requirement
In some jurisdictions, only natural events can trigger the necessity defense
120
Model Penal Code necessity
MPC § 3.02(1): Conduct believed to be necessary to avoid an evil is justified, IFF
(a) Harm avoided was greater
Masur: SL standard – objectively greater
(b)-(c) Legislature did not implicitly or explicitly contemplate specific choice she was confronted with and make no exception
Masur: Just ask “would the legislature make an exception here?”
(d) If the choice was brought about by negligence or recklessness, then the actor may be prosecuted for crimes for which those mens reas suffice [clean hands provision]
Cmt 3.02: No imminence requirement, but imminence weighs on the determination of if the actor had other feasible alternatives
121
economic necessity
In these cases, courts view the legislature as making a direct choice about how to balance these harms. Homelessness (Southwark) and malnutrition (Fontes) are social evils that the legislature is certainly aware of and has chosen not to act on. In this way, granting the necessity defense is effectively revising the social welfare policies of the legislature, rather than filling the gaps in situations that they have not had the occasion to address. See Leno. Addressing systematic social issues on a case-by-case basis is piecemeal and beyond the province of the judiciary. Compare Axelberg, drunk driving to escape sexual assault is not a peculiar fact pattern that the legislature has not yet contemplated expressly or by implication.
122
duress
General Principle: The actor is a fallible human who was threatened into committing a crime that was a lesser evil than what she was threatened with
Duress is an excuse not a justification
The necessity defense is generally unavailable in these cases because the balance of evils generally tips against the Δ AND Δ would have to prove that the person who threatened her was actually going to follow through
123
common law duress
Duress Elements: (Toscano)
• D committed a crime (other than murder)
• As result of threat of unlawful physical force or actual force against his person or someone else
• Which a person of reasonable firmness in D’s situation would have been unable to resist
o Same personalization limitations as with self defense
Imminence was a mandatory requirement at common law (Fleming) (although Toscano didn’t require it)
Common law requires threats of “previous bodily injury” to support a duress defense
124
Model Penal Code duress
MPC § 2.09
(1) Almost same as Toscano standard
• Committed crime (including murder)
• As result of threat of unlawful physical force or actual force against his person or someone else
• Which a person of reasonable firmness in Δ’s situation would have been unable to resist
(2) Recklessness in bringing about the situation precludes the entire defense. Negligence in doing so permits convictions for crimes where negligence suffices.
No imminence requirement – but it is a consideration in determining the actions of a man of ordinary firmness
MPC only requires an “unlawful threat” – broader: includes property and reputational damage
125
3 categories of mental incapacitation
* Mental illness – a medical term defined by clinicians
* Insanity – a legal term defining mental state at the time of the crime sufficient to preclude criminal responsibility
* Incompetence – a legal term defining mental state at the time of trial sufficient to conviction since they are unable to understand and participate in the legal proceeding
* These are terms of art and do not have any scientific descriptive meaning
126
who can raise insanity defense?
* In most jurisdictions, the Defendant gets to decide whether to raise the defense or not
* May prefer to be guilty than not guilty for reasons of insanity: greater stigma, longer confinement (2 as long on average), more invasive treatment
127
insanity defense disposition after acquittal
* Some states have civil process of commitment upon a finding of (1) mental illness and (2) dangerousness
* Other states have automatic committals for all insanity acquittals
128
Guilty but mentally ill convictions
* An alternative to “not guilty by reasons of insanity” plea – one is sentenced to commitment for the prescribed period of the underlying offense
* Effectively puts a cap on how long Δ can be held without a fresh judicial determination of dangerousness and mental disorder
129
Public Policy on Mental Health
* The defunding of mental health facilities resulted in jails and prisons providing social services that used to be accomplished by mental health facilities.
* Federal government stopped matching state contributions to mental health
* State prisons have taken the torch of mental health treatment with mixed results
130
common law insanity
M’Naughten Rule: D is not guilty by reason of insanity if at the time of criminal act he suffered from a “disease of the mind” and as a result:
• Either did not know what he was doing OR
• Did not know that what he was doing was wrong
Masur: No volitional prong unlike the MPC (Lyons)
Definition of “disease of mind” is ambiguous
• In IL, it is a “substantial disorder of thought, mood, or behavior”
• Not merely a temperament of excitability (Porter)
131
Model Penal Code insanity
MPC § 4.01
(1)
• As a result of a medical disease/defect
• Actor lacks substantial capacity either to
appreciate the criminality[wrongfulness]
conform conduct to the law*
*Common law lacks volitional prong
(2) Disease/defect does not include an abnormality manifested only by repeated anti-social conduct
