General concepts Flashcards
(100 cards)
1
Q
Goals of Utilitarianism
A
Deterrence (specific and general), incapacitation, rehabilitation
2
Q
Goals of retributivism
A
Punishment that should be justified by the seriousness of the offense (proportional).
3
Q
Plea deals
A
Bordenkircher v. Hayes: Plea deals ok because mutually advantageous, defendants are presumptively capable of intelligent choice, and it is inevitable in a system that encourages pleas that the prosecutor’s role is to persuade the defendant to forgo right to plead not guilty. Prosecutor did not violate principles protecting defendants from vindictive discretion because “there is no element of punishment or retaliation so long as the accused is free to accept or reject the prosecution’s offer.”
4
Q
Right to a jury
A
Duncan v. Louisiana: juries prevent government oppression and judges who respond to higher authority. If a jury reaches a different conclusion than a judge, it is probably because they are serving their purpose. Even if defendants are satisfied with bench trials, the very existence of jury trials serves an important purpose at making unfairness and oppression less likely. Duncan should have gotten a jury trial.
Right to jury (for SERIOUS crimes), and NOT choice of jury or judge. Line later drawn in Baldwin at 6 month prison term, looking at potential sentence not actual conviction. Thus, anything above 6 months will get a jury trial, and although the Defendant may request to waive right to jury by trial (Patton), the waiver may be conditioned on consent of prosecuting attorney and trial judge (Singer). The jury must have 6+ jurors, and it must be unanimous after Ramos v. LA 2020
5
Q
Jury nullification
A
United States v. Dougherty: Group advocating opposition to Vietnam War entered Dow Chemical and destroyed property. Convicted of 2 counts of malicious destruction. Claimed judge erroneously refused to instruct jury of nullification power. Court said explicit avowal of jury nullification risks anarchy. Articulating discretion to depart from law makes it likely “the breach will be more often and causally invoked.” So not advertising this power.
6
Q
Where does power to nullify come from?
A
The power to nullify comes from double jeopardy. Would have to change DJ clause to eliminate.
7
Q
What does research on jury nullification show?
A
Juries given the nullification instruction are more likely to convict in a drunk driver homicide and less likely in nurse mercy killing case than juries without the nullification instruction. The juries with the nullification instruction spent less time discussing evidence and more time on defendant’s character. Why? Instruction says can acquit against evidence if conviction would be “inequitable” or “unjust”
8
Q
Are juries told sentencing consequences?
A
Polizza held that absent unusual circumstances, it is an abuse of discretion for a trial judge to inform the jury of the sentencing consequences of its verdict. Exceptions are death penalty cases and non-capital criminal cases in six states. Bifurcated proceeding means trial takes place in two stages: 1) liability 2) sentencing.
9
Q
What if 1 or 2 holdouts for conviction because want to nullify?
A
Court can dismiss the unless they are holding out because of the evidence. Even nullification must be unanimous, whether guilty or not guilty. Otherwise hung jury.
10
Q
3 constraints on sentencing
A
- Mandating specified punishments (especially mandatory minimums)
- Administrative agency to promulgate guidelines to narrow range of sentences
- Providing for appellate review
11
Q
Statutory range on sentencing
A
United States v. Jackson: 30 minutes after release robbed another bank. Life in prison w/o parole. Permissible sentence because within statutory range
12
Q
US Sentencing Commission Federal Guidelines
A
Guidelines are now advisory. App. Ct. can only set aside the sentence if it was unreasonable (whether it was in range or not)
Judges follow the advisory guidelines about 75% of the time, which is the same as when they were mandatory with exceptions factored in.
Advisory has increased disparity but decreased average sentences for everyone.
Objectives of guidelines:
o Abandoning open-ended rehabilitative mode of punishment
o More rule of law, notice, due process
o Address unwanted disparities by reducing discretion
Problems with guidelines:
o App. Cts usually can’t do anything if TC sticks to range
o It has become too mechanical and maybe doesn’t take into account soft factors that it should
o There are upward trending sentences
o Systemic factors are embedded into the sentences
o There is still discretion in the ranges
13
Q
MPC: What are not voluntary acts?
A
Reflex, sleep/unconsciousness, hypnosis, or bodily movement that otherwise is not the product of the effort or determination of the actor, either conscious or habitual
Martin v. State: Drunk on public highway because officers arrested him at his home and took him onto the highway. Plain language of the statue presupposes voluntary appearance. Therefore, conviction was erroneous.
14
Q
MPC: liability based on omission
A
Only where omission expressly sufficient in the law defining the offense or duty to perform omitted act is otherwise imposed by law
15
Q
CL omissions
A
Jones v. US: death of 10 month old
RULE of 4 situations where failure to act = a breach of legal duty:
1. Statute imposes duty to care for another
2. Certain status relationship to another (e.g. mother/child)
3. Assumed contractual duty to care for another [here, on remand, probably would look at whether defendant was being paid to take care of the baby]
4. Voluntarily assumed care of another and secluded helpless person from others’ aid [here, on remand, probably would look at whether the mother was living in the defendant’s home or not]
16
Q
Are parent/child and spouse/spouse sufficient status relationships for omission?
A
Yes
17
Q
Is husband/mistress sufficient status relationship for omission?
A
No - see Beardsley
18
Q
Is stepmother/child sufficient status relationship for omission?
A
Yes - see Carroll
19
Q
Is girlfriend/live-in-boyfriend sufficient status relationship for omission?
A
No - see Miranda
20
Q
Does woman have duty to save child even where she is abused?
A
Yes - see Cardwell
21
Q
Person in Peril Jx
A
o MN, RI, VT makes it a criminal offense to refuse to render aid to a person in peril. FL, HI, and WI only require assistance for victims of a crime. Other countries have high penalties and routinely enforce such laws, but even these US states do not. What is more common are civil “Good Samaritan” laws that protect against civil liability for helping.
o Intersection of torts and criminal law: where person creates someone’s peril, there is a duty to save, and not saving goes toward state of mind and can increase degree of liability. Mens rea of negligence can make it a criminal act rather than an omission, so in that case, can bypass tort law altogether
22
Q
CL mens rea evolution
A
Regina v. Cunningham: gas meter
Claims jury instruction on “malicious” was wrong. Court agrees because the Trial Judge said it means “wicked” and maliciously actually means “foresight of consequences” [intention to do that particular harm or recklessness as to that harm; today = Reckless+]
Defendant could have acted “wickedly” in stealing the gas meter and not acted “maliciously” in poisoning neighbor, so conviction quashed [which today means would be remanded for jury].
23
Q
Mens Rea: purposely
A
For conduct or result: “conscious object” to engage in or to cause
For attendant circumstances: “aware of existence” or “believes or hopes they exist”
24
Q
Mens rea: knowingly
A
For conduct or attendant circumstances: “aware” of nature or existence
For result: “aware it is practically certain conduct -> result”
25
Mens Rea: recklessly
“Consciously disregards”
“a substantial and unjustifiable risk” that element exists or will result from conduct
“gross deviation” from conduct of law abiding person
26
Mens Rea: negligently
“Should be aware of”
“a substantial and unjustifiable risk” that element exists or will result from conduct
“gross deviation” from care of reasonable person
27
What if mens rea isn't in the law?
o §2.02(3): Default of R+
28
What if culpability is articulated for one element and not the others?
o §2.02(4): Assume it applies to others unless contrary purpose clearly appears.
29
Does purposely satisfy recklessly?
o §2.02(5): Yes, any higher MR satisfies a required lower MR.
30
Strict liability: what qualifies as a public welfare offense?
Morisette (rusty bomb casings) describes public welfare offense as:
Neglect where the law requires care; inaction where it imposes a duty.
Creates a mere danger or probability of injury
Whatever the intent of the violator, the injury is the same, and even if the accused didn’t intend the violation, he is usually in the best position to prevent it with reasonable care
Penalties are small and don’t hurt reputation too much. Cardozo wrote in NY tenement cases that “in the prosecution of minor offense there is a wider range of practice and of power.”
Balint (selling illegal drugs): Question of legislative intent and often used for “social betterment rather than punishing crimes of mala in se.” Congress weighed punishing innocent seller against exposing innocent purchasers.
Dotterweich (labeling error on drugs): Goal of Congress was protecting people from things beyond their self-protection. Penalties serve as a means of regulation. Punishes innocent person standing in responsible relationship to public danger. Congress balanced relative hardships.
31
Rule on Congressional silence for strict liability (Morisette and Staples)
Remember that the default under common law is requiring mens rea.
Morisette: "merely adopting into federal statutory law a concept of crime already so well defined in common law and statutory interpretation by the states may warrant quite contrary inferences than the same silene in creating an offense new to general law, for whose definition the courts have no guidance except the Act.”
Staples (possession of unregistered firearm): silence itself doesn’t necessary suggest Congress intended to dispense with mens rea (on contrary, common law default). Some indication of Congressional intent is necessary to dispense with mens rea.
32
People v. Acosta
Police chase starting at 10 pm with some of the “most egregious driving tactics imaginable.” Two police helicopters following the defendant’s car collided because one of them violated an FAA regulation.
RULE: First, threshold question for causation is whether defendant’s act was “actual cause” / “but for” cause of victim’s injury. Then, must also be a proximate cause, with foreseeability as test for proximate cause.
[Allowed to use “zone of danger” for test]
[The particular disease, injury, etc. must be foreseeable, not just general harm]
Given the “emotional dynamics” of the pursuit, the crash was a possible consequence which anyone reasonably might have contemplated.
33
Brady
Two firefighting planes collided after defendant set fire in a location that made it foreseeable that multiple aircraft would have to fly at a low altitude.
34
People v. Arzon
Defendant intentionally set fire to couch, which led to a serious fire in the building. Firemen were enveloped in smoke while evacuating because of a separate arson on a different floor (no ev defendant did that one). A fireman died because evacuation routes were blocked off, but defendant says no causal link between his arson and the death.
o RULE: defendant’s conduct doesn’t have to be the SOLE AND EXCLUSIVE FACTOR but conduct must be SUFFICIENTLY DIRECT cause of death and ultimate harm must be something that should have been foreseen as being REASONABLY RELATED to defendant’s acts. An OBSCURE OR MERELY PROBABLE CONNECTION IS NOT ENOUGH. Even if there is an intervening cause, if defendant’s action was an INDISPENSABLE LINK in the chain of events resulting in death, defendant is liable.
o Here, 2nd fire was intervening cause but 1st fire was indispensable link that led to death. Defendant made the victim firefighter PARTICULARLY VUNLNERABLE to a separate and independent force by cutting off the evacuation routes.
35
Kibbe
Defendant left victim half naked by the side of the road in freezing temperatures, and victim was killed by a passing truck. This was a sufficiently direct cause, even if it was not the ultimate harm intended by the actor, since the defendant made the victim more vulnerable and left him in a vulnerable position.
36
Stewart
Victim operated on because of defendant’s stab wound, but the surgeon also performed an unrelated hernia procedure and he died. Defendant was not the actual cause of death since the victim would have survived but for the hernia operation.
37
Commonwealth v. Root
Involuntary manslaughter for death of automobile race competitor. Need unlawful or reckless conduct to be DIRECT CAUSE of death. There wasn’t here because the deceased swerved into the wrong side of the highway when trying to pass and was hit because of that.
38
Stamp (egg shell skull theory)
Robbery victim died of heart attack from fright. Court said take victim as you find him. He had suffered from coronary disease BEFORE the crime. [Like Lane: convicted of manslaughter where chronic alcoholic died from brain swelling after being punched]. Different result if disease after crime.
39
Causa Causati
Hale: if gangrene or fever led to death, there is liability for the doctor who gave the cut that led to the gangrene or fever.
40
Cheshire
Only if original wounding is merely the setting in which another cause operates can it be said that the death does not result from the wound (whereas it does result from the wound if the wound is still the operating cause and substantial cause).
41
Shabazz
Defendant stabbed victim in abdomen, lung, and liver, and he died in the hospital due to heavy bleeding resulting from liver surgery. Court was allowed to bar expert testimony about hospital negligence because the stab wounds would have been fatal in the absence of any medical treatment, and “gross negligence may permit the defendant to escape liability only when it was the sole cause of the death.” [ordinary medical negligence usually does not break; for gross negligence, depends whether sole cause or contributing cause]
42
Transferred intent (CL and MPC §2.03(2)(a))
Same blameworthy mental state of unlawful intent to kill and same result, so liable for the death even if that wasn’t who you intended to kill.
43
MPC on causation
Need “but for” and any additional causal requirements imposed by code or law.
o For purposeful or knowing and result, element not established unless same injury as contemplated and not too remote or accidental or only difference is person or property injured, or contemplated worse harm than caused.
o For reckless or negligent and result, element not established if result is not within the risk the actor is aware of, or for N, what he should have been aware of, unless same injury as contemplated and not too remote or accidental or only difference is person or property injured, or contemplated worse harm than caused.
o For absolute liability, element not established unless actual result is probable consequence of actor’s conduct.
44
MPC Murder
(1) Except as provided in Section 210.3(1 )(b), criminal homicide constitutes murder when:
(a) it is committed purposely or knowingly; or
(b) it is committed recklessly under circumstances manifesting extreme indifference to the value of human life. Such recklessness and indifference are presumed if the actor is engaged or is an accomplice in the commission of, or an attempt to commit, or flight after committing or attempting to commit robbery, rape or deviate sexual intercourse by force or threat of force, arson, burglary, kidnapping or felonious escape.
45
MPC Manslaughter
§ 210.3. Manslaughter.
(1) Criminal homicide constitutes manslaughter when:
(a) it is committed recklessly; or
(b) a homicide which would otherwise be murder is committed under the influence of extreme mental or emotional disturbance for which there is reasonable explanation or excuse. The reasonableness of such explanation or excuse shall be determined from the viewpoint of a person in the actor's situation under the circumstances as he believes them to be.
(2) Manslaughter is a felony of the second degree.
46
MPC Negligent Homicide
§ 210.4. Negligent Homicide.
(1) Criminal homicide constitutes negligent homicide when it is committed negligently.
(2) Negligent homicide is a felony of the third degree.
47
Murder at CL before degrees
Murder = unlawful killing with malice aforethought
48
Premeditation - 1st vs 2nd Degree Murder
Commonwealth v. Carroll (PA 1963)
• [Equates premeditation with mere intent to kill, which eliminates premeditation distinction between 1st and 2nd degree murder.] RULE: can find specific intent to kill in defendant’s words or conduct or attendant circumstances together with all reasonable inferences therein.” RULE: premeditation being within brief or long space of time is immaterial
State v. Guthrie (WV 1995)
o Mere intent to kill = 2nd degree; intent with premeditation = 1st degree
o RULE: no particular length of time but must be “some period” with an “opportunity for some reflection” and “The accused must kill purposefully after contemplating the intent to kill.” “Any other intentional killing, by its spontaneous and nonreflective nature is second-degree murder.”
Anderson test [case about brutal murder of young child with over 60 wounds]. 3 categories of evidence
o 1) facts regarding defendant’s behavior prior to killing that might indicate a design to take life (“planning” activity)
o 2) facts about the defendant’s prior relationship with victim that might indicate reason to kill (“motive”)
o 3) ev that the manner of killing was so particular and exacting that defendant must have intentionally killed according to a preconceived design
o NOTE this is NOT about length of time
49
Strict Provocation: Mitigating Murder to Manslaughter
Girouard v. State (CoA MD 1991)
RULE for the 5 traditional circumstances that objectively mitigate [need in addition to subjective heat of passion]:
1. Extreme assault or battery upon defendant [Jury decides this, but judge will gatekeep if obvious. Can’t just be a light tap and also won’t work if defendant provoked the A&B. Self-defense is narrower and harder to prove because must fear for life].
2. Mutual combat [agreement to fight; comes from history of dueling]
3. Defendant’s illegal arrest [detained without authority]
4. Injury or serious abuse of a close relative of defendant’s [children, parents, and spouse usually only ones that qualify]
5. Sudden discovery of spouse’s adultery [used to be limited to just husbands catching wives, now wives catching husbands count, but marriage is usually a requirement and must actually witness the adultery]
Viewed narrowly in most jx, even flexible:
• Simonovich: wife only admitted, husband didn’t see it. Ct said act must be seen
• Dennis: Husband only saw a sexual embrace, not sexual intercourse. Ct said must see adultery itself.
• Turner: Manslaughter instructions not required if not legally married.
o RULE for provocation to be adequate: it must be “calculated to inflame the passion of a reasonable man and tend to cause him to act for the moment from passion rather than reason.” AND since the standard is one of reasonableness, does not focus on peculiar frailties of mind of petitioner. Therefore, NOT expanding the 5 categories *here* to include mere words.
• Words can only constitute adequate provocation if they are accompanied by conduct indicating a present intention and ability to cause the defendant bodily harm.
50
Flexible Provocation: Mitigating Murder to Manslaughter
o RULE for flexible provocation: mitigate to manslaughter if intentional killing committed in:
1. Influence of passion or heat of blood [subjective]
2. Produced by an adequate or reasonable provocation [objective]
• Provocation adequate for such a state of mind is “anything the natural tendency of which would be to produce such a state of mind in ordinary men.” Need jury – no cases are the same, so can’t fit into categories.
o Only when no reasonable doubt whether alleged provocation could have tendency to produce such state of mind that judge can exclude evidence.
o Jurors come “from the various classes and occupations of society” vs “judge whose habits and course of life give him much less experience of the workings of passion in the actual conflict of life.”
3. And before a reasonable amount of time has elapsed for blood to cool [objective]
• Maher sends cooling time to jury as Q of fact, but this is the minority view.
[And can’t be because of wickedness (can’t use provocation to disguise malice aforethought). Definition of malice aforethought: coolness and deliberation, reason not clouded by passion, prompted by wicked, depraved or malignant mind.]
NOTE: gender and age can be taken into account for what a reasonable response is
51
Cooling time
If there has been “cooling time,” don’t get MS instruction. Sometimes can argue event immediately preceding homicide “rekindled” an early provocation, but most courts will reject that. In a strict provocation jx, the judge determines cooling as a matter of law. In a flexible jx, the judge or jury can decide.
52
EED
Under MPC, need extreme mental or emotional disturbance for which there was a reasonable explanation or excuse.
Casassa: A reasonable explanation requires determination from person in defendant’s situation under circumstances as defendant believed them to be. Thus, the reason is objective but is viewed from the subjective situation of defendant.
[Writers of MPC say “situation” is “designedly ambiguous” so that some factors can be read in, but not “idiosyncratic moral values.” Writers also say ultimate Q is whether actor’s loss of self-control can be understood in terms that arouse sympathy in the ordinary citizen – jury!]
Immediacy is not required under EED, and neither is a provoking act
53
MPC: reckless MS vs neg. homicide
o If defendant aware of unwarranted risk he was creating (reckless) -> manslaughter
o If defendant should have been aware (negligent) -> negligent homicide
54
MPC reckless MS
MPC says need 1) creation of substantial and 2) unjustifiable risk 3) conscious disregard of the risk and 4) gross deviation from what an ordinary person would do (only objective part)
See Hall
55
MPC Extremely Reckless Murder / CL Depraved Heart Murder
MPC: need extreme indifference to the value of human life for reckless MS to be bumped up to extremely reckless MR. Objective for gross deviation and for extreme indifference to the value of human life, but jury takes “circumstances” into account.
Malone: "gross recklessness for which he must reasonably anticipate that death to another is likely to result” and he exhibited the “wickedness of disposition, hardness of heart, cruelty, recklessness of consequences and a mind regardless of social duty” proving malice.
The malice aforethought needed for unintentional murder is “not necessarily malevolent to the deceased particularly” but “any evil design in general; the dictate of a wicked, depraved, and malignant heart.” Here, there was “malice in the sense of a wicked disposition evidenced by the intentional doing of an uncalled for act in callous disregard of its likely harmful effects on others.”
Fleming: Notes the difference based on facts between “average drunk driving” and what happened here. [As prosecutor, would focus on very very drunk combined with speeding very very fast]
o RULE: malice aforethought can be established by evidence of conduct which is “reckless and wanton and a gross deviation from a reasonable standard of care, of such a nature that a jury is warranted in inferring that defendant was aware of a serious risk of death or serious bodily harm.”
56
Inadvertent risk creation when drunk
MPC §208(2) says that if an actor, due to self-induced intoxication, is unaware of a risk of which he would have been aware had he been sober, such unawareness is immaterial, even though MPC also says in a comment that normally “inadvertent risk creation” can’t be punished as murder.
57
MPC Felony Murder
Except as provided in Section 210.3(1 )(b), criminal homicide constitutes murder when:
(b) it is committed recklessly under circumstances manifesting extreme indifference to the value of human life. Such recklessness and indifference are presumed if the actor is engaged or is an accomplice in the commission of, or an attempt to commit, or flight after committing or attempting to commit robbery, rape or deviate sexual intercourse by force or threat of force, arson, burglary, kidnapping or felonious escape.
58
CL limitations on felony murder
o Need causation still.
o Some felonies are not dangerous enough to count as mens rea for FM (“inherently dangerous limitation”)
o Killing must be committed in course of or in furtherance of the felony to count (“in furtherance limitation”)
59
Causation in felony murder
2 approaches:
• People v. Stamp: (520) SL and take victim as find him. 1st D MR upheld where robbed man with heart problems and guy had heart attack from fright and died. Felony MR not limited to foreseeable deaths. Just need direct causal link and the predisposing physical condition can’t be only substantial factor in death. [but for met and PC met through taking victim as find him].
• King v. Commonwealth: did use foreseeability, in contrast to Stamp. King and copilot transporting 500 pounds of marijuana in plane and crashed. King convicted of FM, but App. Ct. said although crash would not have occurred but for the commission of the felony, the crash was not a foreseeable result of felony bc not made more likely by the fact that the cargo was contraband (vs if flying low to avoid detection).
60
Abstract test
• In CA and MD, the act must be so dangerous that there is high probability that death will result. This is the abstract test, where you look at whether there is a way to commit the felony under the statute that is not inherently dangerous. If there is, can’t say the crime is inherently dangerous. Judge determines this. Compare Phillips (abstract) to Burroughs (abstract).
o Phillips: 8 year old with cancer of eye. Medical center said must remove eye to save life. Chiropractic doctor said could cure by other treatment. Child died in 6 months. Prosecution admitted grand theft (theft by deception) was not inherently dangerous. Attorney General wanted to characterize the crime as grand theft medical fraud (new felony) but court says it is “unwilling to embark on such an uncharted sea of FM” where any segment of conduct considered dangerous to life is enough bc would broaden rule
• Burroughs: Burroughs told someone with leukemia to drink lemonade, salt water, and herb tea, and not eat and gave him massages, which led to a massive hemorrhage. The underlying felony inherently dangerous to life was unlicensed practice of medicine. Applying the abstract test here led to inherently dangerous because the statute regarding unlicensed practice basically said there was no way to do it that wasn’t inherently dangerous.
61
As committed test
Most jx permit a felony (even a nonviolent felony like theft) to qualify if it is committed in a dangerous way. This is the as committed test. The problem is hindsight bias. Jury determines as committed.
62
Res Gestae period
• Gillis: robbery detected, so defendant left and drove away. 10-15 minutes later and 10 miles away, trooper tried to stop defendant, who sped away and hit another vehicle. Ct said the defendant was still fleeing, so 1st D murder.
o [This is because to successfully complete a felony, need to get away as part of it]
o [Time that matters is attempt – period of temporary safety. For the “res gestae” period, look to time and whether there was one continuous transaction as well as causation / a logical nexus between the felony and the homicide.]
63
Co-felon's frolic and detour
Generally liable for co-felon’s killing unless the killing was unrelated to the felony (frolic and detour)
• FM is only a killing committed in course of /furtherance of the felony
• Sometimes, the FM rule increase the liability of all co-felons, while other times only to one most directly responsible for killing (e.g. all plan felony then 1 commits other felony while executing 1st felony and kills in process – who has committed FM?). Depends whether intentionally aiding or encouraging or sometimes if reasonably foreseeable in furtherance of common objective.
• Ex: Cabaltero: lookout during robbery panicked when car approached and fired shots; leader mad and killed lookout. All members convicted of 1st degree FM because shooting helped ensure the success of the ongoing robbery.
• Note that even when co-felons are held responsible, there are limits on capital punishments for non-killing felons.
64
Agency theory of FM
Canola and majority approach:
FM does not extend to killing that, although growing out of commission of felony, is directly attributable to the act of someone other than the defendant or those associated with him with him in the unlawful enterprise.
65
Proximate cause theory of FM
Issue is whether killing is within foreseeable risk of committing the felony
66
Canola concurrence theory of FM
Defendant is liable no matter who kills if the killing is foreseeable UNLESS if it is a co-felon who dies, in which case, there is no liability.
67
Merger rule
Only liable for felony murder if the predicate felony is independent of the homicide. FM does not apply if the assaultive act that causes the death is the felony.
Felonies specifically enumerated in a felony murder statute are exempt from the merger doctrine.
68
Misdemeanor MS
Also known as “unlawful act doctrine.” Just as felony resulting in death can provide basis for murder conviction without proof of malice, in many states a misdemeanor resulting in death can provide basis for involuntary MS conviction without proof of recklessness or negligence. CA and a dozen other states accept. Usually still need causation, inherently dangerous misdemeanor / “evinces disregard” and regulatory offenses do not count.
Ex: Williams: failure to renew driver’s license not causally connected to accident, so misdemeanor couldn’t be bumped up to MS
69
MPC attempt requires MR for actual commission of crime + 1 of what 3 things?
a) purposefully engaging in conduct that would constitute the crime if the attendant circumstances were as he believes them to be
b) for result, doing or omitting to do something with the purpose of causing or belief that it will cause such result without further conduct on his part
c) purposefully doing or omitting to do something that under the circumstances as he believes them to be is an act or omission constituting a substantial step of the crime
70
Renunciation of attempt under MPC
Circumstances manifesting a complete and voluntary renunciation of his criminal purpose. Not voluntary if motivated by new circumstances that increase probability of detection or apprehension or make it more difficult to accomplish crime. Renunciation not complete if motivated by decision to postpone until more advantageous time or switch to new similar objective or victim.
71
Specific intent required for attempt
Purpose always qualifies as specific intent necessary
Knowledge is murky and comes down to how practically certain you were in CL, whereas MPC says “belief” is enough, see §5.01(1)(b).
• Thus, if you merely believe planting a bomb on the plane will kill the pilot and then it doesn’t, you will be liable under the MPC approach but maybe not under CL.
EXTREMELY RECKLESS (DEPRAVED HEART) WON’T BE ENOUGH FOR ATTEMPTED MURDER
Ex: Jones v. State: defendant shot at a house full of people, wounding several and killing one. Convicted of murder for 1 killed but acquitted for attempt on wounded because no specific intent to kill, whereas for the 1 killed it was sufficient defendant knew there was a high probability he would kill someone.
Because there must be specific intent, attempted involuntary MS is a contradiction. Almost all states say can’t attempt an unintentional killing. But, according to State v. Holloran, most courts recognize attempted voluntary MS (ex: shooting at provoker, trying to kill; because intentional!). Other jx say can’t intend to lose control in heat of passion.
CL and MPC say mens rea necessary for AC is the same for attempted as for completed crime (not automatically intent)
72
Factual impossibility
Not a defense. This is where defendant intends to commit a crime and failed because of a fact unknown to the defendant. Ex: Intent to shoot but gun doesn’t have bullets. Really no different than other thwarted attempts and want to promote sting ops.
o In State v. Smith, inmate with HIV bit and spat at guard and said he would die from what the inmate had. Defendant offered evidence at trial for attempted murder that it’s medically impossible to transmit HIV from biting and spitting, but court said irrelevant as long as defendant believed it was possible to kill that way and intended to do so.
73
Inherent factual impossibility
Sometimes defense, depending on jx. Not a defense under MPC, which says belief is enough for attempt. This is where defendant’s method to accomplish crime was not reasonable. Ex: buy doll and stick pins in it.
74
True legal impossibility
Complete defense. This is where you think the conduct you engage in is a crime, but it isn’t.
75
Punishment of attempt under MPC
MPC says punish the same bc mens rea focused (unless life sentence/death penalty)
76
“Dangerous proximity” test
• People v. Rizzo: The defendants were attempting to rob the “pay roll” man, but although they drove around looking, neither of the people they expected to find came into sight.
o RULE: For attempt, there must be an act “tending” but failing to effect commission of crime. Tending means to exert activity in a particular direction. Act in preparation to commit crime may be said to have a tendency toward its accomplishment BUT many acts in preparation too remote for attempt. Need proximate and near to consummation.
Therefore, only acts that are “so near” to the accomplishment of the crime “that in all reasonable probability the crime itself would have been committed, but for timely intervention” = attempt. Need dangerous proximity.
o Here, to actually commit robbery, would need to take the money from the pay roll man, so no attempt to rob him could be made until he came into defendant’s sight. He wasn’t in the building defendant stopped at. The defendant may have been looking around for an opportunity, but the opportunity never came, so there was no attempt.
77
United States v. Jackson
o RULE: two tiered inquiry: 1) need same kind of culpability as commission and 2) need substantial step toward the commission (strongly corroborative of firmness of criminal intent)
The fact that further major steps must be taken before the crime is completed does not preclude a finding that the steps already taken were substantial.
Also, no finding about whether the actor would or would not have desisted is necessary
o Here, defendants had passed the stage of preparation and would have robbed but for certain external factors.
Focused on 2 occasions and reconnoitering and possessing the necessary “paraphernalia” with no lawful use.
78
Abandonment
Usually abandoning criminal purpose is not a defense to liability. This is why some cts will place the threshold very close to last act. Bc the MPC draws line earlier, allows renunciation. Dangerous proximity is later, so don’t need abandonment.
79
MPC Self-Defense
Use of force is justifiable when the actor believes such force is immediately necessary for the purpose of protecting himself against the use of unlawful force by such other person on the present occasion. Use of deadly force only justifiable if actor believes it is necessary to protect against death, serious bodily injury, kidnapping, or sexual intercourse. Also not justifiable if force provoked against yourself or you could retreat with complete safety (but don't have to retreat from dwelling or place of work unless first aggressor or the other person works there).
80
CL rule for self-defense
To succeed on SD, must meet all 4 CL requirements (and must not be first aggressor). Then, if it is a stand-your ground state, done with analysis. Otherwise, examine duty to retreat and castle exception to retreat rule.
o The defendant must have an honest and objectively reasonable belief in light of the surrounding circumstances that:
There is a threat of the use of deadly force, actual or apparent
The threat is unlawful and imminent
The defendant believes his response is necessary to prevent imminent peril of death or serious bodily harm
81
Imperfect self-defense
If you have an honest but unreasonable belief in need to use lethal force, you are technically guilty of murder (in the prevailing view) BUT some states use mitigation like imperfect self-defense to lower to voluntary MS (bc no malice and less culpability similar to killing in the heat of passion. Other approach is involuntary MS, but the problem is the killing was intentional (though proponents say culpability is similar). MPC is more similar to this last approach, saying negligent homicide or reckless MS for an honest but unreasonable belief, depending on mens rea and whether negligent or reckless in the unreasonable belief [see §3.04(1) + §3.09(2)].
82
CL imminence requirement for SD
Only can kill in self-defense in the “utmost real or apparent necessity.” Imminent = immediate danger that must be instantly met.
In Norman, since abused woman's husband was sleeping, not imminent
Defendant’s subjective belief of what is “inevitable” (here she thought death was) does not equate to imminent. She had an indefinite fear devoid of the time frame.
83
MPC immediately necessary requirement for SD
MPC relaxes imminence requirement by just requiring the actor to believe (subjective only) that the use of defensive force was “immediately necessary.” Several states have adopted this.
• Ex: in State v. Janes, ct said patterns of behavior in abusive relationships may signal the start of an abusive episode, making the threat enough to support SD if reasonable belief it will be carried out.
• For MPC, need to believe the necessity of responding is immediate, vs under CL needing to belief the threat is imminent. No study has been done on whether there is a real jury difference though.
84
Retreat rule
MPC embraces retreat but the majority of precedents oppose it.
• The court in Abbott thinks retreat is good if limited.
o There is no absolute right to stand ground and kill in any and all situations.
o Retreat issue arises only if defendant resorted to deadly force, and does NOT depend on the nature of the force defended against. Therefore, if he does not resort to deadly force, one who is assailed may hold his ground whether the attack upon him be deadly or lesser character.
o An opportunity to retreat must be taken only where the actor KNOWS he can avoid the necessity of using force with COMPLETE SAFETY by retreating. Thus, one who is wrongfully attacked need not risk injury by retreating even though could escape with something less than serious bodily injury. Look at circumstances.
• Here, Abbott could hold his ground when Nicolas came at him with fists and when Michael and Mary came at him with a hatchet and kitchen knife. Only had to retreat if intended to use deadly force.
33ish states now have “stand your ground” laws where you can meet force with force, even when retreat is possible.
85
Castle doctrine
• Castle exception: Cardozo’s famous opinion in People v. Tomlins – no duty to retreat in own home. This exists in every state.
o Most states will apply to guests who are threatening, not just intruders.
o If one occupant kills another, MPC and most courts also agree retreat is not necessary. In Tomlins, Cardozo held that a father being threatened by his son could kill rather than retreat. Why let one occupant kill another in SD?
Minnesota tried to draw line between co-occupant and guest and found it hard to do.
Concern that victims of DV will constantly have to retreat, further increasing danger bc abuser doesn’t like separation
86
First aggressor rule
• RULE: can’t support SD with self-generated necessity to kill. Need to be “free form fault” and “The fact that the deceased struck the first blow, fired the 1st shot, or made the 1st menacing gesture does not legalize the SD claim if in fact the claimant was the actual provoker.” Only communicating intent to withdraw and GF attempt to do so restores right of SD to aggressor.
In US v. Peterson, Peterson reappeared with pistol and Keitt was about to depart (and had thus communicated his withdrawal), Keitt was no longer the aggressor EVEN IF he was originally, and at this point Peterson became became the aggressor.
87
Non-lethal first aggressor needing to use SD
Only a few jx allow a non-lethal first aggressor to then kill in SD if met with excessive, life-threatening response, and even those mostly say must use every reasonable means to escape. Most jx say non-lethal first aggressor cannot use SD as a defense because not “free from fault.”
MPC comment says the general rule where first aggressor doesn’t get SD is narrow forfeiture and an aggressor is entitled to use deadly force if started with “moderate” forced and other exceeded “necessary” force in response. Section (2)(b)(i) only deprived aggressor of justification if entered the encounter with the purpose of causing death or SBH
88
Insanity sentencing
Find defendant guilty (prison, judicial discretion at sentencing)
Find defendant guilty but mentally ill (same sentencing authority as when defendant just found guilty. Prison, BUT gets psychiatric treatment. Even if treatment is successful, must serve full term).
Find defendant not guilty by insanity (treatment only)
Find defendant not guilty and acquit
89
McNaghten
• RULE: presumption of sanity until proven otherwise to jury’s satisfaction and to do so must prove that at time of committing act, the party accused was under such a defect of reason/disease of mind to:
o not know the nature or quality of the act he was doing [ex: think squeezing lemons not neck (not knowing wrong is also inherent here)]
o Or to not know it was wrong (not the general difference between right and wrong in the law of the land but knowing whether the specific act was something he ought not to do). [ex: knows squeezing neck but genuinely thinks that person is devil out to destroy the world]
90
Blake
Adopted MPC version of insanity.
The defendant only needs to “lack” a “substantial capacity” to “appreciate” the wrongfulness of his actions rather than the old standard of being incapable of distinguishing right from wrong.
MPC expanded on M’Naughten in 3 ways
• Lack of substantial capacity rather than “incapable”
• “Appreciate” wrongfulness vs “knowing” wrongfulness
• Added irresistible impulse test about conforming conduct (lacked the substantial capacity to conform his or her conduct to the requirements of the law)
91
Lyons
The court re-examined Blake and said the volitional prong doesn’t fit with today’s medical knowledge, so then just “unable to appreciate the wrongfulness of that conduct.” This shift is explained by the acquittal of Hinckley (who shot Ronald Reagan). At this time, the burden of proof changed from the prosecution to the defense.
92
State choice of insanity rule
o Many jx have since gone back to M’Naughten. 14 use MPC. The federal standard (18 USC §17) is essentially M’Naughten. Notably, in Kahler v. Kansas, SCOTUS said states can do what they want. They get to decide their version of the legal insanity test, and it isn’t a DP violation to curtail insanity defense (and technically left open that a state could fully abolish).
93
Reforms to rape
Changing the gender-specific character of the crime, degree of force and/or resistance required, the need to differentiate between degrees of the offense, and the traditional exemption for men who forcibly raped their wives.
94
CL force/resistance requirement of rape
o There must have been force sufficient to overcome the victim’s physical resistance OR force or threat of force likely to cause serious bodily harm / a fear so extreme as to preclude resistance or render her incapable of continuing to resist, if this fear is genuine and reasonable.
o More succinct: prosecution must prove defendant used physical force/threat of force that overcame resistance or made resistance futile.
95
DiPetrillo
Psychological pressure of employer-employee relationship deemed not similar to Burke case where armed police officer was threatening victim and the victim reasonably believed resistance would be futile.
96
How much force is required for rape in most CL jx?
o When force is required, courts usually say it must go “beyond that which is inherent or incidental to the sexual act itself.”
Several states require earnest resistance and several more require reasonable resistance.
97
PA statute forcible compulsion
“compulsion by use of physical, intellectual, moral, emotional or psychological force, either express or implied.”
98
M.T.S. minority rule on force and resistance
NJ chose not to go with the MPC approach. Drafter’s intent was to remove ALL features found to be contrary to the interests of rape victims. Under the law, the victim is not required to resist in any way; no need to say or do anything for the act to be unlawful. Requiring additional physical force would be inconsistent with the legislative purpose of eliminating any consideration of whether the victim resisted or expressed non-consent.
• Requiring force extrinsic to sexual act would reintroduce resistance requirement. Would also prevent some acts of sexual contact from being punished.
o Thus, rule is that physical force is satisfied if the defendant applies any amount of force against another person in the absence of what a reasonable person would believe to be affirmative and freely given permission to the act of sexual penetration.
o Affirmative consent: permission to the specific act of sexual penetration can be indicated either through words or actions that under the circumstances demonstrate to a reasonable person affirmative and freely given authorization for the specific act. The role of the factfinder is only to decide whether the defendant’s belief that the alleged victim had freely given affirmative permission was reasonable.
99
Mens rea of rape - mistake of fact defense
What mental state did the defendant need to have regarding the victim’s lack of consent?
• Purpose: defendant’s conscious purpose was to engage in non-consensual sex
• Knowledge: defendant actually knew (was practically certain) the victim did not consent -> unreasonable mistake of fact defense [Sherry defendants’ request – “unless you find BARD that the accused had actual knowledge of the victim’s lack of consent, then you must find them not guilty”]
• Reckless: defendant was subjectively aware of substantial risk that victim was not consenting and disregarded the risk contrary to reasonable person -> unreasonable mistake of fact defense
• Negligence: defendant should have been aware of substantial risk that victim was not consenting -> reasonable mistake of fact defense
• Strict liability: assuming the state proves all elements (e.g. force/lack of consent), defendant is liable regardless of what defendant thought/should have thought -> no mistake of fact defense.
NOTE: In the US, most jx only allow mistake defense when defendant’s error as to consent is reasonable. In contrast, in England and a few US jx, including Alaska, unreasonable mistake of fact is defense is allowed (this is what the Sherry defendants wanted). Alaska justifies this as balancing the elimination of the resistance requirement.
There is an inverse relationship of AR-MR. States with the physical force/resistance requirement most often have strict liability for MR, or at most the reasonable MOF defense. States that do not have the physical/force resistance requirements most often have the reasonable MOF defense, and some have the unreasonable MOF defense. Some states (the most liberal like MA) have removed the physical force/resistance requirement AND impose strict liability for MR.
100
Sherry
1) rape victim did not have to use physical force to resist; any resistance, including only verbal resistance, is sufficient if it demonstrates that refusal to consent is “honest and real”
2) Court said that the mistake of fact defense requires the defendant to have acted in good faith and with reasonableness. Defendant’s requested instruction would have required jury to find physicians had actual knowledge of victim’s lack of consent in order to convict [this would have required prosecution to prove that the defendant subjectively believed the victim had not consented - difficult]. TC correctly denied this instruction because the instruction wouldn’t have directed the jury to consider the objective reasonableness of the physician’s mistaken belief that the victim had consented [this would be negligence/reasonable MOF defense].
• Takeaway: Subjective belief that the victim consented is insufficient; must be objectively reasonable.
