The General Principles of the Criminal Law

© Jones & Bartlett Learning, LLC © Jones & Bartlett Learning, LLC NOT FOR SALE OR DISTRIBUTION NOT FOR SALE OR DISTRIBUTION The General Principles CHAPTER of the© Jones Criminal & Bartlett Learning, LawLLC © Jones & Bartlett Learning, LLC NOT FOR SALE OR DISTRIBUTION NOT FOR2 SALE OR DISTRIBUTION

© JonesCHAPTER & OBJECTIVESBartlett Learning, LLC © Jones & Bartlett Learning, LLC NOT FOR SALE OR DISTRIBUTION NOT FOR SALE OR DISTRIBUTION • Examine the general elements of crimes. • Distinguish between an act and a status. • Examine the differences among voluntary acts, involuntary acts, and omissions, and explain the importance of those differences to the criminal law. © Jones & Bartlett •Learning, Understand LLCthe four kinds of mens rea defined© Jones in the Model & Bartlett Penal Code. Learning, LLC NOT FOR SALE OR• DISTRIBUTION Introduce and apply the principles of concurrenceNOT andFOR causation SALE. OR DISTRIBUTION • Examine the element of harm and identify the requirements for a criminal attempt.

INTRODUCTION© Jones & Bartlett Learning, LLC © Jones & Bartlett Learning, LLC As explainedNOT by legal FOR scholar SALE Jerome OR Hall DISTRIBUTION(1960) in his influential treatise General NOT FOR SALE OR DISTRIBUTION Principles of Criminal Law, the criminal law can be analyzed or studied at different levels of abstraction. At the lowest, most detailed level are the specific rules defining individual crimes, such as murder, manslaughter, burglary, robbery, larceny, and the like. A step removed from the specific rules, at a higher level of abstrac- © Jonestion, are & criminalBartlett law Learning, doctrines. Examples LLC of recognizable doctrines© Joneswithin the & Bartlett Learning, LLC NOTcriminal FOR SALElaw include OR insanity, DISTRIBUTION duress, necessity, excuse, and attempts.NOT Doctrines FOR SALE OR DISTRIBUTION are conceptually broader than rules and sometimes override their application; for example, an “insane” person or one who acts under “duress” may be excused from criminal liability even if his or her conduct otherwise satisfies the rule defining burglary, arson, or another crime. At the highest level are the general principles of © Jones & Bartlettthe Learning, criminal law, whichLLC combine to provide a theoretical© Jones framework & Bartlett explaining Learning, LLC NOT FOR SALE ORwhat DISTRIBUTION is common to crime and which Professor NOTHall describes FOR SALE as “the ORultimate DISTRIBUTION norms of the penal law” (p. 10) In Chapter 1, we considered the legality principle and punishment, which Professor Hall includes as the front and back “bookends” that encompass the general principles of the criminal law. Our focus in this chapter is on the general principles of© the Jones criminal & law,Bartlett the features Learning, that are commonLLC to all crime and © Jones & Bartlett Learning, LLC help explainNOT the criminal FOR law’sSALE distinctive OR DISTRIBUTION character. Relying on Professor Hall’s NOT FOR SALE OR DISTRIBUTION framework, we examine the following general principles that underlie and help unify the substantive criminal law: (1) actus reus (guilty act); (2) mens rea (guilty mind); (3) concurrence (of the actus reus and mens rea); (4) causation; and (5) harm.

© JonesACTUS & REUS Bartlett Learning, LLC © Jones & Bartlett Learning, LLC NOT FOR SALE OR DISTRIBUTION NOT FOR SALE OR DISTRIBUTION Loosely translated, the Latin phrase actus reus means “guilty act.” It may seem self- evident that there can be no crime without a guilty act; for both pragmatic and principled reasons, we do not punish people for their thoughts alone. Yet the actus

© Jones & Bartlett Learning, LLC. NOT FOR SALE OR DISTRIBUTION. Actus Reus © Jones & Bartlett Learning, LLC © Jones & Bartlett Learning, LLC NOT FOR SALE OR DISTRIBUTION NOT FOR SALE OR DISTRIBUTION reus requirement, which is fundamental to the Act vs. Status criminal law, is not free of complexities. Initially, The first issue that we explore involves the dif- we must be able to distinguish an individual’s act ference between an act and a status. Assume that from his or her status. Even when we can be cer- the defendant in Robinson v. California, presented tain that an act© Joneshas been &committed, Bartlett we Learning, must in LLCthe following case, was a narcotics© Jones addict. Can & Bartlett Learning, LLC further considerNOT whether FOR the SALE act was ORcommitted DISTRIBUTION the status of “being addicted to” drugsNOT be FOR crimi- SALE OR DISTRIBUTION voluntarily; as we shall see, the criminal law does nalized, or does conviction for a crime require not punish involuntary conduct. Finally, we must evidence of active drug use? In other words, does analyze whether failing to act—doing nothing (and should) the status or condition of being a when some sort of action arguably should have narcotics addict satisfy the criminal law’s actus reus © Jonesbeen taken—can, & Bartlett at least Learning, under some LLC circum- requirement? Consider© Jones these & Bartlettquestions asLearning, you LLC NOTstances, FOR be SALE punished OR as aDISTRIBUTION crime. read the justices’NOT opinions FOR in thisSALE important OR case.DISTRIBUTION

CASE © Jones & BartlettRobinson Learning, v. California, LLC 370 U.S. 660, 82 S.Ct. 1417, 8 © Jonesthe Los Angeles & Bartlett County Superior Learning, Court, [which] LLC . . . NOT FOR SALE L.Ed.2dOR DISTRIBUTION 758 (1962) NOTaffirmed FOR the SALE judgment OR of conviction. DISTRIBUTION . . . Mr. Justice STEWART delivered the opinion of the Court. The broad power of a State to regulate the narcotic drugs traffic within its borders is not here in issue. . . . Such regulation, it can be assumed, could take a A California statute makes it a criminal offense variety of valid forms. A State might impose criminal for a person to ©“be Jones addicted to& the Bartlett use of narcotics.” Learning,1 sanctions, LLC for example, against the© unauthorized Jones & Bartlett Learning, LLC This appeal draws into question the constitutionality manufacture, prescription, sale, purchase, or posses- of that provisionNOT of the FOR state law, SALE as construed OR DISTRIBUTIONby the sion of narcotics within its borders. InNOT the interest FOR of SALE OR DISTRIBUTION California courts in the present case. discouraging the violation of such laws, or in the inter- The trial judge instructed the jury that the statute est of the general health or welfare of its inhabitants, made it a misdemeanor for a person “either to use nar- a State might establish a program of compulsory treat- cotics, or to be addicted to the use of narcotics * * *. ment for those addicted to narcotics. Such a program © JonesThat portion & Bartlett of the statute Learning, referring to LLC the ‘use’ of of treatment might© require Jones periods & Bartlett of involuntary Learning, con- LLC NOTnarcotics FOR isSALE based upon OR the DISTRIBUTION ‘act’ of using. That por- finement. And penalNOT sanctions FOR mightSALE be imposedOR DISTRIBUTION for tion of the statute referring to ‘addicted to the use’ of failure to comply with established compulsory treat- narcotics is based upon a condition or status. They are ment procedures. Cf. Jacobson v. Massachusetts, 197 not identical. * * * To be addicted to the use of narcot- U.S. 11. Or a State might choose to attack the evils of ics is said to be a status or condition and not an act. narcotics traffic on broader fronts also—through public It is a continuing offense and differs from most other health education, for example, or by efforts to amelio- © Jones & Bartlettoffenses Learning, in the fact LLCthat (it) is chronic rather than © Jonesrate the economic & Bartlett and social Learning, conditions under LLC which NOT FOR SALE acute;OR thatDISTRIBUTION it continues after it is complete and subjects NOTthose FOR evils might SALE be thought OR DISTRIBUTION to flourish. In short, the the offender to arrest at any time before he reforms. The range of valid choice which a State might make in this existence of such a chronic condition may be ascer- area is undoubtedly a wide one, and the wisdom of any tained from a single examination, if the characteristic particular choice within the allowable spectrum is not reactions of that condition be found present.” . . . for us to decide. . . . Under these ©instructions Jones the & jury Bartlett returned aLearning, verdict LLCIt would be possible to construe the© statuteJones under & Bartlett Learning, LLC finding the appellantNOT “guilty FOR of SALE the offense OR charged.” DISTRIBUTION which the appellant was convicted NOTas one whichFOR is SALE OR DISTRIBUTION An appeal was taken to the Appellate Department of operative only upon proof of the actual use of narcotics

© Jones1. The statute& Bartlett is § 11721 of theLearning, California Health LLC and Safety Code. It provides: © Jones & Bartlett Learning, LLC NOT FORNo person SALE shall use, or ORbe under DISTRIBUTION the influence of, or be addicted to the use of narcotics, exceptingNOT when administeredFOR SALE by or under OR the direction DISTRIBUTION of a person licensed by the State to prescribe and administer narcotics. It shall be the burden of the defense to show that it comes within the exception. Any person convicted of violating any provision of this section is guilty of a misdemeanor and shall be sentenced to serve a term of not less than 90 days nor more than one year in the county jail. . . .

The appellant was convicted after a jury trial in the Municipal Court of Los Angeles. . . . © Jones & Bartlett Learning, LLC © Jones & Bartlett Learning, LLC 24 Introduction to Law and Criminal Justice NOT FOR SALE OR DISTRIBUTION NOT FOR SALE OR DISTRIBUTION

© Jones & Bartlett Learning, LLC. NOT FOR SALE OR DISTRIBUTION. Act vs. Status © Jones & Bartlett Learning, LLC © Jones & Bartlett Learning, LLC Robinson v. California, 370 U.S. 660, 82 S.Ct. 1417, 8 L.Ed.2d 758 (1962) CASE NOT FOR SALE OR DISTRIBUTION NOT FOR SALE OR DISTRIBUTION within the State’s jurisdiction. But the California one day in prison would be a cruel and unusual punish- courts have not so construed this law. Although there ment for the “crime” of having a common cold. was evidence in the present case that the appellant had We are not unmindful that the vicious evils of the used narcotics in Los Angeles, the jury were instructed narcotics traffic have occasioned the grave concern that they could© convictJones him & even Bartlett if they disbelieved Learning, ofLLC government. There are, as we ©have Jones said, count- & Bartlett Learning, LLC that evidence. The appellant could be convicted, they less fronts on which those evils may be legitimately were told, if theyNOT found FOR simply SALE that the OR appellant’s DISTRIBUTION attacked. We deal in this case only NOTwith an FORindividual SALE OR DISTRIBUTION “status” or “chronic condition” was that of being provision of a particularized local law as it has so far “addicted to the use of narcotics.” And it is impossible been interpreted by the California courts. to know from the jury’s verdict that the defendant was Reversed. . . . not convicted upon precisely such a finding. . . . Mr. Justice HARLAN, concurring. © JonesThis &statute, Bartlett therefore, Learning, is not one which LLC punishes I am not prepared© Jones to hold that& Bartlett on the present Learning, state LLC NOTa FORperson forSALE the use OR of narcotics, DISTRIBUTION for their purchase, of medical knowledgeNOT itFOR is completely SALE irrational OR DISTRIBUTION and sale or possession, or for antisocial or disorderly behav- hence unconstitutional for a State to conclude that ior resulting from their administration. It is not a law narcotics addiction is something other than an illness which even purports to provide or require medical nor that it amounts to cruel and unusual punishment treatment. Rather, we deal with a statute which makes for the State to subject narcotics addicts to its crimi- © Jones & Bartlettthe Learning, “status” of narcotic LLC addiction a criminal offense,© Jonesnal law. Insofar& Bartlett as addiction Learning, may be identified LLC with for which the offender may be prosecuted “at any time the use or possession of narcotics within the State (or, NOT FOR SALE ORbefore DISTRIBUTION he reforms.” California has said that a personNOT I would FOR suppose, SALE without OR DISTRIBUTIONthe State), in violation of can be continuously guilty of this offense, whether or local statutes prohibiting such acts, it may surely be not he has ever used or possessed any narcotics within reached by the State’s criminal law. But in this case the State, and whether or not he has been guilty of any the trial court’s instructions permitted the jury to antisocial behavior there. find the appellant guilty on no more proof than that It is unlikely© thatJones any State & Bartlettat this moment Learning, in his- heLLC was present in California while he© wasJones addicted & to Bartlett Learning, LLC tory would attemptNOT to FOR make it SALE a criminal OR offense DISTRIBUTION for a narcotics. Since addiction alone cannotNOT reasonably FOR SALEbe OR DISTRIBUTION person to be mentally ill, or a leper, or to be afflicted thought to amount to more than a compelling propen- with a venereal disease. A State might determine that sity to use narcotics, the effect of this instruction was the general health and welfare require that the victims to authorize criminal punishment for a bare desire to of these and other human afflictions be dealt with by commit a criminal act. © Jonescompulsory & Bartlett treatment, involvingLearning, quarantine, LLC confine- . . . Accordingly,© Jones I agree that & theBartlett application Learning, of the LLC ment, or sequestration. But, in the light of contempo- California statute was unconstitutional in this case and NOTrary FOR human SALE knowledge, OR aDISTRIBUTION law which made a criminal join the judgmentNOT of reversal. FOR SALE OR DISTRIBUTION offense of such a disease would doubtless be univer- Mr. Justice CLARK, dissenting. . . . sally thought to be an infliction of cruel and unusual Mr. Justice WHITE, dissenting. . . . punishment in violation of the Eighth and Fourteenth The Court clearly does not rest its decision upon Amendments. the narrow ground that the jury was not expressly © Jones & Bartlett WeLearning, cannot but consider LLC the statute before us as of the© Jonesinstructed & notBartlett to convict Learning, if it believed LLC appellant’s NOT FOR SALE ORsame DISTRIBUTION category. In this Court counsel for the State rec-NOTuse FOR of narcotics SALE was OR beyond DISTRIBUTION his control. The Court ognized that narcotic addiction is an illness.8 Indeed, recognizes no degrees of addiction. The Fourteenth it is apparently an illness which may be contracted Amendment is today held to bar any prosecution for innocently or involuntarily.9 We hold that a state law addiction regardless of the degree or frequency of use, which imprisons a person thus afflicted as a criminal, and the Court’s opinion bristles with indications of fur- even though he has never touched any narcotic drug ther consequences. If it is “cruel and unusual punish- within the State© orJones been guilty & ofBartlett any irregular Learning, behav- ment” LLC to convict appellant for addiction,© Jones it is difficult & Bartlett Learning, LLC ior there, inflictsNOT a cruel FOR and SALEunusual punishmentOR DISTRIBUTION in to understand why it would be any lessNOT offensive FOR to the SALE OR DISTRIBUTION violation of the Fourteenth Amendment. To be sure, Fourteenth Amendment to convict him for use on the imprisonment for ninety days is not, in the abstract, a same evidence of use which proved he was an addict. It punishment which is either cruel or unusual. But the is significant that in purporting to reaffirm the power question cannot be considered in the abstract. Even of the States to deal with the narcotics traffic, the © Jones & Bartlett Learning, LLC © Jones & Bartlett Learning, LLC NOT FOR8. In its SALE brief the appellee OR stated: DISTRIBUTION “Of course it is generally conceded that a narcotic addict,NOT particularly FOR one addicted SALE to the OR use of heroin,DISTRIBUTION is in a state of mental and physical illness. So is an alcoholic.” Thirty-seven years ago this Court recognized that persons addicted to narcotics “are diseased and proper subjects for (medical) treatment.” Linder v. United States, 268 U.S. 5, 18. 9. Not only may addiction innocently result from the use of medically prescribed narcotics, but a person may even be a narcotics addict from the moment of his birth. . . . © Jones & Bartlett Learning, LLC © Jones & Bartlett Learning, LLC CHAPTER 2 The General Principles of the Criminal Law 25 NOT FOR SALE OR DISTRIBUTION NOT FOR SALE OR DISTRIBUTION

© Jones & Bartlett Learning, LLC. NOT FOR SALE OR DISTRIBUTION. Actus Reus © Jones & Bartlett Learning, LLC © Jones & Bartlett Learning, LLC CASE Robinson v. California, 370 U.S. 660, 82 S.Ct. 1417, 8 L.Ed.2d 758 (1962) NOT FOR SALE OR DISTRIBUTION NOT FOR SALE OR DISTRIBUTION Court does not include among the obvious powers of evidence of the precise location of use. Beyond this the State the power to punish for the use of narcotics. it has cast serious doubt upon the power of any State I cannot think that the omission was inadvertent. to forbid the use of narcotics under threat of criminal The Court has not merely tidied up California’s law punishment. I cannot believe that the Court would by removing some© Jones irritating &vestige Bartlett of an outmoded Learning, forbid LLC the application of the criminal© Jones laws to the& Bartlett Learning, LLC approach to the control of narcotics. At the very use of narcotics under any circumstances. But the least, it has effectivelyNOT FOR removed SALE California’s OR DISTRIBUTIONpower States, as well as the Federal Government,NOT FOR are now SALE OR DISTRIBUTION to deal effectively with the recurring case under the on notice. They will have to await a final answer in statute where there is ample evidence of use but no another case. . . .

© JonesNotes & and Bartlett Questions Learning, LLC Angeles street.© Jones“The officer & testified Bartlett that . Learning,. . he LLC NOT FOR SALE OR DISTRIBUTION had observedNOT ‘scar tissue FOR and SALE discoloration OR on DISTRIBUTIONthe 1. If Robinson v. California stands for the proposition inside’ of [Robinson’s] right arm, and ‘what appeared that the United States Constitution forbids the to be numerous needle marks and a scab which was criminal punishment of someone for occupying a approximately three inches below the crook of the particular status or condition, as opposed to com- elbow’ on [his] left arm. The officer also testified mitting some kind of prohibited act, what reasons that [Robinson] under questioning had admitted to © Jones & Bartlett Learning,support this conclusion? LLC On what provisions of the © Jonesthe occasional & Bartlett use of narcotics.” Learning, If one consequence LLC Constitution does the Court rely? of being addicted to narcotics is the compulsion to NOT FOR SALE OR DISTRIBUTION NOT FORuse narcotics, SALE what OR do you DISTRIBUTION make of Justice White’s 2. Using the decision and rationale in Robinson, can observation in his dissenting opinion: “If it is ‘cruel you articulate the distinction between a status and and unusual punishment’ to convict [Robinson] for an act? Could a state constitutionally punish some- addiction, it is difficult to understand why it would one for being taller than 6 feet? For having red hair? be any less offensive to the Fourteenth Amendment For having AIDS? For having a tattoo? For being born to convict him for use on the same evidence of use outside of© the Jones United States? & Bartlett For being an Learning, illegal LLC © Jones & Bartlett Learning, LLC which proved he was an addict”? Does the Court’s immigrant? For being a Republican or a Democrat, NOT FOR SALE OR DISTRIBUTIONholding in Robinson v. California “castNOT serious FOR doubt SALE OR DISTRIBUTION or a member of the Bloods or the Crips street gang? upon the power of any State to forbid the use of 3. Robinson was convicted after being arrested by a narcotics under threat of criminal punishment,” as police officer who had encountered him on a Los Justice White argues?

© Jones & Bartlett Learning, LLC © Jones & Bartlett Learning, LLC In keeping with the decision in Robinson that the how and why the Court distinguishes Robinson in NOTConstitution FOR SALE prohibits OR convictingDISTRIBUTION and punish- the following case.NOT Determine FOR SALE whether OR you DISTRIBUTIONfind ing a person for a crime because of a condition the rationale offered in Justice Marshall’s plurality or status, how do you think the Court would opinion, or the rationale offered in the diverse respond to the case of a chronic alcoholic who is concurring and dissenting opinions, to be most convicted for public intoxication? Make note of persuasive. © Jones & Bartlett Learning, LLC © Jones & Bartlett Learning, LLC NOT FOR SALECASE OR DISTRIBUTION NOT FOR SALE OR DISTRIBUTION Powell v. Texas, 392 U.S. 514, 88 S.Ct. 2145, 20 L.Ed.2d Appellant was tried in the Corporation Court of 1254 (1968) Austin, Texas, found guilty, and fined $20. He appealed Mr. Justice Marshall announced the judgment of to the County Court . . . where a trial de novo was held. the Court and delivered an opinion in which the His counsel urged that appellant was “afflicted with Chief Justice, Mr.© JusticeJones Black, & andBartlett Mr. Justice Learning, the LLC disease of chronic alcoholism,” that© Jones “his appear- & Bartlett Learning, LLC Harlan join. NOT FOR SALE OR DISTRIBUTIONance in public [while drunk was] . . NOT. not of FOR his own SALE OR DISTRIBUTION volition,” and therefore that to punish him criminally for that conduct would be cruel and unusual, in viola- In late December 1966, appellant was arrested and tion of the Eighth and Fourteenth Amendments to the charged with being found in a state of intoxication in United States Constitution. © Jonesa public place,& Bartlett in violation Learning, of Texas Penal Code,LLC Art 477 The trial judge© . .Jones . , sitting without & Bartlett a jury, made Learning, cer- LLC (1952), which reads as follows: tain findings of fact, but ruled as a matter of law that NOT FOR“Whoever SALE shall get OR drunk DISTRIBUTION or be found in a state of chronic alcoholismNOT was not FOR a defense SALE to the OR charge. DISTRIBUTION He intoxication in any public place, or at any private found appellant guilty, and fined him $50. There being house except his own, shall be fined not exceeding no further right to appeal within the Texas judicial sys- one hundred dollars.” tem, appellant appealed to this Court. . . . © Jones & Bartlett Learning, LLC © Jones & Bartlett Learning, LLC 26 Introduction to Law and Criminal Justice NOT FOR SALE OR DISTRIBUTION NOT FOR SALE OR DISTRIBUTION

© Jones & Bartlett Learning, LLC. NOT FOR SALE OR DISTRIBUTION. Act vs. Status © Jones & Bartlett Learning, LLC © Jones & Bartlett Learning, LLC Powell v. Texas, 392 U.S. 514, 88 S.Ct. 2145, 20 L.Ed.2d 1254 (1968) CASE NOT FOR SALE OR DISTRIBUTION NOT FOR SALE OR DISTRIBUTION I. “Q. You knew you had to be here this afternoon, but this morning you took one drink and then you The principal testimony was that of Dr. David Wade, knew that you couldn’t afford to drink any more a Fellow of the American Medical Association, duly and come to court; is that right? certificated in© psychiatry. Jones His& Bartletttestimony consumed Learning, a LLC“A. Yes, sir, that’s right. © Jones & Bartlett Learning, LLC total of 17 pages in the trial transcript. . . . Dr. Wade “Q. So you exercised your will power and kept sketched the outlinesNOT FOR of the “disease” SALE concept OR DISTRIBUTION of alco- from drinking anything todayNOT except FOR that one SALE OR DISTRIBUTION holism; noted that there is no generally accepted defi- drink? nition of “alcoholism”; alluded to the ongoing debate “A. Yes, sir, that’s right”. . . . within the medical profession over whether alcohol is On redirect examination, appellant’s lawyer actually physically “addicting” or merely psychologi- elicited the following: © Jonescally “habituating”; & Bartlett and Learning, concluded that LLC in either case “Q. Leroy,© isn’tJones the real & reasonBartlett why youLearning, just LLC NOTa FOR“chronic SALE alcoholic” OR is an DISTRIBUTION “involuntary drinker,” who had one drinkNOT today FOR because SALE you just OR had enough DISTRIBUTION is “powerless not to drink,” and who “loses his self- money to buy one drink? control over his drinking.” He testified that he had “A. Well, that was just give to me. examined appellant, and that appellant is a “chronic “Q. In other words, you didn’t have any money alcoholic,” who “by the time he has reached [the state with which you could buy any drinks yourself? © Jones & Bartlettof intoxication]Learning, . . . LLC is not able to control his behav-© Jones“A. & No, Bartlett sir, that was Learning, give to me. LLC ior, and [who] . . . has reached this point because he “Q. And that’s really what controlled the amount NOT FOR SALE ORhas an DISTRIBUTION uncontrollable compulsion to drink.” Dr. WadeNOT FORyou drank SALE this morning, OR DISTRIBUTION isn’t it? also responded in the negative to the question whether “A. Yes, sir. appellant has “the willpower to resist the constant “Q. Leroy, when you start drinking, do you have excessive consumption of alcohol.” . . . any control over how many drinks you can take? On cross-examination, Dr. Wade admitted that “A. No, sir.” when appellant was sober he knew the difference © Jones & Bartlett Learning, LLCEvidence in the case then closed.© TheJones State made & Bartlett Learning, LLC between right and wrong, and he responded affirma- NOT FOR SALE OR DISTRIBUTIONno effort to obtain expert psychiatricNOT testimony FOR of SALEits OR DISTRIBUTION tively to the question whether appellant’s act of taking own, or even to explore with appellant’s witness the the first drink in any given instance when he was sober question of appellant’s power to control the frequency, was a “voluntary exercise of his will.” Qualifying his timing, and location of his drinking bouts, or the sub- answer, Dr. Wade stated that “these individuals have a stantial disagreement within the medical profession compulsion, and this compulsion, while not completely concerning the nature of the disease, the efficacy of © Jonesoverpowering, & Bartlett is a very Learning, strong influence, LLC an exceed- © Jones & Bartlett Learning, LLC treatment and the prerequisites for effective treat- NOTingly FOR strong SALE influence, OR and DISTRIBUTION this compulsion coupled NOT FOR SALE OR DISTRIBUTION ment. . . . with the firm belief in their mind that they are going to Following this abbreviated exposition of the prob- be able to handle it from now on causes their judgment lem before it, the trial court indicated its intention to to be somewhat clouded.” disallow appellant’s claimed defense of “chronic alco- Appellant testified concerning the history of his holism.” Thereupon defense counsel submitted, and drinking problem. He reviewed his many arrests for © Jones & Bartlett Learning, LLC © Jonesthe trial court& Bartlett entered, the Learning, following “findings LLC of fact”: drunkenness; testified that he was unable to stop NOT FOR SALE ORdrinking; DISTRIBUTION stated that when he was intoxicated he hadNOT “(1)FOR That SALE chronic OR alcoholism DISTRIBUTION is a disease which no control over his actions and could not remember destroys the afflicted person’s will power to them later, but that he did not become violent; and resist the constant, excessive consumption of admitted that he did not remember his arrest on alcohol. the occasion for which he was being tried. On cross- © Jones & Bartlett Learning, LLC“(2) That a chronic alcoholic does© Jones not appear & in Bartlett Learning, LLC examination, appellant admitted that he had had one public by his own volition but under a com- drink on the morningNOT FOR of the SALEtrial and hadOR been DISTRIBUTION able pulsion symptomatic of the NOTdisease FORof chronic SALE OR DISTRIBUTION to discontinue drinking. In relevant part, the cross- alcoholism. examination went as follows: “(3) That Leroy Powell, defendant herein, is a “Q. You took that one at eight o’clock because chronic alcoholic who is afflicted with the disease of chronic alcoholism.” © Jonesyou & wanted Bartlett to drink? Learning, LLC © Jones & Bartlett Learning, LLC “A. Yes, sir. Whatever else may be said of them, those are not NOT FOR“Q. SALE And you knewOR thatDISTRIBUTION if you drank it, you could “findings of fact”NOT in anyFOR recognizable, SALE OR traditional DISTRIBUTION keep on drinking and get drunk? sense in which that term has been used in a court of “A. Well, I was supposed to be here on trial, and law; they are the premises of a syllogism transparently I didn’t take but that one drink. designed to bring this case within the scope of this © Jones & Bartlett Learning, LLC © Jones & Bartlett Learning, LLC CHAPTER 2 The General Principles of the Criminal Law 27 NOT FOR SALE OR DISTRIBUTION NOT FOR SALE OR DISTRIBUTION

© Jones & Bartlett Learning, LLC. NOT FOR SALE OR DISTRIBUTION. Actus Reus © Jones & Bartlett Learning, LLC © Jones & Bartlett Learning, LLC CASE Powell v. Texas, 392 U.S. 514, 88 S.Ct. 2145, 20 L.Ed.2d 1254 (1968) NOT FOR SALE OR DISTRIBUTION NOT FOR SALE OR DISTRIBUTION Court’s opinion in Robinson v. California, 370 U.S. 660 II. (1962). Nonetheless, the dissent would have us adopt these “findings” without critical examination; it would Despite the comparatively primitive state of our use them as the basis for a constitutional holding that knowledge on the subject, it cannot be denied that “a person may not© beJones punished & if Bartlett the condition Learning, essen- the LLC destructive use of alcoholic beverages© Jones is one & of Bartlett Learning, LLC tial to constitute the defined crime is part of the pat- our principal social and public health problems. The tern of his diseaseNOT and FORis occasioned SALE by aOR compulsion DISTRIBUTION lowest current informed estimate placesNOT the number FOR of SALE OR DISTRIBUTION symptomatic of the disease.” “alcoholics” in America (definitional problems aside) The difficulty with that position . . . is that it goes at 4,000,000, and most authorities are inclined to put much too far on the basis of too little knowledge. In the the figure considerably higher. . . . first place, the record in this case is utterly inadequate There is as yet no known generally effective method © Jonesto permit & the Bartlett sort of informed Learning, and responsible LLC adju- for treating the vast© Jones number of & alcoholics Bartlett in our Learning, soci- LLC NOTdication FOR which SALE alone OR can support DISTRIBUTION the announcement ety. . . . Thus itNOT is entirely FOR possible SALE that, OR even DISTRIBUTIONwere of an important and wide-ranging new constitutional the manpower and facilities available for a full-scale principle. We know very little about the circumstances attack upon chronic alcoholism, we would find our- surrounding the drinking bout which resulted in this selves unable to help the vast bulk of our “visible”—let conviction, or about Leroy Powell’s drinking problem, alone our “invisible”—alcoholic population. © Jones & Bartlettor indeed Learning, about alcoholism LLC itself. . . . © JonesHowever, & facilitiesBartlett for theLearning, attempted treatment LLC of Furthermore, the inescapable fact is that there is indigent alcoholics are woefully lacking throughout NOT FOR SALE noOR agreement DISTRIBUTION among members of the medical profes- NOTthe country.FOR SALE It would ORbe tragic DISTRIBUTION to return large num- sion about what it means to say that “alcoholism” is a bers of helpless, sometimes dangerous and frequently “disease.” . . . unsanitary inebriates to the streets of our cities with- The trial court’s “finding” that Powell “is afflicted out even the opportunity to sober up adequately which with the disease of chronic alcoholism,” which a brief jail term provides. Presumably no State or city “destroys the afflicted© Jones person’s & Bartlett will power toLearning, resist will LLC tolerate such a state of affairs. Yet© the Jones medical pro- & Bartlett Learning, LLC the constant, NOTexcessive FOR consumption SALE ORof alcohol” DISTRIBUTION fession cannot, and does not, tell us withNOT any assurance FOR SALE OR DISTRIBUTION covers a multitude of sins. Dr. Wade’s testimony that that, even if the buildings, equipment and trained per- appellant suffered from a compulsion which was an sonnel were made available, it could provide anything “exceedingly strong influence,” but which was “not more than slightly higher-class jails for our indigent completely overpowering” is at least more carefully habitual inebriates. Thus we run the grave risk that © Jonesstated, if& no Bartlett less mystifying. Learning, Jellinek LLCinsists that nothing will be accomplished© Jones beyond& Bartlett the hanging Learning, of LLC conceptual clarity can only be achieved by distin- a new sign—reading “hospital”—over one wing of the NOTguishing FOR carefully SALE between OR DISTRIBUTION “loss of control” once an jailhouse. NOT FOR SALE OR DISTRIBUTION individual has commenced to drink and “inability to One virtue of the criminal process is, at least, abstain” from drinking in the first place. Presumably that the duration of penal incarceration typically has a person would have to display both characteristics some outside statutory limit; this is universally true in order to make out a constitutional defense, should in the case of petty offenses, such as public drunken- © Jones & Bartlettone beLearning, recognized. Yet LLC the “findings” of the trial court © Jonesness, where & jail Bartlett terms are Learning,quite short on theLLC whole. NOT FOR SALE utterlyOR DISTRIBUTION fail to make this crucial distinction, and there NOT“Therapeutic FOR SALE civil commitment” OR DISTRIBUTION lacks this feature; is serious question whether the record can be read to one is typically committed until one is “cured.” Thus, support a finding of either loss of control or inability to do otherwise than affirm might subject indigent to abstain. . . . alcoholics to the risk that they may be locked up for It is one thing to say that if a man is deprived of an indefinite period of time under the same conditions alcohol his hands will begin to shake, he will suffer as before, with no more hope than before of receiv- agonizing pains© and Jones ultimately & heBartlett will have Learning,halluci- ing LLC effective treatment and no prospect© Jones of periodic & Bartlett Learning, LLC nations; it is quiteNOT another FOR to SALEsay that aOR man DISTRIBUTION has a “freedom.” NOT FOR SALE OR DISTRIBUTION “compulsion” to take a drink, but that he also retains Faced with this unpleasant reality, we are unable to a certain amount of “free will” with which to resist. It assert that the use of the criminal process as a means is simply impossible, in the present state of our knowl- of dealing with the public aspects of problem drink- edge, to ascribe a useful meaning to the latter state- ing can never be defended as rational. The picture of © Jonesment. This & definitionalBartlett confusionLearning, reflects, LLC of course, the penniless drunk© Jones propelled &aimlessly Bartlett and endlessly Learning, LLC NOTnot FOR merely SALEthe undeveloped OR DISTRIBUTION state of the psychiatric art through the law’sNOT “revolving FOR door” SALE of arrest, OR incar-DISTRIBUTION but also the conceptual difficulties inevitably atten- ceration, release and re-arrest is not a pretty one. But dant upon the importation of scientific and medical before we condemn the present practice across-the- models into a legal system generally predicated upon board, perhaps we ought to be able to point to some a different set of assumptions. clear promise of a better world for these unfortunate © Jones & Bartlett Learning, LLC © Jones & Bartlett Learning, LLC 28 Introduction to Law and Criminal Justice NOT FOR SALE OR DISTRIBUTION NOT FOR SALE OR DISTRIBUTION

© Jones & Bartlett Learning, LLC. NOT FOR SALE OR DISTRIBUTION. Act vs. Status © Jones & Bartlett Learning, LLC © Jones & Bartlett Learning, LLC Powell v. Texas, 392 U.S. 514, 88 S.Ct. 2145, 20 L.Ed.2d 1254 (1968) CASE NOT FOR SALE OR DISTRIBUTION NOT FOR SALE OR DISTRIBUTION people. Unfortunately, no such promise has yet been Ultimately, then, the most troubling aspects of this forthcoming. . . . case, were Robinson to be extended to meet it, would Ignorance likewise impedes our assessment of the be the scope and content of what could only be a con- deterrent effect of criminal sanctions for public drunk- stitutional doctrine of criminal responsibility. . . . If enness. . . .© Jones & Bartlett Learning, LeroyLLC Powell cannot be convicted of© public Jones intoxica- & Bartlett Learning, LLC tion, it is difficult to see how a State can convict an III. NOT FOR SALE OR DISTRIBUTIONindividual for murder, if that individual,NOT while FOR exhibit- SALE OR DISTRIBUTION . . . Appellant, however, seeks to come within the appli- ing normal behavior in all other respects, suffers from cation of the Cruel and Unusual Punishment Clause a “compulsion” to kill, which is an “exceedingly strong announced in Robinson v. California, which involved a influence,” but “not completely overpowering.” . . . state law making it a crime to “be addicted to the use Traditional common-law concepts of personal © Jonesof narcotics.” & Bartlett . . . Learning, LLC accountability© and Jones essential & considerations Bartlett Learning, of fed- LLC NOT FOROn its faceSALE the present OR DISTRIBUTIONcase does not fall within that eralism lead usNOT to disagree FOR with SALE appellant. OR WeDISTRIBUTION are holding, since appellant was convicted, not for being a unable to conclude, on the state of this record or on chronic alcoholic, but for being in public while drunk the current state of medical knowledge, that chronic on a particular occasion. The State of Texas thus has alcoholics in general, and Leroy Powell in particular, not sought to punish a mere status, as California did in suffer from such an irresistible compulsion to drink © Jones & BartlettRobinson Learning,; nor has it LLC attempted to regulate appellant’s© Jonesand to get & drunk Bartlett in public Learning, that they are utterly LLC unable behavior in the privacy of his own home. Rather, it has to control their performance of either or both of these NOT FOR SALE ORimposed DISTRIBUTION upon appellant a criminal sanction for pub-NOTacts FOR and thus SALE cannot OR be deterredDISTRIBUTION at all from public lic behavior which may create substantial health and intoxication. . . . safety hazards, both for appellant and for members of We cannot cast aside the centuries-long evolution the general public, and which offends the moral and of the collection of interlocking and overlapping con- esthetic sensibilities of a large segment of the commu- cepts which the common law has utilized to assess the nity. This seems© aJones far cry from & convicting Bartlett one Learning, for being moralLLC accountability of an individual© for Jones his antisocial & Bartlett Learning, LLC an addict, beingNOT a chronic FOR alcoholic, SALE being OR “mentally DISTRIBUTION deeds. The doctrines of actus reus, mensNOT rea, FOR insanity, SALE OR DISTRIBUTION ill, or a leper. . . .” mistake, justification, and duress have historically Robinson so viewed brings this Court but a very provided the tools for a constantly shifting adjustment small way into the substantive criminal law. And unless of the tension between the evolving aims of the crimi- Robinson is so viewed it is difficult to see any limiting nal law and changing religious, moral, philosophical, © Jonesprinciple & that Bartlett would serve Learning, to prevent this LLC Court from and medical views© Jones of the nature & Bartlett of man. This Learning, process LLC becoming, under the aegis of the Cruel and Unusual of adjustment has always been thought to be the prov- NOTPunishment FOR SALE Clause, OR the ultimateDISTRIBUTION arbiter of the stan- ince of the States. . . .NOT FOR It is simplySALE not ORyet the DISTRIBUTION time dards of criminal responsibility, in diverse areas of the to write into the Constitution formulas cast in terms criminal law, throughout the country. whose meaning, let alone relevance, is not yet clear It is suggested in dissent that Robinson stands either to doctors or to lawyers. for the “simple” but “subtle” principle that “[c]rimi- Affirmed. © Jones & Bartlettnal Learning,penalties may notLLC be inflicted upon a person for© JonesMr. Justice & Bartlett Black, whom Learning, Mr. Justice HarlanLLC joins, NOT FOR SALE ORbeing DISTRIBUTION in a condition he is powerless to change.” InNOT concurring. FOR SALE . . . OR DISTRIBUTION that view, appellant’s “condition” of public intoxica- I agree with Mr. Justice Marshall that the findings tion was “occasioned by a compulsion symptomatic of of fact in this case are inadequate to justify the sweep- the disease” of chronic alcoholism, and thus, appar- ing constitutional rule urged upon us. I could not, ently, his behavior lacked the critical element of mens however, consider any findings that could be made rea. Whatever may be the merits of such a doctrine with respect to “voluntariness” or “compulsion” con- of criminal responsibility,© Jones it& surely Bartlett cannot beLearning, said to trolling LLC on the question whether a specific© Jones instance & of Bartlett Learning, LLC follow from RobinsonNOT .FOR The entire SALE thrust OR of Robinson DISTRIBUTION’s human behavior should be immuneNOT from punishment FOR SALE OR DISTRIBUTION interpretation of the Cruel and Unusual Punishment as a constitutional matter. When we say that appel- Clause is that criminal penalties may be inflicted only lant’s appearance in public is caused not by “his own” if the accused has committed some act, has engaged volition but rather by some other force, we are clearly in some behavior, which society has an interest in thinking of a force that is nevertheless “his” except in © Jonespreventing, & Bartlett or perhaps Learning, in historical LLC common law some special sense.© Jones The accused & undoubtedlyBartlett Learning, commits LLC NOTterms, FOR has SALE committed OR some DISTRIBUTION actus reus. It thus does the proscribed NOTact and theFOR only questionSALE isOR whether DISTRIBUTION the not deal with the question of whether certain con- act can be attributed to a part of “his” personality that duct cannot constitutionally be punished because it should not be regarded as criminally responsible. . . . is, in some sense, “involuntary” or “occasioned by a . . . [P]unishment of such a defendant can clearly compulsion.” . . . be justified in terms of deterrence, isolation, and © Jones & Bartlett Learning, LLC © Jones & Bartlett Learning, LLC CHAPTER 2 The General Principles of the Criminal Law 29 NOT FOR SALE OR DISTRIBUTION NOT FOR SALE OR DISTRIBUTION

© Jones & Bartlett Learning, LLC. NOT FOR SALE OR DISTRIBUTION. Actus Reus © Jones & Bartlett Learning, LLC © Jones & Bartlett Learning, LLC CASE Powell v. Texas, 392 U.S. 514, 88 S.Ct. 2145, 20 L.Ed.2d 1254 (1968) NOT FOR SALE OR DISTRIBUTION NOT FOR SALE OR DISTRIBUTION treatment. . . . [M]edical decisions concerning the use Powell’s conviction was for the different crime of of a term such as “disease” or “volition,” based as they being drunk in a public place. Thus even if Powell was are on the clinical problems of diagnosis and treatment, compelled to drink, and so could not constitutionally bear no necessary correspondence to the legal decision be convicted for drinking, his conviction in this case whether the overall© Jones objectives & of Bartlett the criminal Learning, law can can LLC be invalidated only if there is a constitutional© Jones basis & Bartlett Learning, LLC be furthered by imposing punishment. For these rea- for saying that he may not be punished for being in sons, much as INOT think thatFOR criminal SALE sanctions OR shouldDISTRIBUTION public while drunk. . . . NOT FOR SALE OR DISTRIBUTION in many situations be applied only to those whose con- The trial court said that Powell was a chronic alco- duct is morally blameworthy, I cannot think the States holic with a compulsion not only to drink to excess should be held constitutionally required to make the but also to frequent public places when intoxicated. inquiry as to what part of a defendant’s personality is Nothing in the record before the trial court supports © Jonesresponsible & forBartlett his actions Learning, and to excuse anyone LLC whose the latter conclusion,© Jones which is& contrary Bartlett to common Learning, LLC NOTaction FOR was, SALE in some complex, OR DISTRIBUTION psychological sense, the sense and to commonNOT knowledge. . . . FOR SALE BeforeOR DISTRIBUTION and result of a “compulsion.” . . . after taking the first drink, and until he becomes The rule of constitutional law urged upon us by so drunk that he loses the power to know where he appellant would have a revolutionary impact on the is or to direct his movements, the chronic alcoholic criminal law, and any possible limits proposed for the with a home or financial resources is as capable as the © Jones & Bartlettrule wouldLearning, be wholly illusory.LLC If the original boundar- © Jonesnonchronic & drinker Bartlett of doing Learning, his drinking LLCin private, ies of Robinson are to be discarded, any new limits too of removing himself from public places, and, since he NOT FOR SALE wouldOR DISTRIBUTIONsoon fall by the wayside and the Court would NOTknows FOR or ought SALE to know OR that DISTRIBUTION he will become intoxi- be forced to hold the States powerless to punish any cated, of making plans to avoid his being found drunk conduct that could be shown to result from a “com- in public. For these reasons, I cannot say that the pulsion,” in the complex, psychological meaning of chronic alcoholic who proves his disease and a compul- that term. . . . sion to drink is shielded from conviction when he has The real reach© Jones of any such & Bartlettdecision, however, Learning, knowingly LLC failed to take feasible precautions© Jones against & Bartlett Learning, LLC would be broaderNOT still, FOR for the SALE basic premise OR under-DISTRIBUTIONcommitting a criminal act, here the actNOT of going FOR to or SALE OR DISTRIBUTION lying the argument is that it is cruel and unusual remaining in a public place. On such facts the alcoholic to punish a person who is not morally blamewor- is like a person with smallpox, who could be convicted thy. I state the proposition in this sympathetic way for being on the street but not for being ill, or, like the because I feel there is much to be said for avoiding epileptic, who could be punished for driving a car but © Jonesthe use of& criminalBartlett sanctions Learning, in many LLCsuch situa- not for his disease.© Jones & Bartlett Learning, LLC tions. But the question here is one of constitutional The fact remains that some chronic alcoholics must NOTlaw. FOR The legislatures SALE OR have DISTRIBUTIONalways been allowed wide drink and henceNOT must drinkFOR somewhere. SALE OR Although DISTRIBUTION freedom to determine the extent to which moral many chronics have homes, many others do not. For all culpability should be a prerequisite to conviction practical purposes the public streets may be home for of a crime. these unfortunates, not because their disease compels The criminal law is a social tool that is employed in them to be there, but because, drunk or sober, they © Jones & Bartlettseeking Learning, a wide variety LLC of goals, and I cannot say the © Joneshave no place & Bartlettelse to go and Learning, no place else toLLC be when NOT FOR SALE EighthOR DISTRIBUTIONAmendment’s limits on the use of criminal sanc- NOTthey FOR are drinking. SALE This OR is more DISTRIBUTION a function of economic tions extend as far as this viewpoint would inevitably station than of disease, although the disease may lead carry them. . . . to destitution and perpetuate that condition. For some Mr. Justice White, concurring in the result. of these alcoholics I would think a showing could be If it cannot be a crime to have an irresistible com- made that resisting drunkenness is impossible and pulsion to use narcotics, Robinson v. California, I that avoiding public places when intoxicated is also do not see how© it canJones constitutionally & Bartlett be a crimeLearning, to impossible. LLC As applied to them this statute© Jones is in effect & Bartlett Learning, LLC yield to such a NOTcompulsion. FOR Punishing SALE anOR addict DISTRIBUTION for a law which bans a single act for whichNOT they FORmay not SALE OR DISTRIBUTION using drugs convicts for addiction under a different be convicted under the Eighth Amendment—the act of name. Distinguishing between the two crimes is like getting drunk. . . . forbidding criminal conviction for being sick with flu These prerequisites to the possible invocation of or epilepsy but permitting punishment for running a the Eighth Amendment are not satisfied on the record © Jonesfever or having& Bartlett a convulsion. Learning, Unless Robinson LLC is to be before us. . . . © Jones & Bartlett Learning, LLC NOTabandoned, FOR SALE the use ofOR narcotics DISTRIBUTION by an addict must be Mr. Justice Fortas,NOT with FOR whom SALE Mr. Justice OR Douglas, DISTRIBUTION beyond the reach of the criminal law. Similarly, the Mr. Justice Brennan, and Mr. Justice Stewart join, dis- chronic alcoholic with an irresistible urge to consume senting. . . . alcohol should not be punishable for drinking or for The sole question presented is whether a criminal being drunk. penalty may be imposed upon a person suffering the © Jones & Bartlett Learning, LLC © Jones & Bartlett Learning, LLC 30 Introduction to Law and Criminal Justice NOT FOR SALE OR DISTRIBUTION NOT FOR SALE OR DISTRIBUTION

© Jones & Bartlett Learning, LLC © Jones & Bartlett Learning, LLC NOT FOR SALE OR DISTRIBUTION NOT FOR SALE OR DISTRIBUTION Notes and Questions to constitute the defined crime is part of the pattern of his disease and is occasioned by a compulsion 1. How significant is it to the Court’s decision in Powell symptomatic of the disease”? In this vein, would it v. Texas that Leroy Powell was convicted under a stat- be constitutional to punish a person for having the ute making it a crime to be “found in a state of intoxi- flu? To punish someone who has the flu for having a © Jones & Bartlett Learning,cation in any public LLC place” (emphasis added)? Would © Jonesfever? & ToBartlett punish someone Learning, who has the fluLLC for sneezing? To punish someone who has the flu for sneezing NOT FOR SALE OR DISTRIBUTIONa law making it a crime “for any person to be a chronic NOT FOR SALE OR DISTRIBUTION alcoholic” be constitutional? How about a law making in public? Which of those questions best fits the facts it a crime for a chronic alcoholic to be “found in a underlying Powell’s conviction? state of intoxication” or “to drink an alcoholic bever- 3. Justice Marshall expresses concerns about import- age”? With respect to the latter questions, would you ing “scientific and medical models into a legal expect Justices Marshall, Black, White, and Fortas, system generally predicated upon a different set respectively,© Jones to arrive at &different Bartlett conclusions? Learning, Why LLCof assumptions.” What different© assumptions Jones are& Bartlett Learning, LLC or why not?NOT FOR SALE OR DISTRIBUTIONmade about human behavior by NOTscience andFOR medi- SALE OR DISTRIBUTION 2. Do you find persuasive the dissent’s argument that “a cine, on the one hand, and the criminal law, on the person may not be punished if the condition essential other hand?

© Jones & Bartlett Learning, LLC © Jones & Bartlett Learning, LLC NOT FOR2. It is notSALE foreseeable OR that findingsDISTRIBUTION such as those which are decisive here—namely that theNOT appellant’s FOR being intoxicated SALE in ORpublic wasDISTRIBUTION a part of the pattern of his disease and due to a compulsion symptomatic of that disease—could or would be made in the case of offenses such as driving a car while intoxicated, assault, theft, or robbery. Such offenses require independent acts or conduct and do not typically flow from and are not part of the syndrome of the disease of chronic alcoholism. If an alcoholic should be convicted for criminal conduct which is not a characteristic and involuntary part of the pattern of the disease as it afflicts him, nothing herein would prevent his punishment. © Jones & Bartlett Learning, LLC © Jones & Bartlett Learning, LLC CHAPTER 2 The General Principles of the Criminal Law 31 NOT FOR SALE OR DISTRIBUTION NOT FOR SALE OR DISTRIBUTION

© Jones & Bartlett Learning, LLC. NOT FOR SALE OR DISTRIBUTION. Actus Reus © Jones & Bartlett Learning, LLC © Jones & Bartlett Learning, LLC NOT FOR SALE OR DISTRIBUTION NOT FOR SALE OR DISTRIBUTION The Voluntary Act Requirement law within their jurisdictions. The MPC defines the following acts as not being voluntary for pur- If Robinson and Powell stand for the proposition poses of the criminal law’s actus reus require- that an act (as opposed to a status or condition) ment. is necessary to© justify Jones conviction & Bartlett for a crime Learning, and LLC © Jones & Bartlett Learning, LLC MPC §1.13 General Definitions, Section 2.01: punishment, NOTdoes it FORfollow SALEthat proof OR of anDISTRIBUTION act NOT FOR SALE OR DISTRIBUTION also is sufficient to justify conviction and punish- (2) The following are not voluntary acts within ment? Or should more be required, specifically, the meaning of this Section: that the act was committed voluntarily? If convic- (a) a reflex or convulsion; tion and punishment for a crime presume that (b) a bodily movement during unconsciousness © Jonesan actor &is inBartlett some respect Learning, blameworthy, LLC would or sleep;© Jones & Bartlett Learning, LLC (c) conduct during hypnosis or resulting from NOTit make FOR sense SALE to punish OR aDISTRIBUTION person for engaging in NOT FOR SALE OR DISTRIBUTION conduct that is not truly voluntary? If not, whose hypnotic suggestion; job should it be—the legislatures or the courts— (d) a bodily movement that otherwise is not a to resolve such difficult issues as whether people product of the effort or determination of the actor, either conscious or habitual. exercise free will and the circumstances under © Jones & Bartlettwhich Learning, they should LLC be held morally responsible © JonesTaken together, & Bartlett the general Learning, definition LLC of volun- NOT FOR SALE orOR blameworthy DISTRIBUTION for their conduct? NOTtary FORoffered SALE earlier andOR the DISTRIBUTION MPC identification As a preliminary matter, we might consider of acts that are not voluntary in nature offer a an act to be voluntary if it is “a purposeful or framework for considering actions that may be willed movement.” Although it would be dif- defined as criminal. These are important distinc- ficult to disagree with this proposition, it does tions because the law does not seek to punish not add much© clarity Jones as a definition. & Bartlett Others Learning, have individuals LLC who are not responsible© Jones for their & Bartlett Learning, LLC attempted moreNOT precise FOR refinements. SALE ORThe ModelDISTRIBUTION actions. NOT FOR SALE OR DISTRIBUTION Penal Code (MPC) was drafted by a distin- Consider the following two cases in which the guished committee of attorneys, law professors, defendants allege that they did not act voluntarily. and judges within the American Law Institute Note the connection between the actus reus and and was widely disseminated upon its comple- the mens rea requirements in these cases and the © Jonestion in 1962. & Bartlett As its name Learning, suggests, the LLC MPC was significant overlap© Jones between &them. Bartlett While reading Learning, LLC NOTdesigned FOR asSALE a model OR set ofDISTRIBUTION criminal statutes to be these cases, keepNOT in mind FOR the SALE importance OR of DISTRIBUTION the considered by legislatures and other policymak- voluntary act requirement and how that require- ing bodies interested in reforming the criminal ment can be satisfied.

© Jones & Bartlett Learning, LLC © Jones & Bartlett Learning, LLC NOT FOR SALECASE OR DISTRIBUTION NOT FOR SALE OR DISTRIBUTION State v. Lara, 902 P.2d 1337 (Ariz. 1995) drew his pistol and told Lara to stop or he would shoot. MARTONE, Justice. Instead, Lara continued to walk towards him, called him names and slashed at him with the knife. Lara backed Kucsmas out of the house, swung the knife at Miguel Lara ©was Jones convicted & of Bartlett aggravated Learning,assault. him LLC and said he was going to kill him.© JonesFinally, with & Bartlett Learning, LLC The court of appeals reversed, concluding that Lara NOT FOR SALE OR DISTRIBUTIONKucsmas backed into a fence, Lara raisedNOT his knifeFOR and SALE OR DISTRIBUTION was entitled to a “voluntary act” instruction. . . . [W]e lunged at him. Kucsmas then shot Lara. granted review. Lara was charged with attempted murder and After having been stalked and assaulted by Lara, Al aggravated assault. A defense psychologist testi- Bartlett called the Tucson police and complained that fied that Lara was suffering from some organic brain Lara would not leave his house. Tucson police officer impairment and personality disorder. In such a person, © JonesKucsmas & answered Bartlett the callLearning, and was told LLC by Bartlett he would expect© to Jonessee a reduced & Bartlett ability to use Learning, good LLC NOTthat FOR Lara was SALE inside. KucsmasOR DISTRIBUTION walked in, saw Lara lying judgment in socialNOT situations, FOR SALEincreased OR agitation, DISTRIBUTION down on a couch and asked him to stand up. Lara got and an increased tendency to fly off into a tantrum up and pointed a knife at Kucsmas. Kucsmas backed or rage as if by reflex. Based on this sort of testimony, off and called for help. He retreated down a corridor, Lara asked for a voluntary act instruction under A.R.S.

© Jones & Bartlett Learning, LLC. NOT FOR SALE OR DISTRIBUTION. The Voluntary Act Requirement © Jones & Bartlett Learning, LLC © Jones & Bartlett Learning, LLC State v. Lara, 902 P.2d 1337 (Ariz. 1995) CASE NOT FOR SALE OR DISTRIBUTION NOT FOR SALE OR DISTRIBUTION § 13-201 and § 13-105(34).1 The trial court rejected We acknowledge that the word “voluntary” has the instruction. . . . The jury found Lara guilty of been used in two separate senses, and this contrib- aggravated assault but acquitted him of attempted first utes to the confusion that surrounds the issue. As we degree murder. hold here, A.R.S. §§ 13-201 and 13-105(34) use the A.R.S. § 13-201© Jones provides & as Bartlettfollows: Learning, termLLC “voluntary act” as a determined© conscious Jones bodily & Bartlett Learning, LLC The minimum requirement for criminal liabil- movement, in contrast to a knee-jerk reflex driven by ity is the performanceNOT FOR by a person SALE of conductOR DISTRIBUTION which the autonomic nervous system. UsedNOT this FORway, “vol- SALE OR DISTRIBUTION includes a voluntary act or the omission to perform untary act” means actus reus. On the other hand, a duty imposed by law which the person is physically “voluntary” has also been used to describe behavior capable of performing. that might justify inferring a particular culpable men- A.R.S. § 13-105(34) defines “voluntary act” as “a tal state. Used this way, “voluntary” gets caught up © Jonesbodily movement & Bartlett performed Learning, consciously LLC and as a result in mens rea. Recommended© Jones Arizona& Bartlett Jury Instruction Learning, LLC NOTof FOR effort and SALE determination.” OR DISTRIBUTION The court of appeals held Criminal StandardNOT 17 (1989) FOR joins SALE these separateOR DISTRIBUTION uses that Lara was entitled to an instruction on these stat- and contributes to the confusion. It provides: utes because it believed that the expert testimony The State must prove that the defendant did a vol- would have supported a finding that his behavior was untary act forbidden by law. You may determine “reflexive rather than voluntary.” We disagree. that the defendant intended to do the act if the A.R.S. § 13-201 is a codification of the common © Jones & Bartlett Learning, LLC © Jonesact was & done Bartlett voluntarily. Learning, LLC law requirement of actus reus—that a crime requires NOT FOR SALE ORan act. DISTRIBUTION A guilty mind (mens rea) is not enough. And,NOT FORThe first SALE sentence OR of this DISTRIBUTION instruction is, as we have under § 13-105(34), an act means a conscious bodily shown, the actus reus of § 13-201, which is appropri- movement caused by effort and determination. This is ate only if there is evidence to support a finding of consistent with the common law. Stating the obverse, a bodily movement performed unconsciously and then, a bodily movement while unconscious, asleep, without effort and determination, within the mean- under hypnosis,© Jones or during & an Bartlett epileptic fit, Learning, is not a ingLLC of § 13-105(34). As we have held,© thisJones is not such& Bartlett Learning, LLC voluntary act.NOT The autonomic FOR SALE nervous OR system DISTRIBUTION con- a case. NOT FOR SALE OR DISTRIBUTION trols involuntary bodily functions. The heart muscle The second sentence has nothing to do with the pumps without our intervention. Our lungs can ingest first. It allows the jury to draw an inference of intent air without thought. Our eyes shut reflexively when from an act that is voluntary. But intent is one of our the ophthalmologist tests us for glaucoma. These are culpable mental states descriptive of mens rea, not © Jonesthe sorts & of Bartlett bodily movements Learning, that would LLC not be “per- actus reus. The© second Jones sentence & Bartlett is likely to Learning,be justi- LLC formed consciously and as a result of effort and deter- fied in any case in which intent is an issue. Those NOTmination” FOR SALE within the OR meaning DISTRIBUTION of our statute. who would useNOT Standard FOR 17 need SALE to be ORalert DISTRIBUTIONto this Lara’s expert testimony falls far short of this. He problem. . . . was not unconscious. He was relentless in his effort We affirm the judgment of the trial court. We vacate and determination. He was thus not entitled to a vol- those parts of the opinion of the court of appeals that untary act instruction under A.R.S. § 13-201. address the voluntary act . . . instructions. © Jones & Bartlett Learning, LLC © Jones & Bartlett Learning, LLC NOT FOR SALE OR DISTRIBUTION NOT FOR SALE OR DISTRIBUTIONCASE McClain v. State, 678 N.E.2d 104 (Ind. 1997) March 4, 1994, McClain filed a notice of intent to inter- BOEHM, Justice. . . . pose an insanity defense. Discovery revealed that the basis for the defense was sleep deprivation allegedly © Jones & Bartlett Learning,preventing LLC McClain from forming the© necessary Jones intent & Bartlett Learning, LLC On December 20, 1993, McClain was involved in an for the crimes charged. Two days before the altercation altercation withNOT police FOR officers SALE in the Broad OR Ripple DISTRIBUTION sec- with police, McClain flew from JapanNOT to Indianapolis FOR SALE OR DISTRIBUTION tion of Indianapolis. McClain is alleged to have struck and did not sleep on the flight. McClain further claims several officers before being subdued by police. On to have slept just three hours in the forty-eight hours December 22, 1993, McClain was charged with aggra- prior to his arrest. vated battery, two counts of battery against police offi- On July 11, 1995, McClain withdrew his insanity © Jonescers, and & twoBartlett counts of Learning, resisting law enforcement. LLC On defense, apparently© Jones convinced & afterBartlett researching Learning, the LLC NOT FOR SALE OR DISTRIBUTION NOT FOR SALE OR DISTRIBUTION 1. Defendant’s Requested Instruction No. 4 was:

The State must prove that the defendant did a voluntary act forbidden by law. “Voluntary act” means a bodily movement performed consciously and as a result of effort and determination. © Jones & Bartlett Learning, LLC © Jones & Bartlett Learning, LLC CHAPTER 2 The General Principles of the Criminal Law 33 NOT FOR SALE OR DISTRIBUTION NOT FOR SALE OR DISTRIBUTION

© Jones & Bartlett Learning, LLC. NOT FOR SALE OR DISTRIBUTION. Actus Reus © Jones & Bartlett Learning, LLC © Jones & Bartlett Learning, LLC CASE McClain v. State, 678 N.E.2d 104 (Ind. 1997) NOT FOR SALE OR DISTRIBUTION NOT FOR SALE OR DISTRIBUTION matter that evidence of “automatism” did not need to classified McClain’s defense as a mental disease or be presented as an insanity defense. On the morning defect and that McClain, accordingly, cannot also trial was scheduled to begin, the court granted the present evidence of automatism to negate voluntari- State’s motion in limine excluding “any expert witness ness. Alternatively, the State contends that McClain’s testimony expressing© Jones an opinion & Bartlett about the Learning,capacity altercation LLC with police cannot be described© Jones as an invol- & Bartlett Learning, LLC of the defendant to form criminal intent on the night untary act because his conduct was not a convulsion in question” andNOT “any FOR expert SALE testimony OR regarding DISTRIBUTION or reflex. NOT FOR SALE OR DISTRIBUTION sleep disorders and/or dissociative states.” The court In the states that have addressed the issue, it is held that McClain’s evidence related to automatism well established that automatism can be asserted as a was a “mental disease or defect” within the meaning defense to a crime. Rather than questioning whether of Indiana Code § 35-41-3-6 and therefore had to be automatism is a defense at all, the debate in these © Jonespresented & under Bartlett the insanity Learning, statute. This LLCruling effec- states has focused© onJones the manner & Bartlett in which evidence Learning, LLC NOTtively FOR precluded SALE McClain OR from DISTRIBUTION presenting evidence of of automatism canNOT be presented. FOR SALE These jurisdictions OR DISTRIBUTION sleep deprivation because he had withdrawn his insan- are split between recognizing insanity and automa- ity defense before trial.2 Recognizing the possibility of tism as separate defenses and classifying automatism having to retry the case if the ruling was later found as a species of the insanity defense. . . . [W]e think the to be reversible error, the trial court certified the fol- approach required under Indiana’s criminal statutes © Jones & Bartlettlowing Learning, question for interlocutory LLC appeal: “Did the trial © Jonesis to distinguish & Bartlett automatism Learning, from insanity LLC and allow court err in granting the State’s Motion in Limine, McClain’s evidence to be presented as bearing on the NOT FOR SALE excludingOR DISTRIBUTION evidence of expert testimony about the NOTvoluntariness FOR SALE of his actions. OR DISTRIBUTION capacity of the defendant to form criminal intent on Indiana Code § 35-41-2-1(a) provides that “[a] per- the night in question and expert testimony regarding son commits an offense only if he voluntarily engages sleep disorders and/or dissociative states, because the in conduct in violation of the statute defining the [d]efendant had withdrawn the defense of insanity?” offense.” This section was enacted in 1976 pursuant For the reasons© explained Jones below, & Bartlett we reverse. Learning,to LLCthe recommendations of the Indiana© JonesCriminal Law & Bartlett Learning, LLC NOT FOR SALE OR DISTRIBUTIONStudy Commission (hereafter “Commission”).NOT FOR . . SALE. OR DISTRIBUTION I. AUTOMATISM BEARS ON THE VOLUNTARINESS Before 1976, Indiana’s criminal code lacked basic pro- OF MCCLAIN’S CONDUCT visions governing culpability. The voluntary act stat- . . . Automatism has been defined as “the existence ute was adopted that year in a new section titled “Basis in any person of behaviour of which he is unaware and of Liability,” which also included mens rea definitions © Jonesover which & he Bartlett has no conscious Learning, control.” DonaldLLC Blair, of “intentionally,”© “knowingly” Jones and& Bartlett “recklessly”—terms Learning, LLC The Medicolegal Aspects of Automatism, 17 MED. SCI. now in familiar use in criminal cases. The voluntary act NOTLAW FOR 167 (1977); SALE see OR also BLACK’SDISTRIBUTION LAW DICTIONARY statute codified theNOT axiom FOR that voluntariness SALE OR is a “gen-DISTRIBUTION 134 (6th ed. 1990) (automatism is “[b]ehavior per- eral element of criminal behavior” and reflected the formed in a state of mental unconsciousness . . . appar- premise that criminal responsibility “postulates a free ently occurring without will, purpose, or reasoned agent confronted with a choice between doing right intention”). A seminal British case concisely described and doing wrong and choosing freely to do wrong.” As © Jones & Bartlettautomatism Learning, as “connoting LLC the state of a person who, © Jonesthe Commission & Bartlett explained: Learning,“The term voluntary LLC is used NOT FOR SALE thoughOR DISTRIBUTION capable of action, is not conscious of what he NOTin this FOR Code asSALE meaning OR behavior DISTRIBUTION that is produced by is doing.” Bratty v. Attorney-General of Northern Ireland, an act of choice and is capable of being controlled by 3 All E.R. 523, 527 (1961). Automatism manifests itself a human being who is in a conscious state of mind.” in a range of conduct, including somnambulism (sleep- The evidence McClain seeks to present on automa- walking), hypnotic states, fugues, metabolic disor- tism bears on the voluntariness of his actions within ders, and epilepsy and other convulsions or reflexes. the meaning of the statute. In essence McClain claims McClain argues© Jones that his violent & Bartlett behavior Learning,towards he LLCwas unable to form criminal intent© on Jones the night & in Bartlett Learning, LLC police was a formNOT of automatism FOR SALE caused by OR sleep DISTRIBUTIONdepri- question due to an automatistic stateNOT of mind FOR that SALE OR DISTRIBUTION vation. He contends that as a result of his condition his precluded voluntary behavior. Although the jury is acts were not voluntary and therefore he has no crimi- obviously not required to accept this explanation, per- nal responsibility for them. McClain asserts that his mitting McClain to make the argument is consistent condition is not a “mental disease or defect” because with the statute’s general purpose that criminal con- © Jonesit was externally & Bartlett caused Learning,and, he claims, isLLC unlikely to duct be an “act of© choice” Jones by a & person Bartlett in a “conscious Learning, LLC NOTrecur. FOR The SALEState argues OR that DISTRIBUTION the trial court properly state of mind.” . .NOT . Accordingly, FOR at SALE trial McClain OR can DISTRIBUTION call

2. Indiana Code § 35-36-2-1 requires criminal defendants intending to interpose an insanity defense to give notice to the court before trial. © Jones & Bartlett Learning, LLC © Jones & Bartlett Learning, LLC 34 Introduction to Law and Criminal Justice NOT FOR SALE OR DISTRIBUTION NOT FOR SALE OR DISTRIBUTION

© Jones & Bartlett Learning, LLC. NOT FOR SALE OR DISTRIBUTION. The Voluntary Act Requirement © Jones & Bartlett Learning, LLC © Jones & Bartlett Learning, LLC McClain v. State, 678 N.E.2d 104 (Ind. 1997) CASE NOT FOR SALE OR DISTRIBUTION NOT FOR SALE OR DISTRIBUTION expert witnesses and otherwise present evidence of . . . The requirement that criminal defendants in sleep deprivation and automatism within the confines Indiana be forced into commitment proceedings if of the Indiana Rules of Evidence. . . . If McClain’s con- found “not responsible by reason of insanity” rein- duct is found to be involuntary, then the State has not forces our conclusion. See IND.CODE § 35-36-2-4 proved every ©element Jones of its & case Bartlett and the law Learning, requires (1993)LLC (requiring prosecutor to file© Jonespetition seek- & Bartlett Learning, LLC an acquittal. ing commitment hearing where defendant found NOT FOR SALE OR DISTRIBUTIONnot responsible by reason of insanity).NOT . .FOR . [A] sane SALE OR DISTRIBUTION II. AUTOMATISM IS NOT A SPECIES but automatistic defendant forced to plead the OF THE INSANITY DEFENSE insanity defense faces a choice of possible commitment or effectively presenting no defense to Both the language of the insanity statute and the poli- the crime. . . . © Jonescies underlying & Bartlett the insanity Learning, defense counsel LLC against One important© Jones policy underlying& Bartlett the Learning, insan- LLC NOTclassifying FOR SALE evidence OR of automatism DISTRIBUTION as a mental disease ity defense is NOTensuring FOR that SALEmentally-ill OR criminal DISTRIBUTION or defect. Indiana Code § 35-41-3-6 provides: defendants receive treatment for their condition. . . . (a) A person is not responsible for having en- Although automatism could be the product of a dis- gaged in prohibited conduct if, as a result eased mind in need of treatment and rehabilitation, of mental disease or defect, he was unable nothing in the record indicates that McClain pres- © Jones & Bartlett Learning,to appreciate LLC the wrongfulness of the con- © Jonesents such & a Bartlettcase and McClain Learning, does not LLC assert that NOT FOR SALE OR DISTRIBUTIONduct at the time of the offense. NOThe FORdoes. . .SALE . OR DISTRIBUTION (b) As used in this section, “mental disease or McClain seems uncertain exactly how to describe defect” means a severely abnormal mental his allegedly automatistic condition, calling it “sleep condition that grossly and demonstrably deprivation,” “sleep violence,” “sleepwalking” and impairs a person’s perception, but the term even a state of sleep itself. The gravamen of McClain’s does not include an abnormality mani- argument, however, is that but for a lack of sleep over fested© onlyJones by repeated & Bartlett unlawful orLearning, antiso- theLLC course of several days, he would© not Jones have been & inBartlett Learning, LLC cialNOT conduct. FOR SALE OR DISTRIBUTIONthis state at the time he allegedly involuntarilyNOT FOR struck SALE OR DISTRIBUTION police officers on December 20, 1993. McClain’s con- . . . While automatistic behavior could be caused by dition thus is more analogous to intoxication than insanity, “unconsciousness at the time of the alleged insanity because it had an external cause. Unlike criminal act need not be the result of a disease or defect intoxication, the Legislature has presented no specific © Jonesof the mind.” & Bartlett State v. Caddell, Learning, 215 S.E.2d LLC348, 360 (N.C. standard for dealing© Jones with or & assessing Bartlett this defense.Learning, LLC 1975). The decisions holding that automatism is not Automatism is simply a denial of one element— NOTa FORspecies SALEof the insanity OR DISTRIBUTIONdefense have relied on this voluntary action—thatNOT FOR the Legislature SALE hasOR required DISTRIBUTION point and we find it persuasive. . . . Consistent with this for most crimes. It is not a disease or defect within the view, we hold that McClain’s evidence of automatism meaning of Indiana Code § 35-41-3-6. Accordingly, as pleaded does not need to be presented under the McClain was not required to give notice to the court of insanity defense. We understand McClain’s defense to his intent to interpose an insanity defense. . . . © Jones & Bartlettconsist Learning, of automatism LLC manifested in a person of sound© Jones & Bartlett Learning, LLC NOT FOR SALE ORmind. DISTRIBUTION To the extent involuntary behavior is contendedNOT CONCLUSION FOR SALE OR DISTRIBUTION to result from a mental disease or defect, the insanity This case is remanded for proceedings in the trial statute would apply. . . . court consistent with this opinion.

Notes and© Questions Jones & Bartlett Learning, LLCCouldn’t Lara simply argue that the© underlying Jones con- & Bartlett Learning, LLC ditions from which he allegedly suffered (organic 1. Is it possibleNOT to reconcileFOR SALEthe decisions OR in StateDISTRIBUTION v. brain impairment and personalityNOT disorder) FOR pre- SALE OR DISTRIBUTION Lara, which rejected the defendant’s request for an vented him from forming the intent to assault Officer instruction to allow the jury to consider whether his Kucsmas, and couldn’t McClain similarly argue that acts were involuntary, and McClain v. State, which his sleep deprivation and alleged resulting state of ruled that the defendant was entitled to offer evi- unconsciousness precluded him from intending to © Jonesdence & Bartlett and present suchLearning, a defense? LLC strike the ©police Jones officers and& Bartlettresist arrest? Learning, LLC NOT FOR2. The SALE decisions ORin both DISTRIBUTION State v. Lara and McClain v. 3. The decisionNOT in McClain FOR suggests SALE that “convulsions OR DISTRIBUTION or State distinguish the criminal law’s requirement for reflexes” stemming from epilepsy would be the prod- a voluntary act from the mens rea (or guilty mind) uct of automatism and would not satisfy the crimi- requirement. Why is this distinction important? nal law’s actus reus requirement. Should a person

© Jones & Bartlett Learning, LLC. NOT FOR SALE OR DISTRIBUTION. Actus Reus © Jones & Bartlett Learning, LLC © Jones & Bartlett Learning, LLC NOT FOR SALE OR DISTRIBUTION NOT FOR SALE OR DISTRIBUTION suffering an epileptic seizure, whose hands or feet Would it matter if she knew that she suffered from hit or kick another individual, be guilty of criminal epilepsy and was prone to having seizures before assault and battery? What about an individual who driving the car and causing injury? See, for example, drives her car and while doing so experiences a sei- Commonwealth v. Cheatham, 615 A.2d 802 (Pa. Super. zure, loses© control Jones of the &vehicle, Bartlett and strikes Learning, and LLC1992); People v. Decina, 138 N.E.2d© 799 Jones (N.Y. 1956); & Bartlett Learning, LLC injures a pedestrian? Should the driver’s involuntary Smith v. Commonwealth, 282 S.W.2d 840 (Ky. App. epileptic seizureNOT excuse FOR her SALEfrom criminal OR liability? DISTRIBUTION 1955). NOT FOR SALE OR DISTRIBUTION

Culpable Omissions: Can the Failure to Act undiscovered and subsequently froze to death? © JonesBe a Crime? & Bartlett Learning, LLC Would it matter© if Jonesthe child was& Bartlett your own sonLearning, or LLC NOTDoes FOR the actus SALE reus principleOR DISTRIBUTION presume that a crime daughter? YourNOT sibling, FOR niece, SALE or nephew? OR YourDISTRIBUTION requires the commission of an affirmative act? Can next-door neighbor? Would it matter if the child a person be guilty of a crime for doing absolutely had wandered 20 feet out on a frozen pond and nothing, that is, for failing to act when some sort fallen through the ice, you had no cell phone, and you chose to keep walking rather than attempting © Jones & Bartlettof action Learning, should have LLC been taken? If so, under © Jones & Bartlett Learning, LLC what circumstances and subject to what limita- a rescue? Would it matter if the person lying on NOT FOR SALE tionsOR canDISTRIBUTION omissions be crimes? NOTthe frigidFOR ground SALE was OR an DISTRIBUTIONadult and not a child? For example, if you came upon a small child An adult who was your long-time partner in an lying unconscious on the ground on a bitterly intimate relationship? A man you had acciden- cold winter day and you had your cell phone with tally knocked unconscious when you crashed into you, a hospital© was Jones just a block & Bartlett away, and Learning,you did him LLC after slipping on the ice? A© man Jones you had & Bartlett Learning, LLC nothing but keep walking—neither making a 911 knocked unconscious after he had attacked you phone call norNOT carrying FOR the child SALE to the OR hospital— DISTRIBUTIONwith a knife in a failed robbery attempt?NOT Consider FOR SALE OR DISTRIBUTION would you be guilty of a crime if the child went the following case.

© JonesCASE & Bartlett Learning, LLC © Jones & Bartlett Learning, LLC NOTState FOR ex rel. SALE Kuntz v. MontanaOR DISTRIBUTION Thirteenth Judicial Becker and causingNOT his FORdeath, KuntzSALE entered OR aDISTRIBUTION plea Court, 995 P.2d 951 (Mont. 2000) of not guilty based on the defense of justifiable use Justice JAMES C. NELSON delivered the Opinion of the of force. Court. On November 6, 1998, shortly before the scheduled trial date, the State filed an amended informa- © Jones & Bartlett Learning, LLC © tionJones charging & theBartlett same offense Learning, but alleging LLC that Kuntz NOT FOR SALE OR[Bonnie DISTRIBUTION Kuntz and Warren Becker had lived NOTcaused FOR the deathSALE of Becker OR DISTRIBUTIONby stabbing him once in together for six years but were not married. They the chest with a knife and by failing to call for medical “were in the process of ending what is described as a assistance. Kuntz again entered a plea of not guilty. On stormy relationship” when, according to Kuntz, Becker December 18, 1998, Kuntz filed a motion to dismiss the violently attacked her, grabbing her by the hair and amended information or in the alternative to strike the slamming her into a stove. Kuntz “could not clearly allegation that the failure to seek medical assistance remember what© happened” Jones next, & Bartlettbut reported Learning, finding constituted LLC negligent homicide. © Jones & Bartlett Learning, LLC Becker lying at NOTthe end FORof a trail SALE of blood ORon the DISTRIBUTION front Following a hearing . . . the District NOTCourt . . .FOR [denied SALE OR DISTRIBUTION porch of the mobile home that they shared. She rolled the] motion to dismiss the amended information. him over and, finding him “unresponsive,” removed Kuntz sought a writ of supervisory control and . . . the keys from his pocket and used his vehicle to drive this Court accepted original jurisdiction . . . . to a friend’s house where she used a telephone to call . . . Because the issues here have far-reaching © Jonesher mother. & Bartlett Within the Learning,hour, another relativeLLC sum- implications with© respect Jones to the & affirmativeBartlett defenseLearning, LLC NOTmoned FOR medical SALE help ORand the DISTRIBUTION Sheriff. The authorities of justifiable useNOT of force FOR in Montana, SALE as ORwell asDISTRIBUTION the arrived at the trailer to find Becker dead from a single duty to render medical aid, we find it necessary to first stab wound to the chest.] establish a workable framework of legal principles and . . . Bonnie Kuntz was charged with negligent rules under the laws of Montana and other jurisdic- homicide . . . . Although she admitted stabbing tions before proceeding. © Jones & Bartlett Learning, LLC © Jones & Bartlett Learning, LLC 36 Introduction to Law and Criminal Justice NOT FOR SALE OR DISTRIBUTION NOT FOR SALE OR DISTRIBUTION

© Jones & Bartlett Learning, LLC. NOT FOR SALE OR DISTRIBUTION. Culpable Omissions: Can the Failure to Act Be a Crime? © Jones & Bartlett Learning, LLC © Jones & Bartlett Learning, LLC State ex rel. Kuntz v. Montana Thirteenth Judicial Court, 995 P.2d 951 (Mont. 2000) CASE NOT FOR SALE OR DISTRIBUTION NOT FOR SALE OR DISTRIBUTION For criminal liability to be based upon a failure to that a married defendant had no duty to summon medi- act, there must be a duty imposed by the law to act, and cal help for his mistress, who was staying in his house the person must be physically capable of performing for the weekend, after she took morphine following a the act. As a starting point in our analysis, the parties bout of heavy drinking and fell into a “stupor.” here have identified© Jones what is& often Bartlett referred Learning,to as “the LLCWe agree with the State, as well© asJones myriad com-& Bartlett Learning, LLC American bystander rule.” This rule imposes no legal mentators over the years, that although not expressly duty on a personNOT to rescue FOR or summonSALE aidOR for DISTRIBUTIONanother disfavored in case law, Beardsley is indeedNOT “outmoded,” FOR SALE OR DISTRIBUTION person who is at risk or in danger, even though society at least to the extent it should be distinguished. See, recognizes that a moral obligation might exist. This is e.g., . . . Graham Hughes, Criminal Omissions, 67 Yale true even “when that aid can be rendered without dan- L.J. 590, 624 (1958) (stating that Beardsley “proclaims ger or inconvenience to” the potential rescuer. Wayne a morality which is smug, ignorant and vindictive”); . . . © JonesR. LaFave & &Bartlett Austin W. Scott,Learning, Jr., Criminal LLC Law, at 183 State v. Miranda,© 715 Jones A.2d 680, & 682 Bartlett (Conn. 1998) Learning, (con- LLC NOT(1972). FOR Thus, SALE an Olympic OR DISTRIBUTIONswimmer may be deemed by cluding that personNOT who FOR is not biological SALE or OR legal DISTRIBUTIONparent the community as a shameful coward, or worse, for not of a child but who establishes a “familial relationship” rescuing a drowning child in the neighbor’s pool, but with live-in girlfriend has duty to protect child from she is not a criminal. abuse). . . . But this rule is far from absolute. Professors LaFave Applying the foregoing to the facts here, we con- © Jones & Bartlettand Learning, Scott have identified LLC seven common-law excep-© Jonesclude that & Kuntz Bartlett and Becker, Learning, having lived LLC together tions to the American bystander rule: 1) a duty based for approximately six years, owed each other the NOT FOR SALE ORon a DISTRIBUTIONpersonal relationship, such as parent-child orNOT same FOR “personal SALE relationship” OR DISTRIBUTION duty as found between husband-wife; 2) a duty based on statute; 3) a duty spouses under our holding in Mally. This duty, identi- based on contract; 4) a duty based upon voluntary fied as one of “mutual reliance” by LaFave and Scott, assumption of care; 5) a duty based on creation of the would include circumstances involving “two people, peril; 6) a duty to control the conduct of others; and though not closely related, [who] live together under 7) a duty based© onJones being a landowner.& Bartlett A breach Learning, of one oneLLC roof.” LaFave & Scott, § 3.3(a)(1),© atJones 285–286. & . . Bartlett. Learning, LLC of these legalNOT duties byFOR failing SALE to take ORaction, DISTRIBUTION there- Nevertheless, this holding is far fromNOT dispositive FOR SALEin OR DISTRIBUTION fore, may give rise to criminal liability. Our review of establishing a legal duty under the facts presented. the issues presented here can accordingly be narrowed We agree with the District Court that the duty based to two of the foregoing exceptions . . . : 1) a duty based on “creation of the peril” is far more closely aligned on a personal relationship, and 2) a duty based on cre- with the factual circumstances here. Undoubtedly, © Jonesation of & the Bartlett peril. Learning, LLC when a person ©places Jones another & in Bartlett a position of Learning, danger, LLC One of the lead authorities on the personal rela- and then fails to safeguard or rescue that person, and NOTtionship FOR dutySALE arose OR in Montana. DISTRIBUTION In . . . State v. Mally, the person subsequentlyNOT FOR dies asSALE a result ORof this DISTRIBUTION omis- 366 P.2d 868 (Mont. 1961), this Court held that under sion, such an omission may be sufficient to support certain circumstances a husband has a duty to sum- criminal liability. See State v. Morgan, 936 P.2d 20, 23 mon medical aid for his wife and breach of that duty (Wash. App. 1997) (imposing criminal liability for sup- could render him criminally liable. The facts of the plying cocaine leading to victim’s overdose); United © Jones & Bartlettcase Learning, described how LLCKay Mally, who was suffering from© JonesStates v. Hatatley,& Bartlett 130 F.3d Learning, 1399, 1406 (10th LLC Cir. 1997) NOT FOR SALE ORterminal DISTRIBUTION kidney and liver diseases, fell and fracturedNOT (imposing FOR SALEcriminal liabilityOR DISTRIBUTION for leaving victim badly both her arms on a Tuesday evening. Her husband, beaten and shirtless in a freezing, remote desert). Michael Mally, put her to bed and did not summon a This duty may include peril resulting from a defen- doctor until Thursday morning. “During this period dant’s criminal negligence, as alleged here. . . . of time, as she lay there with only the extended arm The legal duty based on creation of the peril has of death as a companion, she received but one glass of been extended in other jurisdictions to cases involving water.” Mally, ©366 Jones P.2d at 873. & AlthoughBartlett his Learning, wife ulti- self-defense. LLC . . . © Jones & Bartlett Learning, LLC mately died ofNOT kidney failure,FOR MallySALE was foundOR guiltyDISTRIBUTION of [T]he legal duty imposed on personalNOT relationships FOR SALE OR DISTRIBUTION involuntary manslaughter, a forerunner of Montana’s and those who create peril are not absolute; i.e., there negligent homicide statute, because his failure to act are exceptions to these exceptions. The personal rela- hastened his wife’s death. tionship legal duty, for example, does not require a In Mally, however, we alluded to a limitation of person to jeopardize his own life. Furthermore, the © Jonesthis rule & which Bartlett is a point Learning, of contention LLC between the duty does not© arise Jones unless & the Bartlett spouse “uninten- Learning, LLC NOTparties FOR here. SALE We cited OR to DISTRIBUTIONPeople v. Beardsley, 113 N.W. tionally enteredNOT a helpless FOR state,” SALE or was OR otherwise DISTRIBUTION 1128 (Mich. 1907) . . . . The Michigan Supreme Court incompetent to summon medical aid on his or her own concluded that the legal duty imposed on the personal behalf. relationship of husband and wife could not be extended Similarly, the law does not require that a person, to a temporary, non-family relationship. The court held who places another person in a position of peril, © Jones & Bartlett Learning, LLC © Jones & Bartlett Learning, LLC CHAPTER 2 The General Principles of the Criminal Law 37 NOT FOR SALE OR DISTRIBUTION NOT FOR SALE OR DISTRIBUTION

© Jones & Bartlett Learning, LLC. NOT FOR SALE OR DISTRIBUTION. Actus Reus © Jones & Bartlett Learning, LLC © Jones & Bartlett Learning, LLC CASE State ex rel. Kuntz v. Montana Thirteenth Judicial Court, 995 P.2d 951 (Mont. 2000) NOT FOR SALE OR DISTRIBUTION NOT FOR SALE OR DISTRIBUTION risk bodily injury or death in the performance of subsequently check the pulse of her attacker, or imme- the legally imposed duty to render assistance. For diately dial 9-1-1, before retreating to safety. example, the crime of negligent homicide in Montana Under the general factual circumstances requires a gross deviation from a reasonable stan- described here, we conclude that the victim has dard of care. In© turn, Jones what constitutes& Bartlett a reasonable Learning, but LLC one duty after fending off an attack,© Jones and that & Bartlett Learning, LLC standard of care must be guided by the principle is the duty owed to one’s self—as a matter of self- that “[w]hat anNOT ordinarily FOR prudent SALE and ORcareful DISTRIBUTION per- preservation—to seek and secure safetyNOT away FOR from SALE OR DISTRIBUTION son would do under a given set of circumstances is the place the attack occurred. Thus, the person who usually controlled by the instinctive urge to protect justifiably acts in self-defense is temporarily afforded himself from harm.” Burns v. Fisher, 313 P.2d 1044, the same status as the innocent bystander under the 1048 (Mont. 1957). American rule. © JonesTherefore, & Bartlett where self-preservation Learning, is atLLC stake, the Finally, we conclude© Jones that the & dutyBartlett to summon Learning, aid LLC NOTlaw FOR does not SALE require aOR person DISTRIBUTION to “save the other’s life may in fact be “revived”NOT as FOR the State SALE contends, OR but DISTRIBUTION only by sacrificing his own,” and therefore no crime can be after the victim of the aggressor has fully exercised her committed by the person who “in saving his own life right to seek and secure safety from personal harm. in the struggle for the only means of safety,” causes Then, and only then, may a legal duty be imposed to the death of another. Even states such as Vermont that summon aid for the person placed in peril by an act © Jones & Bartletthave Learning,adopted a “Good LLC Samaritan Doctrine” which— © Jonesof self-defense. & Bartlett We further Learning, hold that preliminary LLC to contrary to the American bystander rule—imposes imposing this duty, it must be shown that 1) the per- NOT FOR SALE aOR legal DISTRIBUTION duty to render or summon aid for imperiled NOTson hadFOR knowledge SALE of the OR facts DISTRIBUTION indicating a duty to act; strangers, do not require that the would-be rescuer and 2) the person was physically capable of performing risk bodily injury or death. See, e.g., State v. Joyce, the act. 433 A.2d 271 (Vt. 1981) (holding that Vermont’s Duty It must be emphasized, however, that once to Aid the Endangered Act did not require bystand- imposed, a proven breach of this legal duty may still ers to intervene© in Jonesa fight, because & Bartlett such intervention Learning, fall LLC far short of negligent homicide, pursuant© Jones to § 45-5- & Bartlett Learning, LLC would expose personNOT to FOR risk of SALEsustaining OR an injury). DISTRIBUTION 104, MCA, which requires a gross deviationNOT FOR from an SALE OR DISTRIBUTION Thus, although a person may still be held accountable ordinary or reasonable standard of care. . . . for the results of the peril into which he or she placed another, the law does not require that he or she risk ISSUE 2. serious bodily injury or death in order to perform a legal duty. . . . If a person who justifiably uses deadly force fails to © Jones & Bartlett Learning, LLC summon aid for her© attacker,Jones is &she Bartlett criminally culpable Learning, LLC NOT FOR SALE OR DISTRIBUTION for that failure? .NOT . . FOR SALE OR DISTRIBUTION ISSUE 1. Our holding as to the first issue consequentially Does one who justifiably uses deadly force in defense of narrows the issue here. Accordingly, to find a person her person nevertheless have a legal duty to summon who justifiably acts in self-defense criminally culpable aid for the mortally wounded attacker? . . . for negligently causing the death of the aggressor, the © Jones & BartlettWhether Learning, inflicted LLC in self-defense or accidentally, a © Jonesfailure to summon& Bartlett medical Learning, aid must be the LLC “cause in wound that causes a loss of blood undoubtedly places fact” of the original aggressor’s death, not the justi- NOT FOR SALE aOR person DISTRIBUTION in some degree of peril, and therefore gives NOTfied useFOR of force. SALE OR DISTRIBUTION rise to a legal duty to either 1) personally provide assis- In a recent wrongful death case, we stated the gen- tance; or 2) summon medical assistance. Even so, the eral rule governing whether conduct is a cause-in-fact performance of this legal duty, as discussed above, of an event: does not require that a person place herself at risk of [A] party’s conduct is a cause-in-fact of an event serious bodily injury© Jones or death. & Bartlett Learning, LLC © Jones & Bartlett Learning, LLC if “the event would not have occurred but for that Accordingly, based on the legal principles gleaned NOT FOR SALE OR DISTRIBUTIONconduct; conversely, the defendant’sNOT conduct FOR is SALE OR DISTRIBUTION from our analysis thus far, we hold that when a person not a cause of the event, if the event would have justifiably uses force to fend off an aggressor, that per- occurred without it.” son has no duty to assist her aggressor in any manner that may conceivably create the risk of bodily injury Gentry v. Douglas Hereford Ranch, Inc., 962 P.2d © Jonesor death &to herself,Bartlett or other Learning, persons. This LLC absence of 1205, ¶ 25 (Mont.© 1998)Jones (quoting & Bartlett Prosser & Learning,Keaton LLC a duty necessarily includes any conduct that would on Torts § 41, at 266 (5th ed. 1984)). NOTrequire FOR the SALE person ORto remain DISTRIBUTION in, or return to, the We thereforeNOT hold that FOR a person, SALE who ORis found DISTRIBUTION to zone of risk created by the original aggressor. We have used justifiable force, but who nevertheless find no authority that suggests that the law should fails to summon aid in dereliction of the legal duty as require a person, who is justified in her use of force, to defined here, may be found criminally negligent only © Jones & Bartlett Learning, LLC © Jones & Bartlett Learning, LLC 38 Introduction to Law and Criminal Justice NOT FOR SALE OR DISTRIBUTION NOT FOR SALE OR DISTRIBUTION

© Jones & Bartlett Learning, LLC. NOT FOR SALE OR DISTRIBUTION. Culpable Omissions: Can the Failure to Act Be a Crime? © Jones & Bartlett Learning, LLC © Jones & Bartlett Learning, LLC State ex rel. Kuntz v. Montana Thirteenth Judicial Court, 995 P.2d 951 (Mont. 2000) CASE NOT FOR SALE OR DISTRIBUTION NOT FOR SALE OR DISTRIBUTION where the failure to summon aid is the cause-in-fact the State for the purpose of rebutting Kuntz’s claim of of death, rather than the use of force itself. justified use of force. Furthermore, it is important to emphasize that even where such a duty “revives” under the forego- ISSUE 4. ing analysis, ©the Jones breach of & this Bartlett duty should Learning, not be LLC © Jones & Bartlett Learning, LLC construed as constituting criminal negligence per Should the prosecution be permitted to argue that even se. To the contrary,NOT itFOR is entirely SALE conceivable OR DISTRIBUTION that in if the defendant acted with justifiableNOT use of FOR force, herSALE OR DISTRIBUTION circumstances where such a legal duty may rightfully delay in seeking medical aid for the mortally wounded be imposed, a failure to summon medical assistance— attacker was a factor in causing his death? due to fear, shock, or some other manifestation Pursuant to the charge of negligent homicide as it resulting from the confrontation—would not be a currently stands, if the use of force was indeed justi- © Jonesgross deviation & Bartlett from an Learning, ordinary standard LLC of care as fied, then a subsequent© Jones delay & in Bartlett seeking medical Learning, aid LLC NOTrequired FOR SALEby Montana’s OR negligent DISTRIBUTION homicide statute. would be immaterialNOT inFOR addressing SALE the ORfactors DISTRIBUTION that Thus, a breach of the legal duty to summon aid may caused death. Again, the District Court in its eviden- be the cause-in-fact of death, but is still not neces- tiary rulings should be guided by our conclusion that, sarily a crime. . . . as presently charged, a finding that Kuntz’s use of force Determining if and to what extent this holding was justified would be a complete defense requiring © Jones & Bartlettapplies Learning, here, however, LLC is further complicated by the© Jonesacquittal, & and Bartlett that she hadLearning, no duty to immediatelyLLC procedural facts. Namely, the State brought a single render or summon aid for Becker. . . . NOT FOR SALE ORcharge DISTRIBUTION of negligent homicide for the stabbing and theNOT FOR SALE OR DISTRIBUTION failure to summon medical aid. Thus, if the use of force ISSUE 5. is found to be justified, we conclude that Kuntz, as a May the defendant’s actions following an unjusti- matter of law, must be acquitted of this single charge fied use of deadly force be alleged as facts supporting regardless of her conduct subsequent to the stabbing. charging the offense of negligent homicide? This complication© Jones necessarily & Bartlett leads us to Learning, the next LLC © Jones & Bartlett Learning, LLC This issue specifically addresses the State’s case in issue. NOT FOR SALE OR DISTRIBUTIONchief, namely that the evidence willNOT show that FOR Kuntz’s SALE OR DISTRIBUTION use of force was not justified, and she negligently ISSUE 3. caused Becker’s death by first stabbing him and then Should the prosecution be permitted to argue that failing to summon medical aid. To this extent, we hold the defendant’s actions following the use of deadly that the State may, of course, allege relevant facts that © Jonesforce may & beBartlett considered Learning, by the fact-finder LLC in making may tend to prove© Jonesthe elements & ofBartlett the charged Learning, crime, LLC NOTits FOR decision SALE as to the OR validity DISTRIBUTION of the justifiable use of negligent homicide.NOT The FOR evidentiary SALE purpose OR ofDISTRIBUTION such force defense? . . . alleged facts, however, is strictly limited by our hold- Pursuant to § 45-3-102, MCA, a person is “justified ings under the above issues. in the use of force or threat to use force against another For these reasons, the District Court’s order deny- when and to the extent that he reasonably believes that ing Kuntz’s motion to amend or strike the amended © Jones & Bartlettsuch Learning, conduct is necessary LLC to defend himself or another© Jonesinformation & Bartlettis affirmed, andLearning, this case is remandedLLC for against such other’s imminent use of unlawful force.” further proceedings consistent with this opinion. NOT FOR SALE ORHere, DISTRIBUTION Kuntz will have the burden at trial of producingNOT FORJustice SALETERRY N. TRIEWEILEROR DISTRIBUTION concurring and dis- sufficient evidence on this issue to raise a reasonable senting. doubt of her guilt. Ultimately, whether or not her use . . . I disagree with, and therefore dissent from the of force was justified will be determined by the jury. majority’s conclusion that at some point, a victim of Such a determination will be made based on evidence aggression who has justifiably defended herself has a of what Kuntz© reasonably Jones believed & Bartlett at the time Learning, she was “revived” LLC obligation to come to the© assistance Jones of & the Bartlett Learning, LLC confronted withNOT the alleged FOR imminent SALE use OR of unlawfulDISTRIBUTION person against whom it was necessaryNOT for her FOR to defend SALE OR DISTRIBUTION force. herself. . . . Accordingly, we conclude that whether Kuntz The majority has concluded that although circum- had a duty to subsequently summon medical aid and stances occur which are so extreme that a woman is whether she failed in performing this duty are wholly justified in the use of deadly force to defend herself, © Jonesimmaterial & Bartlett in determining Learning, whether the LLC use of force a jury can, after© theJones fact, in &the Bartlett safe confines Learning, of the LLC was justified. Such evidence would in no sense tend to jury room, conclude that at some subsequent point she NOTmake FOR Kuntz’s SALE reasonable OR beliefDISTRIBUTION at the time of the attack was sufficientlyNOT free from FOR danger SALE that she OR should DISTRIBUTION have more or less probable. . . . Therefore, the District Court made an effort to save her assailant and that because shall be guided by this conclusion in its evidentiary she didn’t she is still criminally liable for his death even rulings regarding post-stabbing evidence offered by though at some previous point in time she was justified © Jones & Bartlett Learning, LLC © Jones & Bartlett Learning, LLC CHAPTER 2 The General Principles of the Criminal Law 39 NOT FOR SALE OR DISTRIBUTION NOT FOR SALE OR DISTRIBUTION

Notes and Questions exceptions to the American bystander rule.” The existence of any of the identified circumstances can 1. Assume that Bonnie Kuntz and Warren Becker did not create a legal duty to act, rather than what might live together© but Jones were next-door & Bartlett neighbors. FurtherLearning, LLCbe described simply as a moral obligation© Jones (as in the & Bartlett Learning, LLC assume that Kuntz discovered Becker lying on his hypothetical example given about the Olympic swim- front porchNOT and bleeding FOR when SALE she paid ORa visit toDISTRIBUTION his mer who declines to rescue a child NOTwho is drowning FOR SALE OR DISTRIBUTION mobile home to borrow a cup of flour. Under “the in a swimming pool). Note, however, that other limi- American bystander rule” described in State ex rel. tations might still excuse an individual from failing Kuntz v. Montana Thirteenth Judicial District Court, to act. For example, she might not have been aware would Kuntz be required to render aid, call for help, of the circumstances giving rise to the duty to act, or otherwise take action in order to avoid being she might not have been capable of performing the © Jonespunished & Bartlett for a crime? Learning, Should she be guilty LLC of a crime necessary act,© and Jones she might & have Bartlett to expose herselfLearning, LLC NOT FORif, being SALE perfectly OR capable DISTRIBUTION of doing so and facing to great perilNOT in order FOR to act. In SALE addition, ORher failure DISTRIBUTION no risk to her own safety, she failed to take action to act must be the cause-in-fact of the harm that is that would have saved Becker’s life, and as a result an element of the crime. How does the cause-in-fact he died? What policy reasons might account for “the requirement become an issue with respect to whether American bystander rule”? Kuntz is likely to be successfully prosecuted for crimi- 2. Assume that Kuntz could stand by and do nothing nally negligent homicide concerning Becker’s death? © Jones & Bartlett Learning,without risking conviction LLC for a crime under the facts © Jones4. In Kuntz, & Bartlett the Montana Learning, Supreme Court LLCdiscusses NOT FOR SALE ORdescribed DISTRIBUTION in note 1. Now, assume that when Kuntz NOT FORand appears SALE to disapprove OR DISTRIBUTION of People v. Beardsley, went next door to borrow a cup of flour from Becker, 113 N.W. 1128 (Mich. 1907). The Michigan Supreme Becker became enraged, drew a knife, and tried to Court ruled in this case that a man had no legal duty kill her. Assume further that following a desperate to act to save the life of a woman with whom he had struggle, Kuntz managed to wrestle the knife from sexual relations over the period of a few days, while Becker and stabbed him in the chest as his hands his wife was out of town, and the woman had passed closed around© Jonesher throat in& an Bartlett attempt to strangleLearning, LLCout and subsequently died after consuming© Jones a large & Bartlett Learning, LLC her. Under NOTthese facts, FOR and under SALE the court’s OR rulingDISTRIBUTION amount of alcohol and drugs. If “aNOT duty based FOR on a SALE OR DISTRIBUTION in State ex rel. Kuntz v. Montana Thirteenth Judicial personal relationship, such as . . . husband-wife” is District Court, would Kuntz be required to render one of the recognized exceptions to “the American aid, call for help, or otherwise take action in order to bystander rule,” what personal relationships in addi- avoid being punished for a crime? Does it make sense tion to marriage should create a legal duty to act? not to require someone to render aid to an “innocent” Although Kuntz and Becker were not married, they © Jonesvictim, & Bartlett as posited in noteLearning, 1, but require LLC her to do so had lived together© Jones for approximately & Bartlett 6 years. ShouldLearning, LLC NOT FORafter beingSALE viciously OR attacked DISTRIBUTION by a man intent on kill- a relationshipNOT of that FOR length SALE and nature OR impose DISTRIBUTION ing her, as posited in this note? Why or why not? a legal duty for one of the couple to act when the 3. Citing LaFave and Scott’s treatise Criminal Law, other is in peril? Should a relationship of the type the court in Kuntz identifies “seven common-law that existed in People v. Beardsley? If two people went

© Jones & Bartlett Learning, LLC. NOT FOR SALE OR DISTRIBUTION. Culpable Omissions: Can the Failure to Act Be a Crime? © Jones & Bartlett Learning, LLC © Jones & Bartlett Learning, LLC NOT FOR SALE OR DISTRIBUTION NOT FOR SALE OR DISTRIBUTION hunting together and one accidentally was shot by (adult child’s alleged failure to care for depen- another hunter, should deciding whether the other dent, elderly parent); Peterson v. State, 765 So.2d has a legal duty to act to render aid or summon help 861 (Fla. App. 2000) (same); State v. Williquette, turn on whether they are married, had lived together 385 N.W.2d 145 (Wis. 1986) (child abuse prosecu- in a romantic© Jones relationship & forBartlett 6 years, had Learning, a “one- LLCtion of mother for failing to act© to Jones protect minor & Bartlett Learning, LLC night stand” the evening before, or had not met one children from sexual and physical abuse allegedly another NOTuntil that FOR same day? SALE OR DISTRIBUTIONinflicted by children’s father);NOT Commonwealth FOR v.SALE OR DISTRIBUTION 5. For additional cases considering whether criminal Pestinkas, 617 A.2d 1339 (Pa. Super. 1992) (murder liability may be imposed for failing to act under cir- conviction based on defendants’ alleged breach of cumstances involving an alleged legal duty to do so, contract to provide food and medical care for infirm see People v. Heitzman, 886 P.2d 1229 (Cal. 1994) patient). © Jones & Bartlett Learning, LLC © Jones & Bartlett Learning, LLC NOT FOR SALE OR DISTRIBUTION NOT FOR SALE OR DISTRIBUTION

MENS REA thinking along the same lines as Oliver Wendell Holmes, Jr., the famous legal scholar and early Imagine that the drivers of three different auto- 20th-century U.S. Supreme Court justice, when © Jones & Bartlettmobiles Learning, strike pedestrians LLC as they attempt to cross© Joneshe wrote: & “[E]venBartlett a dog Learning, distinguishes LLC between NOT FOR SALE ORthe street,DISTRIBUTION in each case causing the pedestrians’NOT being FOR stumbled SALE over OR and DISTRIBUTION being kicked.” A, who deaths. The driver of the first car, A, recognized deliberately ran over his former employer in his victim as his former boss and swerved to hit retaliation for being fired, clearly appears to be him as “payback” for firing him the day before. guilty of a crime and deserving of punishment. The driver of the second car, B, was intoxicated, On the other hand, we may well conclude that C, had forgotten© to Jones turn on &the Bartlett vehicle’s headlights Learning, whoLLC lost control of his car while© trying Jones to avoid & Bartlett Learning, LLC although it wasNOT nighttime, FOR andSALE ran over OR her DISTRIBUTION victim hitting a dog, was involved in aNOT tragic FOR accident SALE OR DISTRIBUTION without even seeing him. The driver of the third that ought not to be considered a crime and merit car, C, slammed on his brakes in an attempt to punishment. Most people likely will agree that avoid hitting a dog who had run into the street, B, whose intoxication may have contributed to lost control of the vehicle, and skidded into a her failure to activate her car’s headlights and to © Jonespedestrian & Bartlett who had Learning,entered a crosswalk. LLC Each striking and killing© Jones the pedestrian & Bartlett in her Learning, case, is LLC NOTdriver, FOR while SALE engaging OR DISTRIBUTION in similar acts (driving a not guilt free andNOT ought FOR to be SALEconvicted OR of a DISTRIBUTIONcrime. car), was responsible for causing the same type of It may be more debatable what crime she should harm (the death of another person). Is each one be convicted of committing, how severely she guilty of a crime? If so, are they guilty of the same should be punished, and in particular whether crime? If not, why not? she should be considered guilty of committing a © Jones & Bartlett YouLearning, probably LLCwill agree that although A, B,© Jonescrime of & equal Bartlett seriousness Learning, to A’s offense. LLC and C each caused a person’s death by striking NOT FOR SALE OR DISTRIBUTION NOT FORThe essential SALE point OR is DISTRIBUTION that the actor’s mental their victims with the car they were driving, their state—his or her mens rea—can make all the dif- cases are importantly different and the law should ference concerning whether a crime has been not respond to them in the same way. What dis- committed and, if so, how seriously the crime tinguishes their cases? If your answer concerns should be defined and punished. We consider the drivers’ ©respective Jones mental & Bartlett states—what Learning, the mens LLC rea issues in the following cases.© Jones & Bartlett Learning, LLC law calls mens rea (guilty mind)—you would be NOT FOR SALE OR DISTRIBUTION NOT FOR SALE OR DISTRIBUTION

CASE © JonesState v. & Jefferies, Bartlett 446 S.E.2d Learning, 427 (S.C. 1994) LLC Detention Center© Joneslocated in & the Bartlett St. Andrews Learning, area of LLC TOAL, Justice. . . . Richland County. After his escape, Jefferies looked for NOT FOR SALE OR DISTRIBUTION an automobile NOTto steal soFOR he could SALE go home OR to Gaffney, DISTRIBUTION South Carolina. On the evening of November 25, 1988, the defen- Shortly after Jefferies’ escape, Ronald Caldwell dant (“Jefferies”) escaped from John G. Richards Youth (“Father”) and his four-month-old son, Matthew, © Jones & Bartlett Learning, LLC © Jones & Bartlett Learning, LLC CHAPTER 2 The General Principles of the Criminal Law 41 NOT FOR SALE OR DISTRIBUTION NOT FOR SALE OR DISTRIBUTION

© Jones & Bartlett Learning, LLC. NOT FOR SALE OR DISTRIBUTION. Mens Rea © Jones & Bartlett Learning, LLC © Jones & Bartlett Learning, LLC CASE State v. Jefferies, 446 S.E.2d 427 (S.C. 1994) NOT FOR SALE OR DISTRIBUTION NOT FOR SALE OR DISTRIBUTION drove into a convenience store parking lot at Ashland I. Mens Rea and St. Andrews Roads to use the telephone. Matthew “Few areas of criminal law pose more difficulty than was attached to a heart monitor. He was strapped in the proper definition of the mens rea required for any an infant car seat. The evidence is conflicting as to particular crime.” United States v. Bailey, 444 U.S. 394, whether Matthew© wasJones in the front& Bartlett seat or the backLearning, seat 403 LLC (1980). “Criminal liability is normally© Jones based upon & Bartlett Learning, LLC of the automobile.NOT FOR SALE OR DISTRIBUTIONthe concurrence of two factors, ‘an evilNOT meaning FOR mind SALE OR DISTRIBUTION The Father decided to leave Matthew in the automo- [and] an evil doing hand,’” Id. at 402, although this bile with the motor running while he used the pay tele- Court has recognized that the legislature may declare phone. Realizing that he did not have enough change, an act criminal regardless of the mental state of the the Father started to go into the store. The Father actor. Thus, we must determine what, if any, mens rea glanced back at his automobile and saw Jefferies open- is required for the crime of kidnapping. © Jonesing the door & Bartlettand getting in.Learning, LLC The required mens© Jones rea for a particular& Bartlett crime Learning,can be LLC NOT FORJefferies SALE got into OR the automobileDISTRIBUTION and began to classified into a NOThierarchy FOR of culpable SALE states OR of mindDISTRIBUTION drive away. The Father immediately ran to the auto- in descending order of culpability, as purpose, knowl- mobile and grabbed onto the partially open driver’s edge, recklessness, and negligence. “At common law, window. Jefferies continued to drive on to Ashland crimes generally were classified as requiring either Road then right on to St. Andrews Road heading ‘general intent’ or ‘specific intent.’ This venerable © Jones & Bartletttowards Learning, Interstate 26. LLC As the Father hung onto the © Jonesdistinction, & however, Bartlett has Learning,been the source LLC of a good NOT FOR SALE windowOR DISTRIBUTION and car door, he pleaded with Jefferies to NOTdeal FORof confusion.” SALE Id. OR at 403. DISTRIBUTION Thus, the commenta- release the baby. tors and Model Penal Code have rejected the traditional Jefferies admits that while the Father was hanging dichotomy in favor of the hierarchical approach. onto the moving vehicle, pleading for the release of The kidnapping statute does not expressly state his child, Jefferies looked around in the automobile whether a mens rea is required.4 Thus, we look to com- and saw Matthew. Nevertheless, Jefferies contin- mon law and the development of the statute to deter- ued towards the© interstate. Jones On& theBartlett entrance Learning,ramp to mine LLC whether the legislature intended© Jones the crime & to Bartlett Learning, LLC Interstate 26, JefferiesNOT increasedFOR SALE speed and OR the DISTRIBUTIONFather require a mens rea. NOT FOR SALE OR DISTRIBUTION fell off. . . . Originally, kidnapping required the lesser degree Jefferies was picked up by the Gaffney police of mental culpability of “knowledge.” In 1937, the between 2:30 and 3:00 a.m. on November 26, 1988 additional element of “holding for ransom” was in Cherokee County, South Carolina. He told police required which indicated that the actor must have © Jonesthat he left & theBartlett baby at a Learning,service station inLLC Newberry, had a “purpose”© or Jones “desired &result.” Bartlett This element, Learning, LLC South Carolina, more than twenty miles from where NOT FOR SALE OR DISTRIBUTION however, was deletedNOT in FOR 1976, clearly SALE indicating OR DISTRIBUTION the the automobile was stolen. Matthew was found, in his legislature intended to lower the standard of culpabil- car seat still attached to the heart monitor, beside the ity required to hold one liable for the crime of kidnap- garbage dumpster of a service station in Newberry, ping. While we find clear legislative intent to require a South Carolina. . . . lesser mens rea than “purpose,”7 we find no evidence At trial, Jefferies, through his attorneys, admitted of legislative intent to make the crime of kidnapping © Jones & Bartlettstealing Learning, the automobile. LLC Jefferies’ attorneys claimed, © aJones crime of &strict Bartlett liability. .Learning, . . We find that LLC the mens NOT FOR SALE however,OR DISTRIBUTION that because Jefferies did not know Matthew NOTrea ofFOR “knowledge” SALE8 is ORrequired DISTRIBUTION under S.C. Code Ann. was in the automobile at the time he stole the auto- § 16-3-910 (1985). mobile, Jefferies could not have intended to kidnap Matthew. The trial judge refused the charge on “intent” II. Jury Charge submitted by Jefferies...... Jefferies submitted four proposed jury charges On direct appeal, Jefferies claimed the trial judge to the trial judge on the element of mens rea. Each erred . . . in not© charging Jones “intent” & Bartlett as an element Learning, of of LLCthe charges submitted by Jefferies© Jones contained & Bartlett Learning, LLC kidnapping. . . .NOT The Court FOR of Appeals SALE granted OR Jefferies DISTRIBUTION either the element of “specific intent”NOT or “purpose.” FOR SALE OR DISTRIBUTION a new trial. . . . The State appeals. . . . “Purpose” is the highest level of mens rea known in

4. S.C. Code Ann. § 16-3-910 (1985) provides as follows: Whoever shall unlawfully seize, confine, inveigle, decoy, kidnap, abduct or carry away any other person by any means whatsoever without © Jonesauthority of& law Bartlett except when a minorLearning, is seized or taken LLC by his parent, is guilty of a felony and upon© conviction, Jones shall & suffer Bartlett the punishment Learning, of life LLC NOTimprisonment. FOR SALE . . . OR DISTRIBUTION NOT FOR SALE OR DISTRIBUTION 7. “[A] person who causes a particular result is said to act purposefully if ‘he consciously desires that result, whatever the likelihood of that result happening from his conduct.’ ” Bailey, 444 U.S. at 405. 8. A person “is said to act knowingly if he is aware ‘that that result is practically certain to follow from his conduct, whatever his desire may be as to that result.’ ” Bailey, 444 U.S. at 405. © Jones & Bartlett Learning, LLC © Jones & Bartlett Learning, LLC 42 Introduction to Law and Criminal Justice NOT FOR SALE OR DISTRIBUTION NOT FOR SALE OR DISTRIBUTION

© Jones & Bartlett Learning, LLC. NOT FOR SALE OR DISTRIBUTION. Notes and Questions © Jones & Bartlett Learning, LLC © Jones & Bartlett Learning, LLC State v. Jefferies, 446 S.E.2d 427 (S.C. 1994) CASE NOT FOR SALE OR DISTRIBUTION NOT FOR SALE OR DISTRIBUTION criminal law and it is not required under the South a trash dumpster at the rear of a service station located Carolina kidnapping statute. . . . in a rural area of Newberry County. In charging the jury on the law of kidnapping, the The jury heard no evidence which would tend to trial judge read S.C. Code Ann. § 16-3-910 to the jury. show Jefferies did not possess at least the mens rea of He then stated© as Jones an additional & Bartlett element of theLearning, crime, knowledge.LLC Jefferies’ defense was that© Jones because he & did Bartlett Learning, LLC that kidnapping required a “positive act” on the part not know the baby was in the automobile before the of the defendant.NOT Twice FOR during SALE deliberations, OR DISTRIBUTIONthe jury theft, he could not have “intended” toNOT kidnap FOR the baby. SALE OR DISTRIBUTION requested a definition or explanation of the term “pos- Jefferies’ claim that his sole intent was to steal the itive act.” Each time the trial judge gave the jury the automobile is irrelevant to the later fact of his know- original charge without explanation or elaboration. ing the baby was in the automobile and continuing the Defense counsel argued to the jury that “Positive act” asportation of the child against the will of the parent.12 © Joneswas: “an & affirmative, Bartlett positive Learning, act is one LLC that is made The jury’s confusion© Jones was over & Bartlettan asserted Learning,defense LLC NOTwith FOR full SALEknowledge.” OR Jefferies DISTRIBUTION claims that the trial which is, in reality,NOT no defense FOR under SALE the presentOR DISTRIBUTION facts. judge erred in failing to charge the jury on the element Jefferies cannot maintain that, simply because he was of mens rea and in failing to define “positive act.” . . . ignorant of the baby’s presence to begin with, that he In our view, the term “positive act” generally would is not responsible for kidnapping after he realized he not encompass the element of mens rea; but, because had the baby and kept on driving. © Jones & Bartlettthe Learning, jury in this case LLC heard a definition of “positive© JonesThe jury & Bartlettconfusion overLearning, the term “positive LLC act” act” which included “knowledge,” we believe the jury clearly evidences the jury’s dilemma in determining NOT FOR SALE ORcharge DISTRIBUTION on the element of mens rea as given by the trialNOT when FOR the requisiteSALE mensOR reaDISTRIBUTION must arise to sustain a judge was inadequate rather than totally absent as guilty verdict. Had the jury believed that kidnapping Jefferies claims. . . . was a strict liability crime, there would have been no The inadequate jury charge in the instant cause confusion. As Jefferies admits, and the State proved clearly confused the jury. . . . Nevertheless, the jury beyond a reasonable doubt, he possessed the mens received a definition© Jones of “positive & Bartlettact” from defense Learning, coun- reaLLC of knowledge when he discovered© theJones baby in & the Bartlett Learning, LLC sel which encompassedNOT FOR a mens SALE rea of “knowledge.” OR DISTRIBUTION . . . automobile and continued the asportationNOT FOR against SALE OR DISTRIBUTION Here the State proved beyond a reasonable doubt, the will of the parent; therefore, beyond a reasonable and Jefferies admitted, that he knew the baby was in doubt, the jury verdict could not have rested on the the automobile within the first six-tenths of a mile. incomplete jury charge. The only definition of “positive Jefferies also knew he did not have the permission of act” heard by the jury included the mens rea of “knowl- © Jonesthe child’s & Bartlettparent or guardian. Learning, Nevertheless, LLC Jefferies edge.” Beyond ©a reasonable Jones doubt,& Bartlett the impermissible Learning, LLC continued more than twenty miles after discovering jury charge did not contribute to the verdict of guilty. NOTthe FOR baby SALE in the automobile OR DISTRIBUTION before placing a four- The decisionNOT of the CourtFOR of AppealsSALE . . .OR is REVERSED DISTRIBUTION month-old infant, attached to a heart monitor, next to and the conviction reinstated. . . .

Notes and Questions knowledge, recklessness, and negligence.” In United States v. Zunie, 444 F.3d 1230 (10th Cir. © Jones & Bartlett1. Learning, Would the result LLC in Jefferies be different if the baby © Jones2006), & Bartlettthe court elaborated Learning, on the meaning LLC of the NOT FOR SALE OR DISTRIBUTIONwas sleeping peacefully in his car seat in the back NOT FORterms SALE used in the OR MPC. DISTRIBUTION of the automobile and Jefferies had been arrested The Model Penal Code suggests replacing concep- before he became aware that the baby was in the car? tions of “specific intent” and “general intent” with 2. What does the court mean when it says that it “has a “hierarchy of culpable states of mind,” including recognized that the legislature may declare an act (1) purpose, (2) knowledge, (3) recklessness, and criminal regardless© Jones of the & mental Bartlett state of the Learning, actor”? LLC(4) negligence.1 What the common© Joneslaw would tra-& Bartlett Learning, LLC What do you understand a “strict liability” offense to ditionally consider a “general intent” crime, such be? If kidnappingNOT FORwere a strict SALE liability OR crime, DISTRIBUTION would as assault resulting in serious bodilyNOT injury, FOR encom- SALE OR DISTRIBUTION it matter whether Jefferies knew that the baby was passes crimes committed with purpose, knowledge, in the car prior to his being arrested? or recklessness. The Model Penal Code’s approach 3. The court notes that the Model Penal Code “rejected accords with our formulation of “general intent” the traditional dichotomy [between ‘general crimes, as a crime committed with purpose, knowl- © Jonesintent’ & Bartlett and ‘specific Learning, intent’] in favor LLC of the hier- edge, or© recklessness Jones amounts& Bartlett to an act Learning, “done LLC archical approach,” defining mens rea according voluntarily and intentionally.” Similarly, our defini- NOT FORto aSALE “descending OR order DISTRIBUTION of culpability, as purpose, tion of “generalNOT intent” FOR crimes SALE specifically OR excludes DISTRIBUTION

12. The Court of Appeals was correct in stating that “kidnapping is a continuing offense as long as the kidnapped person is deprived of his freedom.” . . . © Jones & Bartlett Learning, LLC © Jones & Bartlett Learning, LLC CHAPTER 2 The General Principles of the Criminal Law 43 NOT FOR SALE OR DISTRIBUTION NOT FOR SALE OR DISTRIBUTION

© Jones & Bartlett Learning, LLC. NOT FOR SALE OR DISTRIBUTION. Mens Rea © Jones & Bartlett Learning, LLC © Jones & Bartlett Learning, LLC NOT FOR SALE OR DISTRIBUTION NOT FOR SALE OR DISTRIBUTION acts committed “because of mistake or accident,” that his conduct will cause such a result.” Model id., just as the Model Penal Code does not include Penal Code § 2.02(2)(b)(ii). The district court’s “negligence” as a relevant mens rea for “general finding that defendant was “consciously aware intent” crimes. Model Penal Code § 2.02(3). that his conduct would result in setting fire to or Thus, under© Jonesthe Model Penal& Bartlett Code, an individual Learning, LLCburning the school building,” established© Jones knowing & Bartlett Learning, LLC who actsNOT purposely, FOR knowingly, SALE or recklessly OR DISTRIBUTION pos- conduct and was, therefore, sufficientNOT to FORsupport SALE OR DISTRIBUTION sesses a culpable mens rea with respect to general its conclusion that defendant acted “willfully and intent crimes. maliciously” within the meaning of 18 U.S.C. § 81. 4. Using the MPC framework, might Jeffries have ben- efited if his jury had been instructed that the mens rea for kidnapping is “purposely” and that “know- 1. Section 2.02(2) of the Model Penal Code defines each © Jonesingly” & wouldBartlett not suffice? Learning, LLC level of culpability:© Jones & Bartlett Learning, LLC (a) Purposely. NOT 5.FOR In United SALE States v. OR M.W., 890DISTRIBUTION F.2d 239 (10th Cir. 1989), NOT FOR SALE OR DISTRIBUTION A person acts purposely with respect to a material ele- a juvenile (M.W.) was found guilty of committing ment of an offense when: arson pursuant to 18 U.S.C. § 81, which provides in (i) if the element involves the nature of his conduct relevant part: “Whoever . . . willfully and maliciously or a result thereof, it is his conscious object to sets fire to or burns . . . any building . . . shall be engage in conduct of that nature or to cause such fined not more than $1,000 or imprisoned not more a result; and © Jones & Bartlett Learning,than five years, orLLC both.” M.W. had broken into the © Jones & Bartlett Learning, LLC (ii) if the element involves the attendant circum- principal’s office in a school on an Indian reserva- NOT FOR SALE OR DISTRIBUTION NOT FOR SALEstances, heOR is aware DISTRIBUTION of the existence of such tion, piled various papers on the floor, and set fire circumstances or he believes or hopes that they to the papers. The fire spread quickly to the building, exist. causing hundreds of thousands of dollars of damage. (b) Knowingly. On appeal, M.W. admitted setting fire to the papers, A person acts knowingly with respect to a material ele- but argued that he did not “intend” to burn down the ment of an offense when: school building© Jones and consequently & Bartlett lacked the Learning, mens LLC © Jones & Bartlett Learning, LLC (i) if the element involves the nature of his conduct rea required to support a conviction for arson. The NOT FOR SALE OR DISTRIBUTION or the attendant circumstances,NOT he is aware FOR that SALE OR DISTRIBUTION court thus had to determine whether the statutory his conduct is of that nature or that such circum- requirement “willfully and maliciously sets fire to or stances exist; and burns . . . any building” imposed a mens rea of “pur- (ii) if the element involves a result of his conduct, posely,” which, in this context, would require having he is aware that it is practically certain that his the “conscious object to . . . cause [the] result” of conduct will cause such a result. © Jonesburning & Bartlett the building. Learning, LLC © Jones & Bartlett Learning, LLC (c) Recklessly. NOT FOR[The] SALE terms . . .OR “willful” DISTRIBUTION or “willfully” are not self- A personNOT acts recklessly FOR with SALE respect to a materialOR DISTRIBUTION ele- defining in importing the requisite mental state for ment of an offense when he consciously disregards a committing an offense. In response to the inher- substantial and unjustifiable risk that the material ent ambiguity of such terms, modern criminal law, element exists or will result from his conduct. The risk as reflected in the Model Penal Code, has settled must be of such a nature and degree that, considering upon four categories of mens rea which can make the nature and purpose of the actor’s conduct and the © Jones & Bartlett Learning,conduct criminal: LLC if the act is done (1) purposely, © Jones circumstances& Bartlett known Learning, to him, its disregard LLC involves NOT FOR SALE OR DISTRIBUTION(2) knowingly, (3) recklessly, or (4) negligently. NOT FORa grossSALE deviation OR from DISTRIBUTIONthe standard of conduct that Model Penal Code § 2.02(2). . . . The Model Penal a law-abiding person would observe in the actor’s Code follows many judicial decisions in declaring situation. that knowing conduct is sufficient to establish (d) Negligently. willfulness. . . . A person acts negligently with respect to a material In effect, defendant contends that 18 U.S.C. element of an offense when he should be aware of a § 81 requires© Jones purposeful & conduct Bartlett as defined Learning, by LLC substantial and unjustifiable risk© that Jones the material & Bartlett Learning, LLC the ModelNOT Penal Code.FOR But SALE we hold thatOR in DISTRIBUTION this element exists or will result from hisNOT conduct. FOR The risk SALE OR DISTRIBUTION context, “willfully and maliciously” includes acts must be of such a nature and degree that the actor’s done with the knowledge that burning of a build- failure to perceive it, considering the nature and pur- ing is the practically certain result: “A person acts pose of his conduct and the circumstances known to knowingly with respect to a material element of an him, involves a gross deviation from the standard of offense when . . . if the element involves a result of care that a reasonable person would observe in the © Joneshis & conduct, Bartlett he is aware Learning, that it is practically LLC certain actor’s situation.© Jones & Bartlett Learning, LLC NOT FOR SALE OR DISTRIBUTION NOT FOR SALE OR DISTRIBUTION In State v. Jefferies and United States v. M.W., we case, we turn our attention to the remaining two introduced and explored the highest levels of mens levels, as classified by the Model Penal Code: rea—purposely and knowingly. In the following recklessly and negligently. © Jones & Bartlett Learning, LLC © Jones & Bartlett Learning, LLC 44 Introduction to Law and Criminal Justice NOT FOR SALE OR DISTRIBUTION NOT FOR SALE OR DISTRIBUTION

© Jones & Bartlett Learning, LLC. NOT FOR SALE OR DISTRIBUTION. Notes and Questions © Jones & Bartlett Learning, LLC © Jones & Bartlett Learning, LLC People v. Strong, 338 N.E.2d 602 (N.Y. 1975) CASE NOT FOR SALE OR DISTRIBUTION NOT FOR SALE OR DISTRIBUTION People v. Strong, 338 N.E.2d 602 (N.Y. 1975) times over the previous 40 years without once caus- JASEN, Judge. ing an injury. Unfortunately, on January 28, 1972, when defendant performed this ceremony on Kenneth Goings, a recent recruit, the wounds from the hatchet and three knives which defendant had inserted into Defendant© was Jones charged, in& a Bartlett one-count indictment, Learning, LLC © Jones & Bartlett Learning, LLC him proved fatal. with manslaughter in the second degree (Penal Law, § NOT FOR SALE OR DISTRIBUTIONWe view the record as warrantingNOT the submissionFOR SALE OR DISTRIBUTION 125.15) for causing the death of Kenneth Goings. At of the lesser charge of criminally negligent homicide the trial, the defense requested that the court submit since there is a reasonable basis upon which the jury to the jury, in addition to the crime charged, the crime could have found that the defendant failed to perceive of criminally negligent homicide (Penal Law, § 125.10). the risk inherent in his actions. The defendant’s con- The court refused, and the jury found defendant guilty © Jones & Bartlett Learning, LLC duct and claimed© Joneslack of perception, & Bartlett together Learning, with LLC as charged. NOT FOR SALE OR DISTRIBUTION the belief of theNOT victim FOR and defendant’s SALE ORfollowers, DISTRIBUTION if The sole issue upon this appeal is whether the trial accepted by the jury, would justify a verdict of guilty court erred in refusing to submit to the jury the lesser of criminally negligent homicide. There was testimony, crime of criminally negligent homicide. . . . both from defendant and from one of his followers, that “The essential distinction between the crimes of the victim himself perceived no danger, but in fact vol- © Jones & Bartlettmanslaughter, Learning, second LLC degree, and criminally negligent© Jonesunteered & to Bartlettparticipate. Learning,Additionally, at LLC least one of homicide” . . . “is the mental state of the defendant at the defendant’s followers testified that the defendant NOT FOR SALE ORthe time DISTRIBUTION the crime was committed. In one, the actorNOT had FOR previously SALE performed OR thisDISTRIBUTION ritual without causing perceives the risk, but consciously disregards it. (Penal injury. Assuming that a jury would not believe that the Law, § 15.05, subd. 3.) In the other, he negligently defendant was capable of performing the acts in ques- fails to perceive the risk. (Penal Law, § 15.05, subd. tion without harm to the victim, it still could determine 4.) The result and the underlying conduct, exclusive that this belief held by the defendant and his followers of the mental ©element, Jones are the& same.”Bartlett . . . Learning, wasLLC indeed sincere and that defendant© Jones did not in & fact Bartlett Learning, LLC In determiningNOT whetherFOR SALEthe defendant OR DISTRIBUTION in this perceive any risk of harm to the victim.NOT . . . FOR SALE OR DISTRIBUTION case was entitled to the charge of the lesser crime, Therefore, on the particular facts of this case, we the focus must be on the evidence in the record relat- conclude that there is a reasonable view of the evi- ing to the mental state of the defendant at the time of dence which, if believed by the jury, would support the crime. The record discloses that the defendant, 57 a finding that the defendant was guilty only of the © Jonesyears old & at Bartlett the time of trial,Learning, had left his LLC native Arabia crime of criminally© Jones negligent & homicide, Bartlett and Learning,that the LLC at the age of 19, emigrating first to China and then trial court erred in not submitting, as requested, this NOTcoming FOR to SALE the United OR States DISTRIBUTION three years later. He had lesser offense toNOT the jury. FOR SALE OR DISTRIBUTION lived in Rochester only a short time before commit- Accordingly, we would reverse and order a new trial. ting the acts which formed the basis for this homicide GABRIELLI, Judge (dissenting). charge. He testified that he had been of the Sudan I dissent. . . . The Appellate Division was correct in Muslim religious faith since birth, and had become holding that “Defendant’s belief in his superhuman © Jones & Bartlettone Learning, of the sect’s leaders, LLC claiming a sizable following.© Jonespowers, whether& Bartlett real or Learning,simulated, did notLLC result in NOT FOR SALE ORDefendant DISTRIBUTION articulated the three central beliefs of thisNOT his FOR failure toSALE perceive OR the risk DISTRIBUTION but, rather, led him con- religion as “cosmetic consciousness, mind over mat- sciously to disregard the risk of which he was aware”. ter and psysiomatic psychomatic consciousness.” He . . . [D]efendant, the self-proclaimed leader of the stated that the second of these beliefs, “mind over Sudan Muslim sect of Rochester, New York, stabbed one matter”, empowered a “master”, or leader, to lie on a of his followers, Kenneth Goings, a number of times in bed of nails without bleeding, to walk through fire or the heart and chest causing his death. on hot coals, ©to performJones surgical & Bartlett operations Learning, without LLC. . . [T]he evidence established defendant’s© Jones aware- & Bartlett Learning, LLC anesthesia, toNOT raise people FOR up SALE off the ground, OR DISTRIBUTION and to ness and conscious disregard of theNOT risk his FOR ceremony SALE OR DISTRIBUTION suspend a person’s heartbeat, pulse, and breathing created and is entirely inconsistent with a negligent while that person remained conscious. In one particu- failure to perceive that risk. Testimony was adduced lar type of ceremony, defendant, purportedly exercis- that just prior to being stabbed, Goings, a voluntary ing his powers of “mind over matter”, claimed he could participant up to that point, objected to continuance © Jonesstop a follower’s& Bartlett heartbeat Learning, and breathing LLC and plunge of the ceremony© sayingJones “No, & father” Bartlett and that Learning, defen- LLC NOTknives FOR into SALE his chest OR without DISTRIBUTION any injury to the person. dant, obviouslyNOT evincing FOR an awareness SALE of OR the possible DISTRIBUTION There was testimony from at least one of defendant’s result of his actions, answered, “It will be all right, followers that he had successfully performed this son”. Defendant testified that after the ceremony, ceremony on previous occasions. Defendant himself he noticed blood seeping from the victim’s wounds claimed to have performed this ceremony countless and that he attempted to stop the flow by bandaging © Jones & Bartlett Learning, LLC © Jones & Bartlett Learning, LLC CHAPTER 2 The General Principles of the Criminal Law 45 NOT FOR SALE OR DISTRIBUTION NOT FOR SALE OR DISTRIBUTION

© Jones & Bartlett Learning, LLC. NOT FOR SALE OR DISTRIBUTION. Mens Rea © Jones & Bartlett Learning, LLC © Jones & Bartlett Learning, LLC CASE PEOPLE V. STRONG, 338 N.E.2D 602 (N.Y. 1975) NOT FOR SALE OR DISTRIBUTION NOT FOR SALE OR DISTRIBUTION the mortally wounded Goings. Defendant further part. The majority concludes otherwise by apparently stated that when he later learned that Goings had crediting the testimony of defendant, and one of his been removed to another location and had been given followers, that at the time defendant was plunging something to ease the pain, he became “uptight”, knives into the victim, the defendant thought “there indicating, of ©course, Jones that &defendant Bartlett appreciated Learning, was LLC no danger to it”. However, it is ©readily Jones apparent & Bartlett Learning, LLC the risks involved and the possible consequences of that the quoted statement does not mean, as the his acts. NOT FOR SALE OR DISTRIBUTIONmajority assert, that defendant saw noNOT risk of FOR harm in SALE OR DISTRIBUTION Examination of the two homicide sections of the the ceremony, but, rather, that he thought his powers Penal Law, here involved, is important. so extraordinary that resultant injury was impossible. “A person is guilty of manslaughter in the second Thus, the testimony does not establish defendant’s degree when: 1. He recklessly causes the death of negligent perception for even a grossly negligent © Jonesanother person”& Bartlett (Penal Law,Learning, § 125.15, subd. LLC 1); and individual would ©perceive Jones the patent & Bartlett risk of injury Learning, that LLC NOTsubdivision FOR SALE 3 of section OR 15.05 DISTRIBUTION provides that a person would result fromNOT plunging FOR a knife SALE into a human OR being; DISTRIBUTION acts “recklessly” with respect to a result when he is instead, the testimony demonstrates defendant’s con- aware of and disregards a substantial and unjustifi- scious disregard of the possible consequences that able risk that such result will occur. would naturally flow from his acts. “A person is guilty of criminally negligent homicide This case might profitably be analogized to one © Jones & Bartlettwhen, Learning, with criminal negligence,LLC he causes the death © Joneswhere an &individual Bartlett believing Learning, himself toLLC be pos- of another person” (Penal Law, § 125.10); and a person sessed of extraordinary skill as an archer attempts NOT FOR SALE actsOR with DISTRIBUTION “criminal negligence” with respect to a result NOTto duplicate FOR SALEWilliam Tell’s OR feat DISTRIBUTION and split an apple on when he fails to perceive a substantial and unjustifi- the head of another individual from some distance. able risk that such result will occur (Penal Law, § 15.05, However, assume that rather than hitting the apple, subd. 4). the archer kills the victim. Certainly, his obtuse sub- Simply stated, a reckless offender (manslaugh- jective belief in his extraordinary skill would not ter) is aware of ©the Jones risk and consciously & Bartlett disregards Learning, it; render LLC his actions criminally negligent.© Jones Both, in the& Bartlett Learning, LLC whereas, on theNOT other hand, FOR the SALE “criminally OR negligent” DISTRIBUTION context of ordinary understanding andNOT the Penal FOR Law SALE OR DISTRIBUTION offender is not aware of the risk created and cannot definition (§ 15.05, subd. 3), the archer was unques- thus be guilty of disregarding it. tionably reckless and would, therefore, be guilty of Can it be reasonably claimed or argued that, when manslaughter in the second degree. The present case the defendant inflicted the several stab wounds, one is indistinguishable. . . . © Jonesof which &penetrated Bartlett the Learning,victim’s heart andLLC was four Courts should© not Jones invite juries& Bartlett to reach unwar-Learning, LLC and three-quarter inches deep, the defendant failed ranted or compromised verdicts by inappropriately NOTto perceiveFOR SALE the risk? OR The onlyDISTRIBUTION and obvious answer is submitting lesserNOT charges FOR to them. SALE . . . There OR beingDISTRIBUTION simply “no”. no proper evidentiary basis for the lesser charge Moreover, the record is devoid of evidence pointing here, the order of the Appellate Division should be toward a negligent lack of perception on defendant’s affirmed. © Jones & Bartlett Learning, LLC © Jones & Bartlett Learning, LLC NOT FOR SALE OR DISTRIBUTION NOT FOR SALE OR DISTRIBUTION

Notes and Questions indifference to human life . . . [and] recklessly engages in conduct which creates a grave risk of 1. Under current New York law, manslaughter in the sec- death to another person” is guilty of second-degree murder under New York law, a class A-I felony punish- ond degree,© Penal Jones Law § 125.15,& Bartlett is a class CLearning, felony LLC © Jones & Bartlett Learning, LLC punishable by 3½ to 15 years imprisonment; crimi- able by a minimum prison term of 15 to 25 years, and nally negligentNOT homicide, FOR Penal SALE Law § OR125.10, DISTRIBUTION is a a maximum term of life imprisonment.NOT N.Y. Penal FOR Law SALE OR DISTRIBUTION class E felony punishable by 1½ to 4 years imprison- §§ 125.25 (1), (2); §§ 70.00 (2) (a), (3) (a) (i). ment. N.Y. Penal Law §§ 70.02 (3) (b), (c). Note the 2. Does the majority opinion or the dissent have the markedly different punishment ranges for the two better argument concerning whether the jury should crimes, which, in a case such as Strong, involve the have been allowed to consider whether Strong acted same acts (inflicting knife and hatchet wounds on with criminal negligence? If you were on the jury and © Jonesanother), & Bartlett which cause Learning, the same harm (theLLC death of had been presented© Jones with the & described Bartlett facts, Learning,would LLC NOT FORa human SALE being). OR The only DISTRIBUTION factor distinguishing the you be inclinedNOT to conclude FOR that SALE Strong actedOR “neg- DISTRIBUTION crimes is the actor’s mens rea. A defendant who kills ligently” or “recklessly”? Could a case be made that another “[w]ith intent to cause death” or who causes he “knowingly” or “purposely” (i.e., “intentionally”) death “[u]nder circumstances evincing a depraved caused Kenneth Goings’s death?

© Jones & Bartlett Learning, LLC. NOT FOR SALE OR DISTRIBUTION. Notes and Questions © Jones & Bartlett Learning, LLC © Jones & Bartlett Learning, LLC NOT FOR SALE OR DISTRIBUTION NOT FOR SALE OR DISTRIBUTION CONCURRENCE with the intent to commit a felony therein.” Is she guilty of committing this crime? Assume that Jill pays a visit to her friend Jack’s Although Jill “broke and entered” Jack’s dwelling, home, expecting to find him there. After she and then committed felonious larceny by stealing rings the front© doorbellJones and & Bartlettno one answers, Learning, she theLLC expensive gold chain, she is ©not Jones guilty of &bur- Bartlett Learning, LLC concludes thatNOT he isFOR not home. SALE Not OR wanting DISTRIBUTION to glary. Burglary requires that the NOTintent toFOR commit SALE OR DISTRIBUTION wait outside, and thinking that he will not mind, a felony must concur with the act of breaking and she gains entry to the house by jimmying open entering. Jill’s intent to steal the gold chain arose only a window and climbing inside. While awaiting after she entered Jack’s home. She could properly be his return, she notices a gold chain on a coffee convicted of felonious larceny for stealing the chain. © Jonestable. Wanting& Bartlett the chain Learning, for her own, LLC and con- She might also ©be convictedJones for& aBartlett crime related Learning, to the LLC NOTcluding FOR thatSALE Jack willOR never DISTRIBUTION know that she entered unlawful entryNOT of Jack’s FOR house. SALEBut because OR her DISTRIBUTION entry his home, Jill slips on the chain and leaves. Just of the home was not motivated by or accompanied as she is about to enter her car, Jack returns. by the intent to steal the chain at the time she entered, Recognizing the gold chain she is wearing as his, she has not committed burglary. This hypothetical he is outraged. Jack calls the police, who place Jill case illustrates the general principle of criminal law © Jones & Bartlettunder Learning, arrest. She isLLC charged with burglary, which© Jonesknown as& the Bartlett concurrence Learning, requirement, LLC which we NOT FOR SALE ORis defined DISTRIBUTION as “breaking and entering a dwellingNOT learn FOR more SALE about in OR the following DISTRIBUTION case.

CASE Jackson v. State, 85 P.3d 1042 (Alaska App. 2004) choice not to appear in court) coexisted simultane- © Jones & Bartlett Learning, LLC © Jones & Bartlett Learning, LLC MANNHEIMER, Judge. ously with his physical acts of failing to appear. That NOT FOR SALE OR DISTRIBUTIONis, the defense attorney wanted theNOT jury instructedFOR SALE OR DISTRIBUTION that Jackson could not be found guilty unless the State In early 2001, William J. Jackson was charged with proved that, on the very dates that Jackson was sched- driving while his license was suspended. At his arraign- uled to appear in court (i.e., March 21 and April 13, ment, the district court set two future court dates for 2001), Jackson consciously considered his obligation © JonesJackson: & aBartlett pre-trial conference Learning, scheduled LLC for March to appear in court© Jonesand decided & to Bartlett ignore it.2 Learning, LLC 21st, and a trial call scheduled for April 13th. Jackson The trial judge (District Court Judge Natalie K. NOTfailed FOR to SALEappear in ORcourt DISTRIBUTIONon these dates, and he was Finn) refused toNOT give thisFOR proposed SALE instruction, OR DISTRIBUTION and subsequently charged with two counts of misdemeanor Jackson now argues that this was error. He contends failure to appear. that, in the absence of the requested instruction, the At his trial, Jackson conceded that he had been jury may have convicted him based solely on his con- notified of the two court dates. However, he asserted cession that he had received notice of his two court © Jones & Bartlettthat Learning, he incorrectly LLCrecalled the date of his first court© Jonesdates, without & Bartlett finding a “concurrenceLearning, of .LLC . . guilty act NOT FOR SALE ORappearance DISTRIBUTION (the pre-trial conference), and then, whenNOT and FOR . . . guilty SALE mind.” OR DISTRIBUTION he realized that he had missed his pre-trial confer- But even though Judge Finn declined to give ence, he did not understand that he was still obliged Jackson’s proposed instruction, she did not ignore to appear for the trial call on April 13th. Jackson tes- these matters of law when she instructed the jury. tified that he assumed that both hearings would be Judge Finn informed the jurors that Jackson could be rescheduled, ©and Jones that someone & Bartlett would notify Learning, him of convicted LLC of failure to appear only if© he Jones acted “know- & Bartlett Learning, LLC the new dates. ingly”, and she gave the jurors the statutory definition Jackson’sNOT attorney FOR asked SALE the trial OR judge DISTRIBUTION to of this culpable mental state. Moreover,NOT Judge FOR Finn SALE OR DISTRIBUTION instruct the jury that the State was obliged to prove also instructed the jurors that Jackson could be con- that Jackson’s culpable mental state (his conscious victed of failure to appear only if the State proved “a

© Jones2. Jackson’s & Bartlett proposed instruction Learning, read: LLC © Jones & Bartlett Learning, LLC NOT FORI have instructedSALE you OR that the DISTRIBUTION required [culpable] mental state in this case is “knowingly.” INOT have also instructedFOR SALE you that th e ORState must DISTRIBUTION prove that the alleged crimes occurred on or about March 21, 2001, and April 13, 2001. Therefore, the State must prove to you beyond a reasonable doubt that not only did Mr. Jackson fail to appear for required court hearings on or about March 21, 2001 and April 13, 2001, but that he knew[,] on or about those dates of March 21, 2001 and April 13, 2001, that he was failing to appear. . . . In other words, the required [culpable] mental [state] and the alleged conduct must occur simultaneously. © Jones & Bartlett Learning, LLC © Jones & Bartlett Learning, LLC CHAPTER 2 The General Principles of the Criminal Law 47 NOT FOR SALE OR DISTRIBUTION NOT FOR SALE OR DISTRIBUTION

© Jones & Bartlett Learning, LLC. NOT FOR SALE OR DISTRIBUTION. Concurrence © Jones & Bartlett Learning, LLC © Jones & Bartlett Learning, LLC CASE Jackson v. State, 85 P.3d 1042 (Alaska App. 2004) NOT FOR SALE OR DISTRIBUTION NOT FOR SALE OR DISTRIBUTION joint operation of [the] act or conduct and [the] cul- One error to be avoided is the false notion that pable mental state”. [the] “concurrence” [of culpable mental state and Under these instructions, Judge Finn allowed prohibited conduct] means mere coincidence[.] Jackson’s attorney to argue to the jury that Jackson [T]he actual requirement is that the two elements of should be acquitted© Jones if the jury & believed Bartlett that there Learning, was LLCcrime must be “brought together”© in Jonesthe sense of& a Bartlett Learning, LLC a reasonable possibility that Jackson made an honest causal relation between the mens rea and the actus mistake about NOTthe first FOR court date,SALE and then,OR havingDISTRIBUTION reus. Stated in other words, the actusNOT reus FOR must be SALE OR DISTRIBUTION missed that first court date, Jackson did not under- attributable to the mens rea, and if this relation is stand his continuing obligation to appear for the sec- clearly shown[,] it is unimportant that the two were ond date. . . . not present at the same time, whereas [temporal] Jackson’s appeal presents the question of what, coexistence is not sufficient if the causal relation- © Jonesprecisely, & is Bartlettmeant by the Learning, “joint operation” LLC of con- ship is lacking.© Jones & Bartlett Learning, LLC duct and culpable mental state when a defendant is NOT FOR SALE OR DISTRIBUTION Thus, JacksonNOT would beFOR guilty SALE of “knowingly” OR DISTRIBUTION fail- charged with failure to appear. As explained above, ing to appear if he decided early on that he would not Jackson contends that the State was obliged to prove attend his scheduled court appearances, and he then that Jackson made two conscious decisions not to dismissed the matter from his mind. Jackson’s con- appear in court, and that these conscious decisions scious decision not to attend court, combined with his occurred on the very days of his two scheduled court © Jones & Bartlett Learning, LLC © Jonessubsequent & failure Bartlett to appear Learning, on the two specified LLC days, appearances (March 21 and April 13, 2001). But this would constitute a sufficient concurrence of culpable NOT FOR SALE isOR not theDISTRIBUTION law. NOT FOR SALE OR DISTRIBUTION mental state and prohibited act or omission—even if The “joint operation” requirement—the requisite it were true that, on the two scheduled days, Jackson concurrence of the defendant’s culpable mental state gave no conscious thought to his court appearances. with the defendant’s act or omission—is satisfied if Jackson’s proposed instruction would have the defendant’s culpable mental state actuates the required the jury to find simultaneity of culpable men- prohibited conduct,© Jones even though & Bartlett there may Learning, not be LLC © Jones & Bartlett Learning, LLC tal state and prohibited conduct when, in fact, this was strict simultaneity between the two. As explained in NOT FOR SALE OR DISTRIBUTIONnot required. . . . NOT FOR SALE OR DISTRIBUTION Rollin M. Perkins & Ronald N. Boyce, Criminal Law (3rd . . . [T]he judgment of the district court is ed.1982), p. 933, AFFIRMED.

© Jones & Bartlett Learning, LLC © Jones & Bartlett Learning, LLC Notes and Questions 932 N.E.2d 871 (N.Y. 2010). Judge Jones elaborated NOT FOR SALE OR DISTRIBUTION in a concurringNOT opinion. FOR SALE OR DISTRIBUTION 1. While highly intoxicated, Albeiro Valencia drove his . . . I write separately to express my position on the vehicle at nighttime, headed in the wrong direction necessity of a temporal connection between mens on a Long Island parkway. Despite repeated warnings rea and actus reus in the context of depraved indif- from oncoming traffic, Valencia continued at a high ference offenses. . . . © Jones & Bartlett Learning,rate of speed for moreLLC than 4 miles, eventually crash- © Jones. . . The& Bartletttrial court . . .Learning, [found] that defendant LLC was ing into two other cars and injuring the occupants. so intoxicated at the time of the accident that he NOT FOR SALE ORHe DISTRIBUTION was charged with multiple offenses and convicted NOT FORwas oblivious SALE to his OR circumstances. DISTRIBUTION Thus, according in a bench trial of first-degree depraved indifference to the court, defendant lacked the mens rea of de- assault. The trial judge found that Valencia “was so praved indifference at the time of the collision. . . . drunk that he was ‘oblivious’ to the danger he created” while driving, but reasoned that he had acted The trial court . . . [held] that a conviction . . . with depraved indifference “by becoming extremely could be based on defendant’s excessive drinking inebriated ©knowing Jones that he& would Bartlett eventually Learning, drive LLCto a state of oblivion, knowing that© shortlyJones there- & Bartlett Learning, LLC himself homeNOT from FORhis friend’s SALE house.” OR On appeal, DISTRIBUTION after he would be driving himself NOThome on FOR heavily SALE OR DISTRIBUTION the Appellate Division reversed, “concluding that trafficked roads, “was evidence of depraved indif- defendant’s state of mind before he drove home was ference to human life.” In so holding, the court too remote in time from the car crash.” The New York found that “liability for depraved conduct can be Court of Appeals affirmed. In a brief Memorandum predicated on the facts of this case even though opinion, the court ruled: “There is insufficient evi- defendant was not aware or appreciative of the © Jonesdence & toBartlett support a convictionLearning, for depraved LLC indif- dangers of© his Jones conduct at &the Bartletttime of the collision Learning, LLC NOT FORference SALE assault. TheOR trial DISTRIBUTION evidence established only or momentsNOT before.” FOR . . . SALE OR DISTRIBUTION that defendant was extremely intoxicated and did With respect to crimes requiring mental culpa- not establish that he acted with the culpable mental bility and an act or omission, “it is a basic prem- state of depraved indifference.” People v. Valencia, ise of Anglo-American criminal law that the

© Jones & Bartlett Learning, LLC. NOT FOR SALE OR DISTRIBUTION. Notes and Questions © Jones & Bartlett Learning, LLC © Jones & Bartlett Learning, LLC NOT FOR SALE OR DISTRIBUTION NOT FOR SALE OR DISTRIBUTION physical conduct and the state of mind must concur. . . . In the criminal law, a crime is not complete Although it is sometimes assumed that there cannot until the act element and the mental element of be such concurrence unless the mental and physical the particular crime have concurred. In the case aspects exist at precisely the same moment of time, of unarmed robbery, the act element is the “fe- the better© Jonesview is that &there Bartlett is concurrence Learning, when LLClonious[ ] rob[bing], steal[ing]© and Jones tak[ing]” & of Bartlett Learning, LLC the defendant’s mental state actuates the physical property from the person of another or of property conduct”NOT (LaFave, FOR Substantive SALE Criminal OR Law §DISTRIBUTION 6.3[a], that is “in his presence.” MCL NOT750.530. FOR Further, SALE OR DISTRIBUTION at 451 [2d ed.] [footnotes omitted]). the act element must be accomplished “by force Based on the foregoing, the mens rea compo- and violence, or by assault or putting in fear.” I will nent of depraved indifference assault may not be refer to this in the shorthand as the force element. satisfied by considering the defendant’s state of The mental element or intent element of unarmed © Jones mind& Bartlett at a point much Learning, earlier in time LLC than the ac- robbery is© the Jones intent to &permanently Bartlett deprive Learning, the LLC cident, in this instance when he was drinking at his owner of his property. Thus, the act element and NOT FORfriend’s SALE house. OR As such, DISTRIBUTION it cannot be argued that the forceNOT element FOR must concur SALE with the OR perpetra- DISTRIBUTION defendant’s mental state at the time he was drink- tor’s intent to permanently deprive the owner of ing actuated his physical conduct. Stated differ- his property. ently, in this case, there is no concurrence of mens rea and actus reus. . . . [D]efendant’s state of mind Because the statute, and the case law interpreting © Jones & Bartlett Learning,when he consumed LLC the alcohol was too temporally © Jonesthe & statute, Bartlett provide Learning, that the property LLC may be “in remote from the act of driving to support a convic- the presence” of the victim, “actual possession” NOT FOR SALE OR DISTRIBUTIONtion of assault in the first degree. . . . NOT FORof the SALE property OR by the DISTRIBUTION victim at the time that the force is used is not required. The property contin- 2. The defendant in People v. Randolph, 648 N.W.2d 164 ues to be “in [the] presence” of the victim where (Mich. 2002) left a store without paying for items the property remains under his personal protection worth approximately $120. When security officers and control. It follows that, as long as the victim confronted him in the store’s parking lot he swung exercises this protection and control over the his fist at© one Jones of them, &broke Bartlett free, and attempted Learning, LLCproperty, the requisite force element© Jones of robbery & Bartlett Learning, LLC to flee. HeNOT was apprehended FOR SALE and subsequently OR DISTRIBUTION was may still be used against him, becauseNOT the FOR property SALE OR DISTRIBUTION convicted of “unarmed robbery,” defined under is still “in his presence”. Thus, where an assault oc- Michigan law to apply to “Any person who shall, by curs at any time during which the property can be force or violence, or by assault or putting in fear, feloni- said to be in the victim’s presence, a robbery within ously rob, steal and take from the person of another, or the meaning of the statute occurs. In this case, in his presence, any money or other property which although defendant had initially seized items from © Jonesmay & beBartlett the subject ofLearning, larceny, such robber LLC not being the shelf© of theJones Meijer’s store,& Bartlett the security Learning, guards LLC NOT FORarmed SALE with a ORdangerous DISTRIBUTION weapon . . .” (emphasis continuedNOT to exercise FOR protective SALE custody OR and DISTRIBUTION con- added). The Michigan Supreme Court reversed. The trol over that property, because they continued to majority opinion reasoned: “We base our holding on monitor defendant and they still had the right to the language of the unarmed robbery statute and take the property back. Therefore, the property the common-law history of unarmed robbery. From was “in [their] presence” within the meaning of that we conclude that the force used to accomplish M.C.L. § 750.530 when defendant, by assault, at- © Jones & Bartlett Learning,the taking underlying LLC a charge of unarmed robbery © Jonestempted & Bartlett to unlawfully Learning, deprive the security LLC guards must be contemporaneous with the taking. The force of the property. This “transactional view” of rob- NOT FOR SALE OR DISTRIBUTIONused later to retain stolen property is not included.” NOT FORbery SALE2 . . . is consistent OR DISTRIBUTION with both the common-law In a dissenting opinion, relying on a “transactional definition and the statute defining robbery, and theory” of robbery, Judge Markman disagreed. supports defendant’s conviction.

CAUSATION sometimes is called “but for” causation, as in “But © Jones & Bartlett Learning,for LLC the occurrence of A, B would© notJones have hap-& Bartlett Learning, LLC Assuming thatNOT the FORunion (orSALE concurrence OR DISTRIBUTION) of an pened.” This type of causation is necessaryNOT FOR but not SALE OR DISTRIBUTION actus reus (guilty act) and mens rea (guilty mind) sufficient to conclude that a defendant’s conduct has been established, another step in the analysis was the proximate cause of the harm proscribed of the essential elements of a crime is to determine by the criminal law. Proximate cause—essentially, © Joneswhether & theBartlett actor’s conduct Learning, caused LLCthe resulting a conclusion ©that Jones a particular & Bartlett antecedent Learning, event LLC harm. The law recognizes two kinds of causation: (e.g., the defendant’s conduct) should be identi- NOTcause-in-fact FOR SALE and OR proximate DISTRIBUTION cause. Cause-in-fact fied as the legallyNOT relevant FOR factorSALE responsible OR DISTRIBUTION for

2. The “transaction” designates the events occurring between the time of the initial seizure of the property and the eventual removal of such property from the victim’s presence. © Jones & Bartlett Learning, LLC © Jones & Bartlett Learning, LLC CHAPTER 2 The General Principles of the Criminal Law 49 NOT FOR SALE OR DISTRIBUTION NOT FOR SALE OR DISTRIBUTION

© Jones & Bartlett Learning, LLC. NOT FOR SALE OR DISTRIBUTION. Causation © Jones & Bartlett Learning, LLC © Jones & Bartlett Learning, LLC NOT FOR SALE OR DISTRIBUTION NOT FOR SALE OR DISTRIBUTION producing the resulting harm—is a prerequisite the victim’s death (the ultimate harm). The essen- for criminal liability. If cause-in-fact were all that tial dispute centers on whether the defendant’s was required, criminal responsibility would be acts were fairly determined to be the proximate vast, indeed. In the following case, the defendant’s cause of the harm, instead of simply representing conduct undoubtedly© Jones played & Bartletta role in producing Learning, a causeLLC “in fact.” © Jones & Bartlett Learning, LLC NOT FOR SALE OR DISTRIBUTION NOT FOR SALE OR DISTRIBUTION

CASE Henderson v. Kibbe, 431 U.S. 145, 97 S.Ct. 1730, 52 that had caused Stafford’s death, and that the defen- L.Ed.2d 203 (1977) dants could not have anticipated the fatal accident. © Jones & Bartlett Learning, LLC On the other hand,© Jonesthe prosecution & Bartlett argued that Learning, the LLC NOTMr. FORJustice STEVENSSALE delivered OR DISTRIBUTION the opinion of the death was foreseeableNOT and FOR would SALE not have OR occurred DISTRIBUTION Court. . . . but for the conduct of the defendants who therefore On the evening of December 30, 1970, respondent were the cause of death. Neither party requested the and his codefendant encountered a thoroughly intoxi- trial judge to instruct the jury on the meaning of the cated man named Stafford in a bar in Rochester, N. Y. statutory requirement that the defendants’ conduct © Jones & BartlettAfter Learning, observing Stafford LLC display at least two $100 bills, © “therebyJones cause[d] & Bartlett the death Learning, of another person,” LLC and no such instruction was given. . . . NOT FOR SALE theyOR decided DISTRIBUTION to rob him and agreed to drive him to NOT FOR SALE OR DISTRIBUTION a nearby town. While in the car, respondent slapped The Appellate Division of the New York Supreme Stafford several times, took his money, and, in a search Court affirmed respondent’s conviction. . . . Judge for concealed funds, forced Stafford to lower his trou- Cardamone dissented on the ground that the trial sers and remove his boots. They then abandoned him court’s charge did not explain the issue of causation or on an unlighted, rural road, still in a state of partial include an adequate discussion of the necessary men- undress, and without© Jones his coat & or Bartletthis glasses. TheLearning, tem- tal LLC state. That judge expressed the opinion© Jones that “the & Bartlett Learning, LLC perature was nearNOT zero, visibilityFOR SALE was obscured OR by DISTRIBUTION blow- jury, upon proper instruction, couldNOT have concluded FOR SALE OR DISTRIBUTION ing snow, and snow banks flanked the roadway. The that the victim’s death by an automobile was a remote 6 time was between 9:30 and 9:40 p. m. and intervening cause.” At about 10 p. m., while helplessly seated in a traf- The New York Court of Appeals also affirmed. It fic lane about a quarter mile from the nearest lighted identified the causation issue as the only serious © Jonesbuilding, & Stafford Bartlett was struck Learning, by a speeding LLC pickup question raised by© theJones appeal, & and Bartlett then rejected Learning, the LLC contention that the conduct of the driver of the pickup NOTtruck. FOR The driverSALE testified OR thatDISTRIBUTION while he was traveling NOT FOR SALE OR DISTRIBUTION 50 miles per hour in a 40-mile zone, the first of two truck constituted an intervening cause which relieved approaching cars flashed its lights presumably as a the defendants of criminal responsibility for Stafford’s warning which he did not understand. Immediately death. The court held that it was “not necessary that after the cars passed, the driver saw Stafford sitting in the ultimate harm be intended by the actor. It will the road with his hands in the air. The driver neither suffice if it can be said beyond a reasonable doubt, as © Jones & Bartlettswerved Learning, nor braked hisLLC vehicle before it hit Stafford. © Jonesindeed it can& Bartlettbe here said, Learning, that the ultimate LLC harm is NOT FOR SALE StaffordOR DISTRIBUTION was pronounced dead upon arrival at the local NOTsomething FOR which SALE should OR have DISTRIBUTION been foreseen as being hospital. reasonably related to the acts of the accused.” . . . Respondent and his accomplice were convicted of Respondent then filed a petition for a writ of habeas grand larceny, robbery, and second-degree murder. corpus . . . . The District Court held that the respon- Only the conviction of murder, as defined in N. Y. Penal dent’s attack on the sufficiency of the charge failed to raise a question of constitutional dimension . . . . Law § 125.25(2)© (McKinney Jones 1975), & Bartlett is now challenged. Learning, LLC © Jones & Bartlett Learning, LLC That statute provides that “[a] person is guilty of mur- The Court of Appeals for the Second Circuit reversed. der in the secondNOT degree” FOR when “[u]nderSALE circumstances OR DISTRIBUTION . . . [T]he court held that since the ConstitutionNOT FOR requires SALE OR DISTRIBUTION evincing a depraved indifference to human life, he proof beyond a reasonable doubt of every fact neces- recklessly engages in conduct which creates a grave sary to constitute the crime, In re Winship, 397 U.S. risk of death to another person, and thereby causes the 358, 364, the failure to instruct the jury on an essen- death of another person.” (Emphasis added.) tial element as complex as the causation issue in this © JonesDefense & counselBartlett argued Learning, that it was the LLC negligence case created an ©impermissible Jones & risk Bartlett that the jury Learning, had LLC NOTof theFOR truckdriver, SALE rather OR than DISTRIBUTION the defendants’ action, not made a findingNOT that theFOR Constitution SALE requires. OR DISTRIBUTION . . .

6. “. . . The issue of causation should have been submitted to the jury in order for it to decide whether it would be unjust to hold these appellants liable as murderers for the chain of events which actually occurred. Such an approach is suggested in the American Law Institute Model Penal Code . . . .” © Jones & Bartlett Learning, LLC © Jones & Bartlett Learning, LLC 50 Introduction to Law and Criminal Justice NOT FOR SALE OR DISTRIBUTION NOT FOR SALE OR DISTRIBUTION

© Jones & Bartlett Learning, LLC. NOT FOR SALE OR DISTRIBUTION. Notes and Questions © Jones & Bartlett Learning, LLC © Jones & Bartlett Learning, LLC Henderson v. Kibbe, 431 U.S. 145, 97 S.Ct. 1730, 52 L.Ed.2d 203 (1977) CASE NOT FOR SALE OR DISTRIBUTION NOT FOR SALE OR DISTRIBUTION . . . There can be no question about the fact that the found, in accordance with its instruction on reckless- jurors were informed that the case included a causation ness, that respondent was “aware of and consciously issue that they had to decide. The element of causa- disregard[ed] a substantial and unjustifiable risk” tion was stressed in the arguments of both counsel. that death would occur. A person who is “aware of and The statutory© language, Jones which & Bartlett the trial judge Learning, read consciouslyLLC disregards” a substantial© Jones risk must &also Bartlett Learning, LLC to the jury, expressly refers to the requirement that foresee the ultimate harm that the risk entails. Thus, defendants’ conductNOT FOR“cause[d] SALE the death OR of DISTRIBUTIONanother the jury’s determination that the NOTrespondent FOR acted SALE OR DISTRIBUTION person.” The indictment tracks the statutory language; recklessly necessarily included a determination that it was read to the jurors and they were given a copy for the ultimate harm was foreseeable to him. use during their deliberations. The judge instructed In a strict sense, an additional instruction on fore- the jury that all elements of the crime must be proved seeability would not have been cumulative because it © Jonesbeyond & a reasonable Bartlett doubt. Learning, Whether or LLC not the argu- would have related© Jones to an element & Bartlett of the offense Learning, not LLC NOTments FOR of counselSALE correctly OR DISTRIBUTION characterized the law appli- specifically coveredNOT in FOR the instructions SALE OR given. DISTRIBUTION But cable to the causation issue, they surely made it clear since it is logical to assume that the jurors would have to the jury that such an issue had to be decided. It responded to an instruction on causation consistently follows that the objection predicated on this Court’s with their determination of the issues that were com- holding in Winship is without merit. . . . prehensively explained, it is equally logical to conclude © Jones & Bartlett TheLearning, New York Court LLC of Appeals concluded that the© Jonesthat such & an Bartlett instruction wouldLearning, not have affected LLC their evidence of causation was sufficient because it can verdict.16 Accordingly, we reject the suggestion that NOT FOR SALE ORbe said DISTRIBUTION beyond a reasonable doubt that the “ultimateNOT the FOR omission SALE of more OR complete DISTRIBUTION instructions on the harm” was “something which should have been fore- causation issue “so infected the entire trial that the seen as being reasonably related to the acts of the resulting conviction violated due process.” . . . accused.” It is not entirely clear whether the court’s 16. In fact, it is not unlikely that a complete instruc- reference to “ultimate harm” merely required that tion on the causation issue would actually have been Stafford’s death© Joneswas foreseeable, & Bartlett or, more Learning,narrowly, favorableLLC to the prosecution. For example,© Jones an instruc- & Bartlett Learning, LLC that his deathNOT by a speeding FOR vehicleSALE was OR foreseeable. DISTRIBUTION tion might have been patterned afterNOT the FOR following SALE OR DISTRIBUTION In either event, the court was satisfied that the “ulti- example given in W. LaFave & A. Scott, Criminal Law mate harm” was one which “should have been fore- 260 (1972): seen.” Thus, an adequate instruction would have told A, with intent to kill B, only wounds B, leaving him the jury that if the ultimate harm should have been lying unconscious in the unlighted road on a dark foreseen as being reasonably related to defendants’ © Jones & Bartlett Learning, LLC night, and then© Jones C, driving &along Bartlett the road, runsLearning, over LLC conduct, that conduct should be regarded as having and kills B. Here C’s act is a matter of coincidence NOTcaused FOR the SALE death of OR Stafford. DISTRIBUTION NOT FOR SALE OR DISTRIBUTION rather than a response to what A has done, and thus The significance of the omission of such an the question is whether the subsequent events instruction may be evaluated by comparison with the were foreseeable, as they undoubtedly were in the instructions that were given. One of the elements of above illustration. . . respondent’s offense is that he acted “recklessly.” © Jones & BartlettBy Learning,returning a guilty LLC verdict, the jury necessarily© JonesThe judgment & Bartlett is reversed. Learning, . . . LLC NOT FOR SALE OR DISTRIBUTION NOT FOR SALE OR DISTRIBUTION Notes and Questions because “but for” the fact that he got out of bed on the morning in question, went to the bar that eve- 1. If cause-in-fact were all that was required to sup- ning, and so forth, he would not have been killed. port a criminal conviction, in a case like Henderson In contrast, proximate cause demands a closer con- v. Kibbe it© could Jones be argued & thatBartlett the bartender Learning, who LLCnection between the defendant’s© conduct Jones and the& Bartlett Learning, LLC served Stafford drinks should be guilty of causing his harm that occurred; it involves a normative judgment death becauseNOT “but FOR for” the SALE fact that theOR bartender DISTRIBUTION about whether it is fair or appropriateNOT to FOR hold the SALE OR DISTRIBUTION served those drinks, Stafford would not have drunk defendant responsible for the harm that he or she them, would not have become intoxicated, and would allegedly produced. The challenge lies in describ- not have wound up sitting helplessly in the road to be ing the precise circumstances under which a defen- struck and killed by the pickup truck. Similarly, the dant’s conduct should or should not be considered to driver of the pickup truck would be guilty of causing be the proximate cause of harm for purposes of the © JonesStafford’s & Bartlett death because Learning, “but for” the LLC fact that he criminal law.© Jones & Bartlett Learning, LLC NOT FORchose SALE to drive ORwhen andDISTRIBUTION where he did, and did not 2. In this regard,NOT what FOR seems SALEto be the criticalOR DISTRIBUTIONfactor brake or swerve to avoid hitting Stafford, Stafford that justified the jury and all of the courts consider- would not have been killed. Indeed, Stafford might ing the question in Henderson v. Kibbe in concluding even be held responsible for causing his own death that Kibbe’s conduct in abandoning Stafford in the

© Jones & Bartlett Learning, LLC. NOT FOR SALE OR DISTRIBUTION. Causation © Jones & Bartlett Learning, LLC © Jones & Bartlett Learning, LLC NOT FOR SALE OR DISTRIBUTION NOT FOR SALE OR DISTRIBUTION roadway in his inebriated condition was the proxi- Stafford in the road represented an intervening mate cause of Stafford’s death? event that not only was the direct cause of Stafford’s 3. Causation analysis frequently requires a determina- death, but such a significant new occurrence that it tion of whether something that occurred between the was the proximate cause of Stafford’s death, alleviat- defendant’s© act Jones and the ultimate& Bartlett harm is soLearning, much LLCing Kibbe from responsibility for causing© Jones the harm. & Bartlett Learning, LLC more directlyNOT responsible FOR for SALE the outcome OR that DISTRIBUTION this If that argument had proven persuasive,NOT the FOR pickup SALE OR DISTRIBUTION intervening event and not the defendant’s conduct truck would have been considered a supervening should be recognized as the legal or proximate cause cause—that is, an event that insulated Kibbe’s con- of the harm. For example, in Henderson v. Kibbe, duct from being considered the proximate cause of Kibbe might have argued that the speeding pickup death. We learn more about this analytical framework truck that came along after Kibbe helped deposit in the following case. © Jones & Bartlett Learning, LLC © Jones & Bartlett Learning, LLC NOT FOR SALE OR DISTRIBUTION NOT FOR SALE OR DISTRIBUTION CASE McKinnon v. United States, 550 A.2d 915 (D.C. App. tracheotomy, she began complaining of nausea and 1988) vomiting. She became jaundiced and went into respira- FERREN, Associate Judge: tory and cardiac arrest while still at the hospital. The © Jones & Bartlett Learning, LLC © medicalJones witnesses & Bartlett agreed that Learning, she died from LLC fulminat- NOT FOR SALE OR DISTRIBUTION NOTing hepatitis,FOR SALE almost totalOR liver DISTRIBUTION failure. Tests showed According to the government’s evidence at trial, that the hepatitis was neither type A nor type B and appellant slashed the throat of his girlfriend from ear thus was non-A, non-B. to ear. Although she survived the initial assault, she The main dispute at trial concerned the causal died suddenly six weeks later from hepatitis apparently link between the hepatitis and the injuries appellant contracted as a ©result Jones of the treatment& Bartlett of her wounds.Learning, had LLC inflicted on Ms. Wilkerson. Dr. James© Jones Dibdin, the& Bartlett Learning, LLC A jury convictedNOT appellant FOR of SALEfirst degree OR premedi- DISTRIBUTIONdoctor who conducted the autopsy andNOT an expertFOR in SALE OR DISTRIBUTION tated murder while armed, and the court sentenced forensic medicine, testified that Ms. Wilkerson died him to twenty years to life imprisonment. Because the as a result of complications resulting from the neck victim died of hepatitis rather than directly from the wounds. Specifically, he stated the hepatitis was prob- wounds appellant had inflicted, appellant challenges ably a result of several factors, most likely the drug therapy. Dr. Leslie Marion, an expert in internal medi- © Joneshis conviction. & Bartlett He claims Learning, that the hepatitis LLC acted as © Jones & Bartlett Learning, LLC an “intervening cause” between the injuries and her cine and gastrology, testified for the prosecution that NOTdeath FOR and thusSALE relieves OR him DISTRIBUTION of criminal responsibility in his opinion Ms.NOT Wilkerson FOR had SALE contracted OR non-A, DISTRIBUTION for her death. . . . non-B viral hepatitis from the blood transfusions. He stated that Mefoxin can cause cholestic hepatitis but I. concluded that the enzyme levels in Ms. Wilkerson’s blood were inconsistent with this type of hepatitis. In the early morning of July 11, 1985, appellant Dr. William Brownlee, a medical expert, testified for © Jones & Bartlettdragged Learning, his girlfriend, LLC Michelle Wilkerson, into an © Jones & Bartlett Learning, LLC the defense. He stated that Ms. Wilkerson’s hepatitis alley and slashed her throat twice. Bleeding profusely, NOT FOR SALE OR DISTRIBUTION NOTcould FOR have hadSALE many OR sources, DISTRIBUTION including the blood Ms. Wilkerson staggered into a neighboring apartment transfusions or medications, or she already could have building. Later, at the hospital, she was given a trache- had the hepatitis at the time she was wounded. In his otomy to assist her breathing. Because Ms. Wilkerson’s opinion, she most likely contracted the hepatitis from blood pressure was so low and she had lost 60% of her the Mefoxin. He acknowledged, however, that hepa- blood, she received six units of packed red blood cells © Jones & Bartlett Learning,titis LLC was a known risk from blood transfusions.© Jones In fact, & Bartlett Learning, LLC during the surgery to repair her throat and two more all the doctors who testified on the subject stated that units later. She NOTalso received FOR a varietySALE of medicationsOR DISTRIBUTION NOT FOR SALE OR DISTRIBUTION hepatitis is a known, if small, risk from blood transfu- to prevent infection, including Mefoxin, as well as sions, and Dr. Marion’s testimony indicated that 2% to medication to reduce pain, including Demerol. Her 5% of the patients with hepatitis die. treating physician, Dr. Magnant, testified that these treatments, especially the blood transfusions, were II. © Jonesnecessary & to Bartlett save Ms. Wilkerson’s Learning, life. LLC © Jones & Bartlett Learning, LLC NOT FORMs. Wilkerson SALE spent OR eighteen DISTRIBUTION days in the hospi- Appellant contendsNOT the FOR government SALE did OR not proveDISTRIBUTION tal. By the time she was discharged, her neck wounds beyond a reasonable doubt that he caused the death of were healing normally although she still was breath- Ms. Wilkerson. In every criminal case, the government ing with the assistance of a tracheotomy. During the has the burden of showing that the defendant’s con- time she was readmitted to the hospital to close the duct not only was a cause in fact of the harm for which © Jones & Bartlett Learning, LLC © Jones & Bartlett Learning, LLC 52 Introduction to Law and Criminal Justice NOT FOR SALE OR DISTRIBUTION NOT FOR SALE OR DISTRIBUTION

© Jones & Bartlett Learning, LLC. NOT FOR SALE OR DISTRIBUTION. Notes and Questions © Jones & Bartlett Learning, LLC © Jones & Bartlett Learning, LLC McKinnon v. United States, 550 A.2d 915 (D.C. App. 1988) CASE NOT FOR SALE OR DISTRIBUTION NOT FOR SALE OR DISTRIBUTION he or she is charged but also was the proximate, or But Baylor’s reliance on foreseeability reflects the legal, cause of that harm. Generally speaking, a defen- rule on proximate cause generally followed in many dant’s conduct will be the proximate cause of an injury, jurisdictions. See, e.g., State v. Spates, 405 A.2d 656 even though the particular injury was not intended, if (Conn. 1978), cert. denied, 440 U.S. 922 (1979) (death the “variation© between Jones the result& Bartlett intended .Learning, . . and the fromLLC heart attack “foreseeable and© natural Jones result” & ofBartlett Learning, LLC result actually achieved is not so extraordinary that defendant’s tying up robbery victim with announced it would be unfairNOT to FORhold the SALE defendant OR responsible DISTRIBUTION history of heart attacks); State v. Dixon,NOT 387 N.W.2dFOR 682 SALE OR DISTRIBUTION for the actual result.” 1 W. LAFAVE & A. SCOTT, JR., (Neb. 1986) (same); People v. Flenon, 202 N.W.2d 471 SUBSTANTIVE CRIMINAL LAW § 3.12, at 390 (1986). (Mich. App. 1972) (death caused by hepatitis attribut- This generality, however, does not take us very far. able to blood transfusion necessary to treat shotgun . . . In Baylor v. United States, 407 A.2d 664 wound was foreseeable consequence of injury, not © Jones(D.C.1979), & Bartlett we examined Learning, the problem LLC of proximate intervening cause).© Jones . . . Although & Bartlettother formulations Learning, of LLC NOTcause FOR in SALEthe context OR of DISTRIBUTION the medical treatment of the proximate causeNOT rule FOR are possible, SALE2 we OR extend DISTRIBUTION the wounds caused by a beating. The defendant, Baylor, rule in Baylor and conclude that a criminal defendant contended that the hospital’s failure to operate on proximately causes, and thus can be held criminally the victim until two hours after her admission to the accountable for, all harms that are reasonably foresee- emergency room, coupled with the surgeon’s negligent able consequences of his or her actions. © Jones & Bartlettlaceration Learning, of the pancreas, LLC was the proximate cause of© JonesOne authority & Bartlett uses a Learning,more precise approach LLC dis- death. We disagreed. We said that, as a general rule, tinguishing between intervening acts that are a NOT FOR SALE ORmedical DISTRIBUTION treatment—including negligent medicalNOT “coincidence” FOR SALE and those OR that DISTRIBUTION are a “response” to the treatment—that contributes to or immediately leads defendant’s acts: to death is not an intervening cause that relieves a An intervening act is a coincidence when the defen- defendant from criminal responsibility for the death, dant’s act merely put the victim at a certain place because even negligent medical treatment is a foresee- at a certain time, and because the victim was so able consequence© Jones of injury. & We Bartlett acknowledged, Learning, how- LLC © Jones & Bartlett Learning, LLC located it was possible for him to be acted upon by ever, that a physician’s gross negligence can provide an NOT FOR SALE OR DISTRIBUTIONthe intervening cause. . . . NOT FOR SALE OR DISTRIBUTION exception to the rule, implying that such negligence should not be considered foreseeable. But this excep- By contrast, an intervening act may be said to be tion will apply only if the death resulted solely from a response to the prior actions of the defendant when the gross negligence. In affirming Baylor’s conviction it involves reaction to the conditions created by the © Jonesfor manslaughter, & Bartlett we concluded Learning, that the LLC evidence was defendant. © Jones & Bartlett Learning, LLC insufficient for a finding of gross negligence in medi- 1 W. LAFAVE & A. SCOTT JR., supra, § 3.12, at 406. NOTcal FOR treatment. SALE We addedOR DISTRIBUTIONthat, even if there had been Employing thisNOT distinction, FOR ProfessorsSALE OR LaFave DISTRIBUTION and such negligence, it would not have been the sole cause Scott propose that an intervening act properly char- of death because the initial wound by the defendant acterized as a coincidence “will break the chain of legal substantially contributed to the death. cause unless it was foreseeable,” whereas an interven- The gross negligence exception is not applicable ing act that can be called “a response will do so only © Jones & Bartlettto thisLearning, case because LLC appellant does not argue that the© Jonesif it is abnormal & Bartlett (and, if Learning, abnormal, also LLC unforesee- NOT FOR SALE ORhepatitis DISTRIBUTION resulted from grossly negligent, or even negli-NOTable).” FOR Id. atSALE 407. See OR also StateDISTRIBUTION v. Hall, 633 P.2d 398, gent, medical treatment. Rather, appellant argues that 403 (Ariz. 1981) (applying LaFave & Scott approach). the victim, who had recovered and was on the mend, Both appellant and the government, in their respective died from a rare form of hepatitis that was not reason- briefs, discuss causation using the “coincidence” and ably foreseeable and thus constituted an intervening “response” terminology. We find it more appropriate cause of death. to apply the test for proximate cause—foreseeability— We have not© Jonesruled on what& Bartlett kinds of acts, Learning, other used LLC in Baylor and thus to leave for another© Jones day, if nec-& Bartlett Learning, LLC than grossly negligentNOT FOR medical SALE treatment, OR caused DISTRIBUTION by essary, the addition of further refinements.NOT FOR SALE OR DISTRIBUTION a third party or by non-human action, can constitute In this case, appellant argues that the type of hepa- an intervening cause that relieves a defendant who titis here (non-A, non-B) was so unusual that it was causes injury from responsibility for ensuing death. not reasonably foreseeable and thus broke the causal © Jones2. Other & courtsBartlett have inquired Learning, whether the allegedly LLC intervening cause was “independent”© or theJones “natural consequence” & Bartlett of the har Learning,m caused LLC by the defendant. People v. Meyers, 64 N.E.2d 531, 533 (Ill. 1946) (death from collapse and fall not independent of illegal abortion because it was NOTpart FOR of a natural SALE sequence OR of an illegalDISTRIBUTION operation); DeVaughn v. State, 194 A.2d 109, 113 (Md. 1963)NOT (exploratory FOR laparotomy SALE after OR gunshot DISTRIBUTION wound not “independent supervening cause” of death), cert. denied, 376 U.S. 927 (1964). Still other courts have characterized an intervening cause simply as an event “so extraordinary that it would be unfair to hold the appellant responsible for the actual result.” Sims v. State, 466 N.E.2d 24, 26 (Ind.1984) (surgery performed on victim of beating not intervening cause of death); accord, Gibson v. State, 515 N.E.2d 492, 496 (Ind.1987) (fatal staph infection resulting from surgery performed on victim of beating not intervening cause of death). © Jones & Bartlett Learning, LLC © Jones & Bartlett Learning, LLC CHAPTER 2 The General Principles of the Criminal Law 53 NOT FOR SALE OR DISTRIBUTION NOT FOR SALE OR DISTRIBUTION

© Jones & Bartlett Learning, LLC. NOT FOR SALE OR DISTRIBUTION. Causation © Jones & Bartlett Learning, LLC © Jones & Bartlett Learning, LLC NOT FOR SALE OR DISTRIBUTION NOT FOR SALE OR DISTRIBUTION chain between his actions and Ms. Wilkerson’s death. appellant’s criminal assault necessitated surgery and We disagree. All of the expert witnesses testified that related treatment that, even without negligence, the most likely cause of the hepatitis was the treatment could have caused non-A, non-B viral hepatitis that necessitated by the wounds appellant had inflicted. . . . resulted in Ms. Wilkerson’s death. As the expert tes- Based on this© evidence, Jones we & sustain Bartlett the trial Learning, court’s timony LLC has made clear, these were not© unforeseeableJones & Bartlett Learning, LLC refusal to grant appellant’s motion for judgment of consequences of appellant’s attack. acquittal. A juryNOT reasonably FOR could SALE have OR found DISTRIBUTION that AFFIRMED. NOT FOR SALE OR DISTRIBUTION

Notes and Questions where the intervening event was a coincidence from © Jones & Bartlett Learning, LLC cases where© the Jones intervening & event Bartlett was a response Learning, LLC to the defendant’s prior actions. LaFave, Criminal NOT 1.FOR Assume SALE that the bloodOR used DISTRIBUTION in Ms. Wilkerson’s trans- NOT FOR SALE OR DISTRIBUTION fusion was tainted by hepatitis, and that she would Law § 35, pp. 257–261; cf. Perkins, Criminal Law, have made a full recovery from her wounds had she pp. 618–621 (distinguishing independent events instead received healthy blood. Under those circum- from dependent events). stances, would it be fair to hold McKinnon respon- An intervening act is a coincidence when the sible for “causing” her death and thus to convict defendant’s act merely put the victim at a certain © Jones & Bartlett Learning,him for murder? LLCIn other words, should the trans- © Jonesplace & at Bartlett a certain time, Learning, and because the victimLLC was fusion involving tainted blood—which intervened so located it was possible for him to be acted upon NOT FOR SALE ORbetween DISTRIBUTION McKinnon’s act of slashing her throat and NOT FORby the SALE intervening OR cause. DISTRIBUTION Ms. Wilkerson’s death—be considered a supervening By contrast, an intervening act may be said to cause, replacing McKinnon’s conduct as the proxi- be a response to the prior actions of the defendant mate cause of death? when it involves a reaction to the conditions created by the defendant. * * * But, while a response usually 2. Would it matter if, instead of slashing Ms. Wilkerson’s involves human agency, that is not necessarily the throat, McKinnon had stabbed her in the palm of her © Jones & Bartlett Learning, LLCcase * * *.” LaFave, Criminal Law §© 35, Jonespp. 257–258. & Bartlett Learning, LLC hand, which resulted in profuse bleeding and required A defendant’s actions may still be a proximate a blood transfusion?NOT FOR Would it SALE matter if the OR blood DISTRIBUTION had NOT FOR SALE OR DISTRIBUTION cause of death regardless of the type of intervening been improperly screened, owing to the hospital’s neg- act that occurred, but as “common sense would sug- ligence? What is the distinction between negligence gest, the perimeters of legal cause are more closely and gross negligence, and why should that distinction drawn when the intervening cause was a matter of bear on a decision about whether the defendant’s coincidence rather than response.” Id. Hence an actions were the proximate cause of death? © Jones & Bartlett Learning, LLC intervening© cause Jones that was & a coincidenceBartlett will Learning, be a LLC NOT 3.FOR With respectSALE to the OR court’s DISTRIBUTION discussion, in footnote 2 supersedingNOT cause whenFOR it wasSALE unforeseeable. OR DISTRIBUTION On of its opinion, about intervening acts that represent a the other hand, an intervening cause that was a “coincidence” or are in “response” to the defendant’s response will be a superseding cause only where it conduct, does it make sense why a more demanding was abnormal and unforeseeable. causation standard might be applied to coinciden- . . . Phillips’ hospitalization and immobility tal intervening acts? In State v. Hall, 633 P.2d 398 were caused by blows to the head delivered by ap- © Jones & Bartlett Learning,(Ariz. 1981), the LLCcase cited in connection with this © Jonespellant & BartlettHagen with appellant Learning, Hall’s assistance. LLC A distinction, Hall and his co-defendant Hagan, both normal response to such immobility is the devel- NOT FOR SALE ORincarcerated DISTRIBUTION in the Arizona State Prison, were con- NOT FORopment SALE of leg vein OR thrombosis DISTRIBUTION which could result victed of the first-degree murder of another prisoner. in a pulmonary embolism. Since the intervening They had hit their victim, Phillips, over the head with responses of thrombosis and pulmonary embo- a weightlifting bar. Phillips regained consciousness lism were not abnormal, appellants’ actions were after 8 days and thereafter was able to move about a proximate cause of Phillips’ death. State v. Hall, with assistance.© Jones He died from & a Bartlettpulmonary embolism, Learning, LLC633 P.2d 398, 403-404 (Ariz. 1981).© Jones & Bartlett Learning, LLC a blood clot that blocked both arteries to his lungs, 4 Relying on a distinction first drawn in State v. weeks afterNOT the attack. FOR “The SALEembolism’s OR source DISTRIBUTION was Hall, 633 P.2d 398, 403 (Ariz. 1981)NOT . . . Bass FOR argues SALE OR DISTRIBUTION a thrombosis in his right femoral vein located in the that this jury instruction was incorrect for failing to right groin area. Seemingly the clot broke off the differentiate between “coincidental” intervening vein’s wall, traveled through the vein to the heart acts and “responsive” intervening acts. The Hall . . . and then to the arteries of the lung.” In addressing line of criminal cases adopted separate standards the causation issue—that is, whether Hall and Hagan for the two types of intervening events. Under that © Joneswere & properly Bartlett held responsible Learning, for causing LLC Phillips’s line, courts© conclude Jones that &if the Bartlett intervening Learning, event LLC NOT FORdeath—the SALE court OR stated: DISTRIBUTION in questionNOT was in FORresponse SALE to something OR defen- DISTRIBUTION dant put in motion, as when Ochoa felt compelled In dealing with cases where the intended death was to grab the steering wheel, it would need to be un- achieved in an unintended manner because of an foreseeable as well as abnormal or extraordinary intervening event, courts usually distinguish cases

© Jones & Bartlett Learning, LLC. NOT FOR SALE OR DISTRIBUTION. Victimless Crimes © Jones & Bartlett Learning, LLC © Jones & Bartlett Learning, LLC NOT FOR SALE OR DISTRIBUTION NOT FOR SALE OR DISTRIBUTION in order to excuse liability. Where the intervening criminal standard for superseding cause will hence- event was merely coincidental to defendant’s ac- forth be the same as our tort standard (an event is tions, as in Farrell’s lane change, it could be found superseding only if unforeseeable and, with benefit superseding if merely unforeseeable. of hindsight, abnormal or extraordinary). To the We ©find Jones this distinction & Bartlett strained and Learning, see no LLCextent that Arizona case law differs© Jones from this stan- & Bartlett Learning, LLC logical basis for continuing to employ a different dard and from our holding today, we overrule it. standardNOT in our FOR criminal SALE law for events OR thatDISTRIBUTION are We hold the trial court’s writtenNOT jury FOR instruc- SALE OR DISTRIBUTION merely coincidental. We thus dispense with the tion on superseding cause set forth the proper stan- dichotomy and expressly hold, as to superseding dard by which to determine when an intervening cause, that any prior distinction between coinci- event becomes superseding. There are no grounds dental and responsive events is eliminated. Our for reversal. . . . © Jones & Bartlett Learning, LLC © Jones & Bartlett Learning, LLC NOTNearly FOR 20 SALE years later, OR in DISTRIBUTION State v. Bass, 12 P.3d 796 manslaughterNOT and other FOR offenses. SALE She OR argued DISTRIBUTION on (Ariz. 2000), the Arizona Supreme Court over- appeal that the intervening acts of Farrell’s cross- ruled State v. Hall. Bass was speeding in the right- ing into her lane of traffic and of Ochoa’s jerking hand lane of a city street when a car ahead of her the steering wheel were superseding causes that in the left lane, driven by Farrell, began crossing negated her responsibility for the crimes. © Jones & Bartlettover Learning, to the right. LLCBass swerved onto the curb to© JonesThe &trial Bartlett court gave Learning, a jury instruction LLC on NOT FOR SALE ORavoid DISTRIBUTION hitting Farrell’s car, at which time her frontNOT superseding FOR SALE cause .OR . . stating DISTRIBUTION that an intervening seat passenger, Ochoa, jerked the steering wheel event becomes a legal excuse, i.e., a superseding to the left. Bass’s car spun out of control, result- cause only when “its occurrence was both unfore- ing in a multicar collision that killed one person seeable and when with benefit of hindsight it may and injured several others. Bass was convicted of be described as abnormal or extraordinary.” © Jones & Bartlett Learning, LLC © Jones & Bartlett Learning, LLC HARM NOT FOR SALE OR DISTRIBUTIONfew dollars richer or poorer. TheyNOT enjoy theFOR cama- SALE OR DISTRIBUTION raderie, and the wins and losses tend to even out Most crimes involve a readily identifiable, con- week in, week out. Perhaps this same group of crete harm: for murder and manslaughter, the friends participates in an office pool each March, death of a human being; for arson, the burning contributing $10 apiece to a winner-take-all selec- of a building; for theft, the loss of property; and tion contest that revolves around the NCAA men’s © Jonesso forth. & However,Bartlett sometimes Learning, it is notLLC so easy to © Jones & Bartlett Learning, LLC basketball tournament. They look forward to fol- NOTascertain FOR SALE what harm, OR if any,DISTRIBUTION is associated with con- NOT FOR SALE OR DISTRIBUTION lowing the games, and their wagers just make the duct that is defined as criminal. We consider two tournament that much more interesting. To them, contexts that call for a somewhat more probing the poker and the office pool are pleasant leisure analysis of the criminal law’s harm requirement: activities. In the eyes of the law, their activities so-called victimless crimes, and inchoate offenses, might be the crime of gambling. Is there demon- © Jones & Bartlettsuch Learning, as solicitation, LLC conspiracy, and attempts,© Jones & Bartlett Learning, LLC strable harm connected with their behavior? where the ultimate harm that the actor intended NOT FOR SALE OR DISTRIBUTION NOT FORShould SALE conduct inOR which DISTRIBUTION the participating indi- may never even have occurred. viduals willingly engage without complaint be con- Victimless Crimes sidered victimless and none of the criminal law’s Consider a group of friends who regularly get business—activities such as prostitution, smoking together on Friday© Jones evenings & to Bartlett play poker. Learning, Winners marijuana, LLC or riding a motorcycle© without Jones wearing & Bartlett Learning, LLC a helmet? Consider the following case. and losers typicallyNOT comeFOR away SALE from theseOR gamesDISTRIBUTION a NOT FOR SALE OR DISTRIBUTION

CASE Benning v. State, 641 A.2d 757 (Vt. 1994) others] subsequently filed suit, seeking to have DOOLEY, Justice. . . . § 1256 declared unconstitutional and to have the State © Jones & Bartlett Learning, LLC enjoined from further© Jones enforcement & Bartlett of the statute. Learning, . . . LLC NOT FOR SALE OR DISTRIBUTION Section 1256NOT was enacted FOR in SALE1968, and OR states DISTRIBUTION in full: In 1989, plaintiff Benning was cited for a viola- No person may operate or ride upon a motorcycle tion of [23 V.S.A.] § 1256 for operating a motorcycle upon a highway unless he wears upon his head pro- without wearing approved headgear. . . . [He and tective headgear reflectorized in part and of a type © Jones & Bartlett Learning, LLC © Jones & Bartlett Learning, LLC CHAPTER 2 The General Principles of the Criminal Law 55 NOT FOR SALE OR DISTRIBUTION NOT FOR SALE OR DISTRIBUTION

© Jones & Bartlett Learning, LLC. NOT FOR SALE OR DISTRIBUTION. Harm © Jones & Bartlett Learning, LLC © Jones & Bartlett Learning, LLC CASE Benning v. State, 641 A.2d 757 (Vt. 1994) NOT FOR SALE OR DISTRIBUTION NOT FOR SALE OR DISTRIBUTION approved by the commissioner. The headgear shall but it is a vast expansion of the term to find within it a be equipped with either a neck or chin strap. right to ride helmetless on public highways...... Within a year of its enactment, the statute came [In Lincoln v. Smith, 27 Vt. 328, 361 (1855)], . . . under challenge in State v. Solomon, 260 A.2d 377 (Vt. the Court described Article 1 as “a recitation of some 1969). . . . In Solomon,© Jones we upheld& Bartlett the validity Learning, of § of LLCthe natural rights of men before entering© Jones into the& Bartlett Learning, LLC 1256 against argumentsNOT FOR that the SALE statute exceededOR DISTRIBUTION the social compact,” but explained: “[W]henNOT men enterFOR into SALE OR DISTRIBUTION scope of the state’s police power and violated the Due the social compact, they give up a part of their natural Process Clause of the Fourteenth Amendment to the rights, and consent that they shall be so far restrained United States Constitution. This Court concluded then in the enjoyment of them by the laws of society, as is that § 1256 was “directly related to highway safety” necessary and expedient for the general advantage of the public.” Id. at 339. © Jonesbecause an& unprotected Bartlett motorcycleLearning, operator LLC could be © Jones & Bartlett Learning, LLC affected by roadway hazards, temporarily lose control . . . Plaintiffs cite the single case that has found a NOTand FOR become SALE a menace OR to otherDISTRIBUTION motorists. The Court motorcycle helmetNOT law unconstitutional, FOR SALE specificallyOR DISTRIBUTION also concluded that “self-injury may be of such a nature rejecting the Solomon reasoning. See State v. Betts, to also invoke a general public concern.” As a result, we 252 N.E.2d 866 (Ohio Misc. 1969). The vast majority of held that § 1256 “bears a real and substantial relation state courts have adhered to reasoning similar to that to the public health and general welfare and it is a valid of Solomon. See, e.g., Picou v. Gillum, 874 F.2d 1519 © Jones & Bartlettexercise Learning, of the police LLC power.” © (11thJones Cir.1989) & Bartlett (construing Learning, Florida law); LLC Kingery v. NOT FOR SALE ORIn thisDISTRIBUTION case, plaintiffs attempt to distinguish their NOTChapple, FOR 504 SALE P.2d 831 (AlaskaOR DISTRIBUTION 1972); State v. Beeman, attack on § 1256 from Solomon on the grounds that 541 P.2d 409 (Ariz. App. 1975); Penney v. City of N. Little Solomon was decided solely on federal constitutional Rock, 455 S.W.2d 132 (Ark. 1970); Love v. Bell, 465 P.2d grounds, whereas they challenge § 1256 on state con- 118 (Colo. 1970); State v. Cotton, 516 P.2d 709 (Haw. stitutional grounds. . . . 1973); State v. Albertson, 470 P.2d 300 (Idaho 1970); City of Wichita v. White, 469 P.2d 287 (Kan. 1970); Plaintiffs base© Jonesthis argument & Bartlett almost entirely Learning, on LLC © Jones & Bartlett Learning, LLC Chapter I, Article 1 of the Vermont Constitution, which State v. Quinnam, 367 A.2d 1032 (Me.1977); State v. provides: NOT FOR SALE OR DISTRIBUTIONCushman, 451 S.W.2d 17 (Mo.1970); RobothamNOT FOR v. State, SALE OR DISTRIBUTION 488 N.W.2d 533 (Neb. 1992). Although these decisions, That all men are born equally free and independent, like Solomon, are based primarily on the United States and have certain natural, inherent, and unalien- Constitution, some also reject state constitutional able rights, amongst which are the enjoying and attacks. The United States Supreme Court has also © Jonesdefending & Bartlett life and liberty, Learning, acquiring, LLC possessing rejected a due process© Jones attack on& aBartlett helmet law, Learning, albeit LLC and protecting property, and pursuing and obtain- NOT FOR SALE OR DISTRIBUTION by summary affirmanceNOT FOR of a lower SALE court OR decision. DISTRIBUTION ing happiness and safety. . . . See Simon v. Sargent, 409 U.S. 1020 (1972), aff’g 346 F.Supp. 277 (D.Mass.). . . . Plaintiffs argue that both safety and liberty are . . . [W]e reject the notion that this case can be among the “natural, inherent, and unalienable rights” resolved on the basis of a broad right to be let alone guaranteed by the Article. As to safety, plaintiffs argue without government interference. We accept the fed- that the text gives individuals, not the government, © Jones & Bartlett Learning, LLC © Joneseral analysis & of Bartlett such a claim Learning, in the context LLC of a public the power to determine what is necessary for personal safety restriction applicable to motorists using public NOT FOR SALE safety.OR DISTRIBUTIONPlaintiffs claim that they have a liberty inter- NOT FOR SALE OR DISTRIBUTION roads. We agree with Justice Powell, recently sitting by est in operating a motorcycle without a helmet, and designation with the Court of Appeals for the Eleventh since the purpose behind the statute is to protect the Circuit, who stated: safety of the motorcycle operator, it offends their right to determine their own safety needs. . . . [T]here is no broad legal or constitutional “right to The specific ©words Jones on which & plaintiffs Bartlett rely Learning,lack the LLCbe let alone” by government. In the© complex Jones society & Bartlett Learning, LLC specificity thatNOT would showFOR the SALE presence OR of concrete DISTRIBUTION in which we live, the action and nonactionNOT FOR of citi- SALE OR DISTRIBUTION rights applicable to these circumstances. Plaintiffs’ zens are subject to countless local, state, and fed- right to pursue and obtain safety does not suggest eral laws and regulations. Bare invocation of a right the government is powerless to protect the safety of to be let alone is an appealing rhetorical device, but individuals. . . . it seldom advances legal inquiry, as the “right”— © JonesPlaintiffs & Bartlett also rely on Learning, their right of “enjoying LLC and to the extent© it Jonesexists—has & no Bartlett meaning outsideLearning, LLC defending . . s. liberty” as expressed in the Article. its application to specific activities. The [federal] NOTThe FOR term “liberty”SALE is, OR of course, DISTRIBUTION a centerpiece of the Constitution doesNOT protect FOR citizens SALE from governmentOR DISTRIBUTION Fourteenth Amendment on which Solomon relies. We interference in many areas—speech, religion, the are willing to give a broad reading to the term “liberty,” security of the home. But the unconstrained right

© Jones & Bartlett Learning, LLC. NOT FOR SALE OR DISTRIBUTION. Victimless Crimes © Jones & Bartlett Learning, LLC © Jones & Bartlett Learning, LLC Benning v. State, 641 A.2d 757 (Vt. 1994) CASE NOT FOR SALE OR DISTRIBUTION NOT FOR SALE OR DISTRIBUTION asserted by appellant has no discernable bounds, There are at least two additional reasons why we and bears little resemblance to the important but conclude § 1256 is constitutional. . . . Although plain- limited privacy rights recognized by our highest tiffs argue that the only person affected by the failure Court. to wear a helmet is the operator of the motorcycle, the Picou, 874© F.2d Jones at 1521; &see Bartlett also Buhl v. Hannigan,Learning, impactLLC of that decision would be felt© well Jones beyond &that Bartlett Learning, LLC 16 Cal.App. 4thNOT 1612 FOR(1993) (“[I]tSALE would OR be aDISTRIBUTION stretch individual. Such a decision imposesNOT great costs FOR on theSALE OR DISTRIBUTION indeed to find the right to ride helmetless on a pub- public. As Professor Laurence Tribe has commented, lic highway comparable to the enumerated personal ours is “a society unwilling to abandon bleeding bodies rights or implicit in the concept of ordered liberty.”); on the highway, [and] the motorcyclist or driver who Bisenius v. Karns, 165 N.W.2d 377, 384 (Wis. 1969) endangers himself plainly imposes costs on others.” (“There is no place where any such right to be let alone L. Tribe, American Constitutional Law § 15-12, at 1372 © Joneswould be& lessBartlett assertable Learning, than on a modern LLC highway (2d ed. 1988). This© Jones concern has & been Bartlett echoed inLearning, a num- LLC NOTwith FOR cars, SALE trucks, busses OR and DISTRIBUTION cycles whizzing by at sixty ber of opinions upholdingNOT FOR motorcycle SALE helmet OR laws. DISTRIBUTION See, or seventy miles an hour.”). e.g., Picou, 874 F.2d at 1522 (quoting Tribe); Simon, We are left then with the familiar standard for 346 F.Supp. at 279 (citing public interest in minimizing evaluating police power regulations—essentially, that resources directly involved with treating and caring for expressed in Solomon. Plaintiffs urge us to overrule motorcyclists injured as result of riding without hel- © Jones & BartlettSolomon Learning, because it LLC was based on an analysis of the© Jonesmets); Robotham, & Bartlett 488 N.W.2d Learning, at 541 (citing LLC rationale of NOT FOR SALE ORsafety DISTRIBUTION risk to other users of the roadway that is incred-NOT“minimization FOR SALE of public OR expenditures DISTRIBUTION for the care and ible. In support of their position, they offered evidence welfare of seriously injured motorcyclists”). This ratio- from motorcycle operators that the possibility of an nale is particularly apparent as the nation as a whole, operator losing control of a motorcycle and becom- and this state in particular, debate reform of a health ing a menace to others is remote. On the other hand, care system that has become too costly although many these operators assert that helmets make a motorcycle do not have access to it. Whether in taxes or insurance operator dangerous.© Jones Plaintiffs & Bartlett also emphasize Learning, that rates,LLC our costs are linked to the actions© Jones of others & and Bartlett Learning, LLC even supportersNOT of helmet FOR laws SALE agree thatOR their DISTRIBUTION pur- are driven up when others fail to takeNOT preventive FOR steps SALE OR DISTRIBUTION pose is to protect the motorcycle operator, not other that would minimize health care consumption. We see highway users. no constitutional barrier to legislation that requires We are not willing to abandon the primary ratio- preventive measures to minimize health care costs that nale of Solomon because of plaintiffs’ evidence. . . . are inevitably imposed on society. © JonesPlaintiffs & areBartlett not entitled Learning, to have the courtsLLC act as a A second rationale© Jones supports & Bartlett this type of Learning, a safety LLC NOTsuper-legislature FOR SALE and OR retry DISTRIBUTION legislative judgments based requirement onNOT a public FOR highway. SALE Our decisions OR DISTRIBUTION show on evidence presented to the court. Thus, the question that in numerous circumstances the liability for inju- before us is whether the link between safety for high- ries that occur on our public roads may be imposed way users and the helmet law is rational, not whether on the state, or other governmental units, and their we agree that the statute actually leads to safer high- employees. It is rational for the state to act to mini- ways. The Solomon reasoning has been widely adopted mize the extent of the injuries for which it or other © Jones & Bartlettin theLearning, many courts thatLLC have considered the constitu-© Jonesgovernmental & Bartlett units may beLearning, financially responsible. LLC The NOT FOR SALE ORtionality DISTRIBUTION of motorcycle helmet laws. We still believe itNOT burden FOR placed SALE on plaintiffs OR DISTRIBUTION who receive the benefit of supports the constitutionality of § 1256. the liability system is reasonable. . . .

Notes and Questions making prostitution a crime, insofar as it applied to © Jones & Bartlett Learning, LLCthe behavior of consenting adults.© The Jones majority opin- & Bartlett Learning, LLC 1. What are the specific public interests that support ion noted: “Of course the legislature may alter the law making conductNOT suchFOR as riding SALE a motorcycle OR DISTRIBUTION with- to allow non-injurious sexual contactNOT by consenting FOR SALE OR DISTRIBUTION out a helmet, which at least at first blush appears to adults in a private place for a fee, conduct that is affect only the individual himself or herself, a viola- presently proscribed by HRS § 712-1200(1). . . . We tion of the criminal law? See also Chase v. State, 243 only decide that the considerations before us do not P.3d 1014 (Alaska App. 2010) (rejecting state consti- compel the legal conclusion that, on constitutional tutional challenge to a statute requiring motorists to grounds, HRS § 712-1200 must be ruled invalid.” 155 © Joneswear & Bartlettseatbelts). Learning, LLC P.3d, at 1115.© Jones Judge Levinson & Bartlett issued a lengthy Learning, dis- LLC senting opinion, arguing that: NOT FOR2. In StateSALE v. Romano, OR 155 DISTRIBUTION P.3d 1102 (Haw. 2007), the NOT FOR SALE OR DISTRIBUTION Hawaii Supreme Court rejected a defendant’s chal- . . . The uncontroverted evidence in the pres- lenge to the constitutionality of a state statute ent matter demonstrates that Romano was held

© Jones & Bartlett Learning, LLC. NOT FOR SALE OR DISTRIBUTION. Harm © Jones & Bartlett Learning, LLC © Jones & Bartlett Learning, LLC NOT FOR SALE OR DISTRIBUTION NOT FOR SALE OR DISTRIBUTION criminally accountable for wholly private, though prostitution illegal,” e.g., avoiding the “disrup- admittedly sexual, behavior with another consent- tion to the marital contract,” and “any sexual dis- ing adult. . . . [T]his case does not implicate public eases that might get passed through promiscuous solicitation, streetwalking, or salacious advertis- sex.” However, such concerns as moral depravity, ing, which© areJones not private & activities.Bartlett Rather, Learning, the LLCthe salacious reputation of a community,© Jones and dis- & Bartlett Learning, LLC present record reflects that the charged transac- ease and their attendant impact on productiv- tion couldNOT not conceivably FOR SALE have hurt OR anybody DISTRIBUTION ity, tourism, etc., are commonlyNOT trotted FOR out in SALE OR DISTRIBUTION other than Romano, which renders her conviction the name of the “general welfare,” are generally under HRS § 712-1200(1)—absent a showing of a speculative and attenuated, and can be moder- compelling interest from the prosecution—a viola- ated through “less restrictive” time, place, and tion of her federal and state constitutional rights manner regulations. The prosecution’s unelabo- © Jonesto &privacy. Bartlett . . . Learning, LLC rated theory© doesJones not constitute & Bartlett evidence atLearning, all, LLC With regard to demonstrating the necessary let alone proof of a compelling state interest and NOT FORcompelling SALE interest, OR DISTRIBUTION . . . the prosecution did narrow tailoringNOT justifyingFOR SALE Romano’s OR criminal DISTRIBUTION speak generally to the state’s interest “in making conviction. . . .

© Jones & BartlettInchoate Learning, Crimes LLC © Jonesthat was &contemplated; Bartlett Learning, had the attempt LLC been NOT FOR SALE TheOR crime DISTRIBUTION of solicitation (such as soliciting pros- NOTsuccessful, FOR SALEthe defendant OR DISTRIBUTIONwould be guilty of the titution, soliciting a bribe, soliciting [or suborn- contemplated crime and would not be charged ing] perjury) is complete on the asking; it requires simply with attempt. Solicitation, conspiracy, and nothing beyond requesting or imploring another attempts are known as inchoate crimes, a term to commit a crime, coupled with the requisite according to Webster’s dictionary that means “not intent. The crime© Jones has been & committed Bartlett whetherLearning, yet LLC completed or fully developed;© Jonesjust begun; & Bartlett Learning, LLC or not the solicitedNOT individual FOR SALE agrees. TheOR offense DISTRIBUTION incipient.” NOT FOR SALE OR DISTRIBUTION of conspiracy is complete when two or more peo- If harm is an essential element of crimes, we ple agree to commit a crime (some jurisdictions must determine where the harm is in the ask- require that an overt act must take place in fur- ing (solicitation), or entering into an agreement therance of the agreement, although the act need (conspiracy), or trying but failing to accomplish © Jonesnot be criminal); & Bartlett it is immaterial Learning, whether LLC the plan a result (attempt).© Jones Our focus & Bartlett is on criminal Learning, LLC NOTis orFOR is not SALE carried ORout. TheDISTRIBUTION crime of attempt by attempts, whichNOT involve FOR issues SALE that can OR be DISTRIBUTIONboth definition involves the failure to cause the harm intriguing and complex.

CASE © Jones & Bartlett Learning, LLC © Jones & Bartlett Learning, LLC People v. Rizzo, 158 N.E. 888 (N.Y. 1927) to commit the crime if the opportunity offered, or NOT FOR SALE OR DISTRIBUTION NOT FOR SALE OR DISTRIBUTION CRANE, J. constituted a crime in itself, known to our law as an attempt to commit robbery in the first degree. Charles Rizzo, the defendant, appellant, with three others, The police of the city of New York did excellent work Anthony J. Dorio, Thomas Milo, and John Thomasello, in this case by preventing the commission of a serious on January 14th planned to rob one Charles Rao of a crime. It is a great© satisfactionJones & to Bartlett realize that Learning,we have pay LLC roll valued at about $1,200 which© he Jones was to carry & Bartlett Learning, LLC such wide-awakeNOT guardians FOR of ourSALE peace. OR Whether DISTRIBUTION or from the bank for the United LathingNOT Company. FOR These SALE OR DISTRIBUTION not the steps which the defendant had taken up to defendants, two of whom had firearms, started out in the time of his arrest amounted to the commission of an automobile, looking for Rao or the man who had a crime, as defined by our law, is, however, another the pay roll on that day. Rizzo claimed to be able to matter. He has been convicted of an attempt to com- identify the man, and was to point him out to the oth- © Jonesmit the crime& Bartlett of robbery Learning,in the first degree, LLC and sen- ers, who were to do© theJones actual holding & Bartlett up. The four Learning, rode LLC tenced to state’s prison. There is no doubt that he had about in their car looking for Rao. They went to the NOTthe FOR intention SALE to commit OR robbery, DISTRIBUTION if he got the chance. bank from which NOThe was supposedFOR SALE to get the OR money DISTRIBUTION and An examination, however, of the facts is necessary to various buildings being constructed by the United to determine whether his acts were in preparation Lathing Company. At last they came to One Hundred

© Jones & Bartlett Learning, LLC. NOT FOR SALE OR DISTRIBUTION. Inchoate Crimes © Jones & Bartlett Learning, LLC © Jones & Bartlett Learning, LLC People v. Rizzo, 158 N.E. 888 (N.Y. 1927) CASE NOT FOR SALE OR DISTRIBUTION NOT FOR SALE OR DISTRIBUTION and Eightieth street and Morris Park avenue. By this been committed, but for timely interference. The cases time they were watched and followed by two police which have been before the courts express this idea officers. As Rizzo jumped out of the car and ran into in different language, but the idea remains the same. the building, all four were arrested. The defendant was The act or acts must come or advance very near to the taken out from© theJones building & in Bartlett which he was Learning, hiding. accomplishmentLLC of the intended crime.© Jones . . . & Bartlett Learning, LLC Neither Rao nor a man named Previti, who was also sup- In Hyde v. U. S., 225 U. S. 347 it was stated that the posed to carryNOT a pay roll,FOR were SALE at the place OR at theDISTRIBUTION time act amounts to an attempt when itNOT is so near FOR to theSALE OR DISTRIBUTION of the arrest. The defendants had not found or seen the result that the danger of success is very great. “There man they intended to rob. No person with a pay roll was must be dangerous proximity to success.” . . . at any of the places where they had stopped, and no How shall we apply this rule of immediate nearness one had been pointed out or identified by Rizzo. The to this case? . . . Did the acts above described come © Jonesfour men & intended Bartlett to rob Learning, the pay roll man, LLC whoever he dangerously near© toJones the taking & of Bartlett Rao’s property? Learning, Did LLC NOTwas. FOR They SALE were looking OR for DISTRIBUTION him, but they had not seen the acts come soNOT near the FOR commission SALE of ORrobbery DISTRIBUTION that or discovered him up to the time they were arrested. there was reasonable likelihood of its accomplishment Does this constitute the crime of an attempt to com- but for the interference? Rao was not found; the defen- mit robbery in the first degree? The Penal Law, § 2, dants were still looking for him; no attempt to rob him prescribes: could be made, at least until he came in sight; he was © Jones & Bartlett Learning, LLC © Jonesnot in the & building Bartlett at One Learning,Hundred and Eightieth LLC street An act, done with intent to commit a crime, and and Morris Park avenue. There was no man there with NOT FOR SALE ORtending DISTRIBUTION but failing to effect its commission, is “anNOT the FOR pay roll SALE for the UnitedOR DISTRIBUTION Lathing Company whom attempt to commit that crime.” these defendants could rob. Apparently no money had The word “tending” is very indefinite. It is perfectly been drawn from the bank for the pay roll by anybody evident that there will arise differences of opinion as at the time of the arrest. In a word, these defendants to whether an act in a given case is one tending to had planned to commit a crime, and were looking commit a crime.© Jones“Tending” &means Bartlett to exert activityLearning, in aroundLLC the city for an opportunity to© commit Jones it, but & the Bartlett Learning, LLC a particular direction.NOT FOR Any act SALE in preparation OR DISTRIBUTION to com- opportunity fortunately never came.NOT Men FORwould not SALE OR DISTRIBUTION mit a crime may be said to have a tendency towards be guilty of an attempt at burglary if they had planned its accomplishment. The procuring of the automobile, to break into a building and were arrested while they searching the streets looking for the desired victim, were hunting about the streets for the building not were in reality acts tending toward the commission of knowing where it was. Neither would a man be guilty of © Jonesthe proposed & Bartlett crime. The Learning, law, however, had LLC recognized an attempt to commit© Jones murder & if heBartlett armed himself Learning, and LLC that many acts in the way of preparation are too remote started out to find the person whom he had planned to NOTto FOR constitute SALE the crime OR of DISTRIBUTION attempt. The line has been kill but could notNOT find him.FOR So SALEhere these OR defendants DISTRIBUTION drawn between those acts which are remote and those were not guilty of an attempt to commit robbery in the which are proximate and near to the consummation. first degree when they had not found or reached the The law must be practical, and therefore considers presence of the person they intended to rob. those acts only as tending to the commission of the For these reasons, the judgment of conviction of © Jones & Bartlettcrime Learning, which are so nearLLC to its accomplishment that in© Jonesthis defendant & Bartlett appellant Learning, must be reversed LLC and a new NOT FOR SALE ORall reasonable DISTRIBUTION probability the crime itself would haveNOT trial FOR granted. SALE . . . OR DISTRIBUTION

Notes and Questions on their inability to consummate the robbery because © Jones & Bartlett Learning, LLCthey failed to locate him? The former© approachJones might & Bartlett Learning, LLC 1. Does the result in Rizzo make sense? Should criminal be described as focusing on the “substantial steps” liability turnNOT on the FOR defendants’ SALE good luck OR or bad DISTRIBUTION luck they took to carry out the plannedNOT crime. FOR It can be SALE OR DISTRIBUTION concerning whether they were able to locate their contrasted to what might be called the “proximity intended victim? Would Rao’s presence or absence approach,” which focuses on how close they came to have any bearing on their apparent dangerousness, accomplishing the planned crime. Which approach or their apparent willingness to carry through with better serves the interests of the criminal law? Which their intent to rob him? better serves the corresponding interest of prevent- © Jones & Bartlett Learning, LLC ing the conviction© Jones of individuals & Bartlett who pose little Learning, threat LLC 2. What if the court had based its ruling on the numer- of carrying out what might simply be idle thoughts of NOT FORous SALEactivities that OR the DISTRIBUTIONdefendants already had under- NOT FOR SALE OR DISTRIBUTION engaging in crime? Consider the following case. taken to further their intent to rob Rao, rather than

© Jones & Bartlett Learning, LLC. NOT FOR SALE OR DISTRIBUTION. Harm © Jones & Bartlett Learning, LLC © Jones & Bartlett Learning, LLC CASE People v. Lehnert, 163 P.3d 1111 (Colo. 2007) NOT FOR SALE OR DISTRIBUTION NOT FOR SALE OR DISTRIBUTION People v. Lehnert, 163 P.3d 1111 (Colo. 2007) A search warrant was issued for the defendant’s Justice COATS delivered the Opinion of the Court. . . . apartment, where police discovered doorbell wire, electrical tape, a nine-volt battery, two metal pipes (which had been scored, weakening them and increas- © Jones & Bartlett Learning,ing LLC their destructive potential), two© metal Jones end caps & Bartlett Learning, LLC The defendant, Charity Lehnert, was charged with (with drilled out center holes), latex gloves, screwdriv- attempted first NOTdegree murder,FOR possessionSALE OR of explosive DISTRIBUTION ers, wire cutters, safety glasses, magnets,NOT two FOR boxes SALE OR DISTRIBUTION or incendiary parts, committing a crime of violence, of shotgun shells full of gunpowder, flashlight bulbs and two less serious offenses of drug possession. She (sometimes used as an ignition device for a pipe bomb), was convicted of all but the drug charges, and she was and directions to the victim’s house. In addition, the sentenced to terms of thirty years for attempted mur- police found materials for making false identification © Jonesder and six& yearsBartlett for possession Learning, of explosive LLC devices, cards, the defendant’s© Jones driver’s &license, Bartlett falsified Learning, birth LLC NOTto beFOR served SALE concurrently. OR DISTRIBUTION certificates, an applicationNOT FOR for aSALE new social OR security DISTRIBUTION Evidence at her trial indicated that in July 2001, card, and a falsified high school transcript. . . . the owner of a gun shop contacted the Denver Police At the close of the People’s evidence, defense coun- Department and reported that a suspicious woman had sel moved for a judgment of acquittal on all counts, attempted to buy gunpowder from him but refused to arguing that the evidence was insufficient to sustain © Jones & Bartlettsay why Learning, she wanted it. LLC He declined to sell the gunpow- © Jonesthe attempted & Bartlett first degree Learning, murder count LLCbecause it der to her and instead notified the police. Through the did not include any evidence from which a reasonable NOT FOR SALE licenseOR DISTRIBUTION plate number he gave them, the police were NOTjury FORcould find SALE that theOR defendant DISTRIBUTION had yet taken a able to identify the defendant. “substantial step” toward committing the murder, as Days later a friend of the defendant contacted the required by the statute. The trial court disagreed and police, reporting that the defendant told her she was denied the motion. The court of appeals reversed the planning to kill two “pigs,” using two pipe bombs. defendant’s conviction for attempted murder, conclud- One of the officers© Jones was a male & correctional Bartlett officer Learning, at ing LLC that the evidence was insufficient.© Largely Jones because & Bartlett Learning, LLC the Denver Women’sNOT Correctional FOR SALE Facility, OR where DISTRIBUTION the the pipe bombs were not fully assembledNOT and FOR placed SALE OR DISTRIBUTION defendant had been an inmate, and the other was a in close proximity to the intended victim, the appel- female officer named “Shelly.” The friend testified that late court found that the defendant’s conduct did not the defendant had borrowed a drill and made holes in progress beyond “mere preparation.” the end caps of the bomb, and had asked for wooden The People petitioned this court for a writ of cer- © Jonesclothespins & toBartlett serve as a switchLearning, and a soldering LLC iron to tiorari. © Jones & Bartlett Learning, LLC connect two small wires, saying that she only needed A person commits criminal attempt in this juris- NOTa few FOR more SALE parts to ORcomplete DISTRIBUTION the bomb. The friend diction if, actingNOT with the FOR kind SALEof culpability OR other- DISTRIBUTION also testified that the defendant told her that she had wise required for commission of a particular crime, learned how to construct bombs while in prison and he engages in conduct constituting a substantial had written instructions at her home. In addition, she step toward the commission of that crime. See § 18-2- testified that Lehnert had not only found out extensive 101(1), C.R.S. (2006).1 The statute immediately makes © Jones & Bartlettfamily Learning, information and LLC the home address of the cor- © Jonesclear that by& “substantialBartlett step”Learning, it means any LLC conduct NOT FOR SALE rectionalOR DISTRIBUTION officer, but also had driven past his house NOTthat FORis strongly SALE corroborative OR DISTRIBUTION of the actor’s criminal numerous times. objective. . . . [T]he statutory crime of criminal attempt The defendant’s friend became concerned that is complete upon engaging, with the requisite degree the defendant was actually going to carry out the of culpability, in conduct that “is strongly corrobora- killings, and she called the police. In addition to tell- tive of the firmness of the actor’s purpose to complete ing the police about the defendant’s statements and the commission of the offense.” § 18-2-101(1). actions, she also© told Jones them that & sheBartlett had found Learning, in her LLCUntil 1963, Colorado had not codified© Jones the law &of Bartlett Learning, LLC home a businessNOT card for FOR a second SALE gun shop. OR By inquir-DISTRIBUTIONattempt in a general statute. In that year,NOT the FOR General SALE OR DISTRIBUTION ing at the second gun shop, the police learned that Assembly enacted with few modifications the Model the defendant had managed to purchase two boxes of Penal Code’s proposed codification, including its enu- shotgun shells. meration of specific kinds of conduct, which would, © Jones & Bartlett Learning, LLC © Jones & Bartlett Learning, LLC NOT FOR SALE OR DISTRIBUTION NOT FOR SALE OR DISTRIBUTION 1. Section 18-2-101(1), reads in part:

A person commits a criminal attempt, if, acting with the kind of culpability otherwise required for commission of an offense, he engages in conduct constituting a substantial step toward the commission of the offense. A substantial step is any conduct, whether act, omission, or possession, which is strongly corroborative of the firmness of the actor’s purpose to complete the commission of the offense. © Jones & Bartlett Learning, LLC © Jones & Bartlett Learning, LLC 60 Introduction to Law and Criminal Justice NOT FOR SALE OR DISTRIBUTION NOT FOR SALE OR DISTRIBUTION

© Jones & Bartlett Learning, LLC. NOT FOR SALE OR DISTRIBUTION. Inchoate Crimes © Jones & Bartlett Learning, LLC © Jones & Bartlett Learning, LLC People v. Lehnert, 163 P.3d 1111 (Colo. 2007) CASE NOT FOR SALE OR DISTRIBUTION NOT FOR SALE OR DISTRIBUTION under certain circumstances, be considered sufficient, to be a useful way of describing conduct falling short as a matter of law, to overcome a motion for judgment of of a “substantial step”; the ultimate inquiry under the acquittal.2 In 1971, . . . the unadulterated Model Penal statutory definition concerns the extent to which the Code approach was abandoned in favor of the approach actor’s conduct is strongly corroborative of the firm- of the proposed© FederalJones Criminal & Bartlett Code. Although Learning, dif- nessLLC of his criminal purpose, rather ©than Jones the proximity & Bartlett Learning, LLC ferent in certain respects, the 1971 Colorado statute, of his conduct to consummation of the crime. . . . which remainsNOT largely FOR unchanged SALE today, OR retained DISTRIBUTION a The question whether particularNOT conduct FOR consti- SALE OR DISTRIBUTION number of key features from the Model Penal Code pro- tutes a substantial step, of course, remains a matter of posal, most notably its description of the proscribed degree and can no more be resolved by a mechanical conduct as some act strongly corroborative of the rule, or litmus test, than could the question whether actor’s criminal purpose. the actor’s conduct was too remote or failed to progress © JonesPrior & to Bartlettthe enactment Learning, of a general criminal LLC attempt beyond mere preparation.© Jones . . .& Bartlett Learning, LLC NOTstatute, FOR the SALE sporadic OR treatment DISTRIBUTION of attempt by this court . . . [T]he actsNOT enumerated FOR SALEin the former OR statuteDISTRIBUTION focused largely on the dangerousness of the actor’s and Model Penal Code, such as searching out a contem- conduct in terms of its proximity to, or the likelihood plated victim, reconnoitering the place contemplated that it would result in, a completed crime. Emphasizing for commission of a crime, and possessing materials that neither preparation alone nor a “mere intention” specially designed for unlawful use and without lawful © Jones & Bartlettto commitLearning, a crime couldLLC constitute criminal attempt,© Jonespurpose, & remain Bartlett useful examplesLearning, of conduct LLC consid- we described an attempt as “any overt act done with ered capable of strongly corroborating criminal pur- NOT FOR SALE ORthe intent DISTRIBUTION to commit the crime, and which, except forNOT pose, FOR and inSALE those instances OR DISTRIBUTION where they do, of being the interference of some cause preventing the carrying sufficient to establish criminal attempt. . . . out of the intent, would have resulted in the commis- According to this standard, there was evidence at sion of the crime.” Lewis v. People, 235 P.2d 348, 350 the defendant’s trial from which the jury could find (Colo. 1951). By also making clear, however, that the that she repeatedly articulated her intent to kill two law overt act required© Jones for an attempt & Bartlett need not beLearning, the last enforcementLLC officers with pipe bombs.© Jones Unlike many & Bartlett Learning, LLC proximate actNOT necessary FOR to consummate SALE OR the crime, DISTRIBUTION we prosecutions for attempt, it was thereforeNOT unnecessary FOR SALE OR DISTRIBUTION implicitly acknowledged that acts in preparation for for the jury to be able to infer the defendant’s criminal the last proximate act, at some point attain to criminal- intent or purpose from her conduct. The jury need only ity themselves. The question of an overt act’s proximity have been able to find that the defendant committed to, or remoteness from, completion of the crime there- acts that were strongly corroborative of the firmness © Jonesfore remained, & Bartlett without detailedLearning, guidance, LLC a matter for of that purpose.© Jones & Bartlett Learning, LLC individual determination under the facts of each case. There was also evidence from which the jury could NOT FORBy contrast, SALE the OR statutory DISTRIBUTION requirement of a “sub- reasonably findNOT that the FOR defendant SALE was determined OR DISTRIBUTION to stantial step” signaled a clear shift of focus from the make the pipe bombs she needed to implement her plan act itself to “the dangerousness of the actor, as a per- and that she made substantial efforts and overcame son manifesting a firm disposition to commit a crime.” hurdles to do so. Over many days she not only managed See Model Penal Code § 5.01 cmt. 1 (1985). While some to acquire almost all of the materials required to create © Jones & Bartlettconduct, Learning, in the form LLC of an act, omission, or possession© Jonesa bomb but& alsoBartlett feloniously Learning, altered them LLC to suit her NOT FOR SALE ORis still DISTRIBUTION necessary to avoid criminalizing bad intentionsNOT criminal FOR purpose, SALE conduct OR forDISTRIBUTION which she was separately alone; and the notion of “mere preparation” continues convicted of possessing explosive or incendiary parts.

2. Section 40-25-1(2), C.R.S. (1963), stated: (i) Such© person’sJones conduct & shallBartlett not be held toLearning, constitute a substantial LLC step under subsection (1)(d) of this section© Jonesunless it is strongly & Bartlett Learning, LLC corroborative of the actor’s criminal purpose. Without negativing the sufficiency of other conduct, the following, if strongly cor- roborativeNOT ofFOR the actor’s SALE criminal purpose, OR DISTRIBUTION shall not be held insufficient as a matter of law: NOT FOR SALE OR DISTRIBUTION (j) Lying in wait for, searching for, or following the contemplated victim of the crime; (k) Enticing or seeking to entice the contemplated victim of the crime to go to a place contemplated for its commission; (l ) Reconnoitering the place contemplated for the commission of the crime; (m) Unlawful entry of a vehicle, into a structure, into any enclosure, or onto any real property in which or on which it is contemplated that the crime will be committed; © Jones &(n) Bartlett Possession of Learning,items or materials to LLC be employed in the commission of the crime,© whichJones are specially & Bartlettdesigned for such Learning, unlawful LLC NOT FOR SALEuse or which OR can DISTRIBUTION serve no lawful purpose of the actor under the circumstances;NOT FOR SALE OR DISTRIBUTION (o) Possession, collection, or fabrication of items or materials to be employed in the commission of the crime, at or near the place contemplated for its commission, where such possession, collection, or fabrication serves no lawful purpose of the actor under the circumstances; or (p) Soliciting an accomplice or an innocent agent to engage in conduct constituting an element of the crime. © Jones & Bartlett Learning, LLC © Jones & Bartlett Learning, LLC CHAPTER 2 The General Principles of the Criminal Law 61 NOT FOR SALE OR DISTRIBUTION NOT FOR SALE OR DISTRIBUTION

© Jones & Bartlett Learning, LLC. NOT FOR SALE OR DISTRIBUTION. Harm © Jones & Bartlett Learning, LLC © Jones & Bartlett Learning, LLC CASE People v. Lehnert, 163 P.3d 1111 (Colo. 2007) NOT FOR SALE OR DISTRIBUTION NOT FOR SALE OR DISTRIBUTION When rebuffed in her attempt to acquire gunpowder simultaneously producing forged documents, which directly from one gun shop, for example, she found a would permit her to assume false identities for pur- way to do so indirectly from another gun shop. There poses including the purchase of additional weapons. was testimony from which the jury could believe that The complexity of some criminal schemes, and she had eventually© Jonessucceeded & in acquiringBartlett all butLearning, a few the LLC extent and uniqueness of the preparatory© Jones acts & Bartlett Learning, LLC necessary materials and that she had already acquired required to implement them without detection, lend the drawings andNOT written FOR instructions SALE necessary OR DISTRIBUTION for themselves, by their very nature, to corroboratingNOT FOR the SALE OR DISTRIBUTION final assembly. actor’s firmness of purpose. Regardless of the fact that Beyond the tenacity exhibited by the defendant the defendant was arrested before producing opera- in actually fabricating the bombs, her friend testified tional bombs or placing them within striking range of that she also had gathered significant personal infor- her victims in this case, there was in fact an abundance © Jonesmation about & Bartlett one of her Learning,intended victims, LLC including of evidence of her© determined Jones and& sustainedBartlett efforts Learning, to LLC NOThis FORaddress SALE and information OR DISTRIBUTION about his children and implement her plan,NOT which FOR could SALE be found ORby reason- DISTRIBUTION the car his family drove. There was evidence that she able jurors to be strongly corroborative of the firmness had reconnoitered his house and neighborhood more of her purpose to commit murder. Nothing more was than once, reportedly being forced to leave on one required. occasion after being noticed. Finally there was evi- Therefore, the judgment of the court of appeals is © Jones & Bartlettdence Learning, from which the LLC jury could believe that she was © Jonesreversed. . &. . Bartlett Learning, LLC NOT FOR SALE OR DISTRIBUTION NOT FOR SALE OR DISTRIBUTION

Notes and Questions underlying rationale making attempts a crime, see © Jones & Bartlett Learning, LLCYoung v. State, 493 A.2d 352 (Md. 1985).© Jones & Bartlett Learning, LLC 1. By employing the “substantial step” test, do you Both Rizzo and Lehnert were interrupted before agree thatNOT Lehnert FOR was guilty SALE of attempted OR DISTRIBUTIONfirst- completing all of the acts neededNOT to accomplish FOR SALE OR DISTRIBUTION degree murder? Would she be guilty of attempted their presumed objectives of, respectively, commit- murder under the “proximity” test? ting armed robbery and murder. Sometimes, how- 2. Under the “substantial step” approach, precisely ever, defendants have done all within their power when was Lehnert guilty of attempted first-degree to carry out their intended crimes, yet still fail in © Jonesmurder? & Bartlett When she went Learning, to the Denver LLCgun shop in their efforts.© For Jones example, A& might Bartlett point his gunLearning, at LLC July 2001 seeking (but failing) to purchase gunpow- B and pull the trigger, discharging the bullet, but NOT FORder? WhenSALE she told OR a friend DISTRIBUTION that “she was planning because he NOTis a bad aim,FOR the SALEbullet misses OR B, whoDISTRIBUTION to kill two ‘pigs,’ using two pipe bombs”? When she remains unscathed. Using either the “proximity” borrowed a drill and asked for wooden clothespins, or the “substantial step” test, we would have little saying that “she needed only a few more parts to trouble justifying A’s conviction for attempted mur- complete the bomb”? When she acquired the home der. Would it matter if, unbeknown to A, the gun he address of one of the correctional officers who was was using actually was filled with blanks and could © Jones & Bartlett Learning,an intended victim? LLC When she drove past the cor- © Jonesnot have & harmedBartlett B even Learning, if fired at point-blank LLC range? NOT FOR SALE ORrectional DISTRIBUTION officer’s home? How helpful is the statu- NOT FORUnder thoseSALE circumstances, OR DISTRIBUTION A could not possibly tory definition: “A substantial step is any conduct . have been successful in carrying out his intention . . which is strongly corroborative of the firmness of to kill B. Could A therefore argue that he did not come the actor’s purpose to complete the commission of “dangerously close” to accomplishing his plan, or the offense”? C.R.S. § 18-2-101(1). that he made no more of a substantial step toward killing B than if he had approached B with a cap gun 3. What precise harm did Lehnert cause? More gener- © Jones & Bartlett Learning, LLCand pulled the trigger? Should A be© allowed Jones to argue & Bartlett Learning, LLC ally, how would you describe the harm element of that it was impossible for him to have murdered B criminal attempts?NOT FOR SALE OR DISTRIBUTION NOT FOR SALE OR DISTRIBUTION under those circumstances, and hence that he should 4. For a helpful discussion of additional approaches to not be convicted of attempted murder? Consider the defining criminal attempts, and elaboration of the following case.

© Jones & Bartlett Learning, LLC. NOT FOR SALE OR DISTRIBUTION. Inchoate Crimes © Jones & Bartlett Learning, LLC © Jones & Bartlett Learning, LLC United States v. Heng Awkak Roman, 356 F. Supp. 434 (S.D.N.Y. 1973) CASE NOT FOR SALE OR DISTRIBUTION NOT FOR SALE OR DISTRIBUTION United States v. Heng Awkak Roman, 356 F. Supp. 434 Had the heroin still been in the suitcase at (S.D.N.Y. 1973) Pennsylvania Station on November 20, 1972, and had Smith in fact been a true accomplice of the defendants, FREDERICK van PELT BRYAN, District Judge. the defendants would have had constructive posses- © Jones & Bartlett Learning, sionLLC of the heroin, even though Smith© retainedJones the & key Bartlett Learning, LLC to the locker containing the suitcase. . . . DefendantsNOT Heng RomanFOR (Heng) SALE and OR Lee Koo DISTRIBUTION (Koo) The realities of the situation, however,NOT FOR were notSALE OR DISTRIBUTION were tried before me without a jury on a two-count as the defendants believed. The heroin was not in the indictment charging them in count I with conspiracy suitcase, but rather safely in the custody of the BNDD. to violate the narcotics laws, and in count II with pos- Moreover, Smith was not truly their confederate, but session of 2.5 kilograms of heroin, in the Southern was instead an informer working for the BNDD. It is © JonesDistrict &of NewBartlett York on NovemberLearning, 20, 1972, LLC with intent quite plain that© the Jones defendants & Bartlett did not have Learning, either LLC NOTto FOR distribute. SALE At the OR conclusion DISTRIBUTION of the four-day trial, I actual or constructiveNOT FOR possession SALE of 2.5 OR kilograms DISTRIBUTION found both defendants guilty on the conspiracy count of heroin in the Southern District of New York on (count I), and reserved decision on the substantive November 20, 1972 as charged in count II. count (count II). . . . I now find both defendants guilty Although defendants are not guilty of possession of an attempt to commit the crime charged in the sub- with intent to distribute . . . I find them guilty of © Jones & Bartlettstantive Learning, count. LLC © Jonesattempted & possession Bartlett with Learning, intent to distribute. LLC The facts relating to the substantive count are “Attempt”, as used in [21 U.S.C.] section 846, is not NOT FOR SALE ORas follows: DISTRIBUTION John T. Smith, the informer in this case,NOT defined. FOR Indeed, SALE there OR is no DISTRIBUTION comprehensive statutory after several preliminary meetings with Heng, met definition of attempt in federal law. It is not neces- with both defendants on November 7, 1972 at the sary here, however, to deal with the complex ques- Strand Hotel in Singapore. The ensuing discussion tion of when conduct crosses the line between “mere concerned the importation and sale of substan- preparation” and “attempt”, only the latter being a tial amounts© of Jonesnarcotics &in theBartlett United States.Learning, On crime.LLC For here we have a situation© where Jones the defen- & Bartlett Learning, LLC November 12thNOT or 13th, FOR the SALE defendants OR picked DISTRIBUTION up dants’ actions would have constitutedNOT the completedFOR SALE OR DISTRIBUTION Smith’s suitcase at his hotel. The following evening crime if the surrounding circumstances were as they they showed it to Smith at Heng’s house. Smith saw believed them to be. Under such circumstances, their that it contained white powder, which Heng said was actions constitute an attempt. People v. Siu, 271 P.2d 2.5 kilograms of heroin. Subsequent laboratory anal- 575 (Cal. App. 1954) (defendant guilty of attempted © Jonesysis confirmed & Bartlett that it Learning,was indeed heroin, LLC over 96% possession of narcotics© Jones where & he Bartlett obtained possession Learning, LLC pure. The next day Heng drove Smith to the airport, of talcum believing it to be narcotics); O’Sullivan v. NOTwith FOR the SALEsuitcase inOR the DISTRIBUTION trunk of the car, with the Peters, [1951] S.R.NOT 54 (South FOR Australia, SALE 1951) OR (defen-DISTRIBUTION heroin in it. At the airport, Smith, without Heng’s dant who placed bet on horse which had previously knowledge, gave the suitcase to an agent of the been scratched held guilty of attempt of bet on horse Bureau of Narcotics and Dangerous Drugs (BNDD). race); Regina v. Ring, 17 Cox C.C. 491 (England, 1892) The heroin it contained, which is the subject of count (reaching into empty pocket constitutes attempt to © Jones & BartlettII, wasLearning, removed, and LLC thereafter remained in the cus-© Jonessteal from & pocket); Bartlett People Learning, v. Moran, 25 N.E. LLC 412 (N.Y. NOT FOR SALE ORtody ofDISTRIBUTION law enforcement officers. Smith then flew toNOT 1890) FOR (same); SALE United OR States DISTRIBUTION v. Thomas, 13 U.S.C.M.A. New York. . . . 278, 32 C.M.R. 278 (1962) (defendants who had non- After Smith arrived in New York City, he contacted consensual sexual intercourse with a woman who BNDD agents here. On November 20, 1972, he picked was dead, although they believed her to be alive, up the suitcase, which by then contained only soap held guilty of attempted rape); State v. Damms, 100 powder packaged as the heroin had been, at the BNDD N.W.2d 592 (Wis. 1960) (defendant guilty of attempted office here and© placedJones it in & a lockerBartlett in Pennsylvania Learning, murder LLC where he pointed gun at another,© Jones believing & itBartlett Learning, LLC Station. LaterNOT that evening, FOR by SALE prearrangement OR DISTRIBUTION made to be loaded when in fact it was not loaded,NOT andFOR pulled SALE OR DISTRIBUTION with defendants in Singapore, Smith met them at the trigger). Cf. Model Penal Code § 5.01(1) (P.O.D. 1962) Hotel McAlpin in Manhattan and showed Heng the key (“A person is guilty of an attempt to commit a crime if, to the locker. acting with the kind of culpability otherwise required That evening, November 20th, and the following for commission of the crime, he [inter alia] . . . pur- © Jonesday, the & 21st, Bartlett the defendants Learning, offered LLCto sell the 2.5 posefully engages© Jones in conduct & which Bartlett would constitute Learning, LLC NOTkilograms FOR SALE of heroin OR to agents DISTRIBUTION of the BNDD who were the crime if theNOT attendant FOR circumstances SALE OR were DISTRIBUTION as he posing as buyers. . . . When it became apparent that an believes them to be. . . .” impasse in the negotiations had developed, the agents The defendants contend that since it was impos- arrested both defendants. . . . sible for them to possess the 2.5 kilograms of heroin,

© Jones & Bartlett Learning, LLC. NOT FOR SALE OR DISTRIBUTION. Harm © Jones & Bartlett Learning, LLC © Jones & Bartlett Learning, LLC CASE United States v. Heng Awkak Roman, 356 F. Supp. 434 (S.D.N.Y. 1973) NOT FOR SALE OR DISTRIBUTION NOT FOR SALE OR DISTRIBUTION which at the time charged was in the hands of the difficult, the case at hand plainly involves factual not BNDD, they cannot be found guilty of attempted legal impossibility. possession. This argument does not help the defen- . . . “All courts are in agreement that what is usu- dants. ally referred to as ‘factual impossibility’ is no defense The commentators© Jones and the & cases Bartlett generally Learning, divide to LLCa charge of attempt.” LaFave & Scott,© [JonesHandbook &on Bartlett Learning, LLC the impossibility defense into two categories: legal ver- Criminal Law] 440. . . . sus factual impossibility.NOT FOR Sometimes SALE a third OR category, DISTRIBUTION The defendants next contend thatNOT their FORconduct SALE OR DISTRIBUTION “inherent impossibility”, is also referred to. was not sufficiently proximate to the completed crime “Legal impossibility” denotes conduct where the to constitute an attempt. They rely on the well-known goal of the actor is not criminal, although he believes dissenting opinion of Justice Holmes in Hyde v. United it to be. “Factual impossibility” denotes conduct where States, 225 U.S. 347, 387 (1921). . . . However, where © Jonesthe objective & Bartlett is proscribed Learning, by the criminal LLC law, but a the conduct would© constituteJones the& Bartlettcompleted crime Learning, if LLC NOTcircumstance FOR SALE unknown OR to theDISTRIBUTION actor prevents him from the circumstancesNOT were FORas the defendantsSALE OR believed DISTRIBUTION bringing it about. “Inherent impossibility” is where the them to be, the “dangerous proximity” test of Justice means chosen are totally ineffective to bring about the Holmes does not apply. See Model Penal Code § 5.01(1). desired result, e. g., voodoo. Moreover, the defendants plainly went far beyond Defendants claim their defense is one of legal “mere preparation.” © Jones & Bartlettimpossibility. Learning, Although LLC the categorization of a case as © JonesAccordingly, & Bartlett I find both Learning, defendants LLC guilty on involving one type of impossibility or another is often NOT FOR SALE OR DISTRIBUTION NOTcount FOR II. . . .SALE OR DISTRIBUTION

Notes and Questions mind, she proceeds to text while driving, she thinks that she is committing a crime and in fact is “trying” 1. When Heng and Koo were arrested in New York City, to do so. However, if the jurisdiction does not make they had (constructive)© Jones possession & Bartlett of 2.5 kilograms Learning, LLCtexting while driving a crime, legal© impossibilityJones & Bartlett Learning, LLC of soap powder,NOT not FOR heroin. SALE Although ORthey appar- DISTRIBUTIONwould serve as a defense to a chargeNOT of “attempt- FOR SALE OR DISTRIBUTION ently believed that the soap powder was heroin, it ing to drive while texting.” This defense illustrates is not illegal to possess soap powder, and it would be the importance of the legality principle (“no crime impossible to convict them under the circumstances without law, no punishment without law”), which we of possessing heroin. Why, then, does the court reject considered in Chapter 1. By intentionally engaging in their “impossibility” defense concerning the offense behavior that she believes to be a crime, A arguably © Jonesof attempted& Bartlett possession Learning, of heroin with theLLC intent to demonstrates© a propensityJones for & dangerousness Bartlett asLearning, well LLC distribute? as a culpable mens rea. Nevertheless, the defense of NOT FOR SALE OR DISTRIBUTION legal impossibilityNOT will FOR spare her SALE from conviction OR DISTRIBUTION for 2. The court cites several cases rejecting “factual impos- attempting to commit a (nonexistent) crime. sibility” as a defense to criminal attempt charges, involving circumstances as diverse as betting on a 4. Although legal impossibility almost invariably is rec- horse to win a race when the horse was not even run- ognized as a defense to a criminal attempt charge, ning (attempted gambling), picking an empty pocket inherent impossibility is not; jurisdictions take vary- © Jones & Bartlett Learning,(attempted larceny), LLC and having sexual relations © Jonesing approaches, & Bartlett with some Learning, accepting the defense LLC and with a woman believed to be alive and passed out, but others rejecting it. This category comprises actions NOT FOR SALE ORwho DISTRIBUTION actually already was dead (attempted rape). In NOT FORthat a defendant SALE completes OR DISTRIBUTION while intending to cause all of those cases, the intended crime could not pos- a harm that the criminal law forbids, but reasonable sibly have been completed, although had the facts people would agree that the actions are “inherently been as the defendants believed them to be, they impossible” of causing the planned harm. A tradi- would have succeeded in committing the intended tional example is using voodoo in an attempt to kill crimes. Factual© Jones impossibility & typicallyBartlett is not Learning, recog- LLCa person. B may firmly believe that© voodoo Jones will in& Bartlett Learning, LLC nized as a defense to a charge of criminal attempt. fact cause the death of his archenemy, and when he sticks needles in a likeness of his foe, intending to 3. The court mentionsNOT FOR two additional SALE kinds OR of impos- DISTRIBUTION NOT FOR SALE OR DISTRIBUTION kill him, he demonstrates his dangerousness as well sibility defenses occasionally raised in response to as his mens rea. Most people would agree, however, criminal attempt charges—legal impossibility and that B’s actions could not possibly have resulted in inherent impossibility. Legal impossibility involves the intended killing; in a jurisdiction recognizing situations where the defendant completed acts that inherent impossibility as a defense, he would not be he or she thought constituted a crime (thus, arguably © Jones & Bartlett Learning, LLC guilty of attempted© Jones murder. & Bartlett Learning, LLC attempting to commit a crime), but which as a matter NOT FORof law SALE were not criminal.OR DISTRIBUTION For example, if A believes 5. The followingNOT examples, FOR offered SALE by Chief OR Judge DISTRIBUTION she is in a State that makes it a crime to drive while Posner in United States v. Coffman, 94 F.3d 330, sending text messages and, with a guilty state of 334–335 (7th Cir. 1996), illustrate, respectively,

© Jones & Bartlett Learning, LLC. NOT FOR SALE OR DISTRIBUTION. References © Jones & Bartlett Learning, LLC © Jones & Bartlett Learning, LLC NOT FOR SALE OR DISTRIBUTION NOT FOR SALE OR DISTRIBUTION legal impossibility, factual impossibility, and inher- thwarted, and if completed in accordance with the ent impossibility when raised as a defense to a charge defendant’s understanding of the circumstances of criminal attempt. would have resulted in a crime, then the attempt is culpable even though it is certain that it would Attempts are punished even when the chance of not have succeeded. Cotts—a case involving a success© is dim—evenJones when & Bartlett the facts are suchLearning, that, LLC © Jones & Bartlett Learning, LLC conspiracy to kill a fictitious informant (of course unbeknownst to the defendant, the attempt could NOT FOR SALE OR DISTRIBUTIONnot known to the defendant to NOTbe fictitious)—is FOR aSALE OR DISTRIBUTION not possibly succeed. United States v. Cotts, 14 F.3d dramatic example of this principle . . . . There may 300, 307 (7th Cir.1994). If it could not succeed be- be attempts so feeble, such as sticking a pin into a cause the completed act at which the defendant voodoo doll of your enemy in an effort to kill him, aimed is not criminal—as where a 13-year-old that the attempter is entitled to be acquitted, as a boy attempts to commit rape in a state in which harmless fool. Attorney General v. Sillem, 159 Eng. © Jones you& Bartlettmust be 14 to Learning, be charged with rape,LLC Foster v. © Jones & Bartlett Learning, LLC Rep. 178, 221 (Exch.1863); American Law Institute, Commonwealth, 31 S.E. 503, 505 (Va. 1898)—then NOT FOR SALE OR DISTRIBUTION Model PenalNOT Code §FOR 5.05(2) (1962).SALE The OR defendants’ DISTRIBUTION a defense of impossibility will lie; it is not a crimi- scheme [here], though harebrained, was not that nal attempt to try to do what the criminal law does harebrained. . . . not forbid you to do. But if the attempt is merely

© Jones & Bartlett Learning, LLC © Jones & Bartlett Learning, LLC NOT FOR SALE ORCONCLUSION DISTRIBUTION NOT FORWe nevertheless SALE OR have DISTRIBUTION seen that it is not always easy to decide whether the respective general This chapter has provided us with the opportunity principles apply at a lower level of abstraction. to explore the general principles of the criminal It may be difficult, for example, to define the line law: the fundamental elements that are common between a status or condition and an act, to deter- to all crimes ©and Jones help explain & Bartlett why the law Learning, defines mineLLC when an act is voluntary, to© separate Jones reckless & Bartlett Learning, LLC certain conductNOT as FORcriminal. SALE We thus OR examined DISTRIBUTION and negligent states of mind, toNOT reach FORa conclu- SALE OR DISTRIBUTION issues involving the criminal law’s requirements sion about whether the defendant’s conduct is or for (1) actus reus, (2) mens rea, (3) concurrence is not the proximate cause of harm, and even to be (of the act and mental elements of the crime), clear about whether a harm has been committed (4) causation, and (5) harm. Those principles that is within the ambit of the criminal law. © Joneshelp animate & Bartlett the definitions Learning, of specific LLC crimes, Having introduced© Jones this & framework Bartlett describ-Learning, LLC NOTand FOR thus SALE should beOR recognizable DISTRIBUTION in offenses such ing the generalNOT principles FOR SALEof the criminal OR DISTRIBUTION law, as murder, burglary, larceny, fraud, and others. we consider in the next chapter the different They also help justify why and how harshly viola- defenses that can be raised to negate criminal tions of the criminal law are punished. responsibility.

© Jones & Bartlett Learning, LLC © Jones & Bartlett Learning, LLC Key Terms NOT FOR SALE OR DISTRIBUTION NOT FOR SALE OR DISTRIBUTION actus reus knowingly purposely attempt mens rea recklessly causation negligently substantial step concurrence omission voluntary act harm proximity test © Jones & Bartlett Learning, LLC © Jones & Bartlett Learning, LLC References NOT FOR SALE OR DISTRIBUTION NOT FOR SALE OR DISTRIBUTION Hall, J. (1960). General principles of criminal law (2d ed.). Indianapolis, IN: Bobbs-Merrill.