I. Justification of Punishment A. D may be said to inflict punishment when an agent of the gov’t, pursuant to authority granted to the agent by virtue of D’s criminal convection, intentionally inflicts pain on D or otherwise causes D to suffer a consequence that is ordinarily unpleasant. - Limitation of this definition is that not all punishments cause pain, not all are done by an agent of the government (disenfranchisement, limiting choice of friends) 1. MPC § 1.02(2) The general purposes of the provisions governing the sentencing and treatment of offenders are: . Prevent the commission of offenses . Promote the correction and rehabilitation of offenders . Safeguard offenders against excessive or disproportionate punishment . Give fair warning of the nature of the sentences that may be imposed . Differentiate among offenders->just individualization in treatment
B. Theories of Punishment
1. Utilitarian . The purpose punishment is to as means to an end, the laws that we pass should be used to maximize happiness, is a forward looking punishment theory. . Say to retributivists that punishment should have a purpose (reduce human suffering instead of adding. . Punishment serves some societal need, either in an economic or social sense. a. General deterrence - punish a defendant to scare the community at large b. Specific deterrence – prevent person from doing it again = incapacitation o deterrence by intimidation = reminds defendant that pain follows criminal acts c. Rehabilitation is a utilitarian idea d. MPC is primarily utilitarian in nature
2. Retributivist . people are punished because they deserve it a. Say that if this punishment acts in reducing crime that is an added benefit, but not a main goal b. Would say that those that would try to rehabilitate are wrong – have a hard time accepting that any punishment should be for the benefit of the offender. c. Punish those who are morally blameworthy i. Never ok to punish an innocent person, because it does not satisfy society’s desire to vent its anger ii. This isn’t about getting revenge, in some ways it is utilitarian because it focuses people’s hatred on the punishment.
Elements of Criminal Liability D must commit (1) a voluntary act (or omission) (actus reas) (2) that causes (3) social harm (4) at the time of defendant’s act, he/she mist have a culpable mental state (mens rea)
1 II. Actus Reas – Culpable Conduct. - deals with active or external part of the crime - D must have committed a voluntary act, the absence of this act precludes culpability. o Mere thoughts are not punishable as crimes.
A. Positive Actions 1. Requirement of voluntary act 2. D must have committed a voluntary act, the absence of this act precludes culpability under CL and MPC. a. Mere thoughts are not punishable as crimes b. Based on whether or not the conduct has resulted in a social harm c. Martin v. State – D convicted of being drunk on highway, but police had removed him from his home and taken him to the highway. . Holding – Court finds that D not guilty b/c he was involuntarily and forcibly taken to a public place. . In this case, it wasn’t the drinking that was legislated against, it was the appearing in public – this part was not voluntary. d. Reason for this rule is that there is no deterrence for involuntary acts (utilitarian), also there is no moral blameworthiness for an involuntary action (retributivist).
3. MPC § 2.01 (1) and (2) a. 2.01 (1) - A person is not guilty of an offense unless his liability is based on conduct which includes a voluntary act or the omission to perform an act which he is physically capable.
b. § 2.01 (2) – The following acts are NOT considered voluntary: . a reflex or convulsion Decina – Driver has a seizure while driving and hurts someone. Here courts find him culpable because of negligence, did act of driving voluntarily even though he knew of his condition. o Thus – Exception In the event that D is aware that she is susceptible to such problems the courts may stretch the period of actus reas to include the time when D knowingly took the risk of an attack = voluntary. . Unconsciousness People v. Newton – Black Panther kills cop during a black out due to his being shot. Court gives him less than murder because his act was not voluntary. . Movements during sleep Cogdon – Mother kills daughter with axe while dreaming. Jury acquits b/c jury didn’t see it as her actions. . conduct during hypnosis or resulting from hypnotic suggestion . a bodily movement that otherwise is not a product of the effort of determination of the actor, either conscious or habitual. c. MPC § 1.13 defines an “act” or “action” as a bodily movement whether voluntary or involuntary. d. Habit - § 2.01(2)(d) – Actions done by habit ARE considered a voluntary act. 4. Note that an acquittal based on involuntary acts is much different than based on insanity. a. Presence of voluntary act is a necessary element of the crime so prosecution bears the burden of proof, while insanity is doesn’t necessarily preclude the elements of the crime so burden of proof is on defense. b. Person acquitted on basis of involuntary action is free, person acquitted on grounds of legal insanity would have to be committed or a similar fate.
5. Status – cannot be convicted for being of a particular status.
2 a. Robinson v. California – D convicted for being a drug addict. Court reversed conviction b/c D hadn’t been shown to have done anything illegal other than just being sick. . Retributivist view since Utilitarian view might see benefit of locking up addicts, whereas retribs see lack of fault or blameworthiness as undeserving of punishment. b. BUT – difference in being an addict and acting because of your addiction. i. Powell v. Texas – D, an alcoholic, found drunk in public. Tried to argue lack of liability based on Robinson case, but court found that even though he couldn’t stop after he started he could prevent the first drink. Difference is b/c there was an act! o Strong utilitarianism too – jail is looked at as time to get cured.
B. Omissions 1. Common law – generally there is no criminal liability for an omission a. Cash/Las Vegas Murder case – D sees friend take young girl into bathroom, sees that he’s raping the girl and does nothing. Girl is killed, but he doesn’t see this. Court finds that he has no duty to the girl so he is not liable. 2. Exceptions occur where there is a legally recognized duty involved, thus allowing liability for a failure to act: a. Where a statute imposes duty to care for another (good Samaritan laws) b. Where one stands in a certain status relationship to another like parent to child, husband to wife, etc . Pope v. State – D not liable for failing to help as mother beat child to death. D had no duty to the child, mother was present. c. Where one has assumed a contractual duty to care for another – doctor/patient d. Where on has voluntarily assumed to care for another and so secluded the helpless person as to prevent others from rendering aid. . Jones v. United States – D accused of allowing a baby to die from malnourishment. Court said that she never had a duty to the baby, but argument was made that she assumed the duty to care for the child by secluding it from her mother. . People v. Oliver – D held responsible since he took person under his care – court cites restatement of torts. e. Where the D causes the danger = putting the victim in peril triggers the duty to help.
3. MPC - § 2.01(3) – Liability for the commission of an offense may not be based on an omission unaccompanied by action unless: a. (a) – the omission is expressly made sufficient by the law defining the offense; or b. (b) – a duty to perform the omitted act is otherwise imposed by law.
4. Underlying reason we might not want to hold Defendants like in Jones or Pope responsible . What people are often able to do under emergency circumstances is less than we would hope people would be able to do. . We don’t want to have laws against human nature. 5. Theories of punishment – Should omission be a crime? a. Utilitarian – yes because this would serve the interests of society, might make people act in future if they see that they will be held accountable (Kitty Genovese) b. Retributivist – no because omission is not an act, however, yes because there might be a moral culpability. 6. Problems with making omissions illegal without clear duty exception: . Hard to draft the rule b/c situations are fact specific . Don’t want to legislate morality . Slippery Slope. 7. Criticisms of general rule: . No moral difference b/t failing to help when one can do so with no danger to himself and actively causing the harm
3 . General rule ingrains a callousness and indifference into how members of society interact with each other . General rule may encourage criminals to commit more crimes since they know that people aren’t required to help victims.
8. Medical Omissions . Courts had created an exception to the voluntary act doctrine since they analyze the doctors’ actions under omissions.. . Docs aren’t necessarily off the hook indiscriminately though, we still analyze the doctor’s duty. a. Euthanasia i. Passive Euthanasia Withdrawal of life support is looked at by court as an omission of further treatment for which there is no criminal liability unless there is a legal duty to act (duty to continue care). Letting someone die may not be unlawful based on circumstances i. Physician has no duty to continue treatment once proven ineffective and futile – a lot of deference given to doctors’ opinion. ii. Barber v. Superior Court – Physicians stop life support according to family orders. Physicians were released b/c court finds that withdrawal of life support is an omission of further treatment and physician has no duty after treatment proven ineffective. . But courts look at three things: 1. There is no reasonable chance of recovery (docs opinion) 2. Family given authority to make decision 3. Family should get to direct actions a. Patient’s interests are key to points 1 and 2 iii. This balancing act is utilitarian in nature – have to balance costs of further treatment and going against family wishes with benefits of any treatment. iv. There is a right to refuse treatment, however states may require compelling evidence of the patient’s intent to refuse treatment if incapacitated before allowing cessation of life support. 1. Cruzan v. Director, Missouri Dept. of Health – Cruzan in accident and ended up in vegetative state which she would not recover from. Parents sue hospital which won’t take her off on their orders. Court finds that there wasn’t enough evidence of patient’s intent to satisfy Missouri’s interests of protection of human life. 2. Cruzan deals with whether it’s enough that patient previously expresses wishes. a. There is a right for surrogate to make this decision, but right is limited.
ii. Active Euthanasia – Doctor Assisted Suicide Courts have recently found that a person is not guilty of murder by simply providing the means for someone to commit suicide. However, participating in the overt act means you are guilty of murder. i. People v. Kevorkian 1994 – Kevorkian provides suicide machine to one lady and means of self-administrating carbon dioxide poisoning to another, which the woman self activate. Court finds that Keovorkian is not guilty of murder since he did not participate in the overt act (difficulty with causation), even though there is no right to suicide. ii. Later Kevorkian videotapes himself actually injecting a patient, sentenced for murder since he committed the overt act. This is too active to be considered as an omission.
4 III. Mens Rea – Culpable Mental States
A. Basic Concepts 1. Definitions a. Common law – notion of moral blameworthiness, a culpable state of mind, an “evil” meaning mind i. Guilt is not important; all that you have to show is that the person committing the social harm had an evil mindset at the time. b. Elemental definition in MPC – replaces common-law, i. Have to match what level of intentionality there needs to be for guilt.
2. History and Roots a. In English law there was no Mens Rea initially – commission of crime = guilt no matter what your mindset. b. Argument from Utilitarian view: i. No deterrence from punishing someone who doesn’t know they’re doing something wrong. ii. People who harm others without culpable state of mind probably don’t need rehabilitation or incapacitation. These people are arguably less socially dangerous. iii. One could argue that punishing people for accidental crimes may have some social benefit in making others more careful, but this hasn’t really prevailed. iv. Utilitarian Argument for excluding mens rea req. = takes more time to prosecute based on mental state, people who are guilty may go free. Also hasn’t prevailed. c. Retributivist view: i. Mens Rea is essential for retributivists – would say that it is wrong to punish those who haven’t acted by choice. i. Don’t want to impose consequences of convictions on people that broke law by accident. d. In 19th Century mens rea became more important i. Regina v. Cunningham – D stole gas meter to sell it for money, neglected to turn the gas off so it seeped through a wall into adjoining house where an old lady was partially asphyxiated. Trial court says that it isn’t necessary to prove intent, its enough that what he did was unlawful and malicious, and judge defined malicious as being “wicked.” i. Appellate court says this isn’t right, need to import some culpability into the statute at issue (recklessness) – applying an elemental definition of malice to replace the culpable state of mind type of malice given by the trial judge.
3. Modern Approach a. MPC § 2.02 – outlines basic requirement that unless some element of metal culpability is proven w/ respect to each material element of the offense, no criminal conviction can be obtained. b. “Defendant’s mental state required for each element of the crime” c. MPC § 2.02(1) “a person is not guilty of an offense unless he acted purposely, knowingly, recklessly or negligently …with respect to each material element of the offense.” i. Four levels of culpability Purpose – “conscious object to engage in conduct of that nature or to cause such a result” and “if the element involves the attendant circumstances, he is aware of the existence of such circumstances or he believes or hopes that they exist.” o Purpose is difficult to prove. o Motive tends to be irrelevant. Knowledge – “he is aware that his conduct is of that nature or the attendant circumstances exist” and “if the element involves a result of his
5 conduct he is aware that it is practically certain that his conduct will cause such a result” o Different than purpose – If D doesn’t desire a particular result, but is aware that the conduct or result is certain to follow – this is not purposely. o Hypo – guy drives car at wife to kill her, sees that she’s holding their son. Both die – what level of culpability. . Purposely killed wife – was his goal and intent. . Strong argument for knowledge in Sammy’s death since he’s practically certain that his conduct will cause son’s death. o See also willful blindness below. Recklessness – Person acts recklessly if he “consciously disregards a substantial and unjustifiable risk” o Idea is that D acts in a way that represents a gross deviation from the conduct of a law abiding person. o Difference b/t recklessly and knowingly is a matter of degree If D is so aware of a risk that he is virtually certain it will occur = knowingly. If D is aware of risk, but not as certain that it’ll happen = may be reckless Negligence – Person acts negligently if he “should be aware of a substantial and unjustifiable risk that the material element exists or will result from his conduct.” o Difference b/t recklessness and negligence deals with the level of awareness of the possible consequences. o Note that gross deviance needed for criminal negligence as in recklessness. . Santillanes v. New Mexico – Lower court erred in using definition of civil negligence instead of criminal (where gross negligence is necessary). This is because the difference b/t civil damages and criminal conviction (stigma, penalty) is great (retributive notion). o Generally an objective standard.
ii. Material elements of the offense: Nature of the conduct – what is the crime? Attendant Circumstances – where does it occur Result of conduct - consequences
4. Willful Blindness – Conscious Avoidance of Knowledge a. MPC § 2.02(7) – When knowledge of the existence of a particular fact is an element of an offense, such knowledge is established if a person is aware of a high probability of existence, unless he actually believes that it does not exist. i. Emphasizes that the state of mind needed to be held accountable in this situation differs from positive knowledge only in that there was a calculated to avoid the sanctions of a statute while violating its substance. b. US v. Jewell – D convicted of knowingly transporting drugs into US, D says that he didn’t know the drugs were there, evidence suggested that if he didn’t know it was because he deliberately avoided positive knowledge. i. Court (Posner) says that deliberate ignorance is not a defense, mention that he should have known (objective belief) – kind of lapsing into negligence. ii. Justice Kennedy’s dissent – says that a subjective belief is the determinative factor. Says the jury instruction allowed needs following 3 provisions: i. Mention need for D’s awareness of high probability of possibility ii. Alert jury that D couldn’t be convicted if he actually believed that there weren’t any drugs in the car.
6 iii. Kennedy says that true ignorance, no matter how unreasonable, can’t provide a basis for criminal liability. There can’t be conviction if D is found ignorant. iii. Danger of willful blindness without the provisions from Kennedy is that D can be convicted b/c of failing to take active steps to find out more about contents of car, etc – could get convicted more on negligence than on knowledge requirement that the statutes call for. i. Interpreting statute so widely in order to expand definition of knowledge undermines legality issue of law where you are supposed to be able to have notice as to what is illegal. ii. Kennedy’s three exceptions preclude this from happening – this has become relied upon by a lot of courts.
5. Specific intent v. General intent Crimes a. Specific intent – crimes in which the definition of the crime includes the intent to do a further act or to achieve a further consequence beyond the acts that constitute the actus reas. i. Example – burglary – actus reas done after breaking and entering into dwelling, mens rea pertains to a planned future act to take something. ii. General rule is that ignorance or mistake is a defense if it negates a state of mind needed. b. General intent – crime where P merely has to show that D desired to commit the act which serves as the actus reas i. Example – battery – actus reus is physical injury or offensive touching of another, so if D intends to touch another in the offensive way he as the “general intent that needed.
B. Mistake of Fact (225)
- A mistake of fact’s relating to an element of a criminal offense affects criminal liability differently depending on what type of crime it is (specific intent, etc) 1. Common law: a. General intent crimes (non-consensual sex believing it was consensual hypo) – rule is that a person is NOT guilty of a general intent crime only if his mistake of fact is reasonable and honest; if mistake is unreasonable he will be convicted. b. Specific intent crimes (took property incorrectly thinking had permission hypo) – rule with specific intent crimes is that if your intent is reasonable or the mistake was made in good faith and was unreasonable, your mistaken belief negates the requisite intent you are acquitted.
c. Two Exceptions to general rules at common law: i. Moral Wrong Theory - There should be no exculpation for a mistake where if the facts had been as actor believed them to be, his conduct would still be immoral. i. Based on thought that if D is engaged in immoral activity he runs the risk that the facts are not as he believes them to be. ii. Regina v. Prince – D takes girl he reasonably thinks is of legal age to be taken out of possession of his father, turns out she is under the age minimum of the applicable statute. Judge Bramwell says the act of taking a girl so young she can be called a “girl” out of father’s possession is morally wrong, so his mistake of fact even though reasonable was no defense. iii. Problematic to base law on morals of individual judges, and not all immoral conduct is illegal so Prince had no notice that his conduct was necessarily illegal. ii. Legal Wrong Theory – There should be no exculpation for a mistake of fact, where if the facts were as D supposed them to be the act would still be illegal. Focuses on illegality of acts instead of morality. Would be guilty of the higher crime. 7 i. Example – Man pushes person he thinks is bad (battery), turns out to be a police officer (crime of aggravated battery). If what he thought he was doing (pushing someone) was a crime of battery he would be guilty of the higher crime of aggravated battery.
2. If in MPC Jurisdiction – MPC § 2.04 . Issue under MPC is if D’s mistake of fact negates the required mens rea of the statute. If it does, there will be no conviction. . Reasonableness of the mistake is NOT an issue (§2.04(1)(a)) . § 2.04(1) – Ignorance or mistake as to a matter of fact or law is a defense if: (a) the ignorance or mistake negatives the purpose, knowledge, belief, recklessness or negligence required to establish a material element of the offense; or (b) the law provides that the state of mind established by such ignorance or mistake constitutes a defense.
a. If statute contains no mens rea terms you have to choose from the possible culpability requirements (purpose, knowledge, recklessness, negligence, strict liability) i. See strict liability part of outline. ii. Run through each requirement to find if negation happens (see Drizin’s clarification for example) b. Exception to general MPC rule that if D’s mistake of fact negates the mens rea required to establish a material element of the offense a defense can be raised. i. MPC version of legal wrong doctrine § 2.04(2) – if D thought he was committing a lesser crime than he actually was (but still a crime) he would be convicted, but in this case he would be guilty of the lesser crime.
C. Strict Liability - No culpable mental state at all must be shown – it is enough that D performed the act in question, no matter what his mental state (even negligence, even if he honestly and reasonably believed that his conduct was proper)
- During industrial revolution a large number of statutes dispensed with mens rea requirements to serve the public need, courts left trying to figure out if the eradication of the requirement was the legislature’s intention or if a mens rea element should be imported by the court. - SL goals are more utilitarian – greater good served by punishing and trying to deter others. o Goals are to make people more aware of the law – People will be more likely to be careful and maintain a higher standard of care if they know that ignorance or mistake is not a defense. o Less burden on the prosecution b/c don’t have to prove difficult issue of mens rea – More administrative efficiency. - Notice that there is a strong presumption against strict liability crimes, courts look at a variety of factors to decide what crimes are strict liability ones o Courts generally require congressional intent to dispense with mens rea (US v. Staples – court found that legislature didn’t intend to include all firearms in SL crime).
1. Factors that courts look at when deciding if crimes are strict liability. a. Does the law have a basis in the common law? If is a new statute with no common law basis this is a signal for strict liability. b. Severity of penalty – if penalties are severe there is a stigma attached and courts want to be careful in making these SL crimes. IF relatively small penalty (fine, probation), this is a strong signal that legislature intended strict liability. i. Morisette v. US – Man takes spent shell casings from Air Force range and faces 10 years in prison. US Sc says that it isn’t SL b/c of severity of punishment. c. If a clear policy would be undermined by importing mens rea requirement (like war on drugs) d. Are the requirements in the statute clear and easily understood by the public? 8 i. If yes, more likely to be viewed as SL offense. ii. If the statute is easy to violate innocently or complex, the court is more likely to not treat the statute as imposing SL.
2. Public welfare cases extend SL to conduct that is not in itself morally wrong, this is a broader expansion of doctrine of SL than common-law. 3. Difference b/t common law and public welfare crimes a. Common law – mistake depriving crime of moral wrong is an out b. Public Welfare (SL) – mistake depriving crime of moral wrong is NOT an out
4. MPC § 2.05 retains SL under some circumstances, but limits the scope of SL offenses. a. Only offenses that are SL are ones called “violations” = minor offenses that don’t constitute a “crime” that may be punished only by fines or forfeiture and not punishment or probation. b. Thorpe case – D mistakes age of V, only 10 days over the 3 year age difference mentioned in the state statute, still gets 75 months. Shows harsh penalties with lack of recourse for this offense. (also the Xiong case where court tried to deport him)
5. Alternatives to SL – (From Regina v. City of Sault Ste. Marie, Canada) i. Requires recklessness as a factor ii. Keep penalties minor, but require some level of mens rea Maybe even a civil negligence standard a. Keep SL but allow lack of mens rea as an affirmative defense i. Shift burden to defense in proving mens rea of defense = still easier for prosecution, but allows D a chance to prove innocence.
D. Mistake of Law - In general, rule is that ignorance or mistake of law is not exculpatory. . People v. Marrero – D, a federal corrections officer, arrested for carrying unlicensed gun in violation of NY penal code. D relied on his own mistaken reading of the statute which exempts “peace officers” as including him. Court held that this mistake of law was not a defense. . Concern about allowing this defense = worried about abuse if allow people’s personal reading governs the law = a ready made defense. . Other utilitarian concerns = would impact a court system strongly if allowed by making if difficult for prosecutors, bog down the system, etc. . Allowing this defense would make it advantageous to not know the law. 1. Exceptions (MPC § 2.04(1)(a-b)) a. Reasonable reliance principle - § 2.04(3)(b)(i-iv) - At the time of the offense D relies on an official statement of the law that later turns out to be erroneous. (entrapment by estoppel) i. Has to be obtained from person or body charged w/administering or interpreting the law i. Albertini – D relied on 9th Circuit holding and acted in accordance even though US SC had taken the case on cert. 1. Due Process prevents retroactive application of the SC result 2. Relied on an official statement (court) in acting. ii. Marrero – shows own interpretation of statute doesn’t count. iii. Relying on attorney is NOT a defense b/c this is not an official statement o Problem since lawyer is most people’s direct conduit to law o But this does away with “dumb lawyer” defense. b. Fair notice requirement i. Very narrow exception, dealing with passive conduct ii. Lambert v. California – If D’s conduct is passive and has no knowledge of the law, D can avail himself of conviction of the law
9 iii. MPC says - § 2.04(3)(a) – turns on if statute or enactment had been published or otherwise reasonably made available – notion of fair notice significantly narrowed by MPC in order to prevent Lambert exception from swallowing the rule.
c. Statute under which they are being prosecuted is defined as where there is need for knowledge of a penal law, and the ignorance of that law negates the situation. i. Cheeks v. United States – D convicted of willfully failing to file a federal income tax return. Court finds that Cheeks must be aware that he has a duty to pay taxes. Analyzed differently than Marerro b/c tax laws are so complex. i. Statute in Cheeks case fits into the set where knowledge of the penal code is required to convict, doesn’t matter whether the belief that he doesn’t have to follow the rule is reasonable or not. ii. Note: Simple disagreement with the law is not permissible If D knows what his legal duties are and simply chooses not to fulfill them, this is not a defense. d. Ignorance of the law is treated like mistake of fact when pertaining to a different law than the one D is being prosecuted as. Most common defense. i. People v. Weiss – D thought he was deputized and then illegally detained a kidnapper. D relied on information given to him by an official. D was mistaken about a different law (deputization) than prosecuted for (unlawful arrest). i. Unlike Marrero where his mistake was pertaining to the same law that he was prosecuted for. ii. Woods case (p. 262) – D relied on fact that Nevada judge declared a divorce decree in believing that she was divorced, but she wasn’t and was prosecuted for bigamy. Her mistake is about a different law, so defense treated like mistake of fact. i. Defense under MPC – belief in fact that she was divorced negates intent needed to be guilty.
IV. Rape
A. Introduction
1. Historical – Severity of rape punishment has changed widely over time. a. Saxon laws – punishable by death b. For a short time it was only a trespass, rooted in property law c. By mid-1920’s was considered a capital crime d. 1977 – US SC holds (Coker v. Georgia) that death penalty was constitutionally disproportional as a punishment. 2. Modern – No longer a capital crime, but generally held as most serious felony outside of murder. a. Modern rape statutes vary a lot but typically: i. Rape = [sexual intercourse] + [force or threat of force] + [lack of consent or resistance] b. Rape has traditionally been seen as a crime of violence, now being shifted towards more of a crime of intrusion.
B. Rape – Actus Reas
1. Force, Non-consent, and Resistance a. Traditional statutes required force and resistance. i. Force requirement – majority of rape statues require there be some element of force (not just failure of woman to consent), but has been weakened or eliminated beyond the force of the act itself in many cases. i. State in the Interest of M.T.S. – V says she finds D on top of him while she was sleeping, NJ SC holds that extrinsic force is not 10 necessary to constitute rape… the force necessary to complete the act is sufficient (the sexual act itself is enough to constitute force). ii. Threat of Force – Virtually all states allow the substitution of D’s threat to commit imminent serious bodily harm for actual force. iii. Nonphysical acts of compulsion i. Abuse of Power/Duress 1. Depends on state and particular rape statute, in general however, threats to commit harm in the future, implied threats, or duress stemming from V’s circumstances do not count as forcible compulsion (unless is an imminent threat of death or injury) 2. State v. Thompson – D, principle, threatens to prevent V’s graduation unless she submits to sexual intercourse. Court will not stretch definition of force to include intimidation, fear or apprehension. 3. Commonwealth v. Mlinarich – V submits to D’s sexual advances after he threatens to send her back to a detention home. a. Court holds that rape requires physical compulsion or threat of physical compulsion, not those circumstances of the case. b. Dissent – Says that court should legislature means force in the more general sense, and that this is more consistent w/MPC goal of shifting inquiry away from V’s consent to D’s force. ii. V drunk or drugged: If D causes V to be drunk, drugged or unconscious there is no consent 1. Some states find that consent is lacking even if V is drunk due to other reasons than D iii. Fraud: If consent obtained by fraud, status depends on nature of the fraud. 1. If D lies to induce V to have knowing intercourse it is an inducement and not rape. 2. If D lies such that V doesn’t realize that she is having intercourse at all, this is rape. iv. Physical Resistance requirement – traditional common-law view was that a “good”, virtuous girl has a duty to resist to the” utmost” (see dissent in State v. Rusk) i. Modern - This duty is being weakened – no state requires woman to resist to “utmost” anymore, typically now woman must merely make reasonable resistance in light of the circumstances – recognizes that requiring V to resist to utmost can result in dead/increasingly harmed V’s. 1. Ex: if there’s a gun to their head it may not be reasonable to resist at all ii. State v. Rusk – D rapes V after high school reunion, V doesn’t resist out of fear. 1. Lack of resistance based on reasonable fear is sufficient to substitute for lack of consent element – most jurisdictions require that the fear be reasonably grounded must be an objectively reasonable fear, not just the subjective woman’s fear. iii. MA requires no resistance – V need not resist – Commonwealth v. Berkowitz 1. The force necessary to support a rape conviction need only be such as to establish a lack of consent and to
11 induce the V to submit w/out additional resistance. Lack of consent is not synonymous with lack of resistence. iv. Arguments in favor of the resistance requirement: 1. Physical evidence of lack of consent 2. Where it is more difficult to prove force or lack of consent there is a fear that men who misread signals will be convicted.
v. Consent Issue – Intercourse must happen without V’s consent i. Permission to the specific act of sexual penetration … can be indicated through words or actions that, when viewed in the light of all the surrounding circumstances would demonstrate to a reasonable person, an affirmative and freely-given authorization for the specific act of sexual penetration (State in the Interest of MTS) 1. Here words and actions can suffice. ii. Antioch Standards – In absence of verbal yes you are at risk for criminal liability iii. Silence as consent 1. Under Antioch – can’t infer silence to mean consent, need affirmative yes. 2. Under NJ statute (as in MTS) – it might make a difference if you’d had prior encounters w/the person, but generally silence would not demonstrate affirmative authorization to a reasonable person. vi. So in context of the cases cited: i. No means no ii. Silence probably can’t be taken to be yes iii. Yes means yes iv. Actions can be taken as yes if reasonable. b. MPC approach i. §213.1(1) – Rape. A man who has sexual intercourse with a female not his wife is guilty of rape if: i. (a) – he compels her to submit by force or by threat of imminent death, serious bodily injury, extreme pain or kidnapping, to be inflicted on anyone; or ii. (b) – he has substantially impaired her power to appraise or control her conduct by administering or employing without her knowledge drugs, intoxicants or other means for the purpose of preventing resistance; or iii. (c) the female is unconscious; or iv. (d) the female is less than 10 years old. ii. Definition of “sexual intercourse” = intercourse per os or per anum, with some penetration however slight, emission is not required. iii. MPC defines the severity of the sexual crime by the amount of forces threatened or used by the defendant trying to shift the focus of a rape case on the D, not the V. i. Rape is a felony in the second degree unless 1. (i) – in the course thereof the actor inflicts serious bodily injury upon anyone, or 2. (ii) – (paraphrase) the victim wasn’t a voluntary social companion of the actor at the time of the crime and had not previously had sexual encounters with him 3. In which case the offense is a 1st degree felony.
C. Rape - Mens Rea 1. What should be the mens rea required to convict someone of rape? a. In forcible rapes, mens rea is pretty easily established. 12 b. In acquaintance rape, jurisdictions where resistance rule is abolished, jurisdictions where a conviction may be obtained where there is force beyond that of sex act itself, where force is expanded beyond only physical force, in situations where male believes based on past history w/partner that no means yes, where mens rea becomes more of an issue. i. Ex: Commonwealth v. Fischer – College freshmen D and V engaged in “rough sex” once in recent past, second time D though that no meant yes. i. Penn court seems intrigued about mistake of fact defense, but doesn’t reach it. This case is important in recognizing this defense and that mens rea is of critical importance. ii. D argues that weakening of force requirement means that mistake of fact needs to be a defense – says that asking jury to consider D’s use of “intellectual or moral” force links issue of mens rea to consent. c. Traditional Common law D must not only be aware that he’s having intercourse but also be aware that the victim does NOT consent. 2. Recklessness Standard? – English courts have held that recklessness is sufficient – D consciously avoided an unjustifiable and substantial risk that V did not consent. a. Few American courts have adopted this b. Discomfort stems from the fact that the focus is too focused on D’s mindset 3. Negligence Standard? – D should have known that a substantial and unjustifiable risk that V did not consent existed. a. Most court have adopted a reasonableness in negligence standard b. Offers best compromise – Drizin thinks that the benefit is that negligence standard allows what is in the mindset of both D and V as well as surrounding circumstances. c. In Commonwealth v. Sherry (Doctors (Ds) take V to house and in turn have intercourse with her) – D wanted knowledge of V’s non-consent standard to convict, companion case used SL in any case where V says “no”, Trial court uses negligence standard – all thrown around.
4. MPC § 213.1(1) No mention of consent, but wording of compulsion implies non- consent a. D commits rape if he purposely, knowingly, or recklessly has sexual intercourse with a female if: i. Female is unconscious ii. Female is compelled by force or threat of death, grievous bodily harm, extreme pain or kidnapping, iii. Or, D intoxicates the victim. b. Note: Mens rea of the D must be at least recklessness in regard to the V’s non- consent (since MPC disfavors use of SL and negligence)
5. Mistake as a Defense a. Traditionally an honest mistake as to consent constituted a defense to rape since it showed that D didn’t have the required mens rea for the crime. b. Modern View: Majority of courts say that reasonable mistake of fact is the best way to deal with the conflicting concerns – If D makes a reasonable mistake as to if V consented, he does NOT have the mens rea for rape. i. However, some have differed: i. Commonwealth v. Simcock – Court won’t allow jury to consider reasonable mistake of V’s consent and uses analogy of how reasonable mistake of V’s age is not allowed in statutory rape crimes. 1. Prof: doesn’t see analogy as sound risk of harm greater in statutory, not the same with 2 adults. c. MPC – Mistake of fact is a defense if it negates the “purpose, knowledge, belief, recklessness or negligence required to establish a material element of the offense.”
13 i. Thus, question is what types of mistakes will negate the requisite mens rea of rape under MPC = at least recklessness. ii. Driz: Some unreasonable mistakes will negate recklessness under MPC, but some won’t. i. Ex: Anna in practice exam hypo may not have known that the substance is acid, but if she was aware of the great possibility of risk and consciously disregarded it, then her mistake itself was reckless and shouldn’t have negated the mens rea of recklessness required to hold her liable.
D. Marital Exception 1. Common law: a. Traditionally - woman could not be raped by her husband (although aiding and abetting another to rape wife was rape) b. Arose from Judge Hale’s argument of implied irrevocable consent in marriage and has a long hold in common law, also property rights views 2. Statutory reform has weakened this exception by abolishing it completely or reducing it to only an exemption of prosecution for (consensual) statutory rape, but still survives today (nearly half of states retain a qualified version of the exception) a. People v. Liberta – Runs though arguments for exception, ultimately finds against the exception. Modern justifications are as follows: i. Protecting marital privacy i. Court says that just as a husband can’t escape liability for beating his wife based on marital privacy, he cannot escape liability for rape. ii. No exception discourages marital reconciliation i. Court says that at the point where intercourse is accomplished though rape there probably isn’t any hope of reconciliation anyway. iii. Marital rape is not as damaging as other types of rape. i. Court counters with evidence that the marital rapes are generally even more severe than other rapes 3. MPC retains marital exception a. MPC comment to § 213.1 – marriage doesn’t imply a legal waiver of women’s right to say no, but: i. Husbands must be exempt from categories of liability based not on force or coercion but on presumed incapacity for the woman to consent (echoes idea that prior encounters may serve as having a reasonable person believe that there was consent) ii. Retaining the exclusion avoids unwarranted intrusion of penal law into the life of the family. iii. If intercourse has been coerced by force or threat of physical harm the law already authorizes a penalty for assault. i. The application of the more drastic sanctions of rape would apply only if the injury caused by forcible intercourse by a husband is equivalent to that inflicted by someone else. iv. Evil of rape is qualitatively different from a stranger than a person with whom there has been ongoing sexual relations.
E. Problems of Proof of Rape 1. Corroboration and Jury Instructions . Traditional common-law = a requirement for additional proof beyond just the victim’s testimony in order to sustain a rape conviction. . Corroboration can come from medical tests, how long it takes to report a rape, DNA, other witnesses. a. Justifications and counterarguments about corroboration issue (United States v. Wiley (1974) – Court held that corroboration evidence hadn’t been shown as required. Concurring opinion presents issues surrounding corroboration):
14 i. Most common false charges of rape are more prevalent than false charges of other crimes. i. Counter = obstacles to reporting (stigma, publicity, facing defense counsel) make rape one of the most underreported crimes. ii. Theory that allegation of rape is unusually hard to defend against. i. Counter = little hard evidence to support this, what evidence there is shows that juries may be more skeptical of rape charges than often supposed. iii. Racism – African-American men with white women, this situation constituted the majority of men executed for rape i. Counter = juries are more integrated, less racial prejudice b. Argument against corroboration = discriminatory against women – stereotypes resulted in rape laws that protect men rather than women. c. Corroboration rules have been eliminated in most jurisdictions. i. MPC retains both a prompt complaint requirement (213.6(4)) and a corroboration requirement (§ 213.6(5)). d. Arguments surrounding prompt report requirement: i. Takes a lot of courage to report ii. Why require, why not just submit to a jury and let them decide if the time before reporting or corroboration is appropriate? iii. But harder burden for prosecutors to convict w/out evidence i. Prof: still not much of a reason to exclude others. e. Jury Instructions i. Many jurisdictions still require that jurors get an instruction to evaluate a rape complainant’s testimony with care ii. MPC § 214.6 requires such an instruction.
2. Rape Shield Laws . Motivated by the need to protect V-witnesses from abuses in the trial process and in cross-examination (so V doesn’t feel as though they’re being raped a second time) – balancing probative value and prejudicial effect. . Limit the admissibility of evidence bearing on the rape complainant’s prior sexual behavior a. State ex rel Pope v. Superior Court – County attorney acting on the behalf of Arizona brings action to have AZ SC reconsider law on the admissibility of evidence concerning impure character of a complaining witness in prosecution for first degree rape. i. Controlling law at the time in AZ was State v. Wood – says that this type of evidence is admissible. ii. Court overturns Wood b/c: i. Reference to prior unchaste acts diverts jury attention from real issue of guilt or innocence of accused and puts V on trial. 1. Probative value is less than prejudicial effect. iii. Exceptions to not allowing this type of evidence according to Pope case = when the evidence is sufficiently probative: i. Evidence of prior consensual sex w/D ii. Testimony that directly refutes physical or scientific evidence iii. Consent of prostitution iv. Effort to show that witness has made unsubstantiated rape allegations in the past iv. Exceptions will be heard by court outside of jury presence to find if the evidence should be admitted. b. Court haven’t yet really formed a consensus on the issue c. Psych Exams. Scuito-> The judge has the ultimate discretion to order a psych exam of the accuser in a rape case i. However, there must be good reason because such an order can impinge upon the witnesses right to privacy and could serve as a tool of harassment
15 V. Homicide
A. Introduction 1. MPC § 210.1 – Criminal Homicide a. (1) A person is guilty of criminal homicide if he purposely, knowingly, recklessly or negligently causes the death of another b. (2) Criminal homicide is murder, manslaughter or negligent homicide.
B. Legislative Grading of INTENDED Killings
1. Traditional Common-law: Only differentiation was between murder (w/malice aforethought) and manslaughter (w/out malice aforethought) a. Murder = killing of another person(actus reas) with malice aforethought (mens rea) i. No division b/t degrees of murder until PA. b. Malice aforethought i. Aforethought: Originally aforethought was some sort of premeditation, is now less well defined. ii. Malice: Had four states of mind i. Express malice = specific intent to kill a particular person ii. Intent to inflict great bodily harm iii. Extremely reckless disregard for human life (classic depraved heart murder, i.e. firing a gun into a crowd) iv. Felony murder type of intent = intent to commit a felony results in death. c. Manslaughter i. Intentional (voluntary) – requires that the killing be in sudden heat of passion resulting from reasonable provocation. i. Occurs during the commission of an unlawful act 1. Difference b/t this and felony murder is whether the act is a misdemeanor or a felony. ii. Unintentional (involuntary) – result of an act lawful in itself, but done in a reckless manner. i. Ex: lawful to hunt, but to fire blindly into bushes where there’s movement may be unlawful.
2. Division of Murder into Classes – PA law is beginning. a. Another change in the common law (which didn’t have such distinctions)– Many jurisdictions divide murder into more than two classes, definition of 1st degree murder depends in large part if the actions of D was premeditated or deliberate in addition to malice (also felony murder).
i. Thus 1st degree murder = premeditated/Intentional, 2nd degree = other types of murder with malice, etc. depends on the jurisdiction though. ii. Premeditation v. deliberation – Premeditation is often thought about as concerning the quantity of time that passes before the act while deliberation is more about the quality of thought that is involved. iii. Underlying policy for making premeditated murders more sever than others: i. Utilitarian – more deterrence for someone thinking about murder ii. Retributivist – more moral blameworthiness? iv. MPC § 210.2 – no use of meditation or deliberation as a basis for identifying murders that deserve the greatest punishments. i. Authors feel that premeditation is not an efficient way to distinguish among degrees of murder. v. But notion of premeditation is still alive and well in most states.
b. MPC - §210.2 – Murder.
16 i. Rather than degree of preparation, the emphasis is on the aggravated nature of the killing. ii. (1) Except as provided in Section 210.3(1)(b) (Extreme mental or emotional disturbance part mitigates to manslaughter), criminal homicide constitutes murder when: i. (a) it is committed purposely or knowingly; or ii. (b) it is committed recklessly under circumstances manifesting extreme indifference to the value of human life. (like depraved heart crimes = gross recklessness) 1. Gives a list of situations where such recklessness and indifference to human life is presumed commit robbery, rape or deviate sexual intercourse by use or threat of force, arson, burglary, kidnapping, felonious escape.
3. Provocation – Can be used as a defense to murder – mitigate murder to a voluntary manslaughter charge when the provocation is adequate because of culturally sanctioned sympathy with his loss of control under the circumstances. a. Gives rise to the Common law heat of passion defense b. Modern common law requires: i. Actor must be in the heat of passion ii. Must be reasonable or adequate provocation that would cause reasonable person to lose control
iii. Actor must not have had a reasonable opportunity to cool off i. Cooling Time – too long of a time lapse b/t provocation and killing will render the provocation inadequate as a matter of law (United States v. Bordeaux) 1. Can sometimes overcome the cooling time limitation using the idea of “rekindling” = idea that an event immediately proceeding the killing rekindled the earlier provocation. Many courts won’t accept this though. iv. A reasonable person would not have had sufficient time to cool off v. Casual link b/t provocation, reaction and crime i. Means that if there’s another cause for crime you’re not going to be able to use provocation defense (but is hard to prove). c. Early common law categorically listed some situations that could give rise to heat of passion common law defense in a reasonable person: i. Aggravated assault or battery ii. Observing a serious crime against a close relative iii. Illegal Arrest iv. Mutual combat v. Finding your wife in an adulterous situation i. But courts do not necessarily recognize this where the couple is unmarried. vi. Common law courts are not saying that the act of killing is reasonable since most people wouldn’t do this, but saying that the situation was so provocative that it could lead someone to act irrationally. i. Could be a justification or an excuse.
d. The Nature of the Required Provocation i. Modern Reasonable Person Test ii. Girouard v. State (1991) – Wife provokes husband – “you are a lousy fuck” etc, husband stabs her with a knife from under his pillow. i. Court finds that words alone are not enough to cause a reasonable person to kill. (mere words doctrine)
17 iii. Maher v. People (1862) – D enters into saloon and shoots V after D hears that V slept with his wife and then sees them go into the forest. Trial court decides that evidence that D saw them go into woods is not admissible. i. Court uses modern objective rule that the jury should decide whether provocation is sufficient to mitigate murder charges. ii. Maher seems to ignore common law factors of cooling off period and words alone cannot be provocation. iv. Homosexual advances as Provocation i. Trial courts have allowed provocation defenses in a number or recent cases where a man responds to unwanted, non-violent homosexual advances – Several appellate courts have ruled that provocation claims of this sort are insufficient as a matter or law. v. Victim other than the attacker – should provocation defense be allowed if person killed wasn’t the provocation source? i. State v. Mauricio – D kills V mistakenly thinking that he was a bouncer that had thrown him out of a bar. Court reverses murder conviction holding that trial judge should have given voluntary manslaughter instructions. e. MPC approach § 210.3(1)(b) – rejects common law provocation formula, adopts a standard even more flexible than in Maher – purpose was to broaden the “heat of passion” doctrine to apply to more circumstances while still retaining objectivity element in the process. Is the most subjective of the tests. i. Extreme Emotional Disturbance Defense, 2 components: i. D must have acted under influence of extreme emotional disturbance – wholly subjective ii. For which there was a reasonable explanation or excuse for the actor’s disturbance – thus not that the act of killing is reasonable, but that the EED is reasonable = objective test, but from the viewpoint of a person in the actor’s situation under the circumstances as he believes them to be. 1. “Situation” = ambiguous, but in MPC comments notes that this is intentional so that it affords courts sufficient flexibility to differentiate b/t aspects of actor’s situation deemed material for grading purposes and those that should be ignored (like any idiosyncratic moral values) iii. People v. Casassa (1980) – D becomes obsessed with V, breaks into apartments to eavesdrop on her etc, and ultimately kills her. 1. Drizin: No way would have had a heat of passion defense under common law – EED is not necessarily committed in the “hot blood” stage, but brought on by mental trauma that causes D to brood for a longer period of time. Relaxation of cooling time requirement. f. Some differences b/t MPC and traditional CL provocation doctrine i. More subjective viewpoint ii. Relaxation of cooling time requirement iii. No specific act of provocation required just that D acting under EED. i. Can cover more than just the emotion of rage (other emotions apply) iv. Roadmap one MPC provides a defense when D acts under EED regardless of source of disturbance or intended victim, so can have a defense if there’s a mistaken victim. g. The Objectivity of the Standard i. Problems – how much of the individual’s circumstances should the court take into account in grading the crime? i. D.P.P.V. Camplin – Court considers age and sex of D in reducing the culpability of the crime (semi-objective standard) ii. MPC is most subjective of the standards
18 iii. What about Cultural differences? iv. What about women that are battered? v. Mental disorder?
C. Legislative Grading Of UNINTENDED Killings
1. The Creation of Homicidal Risk a. Four Different Categories i. No liability ii. Civil liability iii. Manslaughter (involuntary) iv. Murder . Difference b/t 1 and 2 is province of tort law . Difference b/t 2 and 3 is problem of criminalization . Difference b/t 3 and 4 is one of grading. . Lines are often hard to draw. b. Hypo – Driving 35 mph in 30 mph zone, drop cell phone and take eyes off of road for a moment, child chases ball into street and you hit him after slamming on brakes, child dies. i. Is this a criminal homicide? What factors would you look at? i. Recklessness? – Need reckless indifference for human life for manslaughter, to elevate to murder need something even more extreme (depraved heart) 1. Probably not. ii. Civil liability – more of a simple negligence standard, relates to level of risk and level of deviation from standard of care. ii. Arguments for criminal liability: i. Utilitarian – criminal charges could make other drivers more careful = deterrence from negligence while on the road. 1. But may risk overdeterrence where people wouldn’t drive for fear of opening themselves up to criminal liability. ii. Retrib – is some blameworthiness since information about cell phone dangers is everywhere, but is this enough to justify criminal charges? iii. Prof: Argument for manslaughter could be made in this case, winning is open question.
c. Distinguishing Civil and Criminal Liability – What is the something extra needed to be culpable for criminal liability? i. Commonwealth v. Welansky – Nightclub owner D has exits blocked, fire breaks out, several die. D charged with involuntary manslaughter based on overcrowding, flammable decorations, absence of fire doors and failure to maintain means of egress. i. Court finds that reasonable person should have known that there was a substantial risk, doesn’t require actual knowledge. ii. Drizin: courts struggle with common-law terms, answer is to look at factors and be able to argue one way or another.
ii. Factors that Courts will look at: i. Likelihood of harm ii. Risk that harm will be serious iii. Actual awareness of that risk. iv. Court may also use the notion that some risks are justified while others are not. 1. MPC – definition of negligence risk must be substantial and unjustifiable. iii. Common Law: More carelessness required for criminal liability than civil
19 i. US courts generally hold that D’s negligence must be culpable, gross, or reckless (a great departure from what an ordinary person’s conduct in the same circumstances). ii. Concept of criminal negligence has been generally left to judicial definition – these vary greatly in their terms. iv. MPC – definition of negligence § 2.02 (2)(c) gross deviation from the standard of care that a reasonable person would observe in the actor’s situation. d. Objective versus Subjective Standards of Liability i. Objective – determine liability on basis of general norms of proper and reasonable behavior. i. Common law D need not be aware of the risk of death to be guilty of involuntary manslaughter. If ordinary person in same situation would have realized the unjustifiable risk of death, D is grossly negligent. ii. Subjective – look to individual characteristics of the actor iii. State v. Williams (1971) – Husband and wife don’t take baby with toothache into doctor because they fear that social workers will take it away, baby dies from massive infection. D’s were uneducated, question of if they understood the gravity of the situation. i. MPC § 2.02 rejects a fully individualized standard in its definition of negligence, but says that some individual things can be taken into account. 1. Comments give examples of blindness, heart attack as factors to consider… heredity, intelligence or temperament of actor would not be held as material. iv. Criticism of Objective standard – may punish when a criminal mind does not exist. e. Line Between Murder and Manslaughter – Problem of Grading i. Courts look at same factors as before: i. Likelihood of harm ii. Risk that harm will be serious iii. Actual awareness of that risk. iv. Court may also use the notion that some risks are justified while others are not.
ii. Gross recklessness constitutes murder (second degree in CL), ordinary murder is involuntary manslaughter. iii. Recklessness as malice i. Commonwealth v. Malone – Minor D and friend play “Russian Poker”, D places gun against V’s side, pulls trigger 3 times, shoots V, V dies. 1. Court says that when D commits an act of gross recklessness for which he must reasonably anticipate that death to another is likely to result, he exhibits malice even though not directed specifically at V. 2. Drizin: But was there really malice here instead of just some reckless behavior? Difficult lines to draw in practice. ii. MPC – 1. Treats an unintended killing as murder when it is committed recklessly (as defined in §2.02(2)(c)) and “under circumstances manifesting extreme indifference to the value of human life.” (§210.2) 2. Treats ordinary recklessness as manslaughter (§210.3(1) (a))
20 3. § 2.02(2)(d) - creates a separate lesser offense of Negligent Homicide = failure to appreciate a risk of death of which the actor should be aware.
iv. Inadvertent Murder, Drunk Driving – i. Great majority of US courts have held, usually in drunk driving cases, that outrageously dangerous driving can support a conviction of murder. ii. US v. Fleming – D is a drunk driver. Court says that the difference b/t malice (support for murder charge) and gross negligence (support only manslaughter conviction) is one of degree and not kind. Usually theory = that D had an actual awareness of great risk of fatal harm. iii. MPC position § 2.08(2) – Exception to MPC rule that murder requires s conscious disregard of the risks involved when D is unaware of the risks b/c of self-induced intoxication.
2. Felony-Murder Rule
a. Basic Doctrine i. D that commits felony that results in death can be held liable under FMR in the absence of mens rea (without proof of malice) with respect to the death. ii. Rationales: i. Throw risk onto felon that if a death occurs while he’s committing the crime he’ll be held responsible = deterrence, but problematic ii. Sanctity of human life – felons who commit crimes that result in death should be punished more severely, but should increase equal murder? iii. Transfers intent: actor’s intent in committing the felony is transferred to homicide. iv. Ease prosecutor’s job by dispensing with requirement that prosecution show that felon intended for death to occur, or even that he acted with recklessness. This makes FMR hard to defend against, still used a lot today. 1. Drizin: Only rational left standing
b. Limitations to FMR
i. Inherently Dangerous i. Only felonies that are inherently dangerous to life and health count for purposes of FMR 1. Regina v. Serne (1887) – D takes out lots of insurance on imbecile son, than sets house on fire which kills son. D gets charged with FMR for felony of arson. This is the beginning of inherently dangerous limitation to FMR. 2. People v. Stamp (1969) – Classic FMR case, D robs store and V has heart attack due to fright and dies. In this case there’s not even really negligence on the part of D, shows that FMR is pretty much a SL deal. Also, take the victim as you find him. ii. Crimes in MPC that are listed as inherently dangerous - § 210.2: 1. robbery 2. rape or deviate sexual intercourse by force or threat of force 3. arson 4. burglary 5. kidnapping 6. felonious escape
21 iii. Standards that determine if a felony is “inherently dangerous” – courts are split. 1. Some courts judge dangerousness in the abstract – ex: ask if robbery is in generally dangerous. Typically find that robbery, burglary, rape, arson, assault and kidnapping fit the description. 2. Other courts judge based on the facts of the case
ii. Causal Relationship i. Require that D’s criminal acts be both 1. The “but for” cause of harm and 2. The “proximate” cause of harm. a. Proximity usually said to mean that the harm was the natural and probable consequence, or the foreseeable consequence, of the criminal act. ii. The further from the act of the felony = the stronger the defense.
iii. Was the felony independent of the homicide? i. FMR applies only where the felony is independent of the homicide itself. (merger rule) ii. Rationale: Necessary to prevent manslaughter from always being turned into a murder charge. 1. Ex: you get charged with manslaughter, that is a felony, so prosecution might try to say that FMR applies to get harsher penalty.
iv. Did the homicide occur during the commission of the felony? i. Killing must occur during the commission or attempted commission of the felony. ii. Two elements temporal/geographic and causation. c. Scope of FMR – how far will we extend FMR? i. Agency Doctrine i. Under agency doctrine you’re held responsible for (and only for) co-felon’s or someone acting in concert with the co-felon’s actions. 1. This means that if a cop or bystander commits the killing, FMR is not applicable. ii. State v. Canola (1977) – D and co-felon try to rob jewelry store, owner and co-felon get shot. Question is if, under FMR, D can be held for the co-felon’s death on top of V (which is given from regular FMR). iii. In most courts, all co-felons liable for a killing committed by one of them, if killing was committed in furtherance of the felony and a natural and probable result of the felony. iv. Policy arguments for adopting agency doctrine: 1. Assumption of risk when doing felonious activity 2. Someone should be held responsible for co-felon death, even though it was justified by the victim. v. Arguments against: 1. one should only be liable for his or her own acts 2. the killing of the victim is not in furtherance of the felony (is actually to resist it) there is no deterrence effect then since you can’t control the acts of bystanders.
ii. Proximate-cause doctrine i. Akin to “but for” cause – are responsible for anything that would have occurred if it wasn’t for your actions.
22 ii. Central issue is whether the killing, no matter by whose hand, is within the foreseeable risk of the commission of the felony. iii. Recently, an increasing number of states have adopted this theory. iv. Exception: Some courts hold that the felon is responsible only where another victim is killed and not the accomplice since the accomplice’s death is justified.
iii. Vicarious Liability theory i. See Taylor v. Superior Court ii. Apart from FMR, felon can be held responsible for killing committed by a victim where the victim’s actions are in response to provocative behavior of the felons. iii. Co-felon’s provocative acts create malice that make all the D’s responsible for murder.
d. MPC i. Does not adopt the FMR per se – instead establishes a rebuttable presumption (defined in § 1.12(5)) of “recklessness…manifesting extreme indifference to the value of life” where D is engaged in or an accomplice to robbery, rape, arson, burglary, kidnapping, or felonious escape. i. Thus, if killing happens during this crime, prosecution gets to jury on issue of “depraved heart” murder but D is free to rebut the presumption that he acted w/reckless indifference to the value of human life. ii. Much different than usual FMR where D is automatically guilty of murder even if he can show that he wasn’t reckless w/respect to death.
VI. The Significance of Resulting Harm
A. Causation
1. Introduction a. For liability: i. Have to have actus reas ii. Mens rea iii. CAUSES iv. a social harm b. Why have a causation requirement in criminal law? i. One mechanism (mens rea is other) in criminal law for apportioning fault and blame i. A way of qualifying the just deserts principle of criminal law. c. Difference of issue of proximate cause b/t torts and criminal law: i. Torts asks who the most suitable person to place financial responsibility for damages. ii. Crim – asks whether and to what extent a person should be condemned and punished = more personal. i. Thus – in criminal law there should be a more direct line b/t person’s actions and the harm (although not always true as shown by cases). d. Tests Used to Find which are the Possible Causes of Harm – 2 step: i. “But For” cause (Actual Cause) i. A broader test, at a minimum needed is “but for” cause Was the D a link in the chain in causation such that “but for” D’s actions no harm would have occurred? ii. Serves as the first layer of winnowing down those actors we want to hold responsible 1. If actions are not the “but for” cause, we don’t want to hold the actor responsible. 23 iii. Excludes, but also includes those actors that may be held responsible. ii. Proximate Cause Test (Legal Cause) i. Purposes: 1. Identify which cause (out of many possible causes) is the most responsible for the social harm 2. Help to focus our inquiry as to which actor should be held responsible for that cause. ii. Test for Proximate Cause: 1. No specific legal formula, generally viewed as a matter of common sense courts generally consider: a. Foreseeability – the most important factor in determining proximate case (was the harm foreseeable?) b. How should the court treat intervening acts?
e. Drizin sees it as a line: Intervening/supervening causes? | Voluntary act possible causes | Social harm | But for
f. So common law causation summary: i. Actual Cause Were the D’s acts a link in the chain of causation such that “but for” D’s acts no harm would have occurred? ii. Proximate Cause Was the harm foreseeable? i. Comes into play when intervening factors start to cloud the situation. iii. Where there intervening acts that should excuse the D from liability for the harm? 2. Foreseeability and Coincidence – Proximate Cause a. People v. Acosta (1991) – Police helicopters collide while in pursuit of D, causing death. i. Court uses “but for” test as a threshold question and find that D’s actions were the “actual cause” of the crash since if he wasn’t fleeing the helicopters wouldn’t have been there in the first place. i. If not the “but for” cause, the act can’t be the proximate cause. ii. “But for” cause of deaths by itself is not sufficient to hold D accountable. ii. Court then finds that even though a collision like this had never happened before, the result was not so extraordinary as to be called unforeseeable – thus court finds D’s actions to be the proximate cause. i. Side Note: Court ultimately reverses 2nd degree murder conviction due to insufficient evidence of malice. iii. Drizin: Bottom line there is a lot of give in the foreseeability test i. Cops being victims might have been a factor in court finding foreseeability ii. Innocence or guilt of the harmed might be another factor considered. iii. This is why causation area is exciting are convincing the fact finder to select a proximate cause. b. Foreseeable harm v. Foreseeable manner of harm i. People v. Arzon (1978) – D sets fire on fifth floor of a building, an unrelated fire later breaks out on the second floor and traps firefighters responding to D’s fire and one dies. i. D’s actions clearly are the “but for” cause of the fireman’s death since they wouldn’t have otherwise been in the building.
24 1. But this is NOT ENOUGH to hold D criminally responsible. ii. Proximate cause? 1. Court finds that D’s actions was a sufficiently direct cause of the fireman’s death 2. It was foreseeable that firefighter’s would respond and that D should have foreseen the ultimate harm as being reasonably related to the acts. a. Rule - D does not ordinarily have to foresee the manner in which the harm will result, just that such harm is likely. 3. Note: There can be more than one proximate cause Ex: if they found the person who set the 2nd floor fire. 4. Hypo - What if firefighter dies of heart attack that might have been cause by the strain of the fire? a. Goes to issue that P has burden of proof – would have to leave this to a jury and hope that they use common sense. ii. People v. Warner –Lambert (1980) – D corporation had notice from an insurance carrier that there was an explosion hazard which they didn’t remedy in one of their factories. Explosion happens, but there’s no evidence as to what triggered the explosion. i. In this case – harm is foreseeable (is actually foreseen by insurance carrier) ii. Court adds new wrinkle says that D has to not only see the harm that results, but has to also foresee the specific mechanism from which the harm occurs. iii. This is an unusual case!! iv. This case points out how the vagueness of the foreseeability tests allow courts and juries to impose liability based on how attractive the think D is or maybe on the effect that the decision will have on the community. 1. Rare example of utilitarian principles undermining retributive principles.
3. Intervening Acts a. Do intervening acts break the chain of causation and make it unjust to punish D? 4. Medical Malpractice a. Does medical malpractice break the chain of causation? i. In general, “ordinary” malpractice does not constitute a superseding, intervening case. ii. Intentional or grossly negligent we may allow a defense that this is a sufficient intervening cause that breaks the chain of causation.
5. Subsequent Human Actions . Subsequent Human Actions can act as supervening causes that break the flow of causation a. Intervening Causes i. Responsive (dependant) intervening cause – if the intervening act that causes V’s death is a response to the D’s wrongful act. i. Rule - A responding interviewing cause will NOT relieve D from liability unless the response is highly abnormal or bizarre. ii. Rationale: D provokes the response – he’s responsible for the intervening force’s presence. 1. Exception – is if the situation is so out there that it is no longer fair to hold D responsible. ii. Coincidental (Independent) intervening cause – D does nothing to bring about the intervening act.
25 i. Ex: I hit a V and he’s slightly injured, V goes to hospital and is stabbed by a crazy man not due to D’s act. ii. Rule - A coincidental intervening cause WILL remove D from criminal liability unless the intervening cause was foreseeable. iii. Another way to look at these crimes is to look at actor’s mens rea – what were his intentions? i. If he intends for the V to die, and another factor comes along and assists in D achieving those consequences, many courts will say that D got what he wanted, just in a different way. iv. Apparent Safety Doctrine – If D commits an act that places V in danger of harm, but during the process V has the opportunity to remove herself from harm. i. Another way that D can escape criminal liability. v. Acts of the Victim i. Voluntary Act Doctrine 1. Rule – If intervening cause is a result of an informed choice/voluntary act of the V, than D will be relieved in most instances of criminal liability because the action breaks the chain of causation (even if foreseeable). ii. Involuntary Actions 1. Rule – When V acts in response to D’s wrongful acts, the V’s actions are NOT a superceding a intervening cause iii. Refusal of Medical Treatment – V’s refusal to accept medical treatment for religious reasons is NOT a break to the causation chain. 1. Regina v. Blue – Court says that D has to take V as he found her D’s actions are proximate cause of death. iv. Victim’s Escape Attempts – Often viewed as involuntary and do NOT break the chain of causation. 1. Stephenson v. State – V tries to escape by taking poison, D responsible for murder. b. Subsequent Actions Intended to Produce the Result (Victim’s Voluntary Acts) i. People v. Campbell (1983) – D drinking w/V, does everything he can to get his gun into V’s hand and encourages him to kill himself. V does after D leaves. i. This was more than foreseeable, it was intended. ii. But decision to make was V’s alone so D escapes criminal liability. ii. People v. Kevorkian – V uses D’s suicide machine to die. i. Again, wasn’t just foreseeable, was intended. ii. Less direct coercion here than in Campbell c. Subsequent Actions that Recklessly Risk the Result . Not acts that intend the result, but actions where intervening actors’ recklessness ends up risking the result. . Court differ: i. Drag Racing Cases i. Commonwealth v. Root – D and V drag race, V dies while trying to pass and going into other lane. 1. Court finds that D can’t be held liable b/c chain of causation broken 2. Court analyzes V’s action under voluntary act doctrine ii. State v. McFadden – Another race, second racer looses control and hits car that V is in, V dies. D’s car never touches V’s. 1. Court finds proximate cause based on foreseeability 2. This is more common than Root Result iii. How do you reconcile these? 1. Perhaps that there’s an innocent injured in McFadden? ii. Commonwealth v. Atencio (1963) – Ds and V play Russian roulette, V dies.
26 i. Court finds that Ds had a duty not to cooperate or join V in the game. ii. The game was one full act that Ds were proximately responsible for. iii. Court also distinguishes this from drag racing as luck v. skill one could argue that more individual choices need to be made (speed up, slow down, etc) = more voluntary. iii. Driz: These are hard questions – these courts don’t give us great answers.
6. MPC approach (not talked about in class, Roadmap) . Very few states adopt a statutory approach to define causation thus, MPC less influential here than in other areas. a. General approach Like CL, MPC addresses: i. Was there a “cause in fact?” - §2.03(1)(a) i. MPC requires that D’s conduct be “an antecedent but for which the result in question would not have occurred.” ii. Proximate cause? - §2.03(2) and (3) i. MPC directly addresses the question of how to treat results that are different than those designed by D 1. Different victim §2.03(2), (3) – principles of “transferred intent” apply If D accidentally harms another person than intended he’s still liable. 2. Lesser level of harm §211.1(2)(a) if D causes less harm than he intended, he’s only responsible for the harm that actually resulted. 3. Greater of different harm §2.03(2)(b), (3)(b) – if D causes more harm than intended the fact finder has to determine if the harm is too remote ro accidental to bear on actor’s liability. 4. SL crime §2.03(4) – SL still requires causation analysis. MPC requires proof that the actual result is “a probable consequence of the actor’s conduct.”
B. Attempt 1. Introduction a. Process of Crime i. A conceives of crime ii. Mulls it over iii. Decides to go through with it iv. Starts preparation v. Begins to commit – actually go to the place of the shooting, load bullets, point gun, etc. vi. Completes – pull trigger, will either kill or not. b. When do you start to punish people short of completion (preparation ends and attempt begins)? i. Most of the action is between 4 and 5 and 5 and 6 = incomplete attempts. ii. Other action (less controversial) is where D completes a crime, but results are not those intended. c. Why punish attempt crimes at all? i. Utilitarian i. Not really general deterrence since the average criminal probably won’t be thinking about the possibility of failing/stopping early in the first place. ii. Specific deterrence – Want to incapacitate these dangerous individuals even if they fail since they are just as dangerous as others that complete their crimes. iii. Prevention/Police Intervention – If you can punish attempted crimes you allow police to intervene earlier = good for public safety. 27 ii. Retributive i. Blameworthiness – notion that regardless of whether a person stops short or not they’ve still disturbed the social order. d. Punishment i. Should we punish attempt crimes to the same extent as substantive crimes? i. Perhaps depends on the resulting harm. ii. At traditional common law, attempts were misdemeanors iii. Today, the majority CL punishment for attempt is a reduced factor of the punishment for the completed crime iv. MPC § 5.05(1)/minority approach – attempt crimes are punishable (although this doesn’t mean that it is mandatory, court may consider harm inflicted on society/proportionality) to the same extent as the completed crime i. Exception: crimes punishable by death or life imprisonment “an attempt, solicitation or conspiracy to commit a [capital crime or a] felony of the first degree is a felony of the second degree.” ii. Rationale: Retributive focuses on D’s intent, not his success. D who attempts a crime intends the same amount of harm as D that succeeds and should get the same punishment. e. Main Question – which actors we hold criminally responsible and which we won’t.
2. Mens Rea a. The mens rea of an intent crime is higher than the mens rea of the substantive crime D must have the purpose to commit the crime (generally knowledge won’t suffice, but may be used to infer purpose) i. General Rule – You must have the specific intent of committing the substantive crime to be held for the attempt crime. i. If probability of the crime gets to be so high though, some courts will infer intent (arguably the case if shooting into a crowd?) ii. Smallwood v. State (1996) – D rapes 3 woman, was knowingly HIV positive and aware of the consequences that could follow, took no precautions. i. Court finds that he is not guilty of attempted murder because there was no evidence that he intended anything other than just to rape and rob the woman (no specific intent to kill). ii. If D would have made further actions (refuse to wear condom when asked, said “enjoy this cause you’re going to die of AIDS”, etc.) there would have been a much stronger case for the attempt crime. iii. Note: Reasonable people could argue if D had attempted to kill the woman, but if he succeeded he could still be held responsible under implied malice ideas. iii. Weeks v. State (1992) – Prisoner spits on guard and shouts “I’ll give you AIDS” shows his actual intent to kill, is additional evidence lacking that Smallwood lacks. iv. MPC approach §5.01(1)(b) D who acts “with the purpose of causing or the belief that [his conduct] will cause” the criminal result, this satisfies mens rea for attempt i. More flexible than CL standard with addition of “belief that [his conduct] will cause” part. b. Attempted Felony Murder? i. Applies when D intends to commit the underlying felony but not the death that almost happens during the felony. ii. Most states have rejected the idea of attempted felony murder.
3. Actus Reas - Preparation v. Intent a. There are tests established to determine when a D’s actions are sufficient to be called an attempt.
28 i. Rationale of actus reas requirement Wrongful thoughts alone are not punishable, attempt requires that D engage in more than mere preparation to commit a crime. i. This line b/t preparation and intent is still in question. b. Proximity Test (Traditional) – J. Holmes Statement from People v. Rizzo (1927) (D’s waiting to rob someone, couldn’t find him, police arrest them) i. Holmes – There must be dangerous proximity to success. ii. Under this test Ds have to commit an act tending to the commission of the crime to be held for attempt. i. So this moves the line b/t preparation and intent almost to the end of the line. iii. Problems: i. Doesn’t allow for police to intervene in the earlier states even with pretty strong evidence of intent (longer you wait the more likely the crime is to be done). iv. Arguments for this test: i. Gives D the benefit of the doubt that he’ll change his mind (abandonment) 1. Common Law Defense of Abandonment (See next section) ii. The earlier you intervene (earlier you draw the line) the greater the chance that you’ll be arresting people of innocent intent (widen net such that innocents are arrested). 1. Ex: Squeegee guy who doesn’t do anything wrong iii. Want there to be sufficient signs for intent before allowing police to intervene, but still wants public safety competing concerns. c. Equivocality Test i. Looks not to how far D has done, but how clearly his acts bespeak his intent. (not used much in pure form) i. If D’s conduct could indicate either a non-criminal intent or a criminal one, it is not sufficient – but if the conduct unequivocally manifest his criminal intent it suffices even if completion of the plan is many steps away. ii. King v. Barker (1924) – Equivocality test also known as the Res Ipsa Loquitur test since it assumes that D’s acts “speak for themselves” Careful, from Roadmap, although in text notes. ii. Criticisms of Equivocality Test – i. Sets too high of a barrier to conviction ii. As long as D’s actions are ambiguous, D can’t be convicted, even w/proof of mens rea. iii. On the other hand, this test also allows early assumptions about people’s actions to get attempt convictions were D’s acts were clearly only preparatory. d. MPC – “Substantial Step” Test i. MPC compromises b/t proximity and Equivocality tests by adopting pieces of both. i. More than half of the courts have adopted this standard. ii. § 5.01(2) – D must take “a substantial step strongly corroborative of the actor’s criminal purpose.” i. MPC focuses on what D has done toward the completion of the crime, not what there is left to do. 1. Attaches liability earlier in the sequence of events than the CL approaches, but mitigates its harshness by recognizing an abandonment defense (see below) ii. MPC test views D’s actions in context of other evidence that might show if D had the intent to commit the crime. If D’s acts corroborate that intent evidence, they may be enough to establish attempt.
29 iii. MPC requirement of proving a substantial step will be much easier to prove than Equivocality test. iv. MPC gives some examples in §5.01(2) of conduct that would constitute a substantial step if it is strongly corroborative of criminal purpose: 1. Lying in wait 2. Enticing V to go to place of crime commission 3. Reconnoitering the place 4. Unlawful entry of structure, vehicle or enclosure where crime is contemplated to take place 5. Possession of material to be employed in the crime iii. US v. Jackson – D plans to rob bank, drove to bank with gun, tools, masks, etc. and removed car license plates. Police apprehend them, Court holds that D’s acts showed a substantial step toward the robbery, and corroborated intent as proven by testimony of another D. iv. Drug Cases i. US v. Mandujano – D convicted of attempting to distribute drugs, but never really got the drugs since he couldn’t get in touch with supplier and thus returned the advanced money. Court still said that he’d taken a “substantial step strongly corroborative of intent” by making calls to his suppliers. ii. Contrast to US v. Joyce – D meets w/undercover cop to purchase cocaine, but then refuses to purchase when cop won’t open the drug package. Court finds here that D was involved in mere preparation and had abandoned his intent to commit the crime. iii. Drizin: Doesn’t know if these two cases can be reconciled. v. Criticisms: i. Improvement over most common law tests, but doesn’t necessarily make it easier to draw line b/t intervening too early or too late. ii. Still can lead to arbitrary decisions (as evidenced by Mandujano and Joyce)
4. Defenses to Attempt
a. Abandonment i. One reason that courts are reluctant to move threshold of guilt of attempt to earlier points in time is to preserve a “locus penitentiae” (opportunity to repent, or change one’s mind) for D. ii. Common law – No real defense of abandonment in CL since the CL/proximity test the D wasn’t guilty until he just about had completed the crime thus, it was unlikely that D would undergo a change of heart at that time. iii. MPC and Modern Laws i. § 5.01(4) requires “a complete and voluntary renunciation of the defendant’s criminal purpose.” Also says: 1. Must abandon efforts b/f crime is completed 2. Complete renunciation – D can’t be motivated by a decision to postpone the act until a later time or a different V. 3. Voluntary – Fear of getting caught, in whole or in part, can’t motivate the D.
b. Impossibility i. Arises when D has done everything in his power to commit a crime, but external factual or legal circumstances prevent the crime from happening. ii. Two Types Factual and Legal
Spectrum is as follows:
30 Pure legal Legal Factual Inherent Impossibility Impossibility Impossibility Impossibility | | | | | | | |
iii. Extreme impossibility categories are easiest i. Pure Legal – Actor performs legal act with a guilty conscious, law doesn’t prohibit the act even though the actor thinks that it does. 1. Are pretty rare. 2. Ex: Bootlegger that doesn’t know that prohibition is no longer in effect. 3. Almost always recognized as a full defense because of legality principle: a. can’t punish people for conduct that isn’t unlawful at the time of action (involves issues of notice).
ii. Inherent Impossibility – D’s belief is so unlikely to happen that we don’t hold them responsible for criminal conduct. 1. Are more common than pure legal, but still relatively rare. 2. Ex: Person believes that she can kill someone by putting pins in a voodoo doll. 3. Tougher Cases D believes that he can pass on AIDS, may be harder to use this defense 4. Note: MPC doesn’t grant a complete defense to attempt crimes, instead is a downgrading of sentencing, also §5.05(2) grants judge the power to dismiss.
iv. Middle Categories are the toughest ones: i. Legal Impossibility 1. Actor’s goal is illegal, but commission of the crime is thwarted due to mistake regarding state of the legal status of some attendant circumstances relevant to her conduct. a. Often court asks the question of “if the circumstances had been as D believed them to be, would there be a crime?” Here the “fact” that the D got wrong was the legal status of some of the circumstances related to the conduct. 2. Example: D believes he is buying stolen goods, but the goods are in fact not stolen. No conviction (People v. Jaffee) 3. Ex: Try to pickpocket a mannequin or statue can’t be criminally responsible b/c not a person. 4. Ex: Putting bullet into a stuffed deer outside of deer season out of season, but shooting a dead dear isn’t against the law 5. Legal impossibility is a defense. ii. Factual Impossibility 1. Actor’s intended goal is illegal but she fails to consummate the offense b/c of some attendant circumstance that is unknown to her or beyond her control a. Often court asks the question of “if the circumstances had been as D believed them to be, would there be a crime?” If so, impossibility is not a defense b/c this is factual impossibility. 2. Ex: Try to pick someone’s pocket, but the pocket is empty 31 3. Ex: Pointing and pulling trigger of unloaded gun 4. Ex: Assailant shooting into empty bed where intended V usually sleeps. 5. Factual impossibility is NOT a defense a. People v. Jaffe – D thinks he was buying stolen cloth, part of a sting operation. i. Analyzed under §5.01)(1)(a) – he’s guilty. iii. Why does CL draw a distinction? 1. Objectively speaking the factual impossibility seems more culpable a. Pick pocketing a mannequin v. pick pocketing someone’s empty pocket. 2. Notion of social harm is often cited. iv. Policy perspective way to distinguish them: 1. Arguably a concern that lack of legal impossibility defense would risk innocent people, not to the same degree in factual impossibility scenario
v. MPC views i. General Rule - § 5.01 does not recognize the defense of factual or legal impossibility. ii. MPC doesn’t distinguish b/t factual and legal impossibility 1. Why? a. MPC favors subjective issue what was the actor intending to do at the time? i. CL is more objective more concerned with the act ii. Subjective causing harm or coming close is not necessarily as important as the mindset. b. Likelihood of success is also a big part. c. MPC not sympathetic to D who tires to claim legal impossibility since the courts that recognize the CL legal impossibility defense evaluate the actor’s mental attitude by looking at a situation that is completely different than what the actor believes is true vs. looking at the actor’s mental frame of reference. iii. Exceptions: 1. Under § 5.05(2) the MPC allows a downgrading in sentencing or dismissal for inherently impossible factual attempts that are so inherently unlikely to result in the commission of a crime that neither actor or his conduct presents a danger to the public. 2. MPC doesn’t abolish defense of pure legal impossibility. a. According to Prof. Williams a contrary rule would allow the law of attempt to be used to manufacture a new crime when the legislature hasn’t designated that situation to be a crime.
VII. Exculpation
A. Principles of Justification
1. Justification v. Excuse a. Justifications cover conduct that is otherwise criminal but becomes socially acceptable under certain circumstances i. Some would say that the outcomes becomes socially desireable 32 ii. Ex: Self-defense becomes socially acceptable to protect yourself with force, sometimes even deadly force. b. Excuse focuses on the actor instead of the act the act is wrongful, but the actor is not morally culpable for his wrongful actions. i. Ex: mental insanity.
2. Protection of Life and Person – Self-Defense (Common Law) a. Basic Elements of Self Defense i. Belief of danger must be honest and reasonable i. You must have a reasonable belief that you have to protect yourself to combat an imminent, unlawful, and deadly attack. ii. D must not be the initial aggressor i. D can’t provoke the violence and then rely on self-defense later. ii. But MPC §3.04 is more flexible than CL (Roadmap) initial aggressor only loses right to SD if he provokes the use of force with the purpose of causing death or serious bodily harm. iii. Element of retreat i. What if you can escape without using any force? ii. English common law imposed a strict duty to retreat, American courts rejected. iii. Currently about half the states require retreat when necessary, a dozen or so take it into account when assessing necessity, about 1/3 of states still allow D to hold ground. iv. Castle exception Often an exception to requirement of retreat is made when V is in his home. iv. ** Roadmap additional ones from those Drizin mentioned i. The perceived threat to D was unlawful and imminent ii. D reacted with a proportional response. 1. MPC § 3.04(2)(b) limits use of deadly force to cases where the threatened danger is “death, serious bodily harm, kidnapping, or sexual intercourse compelled by force or threat.”
b. Reasonableness Requirement i. Objective or Subjective Standard of “Reasonable?” i. People v. Goetz (1986) – D shoots five black teens on subway after one approaches and demands $5. D made it clear that his intention was to kill them, argued that his belief was based on his past muggings, and that a subjective standard should be used. 1. D argues that if you use objective standard you’ll exclude his personal history, which is prejudicial to him. SC doesn’t agree, says that lots of people deal with this fear. 2. Reasonable person test is not completely objective Would a reasonable person in the actor’s situation have acted the same way?
ii. MPC § 3.04 Subjective Test 1. A D’s subjective belief that force is necessary is sufficient for self-defense unless (§ 3.09(3)) D is charged with a crime requiring only recklessness or negligence. 2. §3.04(1) – “Use of force is justifiable when the actor believes that such force is immediately necessary for the purpose of protecting himself against the use of unlawful force by such other purpose.” a. Objectively unreasonable but genuine mistake is a defense except for crimes that only require recklessness of negligence, which would result in negligent homicide (§3.09(2)) 3. Rationale for subjective standard:
33 a. Subjective is more fair because no one is reasonable when they believe death or severe bodily harm is imminent. ii. Imperfect Self-Defense If we think that D had a genuine personal belief of imminent danger, but is not objectively reasonable. i. Common law – 1. Majority view = D is guilty 2. Minority view = D held for a lesser offence, i.e. manslaughter 3. Is an argument in some jurisdictions for involuntary manslaughter reckless mens rea as opposed to intentional = knew that there was a possibility that there was no imminent harm, but disregarded it. iii. Battered Spouse Syndrome Affect on “Reasonableness” requirement – three classic situations. i. Confrontational – 1. State v. Kelly (1984) V chokes D in public, D gets away and sees V running at her, D stabs V with scissors. 2. Two issues usually raised at these cases: a. Battle of Expert testimony want expert to talk about past abuse cycle to see if D really thought she was in danger. i. Prosecution would say that this is prejudicial = devaluing to V’s life, irrelevant b/c past acts don’t show propensity to commit future acts. ii. Driz above arguments are losers, courts regularly allow them. Thus, prior testimony of abuse is clearly relevant in confrontational situation. b. Woman needs to show her belief that she’d be subjected to great harm as a result from this particular episode. i. Use expert testimony also to bolster D credibility as well as why D would stay w/V after past abuse. 3. Issue of learned helplessness 4. Allowing Expert Testimony on the Subject a. General test is if the topic is above the understanding of the average layperson does BWS do this? b. Second factor is whether the witness has the skill or knowledge or experience in a certain field to help the jury understand c. Third factor is whether the state of the science allows for the justification fo use of expert testimony. i. Drizin: not sure if there is the sciene or not - - bottom line is that it is a recognized defense though, so is still used despite questions. 5. Reasonableness standard a. Evaluate D’s actions under a reasonable person in D’s situation as opposed to reasonable battered wife. ii. Non-Confrontational Case
34 1. What troubles everyone here is that V is asleep. (State v. Norman in absence of imminent peril, the history of spousal abuse is not a defense) 2. What value is BWS here? a. Should D be entitled to give jury instruction on self-defense in absence of act by V that poses imminent threat? b. Drizin – generally thinks that jury should be able to weigh in, relax imminence requirement, but is troubled as well. iii. Killing for Hire situation 1. BWS is rarely allowed as a defense.
3. Protection of Property a. Common Law – Deadly force cannot be used to defend against a burglary if the resident of the home is not present (Ceballos). i. If burglary occurs while owner is present, resident can use deadly force if she reasonably fears the use of force against herself b. MPC §3.06 i. Strictly limits the use of deadly force against an intruder in the home ii. §3.06(3)(d)(ii) – allows deadly force when “the use of force other than deadly force to prevent the commission or the consummation of the crime would expose the actor… to substantial danger of serious bodily harm.”
4. Necessity Effects – Choice of the Lesser Evil a. Introduction i. Parameters of necessity defense D faced with a choice b/t two evils, one more serious with potential for harm to himself or others as compared to violating the law. ii. Note: Court decides whether to give necessity jury instruction and allow evidence on the issue, jury than decides if D has satisfied the requirements of the defense. iii. Note people or natural forces can create necessity; only another human being can create duress. iv. Rationale: Law recognizes that statutes can’t account for every real-life situation and sometimes people are forced to engage in illegal behavior. i. If D is faced with two evils and chooses the one that is less harmful to society they shouldn’t be punished. b. Elements of Necessity Defense: i. D faced with choice of evils and chose the lesser evil ii. The harm was imminent iii. D reasonably anticipated a direct causal relationship b/t their conduct and harm to be averted. iv. There are no legal alternatives c. MPC Elements i. § 3.02 provides for “Choice of Evils” defense ii. § 3.02(1) D may engage in criminal conduct to avoid harm if: i. The harm avoided is greater than the harm done (§3.02(1)(a)) ii. There is no specific prohibition to the use of a choice of evils defense for this particular offense. iii. There is no clear legislative purpose to exclude the choice of evils defense in D’s situation. iii. MPC is broader than CL defense in three ways: i. No imminency requirement (this is a factor in deciding if the D had a lawful alternative) ii. No prohibition on self-created necessity except for crimes of recklessness or negligence. iii. Necessity may be applied in homicide prosecutions (most CL jurisdictions don’t allow this). 35 Civil Disobedience Scenario iv. United States v. Schoon (1992) – D’s protest US involvement in El Salvador, disrupt IRS office, claim necessity to prevent foreign bloodshed. i. This is indirect civil disobedience since it violates a law that is not the object of their protest (as opposed to direct which breaks the law protested) 1. Generally a weaker case in element three above than direct disobedience. a. Ex: Abortion rights activist chains himself to clinic door this is indirect w/stronger nexus b/t conduct and harm to be averted than in Schoon. 2. Civil disobedience necessity claims usually done in by number 4 above (petition congress, non-violent demonstration) Prison escape scenario (People v. Unger (1977)) v. Lovercamp decision Focuses on 5 different factors necessary to get such a defense instruction (attempts to narrow the necessity defense in prison escape situations) i. Prisoner faced with specific threat of death, forcible sexual attack or substantial bodily injury in the immediate future. ii. There is no time for a complaint to the authorities or there exists a history of futile complaints which make any result from such complaints illusory. iii. No time or opportunity to result to the courts iv. No evidence of force or violence used towards prison personnel or other “innocent” persons in the escape v. The prisoner immediately reports to the proper authorities when he has attained a position of safety from the immediate threat. 1. This is the one most used to deny necessity defense to escapees. 2. Seems somewhat unrealistic, why the reluctance to let the jury decide on necessity? a. Fear of jury nullification b. Driz: D should have the opportunity to make his arguments to play to jury sympathy and prosecutor should try to attack his necessity to escape the jury sorts it out.
vi. Illegal Interrogation to get Information i. Public Committee Against Torture v. State of Israel (Supreme Court of Israel, 1999) – State seeks opportunity to raise the necessity defense if they use illegal information extraction means to combat terrorism. 1. Rational behind retaining the right to assert necessity: a. Utilitarian = National security save innocents 2. Philosophy shown in this case – strict utilitarian analysis balancing of harms b/t suspect rights v. potential that suspect has information that could be used to stop larger evil from occurring. a. Information we get from torture is often unreliable, slippery slope.
B. Principles of Excuse 1. Introduction a. The disabilities that ground excuse in our law are in three groups: i. Disabilities that produce involuntary actions ii. Disabilities that produce deficient but reasonable actions 36 iii. Disabilities that render all actions irresponsible
2. Intoxication a. Involuntary Intoxication i. In the rare case that D can show that her intoxication was involuntary, she may have a valid defense only if D can show that she was at the point where she’d fit the standards of insanity. (Regina v. Kingston – House of Appeals overrules lower court decision, gives parade of horribles about ease of faking, complete defense applying to all charges) ii. MPC §2.08(4) – “Intoxication which is (a) not self-induced… is an affirmative defense if by reason of such intoxication the actor at the time of his conduct lacks substantial capacity either to appreciate its criminality [wrongfulness] or to conform his conduct to the requirements of law.”
b. Voluntary Intoxication i. Common law takes a very restrictive approach to voluntary intoxication. i. Generally only will be allowed to be raised in specific intent crimes (where the D needs to form a sophisticated intent) – People v. Hood (1969) 1. Alternative, more restrictive view State v. Stasio (1979) – Will not allow voluntary intoxication as a defense in either specific or general intent cases. ii. Crimes that involve reckless conduct are considered general intent crimes and voluntary intoxication does not apply.
ii. MPC Approach i. §2.08 – Intoxication is not a defense unless it negates an element of the defense 1. So jury would get the question of whether or not the intoxication would negate the intent. ii. Recklessness - §2.08(2) Where recklessness establishes an element of the offense an unawareness of risk, which the actor would have been aware had be been sober, is immaterial. 1. Rationale: Everyone knows that when you drink you’re impairing your ability to be aware of risk and more likely for you to engage in risky behavior. Law isn’t fine enough to determine which conduct would be done in intoxicated state rather than normal. What we do know is that he knew that alcohol would make him more likely to engage in this behavior so we disallow this defense. iii. Criminal Negligence 1. Intoxication is never a defense for criminal negligence a. Rationale: Question is if reasonable person would perceive risk in D’s situation, if we would allow an intoxication defense we would have to insert the reasonable intoxicated person we know that the reasonable person is the sober one. b. Same reasonable person rationale in self- defense/manslaughter
3. Insanity, Diminished Capacity a. Introduction i. Insanity defense = “defense of last resort” i. Consequences of winning are very unclear, may get an acquittal but might still get a period of civil commitment that is longer than the prison term you might have gotten for crime. 1. This, of course, is not a concern when facing death penalty or life like Lemak.
37 ii. Seeking this defense is also more difficult since many states (including IL) have adopted the “guilty but mentally ill” category 1. Says that you are mentally ill but not to the point to insanity, you can still get same sentence with some mental treatment (although often illusory) a. Juries often see this as a compromise and latch onto this, especially if they don’t understand the consequences. ii. Law (both MPC and CL) says that there is a Presumption of Sanity i. D’s burden to go forward to rebut ii. Law is all over the board on how much evidence must be raised to rebut. 1. Both sides get experts, laypersons to discuss opinions on sanity/mental condition preceding murder iii. Question then goes to jury more confusion i. Best method (IL) Prosecution has to establish all elements of the offense before turning to sanity issue. ii. Should jury be told of sentencing consequences of insanity? 1. Most jurisdictions say no for fear of jury nullification 2. Drizin juries should know, especially since judge has so little latitude in sentencing now.
iv. What happens after insanity verdict? i. Many require automatic committal ii. Others have sentencing committee v. How long committed for, decisions for release? i. Standards are all over the board, very state specific 1. Reviewing is sometimes regular, other times D has to file writ of habeas corpus ii. Criteria for release = also all over the board 1. Some ask only “is this D insane” 2. Others ask if D is sane and no longer dangerous
vi. Insanity Defense Rationale: i. Retributive argument (most say this carries the day) – Unfair to hold someone who doesn’t appreciate the nature or quality of their actions b/c they aren’t as morally culpable as the typical D. ii. Utilitarian – Can’t deter an insane person b/c they’re unable to understand what they’re doing is wrong. 1. Incapacitation no need to incapacitate this person in the criminal system, rehabilitative goals would be better served by civil commitment. b. Tests for Insanity i. Hypo – have a compulsion to steal scarves, if jury believes that D has kleptomania should they be held for it? ii. M’Naghten – a “complete defect test” i. Focuses on severe cognitive disabilities at the time D acts he has a severe mental defect that makes him unaware of what he’s doing, or if he was aware he didn’t know that his actions were wrong. ii. Harsher test – very narrow focuses only on the cognitive aspects of personality (ability to know right from wrong), doesn’t address person who is unable to control his acts b/c of mental disease (leads to irresistible impulse test) iii. So wouldn’t get off in the hypo since not being able to control even though you know what you’re doing is wrong gets you nowhere with M’Naughten iii. Irresistible Influence Test
38 i. Focuses on volitional acts If D loses control of her ability to choose b/t right ant wrong = insanity ii. More lenient iii. Criticism = difficult for experts to distinguish b/t offenders who could not control themselves and those who choose not to control themselves (fraudulent use to get off) iv. D in hypo would hope and pray that she’s in a jurisdiction that follows this. iv. MPC (attempt to synthesis first two) §4.01 i. As a result of mental disease or defect the D lacks a substantial capacity to appreciate the criminality of her actions OR to conform her conduct to the requirements of law. ii. Differences b/t MPC and other tests, how is the compromise struck? 1. Talking about a substantial incapacity instead of a total incapacity like in M’Naughten. a. Thus allows a partially impaired person (like a schizophrenic) whose disorientation is extreme but not total to qualify. 2. “Appreciate” her criminality is different than to “know.” a. Broader test under MPC b. Under M’Naughten if D cognitively “knows” his actions are wrong, he’s deemed sane MPC broadens this test an focuses on whether D has a genuine understanding of the consequences of his acts. v. Which is the majority rule? i. At one time MPC was leading rule b/c it counterbalanced the extremes of the other tests. ii. MPC is no longer the majority rule B/c John Hinckley was acquitted using it, created a hysterical backlash against insanity defense. 1. Many states go back to M’Naghten, 2. others shift burdens of proof, 3. introduce guilty but mentally ill, 4. increase in the calls for abolition of insanity defense. vi. Lemak Case i. Both sides will marshal evidence about her behavior leading up to the crime, state of mind, etc. c. Diminished Capacity . Situations where someone is severely mentally ill, but not insane . Lower burden of proof for D than insanity (just have to raise reasonable doubt about if D had required mens rea) i. Introduction i. Typically in 2 forms 1. Exonerate b/c it negates mens rea used to prove that D didn’t form the mens rea necessary for a specific intent crime. 2. Mitigate the crime committed to a lesser crime ii. Born b/c many felt that insanity was too harsh, also b/c it allows juries to avoid imposing the death penalty in cases of the retarded, etc. ii. Justification of allowance of DC defense i. Illogical to allow a defense of involuntary intoxication to present a defense and not allow DC defense. iii. Arguments against allowing DC defense (as discussed in Wilcox) i. Slippery slope that taken to even a moderate level will undermine the normative value of criminal law
39 ii. Concern over jury confusion Can jurors understand and evaluate this type of evidence? iii. Even if a person has a mental disorder, her capacity to form mens rea will rarely if ever be completely obliterated. If it is, D will most likely be able to assert defense of insanity. iv. Concern that the defense would be raised very frequently v. Drizin: Real fear is that the D’s would walk free and are not mentally ill enough to be committed for any real length of time. 1. Should our fears of possible dangerousness deny the D an opportunity to have a defense = corrupt idea of mens rea requirement? iv. MPC § 4.02(1) i. Allows DC defense to be raised as a defense to any crime, including general intent crimes. ii. Comments mens rea issue is primary; drafters were uncomfortable with the idea of Ds getting sentenced when they didn’t have the requisite mens rea. 1. Err on the side of deference to mens rea. 2. MPC also notes that civil commitment options are still available should prosecutors want to keep people off of the streets for awhile. 3. Also, criminal codes have lots of crimes in them that prosecutors, if they really wanted to, could find another felony (probably a less serious offense) to charge D with and keep him locked up. v. If there is both insanity and DC defense available in the jurisdiction, which do you use? i. Insanity is harder to prove, results in automatic or civil commitment (but so may DC defense) ii. DC defense has a lower burden (just some reasonable doubt about if D had required mens rea) and would likely result in a shorter commitment time. vi. Why not just change civil commitment standards to keep people contained for longer? i. Problematic b/c civil commitment standards have an extraordinarily broad reach. 1. Could have situation where people who are weird but not dangerous filling up the facitilites. vii. Other possible solutions for people who have committed violent crimes: i. Why no just allow mental illness/retardation to be a large mitigating factor? ii. Could have continual visitation to see if they’ve progressed since contained. viii. Driz: when someone is killed we allow the result to drive the procedure, rather than thinking about the culpability we think about the punishment.
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