Checklist (Elements of the Crime)

Checklist (elements of the crime) 1) AR a. What conduct, circumstance, result, or omission? b. Was the act voluntary? c. If an omission, is there a duty? 2) MR a. What mental state is required for each element? b. What elements are SL? c. Can MR be negated by intoxication? (defense) d. Is there a mistake of fact to negate MR? (defense) e. Is there a mistake of law to negate MR? (defense) 3) Causation a. Was there but-for causation? b. Was there proximate causation? c. Did an intervening act break the chain of causation? d. Can intent be transferred? 4) Attempt a. Is it an incomplete crime? b. Is it a substantive crime of preparation? c. Does act or omission meet the test for attempt? d. Is there intent to commit the crime? e. Was the attempt abandoned? (defense) f. Is there an impossibility defense? 5) Complicity a. Was there an act or omission to encourage or aid the principal? b. Was there intent to aid or abet the conduct? c. OR was there MR for the result of the conduct? d. What kind of vicarious liability? e. Was aid withdrawn? (defense) 6) Conspiracy a. Was there an agreement? b. Was there purpose to commit a crime? c. What kind of vicarious liability? d. Was participation in conspiracy withdrawn? (defense) 7) Justification defenses a. Self-defense i. Was there a belief in serious harm? (does it have to be reasonable?) ii. Are there any limiting factors – duty to retreat, D was initial aggressor, accidental self-defense? Liability for bystanders? b. Defense of property i. Was deadly force used in defense of habitation? c. Law enforcement i. Was use of force authorized? (Risk to bystanders?) ii. Was the suspect a felon? Did suspect pose a risk of physical harm? d. Necessity i. Was the harm avoided > harm caused by offense? ii. Is there an imminence requirement? iii. Is there a legislative purpose precluding the defense? iv. Did the situation arise through fault of the actor? v. If D killed someone, was it P (bad) or K (good)? 8) Excuse defenses a. Duress i. Was there force or threat of force? Seriousness of force? ii. If reasonableness allowed, what subjective factors? iii. Is there a defense to homicide? b. Insanity i. Was there volitional or cognitive failure? ii. If cognitive, did defendant not know conduct was morally or legally wrong? iii. What kind of mental disease? iv. Competence to stand trial / be executed / be committed? c. Rotten social background i. If a juvenile, will they be tried as an adult or a juvenile? 9) Entrapment a. Did govt or non-govt actors working for govt induce D? b. Was D predisposed? (Willing and ready? Capable?) 10) Sentencing a. Is the sentence retributive or a deterrent? b. Is there any proportionality requirement? c. Is there a guidelines sentence? d. If death penalty, was process constitutional?

I. Juries, Sentencing, Plea Bargains

A. Jury

Right to a jury trial (6th or 14th Amendment) 1) Serious offenses (Duncan v LA, SCt) / max sentence > 6 mo (Baldwin v NY, SCt) 2) Jury pool must represent the community (Taylor v LA, SCt) 3) Counsel cannot challenge juries for race or gender (Batson v KY, SCt)

Jury Nullification Pro-nullification (-) Soft anti-nullification (+) Jury instruction Jury decides facts and law (IN, MD); GA = No nullification instruction (US v but can’t disregard the law Dougherty, DC) Conditions to strike or None Say “might” nullify (Merced v McGrath); remove jurors Refuse to convict notwithstanding the facts (US v Thomas, 2d) Third party limits None Cannot distribute info too close to court (Turney v Pough, 9th)

B. Sentencing Theories of punishment 1) Consequentialism – deter future crimes 2) Retributivism – moral obligation to punish

Sentence and type 1) Length = Harm * 1 / P(detection) (US v Michal Milken, SDNY) 2) LWOP specific deterrence is appropriate for repeat offenders (US v Jackson, 7th) 3) Shaming is permissible if rehabilitative in purpose (US v Gementera 9th) a. Not ok if it makes D unemployable (People v Hackler, Cal Ct App) b. Not ok f it creates a mental health risk (People v Johnson, Ill. App.) c. Not ok as punitive sanction or to warn public (People v Letterlough, NY) 4) If probation in lieu of jail, any condition seen in prison is ok (WI v Oakley, WI)

II. Elements of Criminal Liability

A. Legality

Legality Common law (+) Common law (-) MPC Judge made crime Not ok (US v Bass SCt) Ok (Mochan, Pa Super) Not ok Judicial expansion Ok if matches new Contravenes Ex Post Facto Not ok of crime science/medicine (Rogers v Clause (Keeler v Super Ct, TN, SCt) CA) Rule of lenity Best fit (US v Dauray, SCt) Narrowest interpretation None [1.02(3)] (McBoyle v US, SCt)

Statutory interpretation checklist: 1) Plain text 2) Canons of construction 3) Legislative history 4) Rule of lenity (common law only)

Vagueness (5th or 14th Amendment) 1) Facial challenge a. No fair notice of what is prohibited (Chicago v Morales, SCt) b. Allows for arbitrary/discriminatory enforcement (Papachristou v Jacksonville, SCt; Johnson v Athens-Clarke, GA) 2) Defense a. Ignorance of the law is no excuse [See MPC 2.02(9)] b. Notice is provided by social norms (See sex offender registration) c. Notice is nonissue if crime is specific intent (In re Alberto R, Cal App) d. Discretion is ok in juries (Nash v US, SCt; US v Ragen, SCt) e. Discretion unavoidable for police (Scalia in Chicago v Morales, SCt)

B. Actus Reus (AR) Conduct Common law MPC Voluntary act Each element Each element [2.01(1)] (Martin v State, Ala App) What makes the Mind and body are in union Anything not: [2.01(2)] act voluntary? (Newton, Cal App) a) reflex b) during unconsciousness or Act can  conduct and MR exists sleep (Decina, NY) c) conduct during hypnosis Habitual action done w/o though [2.01(2)(d)] Liability for 1) Duty to act (MN, RI, VT; HI, WI for violent crime, FL for sex abuse) omissions 2) Special status relationship – parent, spouse, master, bartender 3) Contractual duty of care (Jones v US, DC) 4) Voluntary assumption of care and seclusion from others who can render aid (But Pope v State, MD)

Bystanders are not liable for omissions unless there is a reliance interest: Pope v State: NL since mother always present with child Mountain Climber Hyp: Guilt if A expects B to provide help and B abandons A Roommate Hypo: A is not guilty for not helping B since B doesn’t rely on A

C. Mens Rea (MR)

MR / Statute Common law MPC Required for Each act (Reg v Cunningham, QB) Each element of AR [2.02(1)] Options Specific intent: 4 options: [2.02(2] AR with P/K of X P – conduct or result K - awareness General intent: R – conscious disregard of risk AR in disregard of risk or failing to N – should have been aware of risk perceive substantial risk P > K > R> N [2.02(5)]

Strict liability: AR SL – no MR [2.05]

Rules of interpretation SI = “with intent to X” OR “with R is default [2.02(3)] knowledge of X” Carry-over MR for GI [2.02[4])

Intoxication Common law MPC Evidence of voluntary (+) Ok to negate MR for SI (Hood, CA) 2.08(1) – If negates P, K, N intoxication (-) Inadmissible (MT v Engelhoff, SCt) 2.08(2) – Negates R only if can’t see risk when sober Involuntary intoxication No defense id doesn’t negate MR (Regina Aff def if negates MR [2.08(4)] v Kingston, HoL)

Strict Liability 1) Appropriate for public welfare crimes (US v Balint, SCt; US v Dotterweich, SCt) 2) Public welfare test (Morissette v US, SCt) a. Mild punishment – i.e. not a felony (US v Staples, SCt) b. Diffuse victims – i.e. drugs (US v Balint) c. D is in the best position to prevent – i.e. regulation/omissions (US v Dotterweich, SCt) 3) Appropriate for malum in se / D is on notice, i.e. hand grenades (US v Freed, SCt) 4) Rules of interpretation a. Avoid absurd results (US v C-Citement Video, SCt) b. Don’t criminalize broad swathes of condut (US v Staples, SCt)

Vicarious liability: MR = SL for actions of another (i.e. employer, parent) 1) (+) Ok if done for public policy reasons / over-deterrence (State v Beaudry, WI) 2) (-) Unconstitutional (People v Guminga, MN; State v Akers, NH)

Mistake of Fact Common law MPC Negates guilt if: Reasonable If negates MR Still guilty if: (+) Lesser legal wrong (Olson, CA; Crime under D’s belief of the facts, but burglary during day) only for lesser crime (modified lesser legal (-) Lesser moral wrong (Reg v Prince; wrong) [2.04(2)] Olson, CA) Willful ignorance (SI): High probability of illegal conduct (US v High probability fact existed [MPC Jewell, 9th) 2.02(7)]

Mistake of Law Common law (GI) Common law (SI) MPC Criminality of act None None None [2.02(9)] Criminal law None (Marrero, NY) If negates SI (Weiss, NY) If negates MR Non-criminal law Like MoF (Regina v Smith, Like MoF (Cheek v US, Ok if negates MR [2.04(1)] QB) SCt) Official reliance None (Hopkins v State, SCt; US v Reasonable [2.04(3)] Rodgers, SCt) Due Process Clause Registration offenses (Lambert v CA, SCt) Entrapment by estoppel (Raley v OH, SCt) BUT !omissions (US v Wilson, 7th)

Reasonable mistake of law for knowingly or willfully violating regulations 1) No defense a. If D knows the act is wrong (Cheek v US, SCt; Bryan v US, SCt) b. ICC regulations (US v Intl Minerals & Chem, SCt) c. Environmental regulations (US v Overholt, 10th) d. Controlled substances (US v Ansaldi, 2d) 2) Defense a. Tax code, if don’t know act is wrong (Cheek v US, SCt) b. Food stamp regulations (Liparota v US, SCt)

D. Causation Causation Common law MPC But-for If no harm in absence of the act (Acosta, Antecedent but-for or special relationship CA) [2.03(1)] Proximate 1) Foreseeable conduct or reasonably 1) If P or K, result is within P or K or contemplated (Acosta, CA; Brady, CA) same type of harm or not too remote or 2) Conditions  foreseeable harm (Arzon, accidental [2.03(2)] NY; Kibbe, NY) 2) If R or N, result is within risk or same 3) Sufficiently direct (Warner-Lambert, probable harm or not to remote or NY) accidental [2.03(3)] 3) If SL, probably consequence of conduct [2.03(4)] Transferred intent A shoots B = A shoots C intending B Causation !negated if actual <> (Scott, CA) contemplated/probable because of different V [2.03(2)(a); 2.03(3)(a)] But-for problems Possibility of survival (State v Muro, NE) Proximate problems Act by intentional wrong-doer breaks chain of causation Negligent act doesn’t (People v Acosta, CA; State v Shabazz, CT)

E. Specific Crimes

Homicide

Homicide Common law MPC Murder MR = P or K re: death, GBH MR = P, K [210.2(1)(a)] Grading = 1st degree if premeditated, else Grading = 1st degree [210.2(2)] 2nd degree Premeditation (+) No time to short (Carroll, PA) Irrelevant (-) Time to reflect (Guthrie, WVA) Voluntary manslaughter MR = no malice aforethought MR = R, P/K/ERI due to EED for which (+) words ! enough (Girouard, Md) reasonable excuse based on circumstances (-) heat of passion (Maher, Mi) as D believes) [210.3(1)(b)] EED is subjective (Casassa, NY) No cooling time (Bordeaux, 8th) (-) Reasonable is external circumstances Kill non-provoker ok if reasonable As D believes (Casassa, NY) mistake (Mauricio, NJ) (+) Reasonable is based on a reasonable Grading = 1st or 2nd degree person (McClain, NJ) No provocation is ok (Elliot, Ct) Grading = 2nd degree Involuntary AR = act or intentional failure to meet AR = to cause death [210.1(1)] manslaughter duty of care (Welansky, Ma) MR = R [210.3(1)(a)] OR N [210.4(1)] MR = wanton or reckless R = consciously disregard risk (Hall, Co) R = ignore substantial risk (Welansky,Ma)  < 50% = substantial risk (Hall, Co) N = too stupid to know risk (Pierce, Ma) N = ordinary person (Williams, WA) Grading = 3rd / 4th degree Depraved heart murder AR = uncalled for act (Malone, Pa) AR = to cause death [210.1(1)] MR = disregard of likely harmful effect on MR = extreme reckless indifference others (Malone, Pa) [210.2(1)(b)]  Drunk driving (US v Fleming, 4th) ERI = disregard substantial risk (Roe, NY)  Baby starving (Burden, CA) Intoxication inadmissible (Dufield, NH) Felony murder AR = act done w/intent to commit felony AR = to cause death which causes death (Regina v Serne) MR = rebuttable presumption of ERI if  fleeing from felony (Gillis, MI) robbery, rape, arson, burglary, kidnap,  after D arrested (Amaro, FL) felonious escape [210.2(1)(b)] MR = immaterial Grading = 1st degree Grading = 1st / 2nd degree Misdemeanor AR = act done w/intent to commit Nonexistant manslaughter misdemeanor which causes death MR = immaterial Felony murder Proximate causation: limitations (+) Robber takes victims as he finds them (Stamp, CA) (-) Felony must be foreseeable cause of death (King, VA) Inherently dangerous felony: (+) As applied to facts and circumstances of case (Stewart, RI)  (+) Circumstances create foreseeable risk of death (Hines, GA)  (-) Creates high probability of death (Hines dissent, GA) (-) Per se / in abstract (Phillips, CA) Merger doctrine: (+) Inapplicable to assaults (Ireland, CA cited in Burton, CA) (+) Act must have independent purpose from homicide itself (Burton, CA) (-) Only felonies raising assault to murder (Hansen, CA – drive-by) In furtherance of a felony: (+) Acts caused by the felony – proximate cause theory (Hernandez, NY)  (+) Shootings of co-felons = no FMR (Redline, PA, cited in Canola, NJ)  (-) Shootings of co-felons = FMR (Cabaltero, CA) (-) Act must be in furtherance of the felony – agency theory (Heinlein, DC Cir)  No FMR if killing is by victim (Canola, NJ) Misdemeanor Causal connection – failure to renew license !ok (Williams, PA) manslaughter No regulatory offenses – only malum in se (Mills, MD) limitations Misdemeanor had to be dangerous under the circumstances (Cox, CA)

AR for murder, voluntary manslaughter, all MPC homicide = to cause death Contributory negligence is never a defense to homicide

In Furtherance of a Non-felon killed Co-felon killed Felony Def. or co-felon kills Standard case  FMR Agency theory  FMR Proximate cause  FMR unless exclude as justifiable homicide Non-felon kills Agency theory  No FMR Agency theory  No FMR Proximate cause  FMR Proximate cause  FMR unless exclude as justifiable homicide

Rape Common law (majority) Common law (minority) AR (victim) Man or woman Man or woman

AR (force) Physical force or threat of force Force not required No rape when:  MTS, NJ – act of sex is enough  Alston, NC – !threat in future  Barnes, CA – no resistance  Thompson, MT – !no graduation  Mlinarich, PA – !back to foster care

AR (resistance) Non-consent manifested by reasonable No affirmative consent (!expressed yes) resistance (expressed no)  MTS, NJ  Warren, IL – !carry V into woods AR (defective consent) 1) Too young OR Mental incapacity 2) Intoxicated – no reasonable judgment (Giardino, Ca); BAC > .15 (Al-Hamdani, Wa) MR options GI = common law R = AK (proof of R since no resistance requirement) SL = MA, PA, ME (prosecution must prove force, force != consent) N (+) = common law, but no force (honest but reasonable mistake of fact ok) Corroboration Common law = sufficient evidence to conclude victim’s account not a fabrication (Wiley, DC Cir) – fear of fabrication, hard to defend v rape, racism, jury sympathy Modern = no corroboration (Sheppard, DC Cir) Rape shield Common law = introduce victim’s sexual history Modern approach = Fed. R. Evid 412 prevents sexual history or predisposition  Ok to use history to attempt to show bias if part of defense (DeLawder, MD)  Ok to use history to impeach credibility (Harris, MA)  Not Ok to force psychological exam (Scuito, 3d Cir)

F. Inchoate Crimes

Attempt

Attempt Common law MPC AR Proximity test (Rizzo, NY) Two part test: Unequivocality test (Miller, CA) 1) Act or omission constituting a Two part test: 1) substantial step 2) substantial step that is [5.01(1)] corroborative of criminal purpose 2) Strongly corroborative of criminal  driving by bank w/guns (Jackson, 2d) purpose [5.01(2)]  ! meeting for drug deal (Joyce, 8th) Substantive steps enumerated [5.01(2)(a)] MR (conduct or result) Incomplete conduct: Specific intent Purpose (P) of causing or belief (K) act or  Smallwood, Md – !rape w/ HIV omission will cause offense [5.01(1)(b)]  Thacker, VA - !shooting at tent  Gray - !felony murder  Holbron - !involuntary manslaughter Infer intent if act likely to lead to its commission  Raines, Md – point gun at head, fire  Thomas, Co – shoot at fleeing rapist (BUT attempted reckless manslaughter?) MR (circumstance) Same MR as completed crime Same MR as completed crime Same mistake of fact as completed crime Impossibility defense No factual impossibility (D’s act, if No defense if D’s act, under circumstances consummated, would be a crime) D believed them to be, would be Legal impossibility substantial step [5.01(1)(c)] (-) Yes (Jaffe, NY; Berrigan, NY) (+) No (Rojas, CA; Dlugash, NY) Abandonment(Defense) (+) No abandonment defense (Robins, WI) Abandonment if not motivated by circumstances affecting success [5.01(4)] Solicitation Attempt w/o communication is also a substantial step [5.01(3)]

Substantive crimes of preparation: 1) Burglary – breaking and entering w/intent to commit a felony (GI) 2) Assault – attempted battery, MAY be w/intent to X (wound, kill, rape, etc) (SI) 3) Possession – proxy for intent (AR = to possess; MR = K) 4) Stalking – conduct that alarms, annoys, or torments victim as measured on a reasonable person standard

G. Liability for Conduct of Another

Complicity

Complicity Common law MPC AR 1) Presence not enough, but evidentiary 1) If communicate w/principal, aid or (Wilcox v Jeffrey) agreement to aid or attempt [2.06(3)(a)(ii)] 2) Act, done which encourages, 2) If try to communicate but fail, emboldens, gives confidence (Tally, AL) complicity for solicitation [2.06(3)(a)(i)] 3) Omission if legal duty (Davis, WVa) 3) Omission if legal duty [2.06(3)(a)(iii)] MR (conduct) (+) Specific intent to aid/abet (Hicks, SCt) P for commission of offense [2.06(3)(a)] (+) P not K(Gladstone, WA) (-) P(misdem.) / K(felony) (Fountain, 7th) N (natural and foreseeable) (Luparello,Ca) MR (results) (+) Same MR as crime (McVay, RI) Same MR as the crime (Russell, NY; (-) Purpose (Ayers, IA) Abbot, NY, cited in Russell) MR (circumstance) (?) Same as crime (Cannon, 9th  SL) Left to the jury [2.06 commentary, p612] (?) K or P (Xavier, 3d  K of status) Abandonment(Defense) No abandonment defense Terminate complicity & deprive aid of effectiveness OR warn cops [2.06(5)(c)] Principal did not Accomplice is not guilty (Hayes, Mo) Accomplice is guilty if principal’s conduct commit crime  unless due to aff. defense (Vaden, Ak) is criminal [2.06(5)] Principal acquitted Accomplice can be guilty (Standefer, SCt) Accomplice can be guilty [2.06(7)] Principal is guilty Guilt = MR of accomplice (McCoy, Ca) Guilt = MR of accomplice Feigned accomplice Accomplice not guilty (Wilson, Co) Accomplice guilty if complicit [5.01(3)] Accomplice is victim Accomplice not guilty (statutory rape) Accomplice not guilty [2.06(a)] Incidental accomplice Accomplice not guilty (buy stolen goods) Accomplice not guilty [2.06(b)] Innocent agent doctrine Principal is guilty (Ruffin, 2d) Principal is guilty [2.06(2)(a)]

Substantive crimes of facilitations: 1) P, K, R of selling or giving guns to a juvenile (Columbine killings) 2) K provision of any material support to terrorists (PATRIOT Act) 3) Money laundering  K transaction designed to conceal ill gotten gains (S1956) 4) Money laundering  K money from illegal source (S1957)

Conspiracy

Conspiracy Common law MPC AR (+) Agreement, express or implied, to 1) Agreement to conduct a crime, to solicit commit a crime (Interstate Circuit, SCt.) another to commit a crime, or aid in  implied if motive for concerted action planning or commission [5.03(1)] (-) Overt act to manifest conspiracy 2) Overt act if crime not 1st or 2nd (Yates, SCt)  equivocal or prep ok felony [5.03(5)] MR 1) P P [5.03(1)] 2) K + evidence of participation, stake in K is not enough (Camerano, Ma) – pot venture, serious crime (Lauria, Ca) Accessory liability (+) Acts in furtherance of conspiracy and No accessory liability unless P [2.06(3)] reasonably foreseeable (Pinkerton, SCt) (-) No VL (McGee, NY) (--) VL for GI but not SI (Bolden, NV) Vicarious liability Not retroactive (Blackmon, 2d) constraints In furtherance of conspiracy (Wall, 7th) Renunciation (Defense) Withdrawal requires affirmative act that Thwart success of conspiracy w/ complete ends conspiracy (Pinkerton, SCt) and voluntarily renunciation [5.03(6)]

H. Justifications

Self-defense

Self-Defense Common law MPC Requirement 1) Reasonable belief force is necessary 1) Belief it is 2) Defend self or 3rd person from 2) Immediately necessary for protecting imminent use of force (Goetz, Ny) self [3.04(1)] or 3rd party [3.05] Limitations on belief Honest but unreasonable belief (imperfect If MR = R, belief must be non-R [3.09(2)] self defense): murder  manslaughter If MR = N, belief must be reasonable Reasonableness Expert testimony on battered women is relevant if enhances credibility (Kelly, NJ) Expert testimony on Holocaust Syndrome inadmissible (Werner, TX) Imminence 1) Danger must be met instantly, D can’t 1) Immediate < imminence [3.04(1)] call for help (Norman, NC; Sands, VA) 2) Reasonable belief threat will be carried 2) Inevitable != imminent (Schroeder, NB) out (State v Janes, WA) Limitation – type of Deadly force only for reasonable Deadly force for bad felonies [3.04(2)(b)] force apprehension of death or GBH (Clay, NC) Accidental self defense Not available Not available [3.04(1)] Limitation - bystanders (+) No liability (Adams, IL; Fowlin, PA) (-) Liability if R or N (Fowlin dissent, PA) Retreat (+) Retreat if completely safe (Abbot, NJ) Retreat if can safely avoid use of force, (-)Stand your ground (Smiley, FL) [3.04(b)(ii)] Castle exception (+) No retreat in home (Glowacki, MN) No retreat in home or workplace [3.04(b) (-) Unless co-occupant (Gartland, NJ) (ii)] Limitation - initial (+) Initial aggressor cannot respond with No defense if actor purposely provoked aggressor deadly force (Peterson, DC; Allen, OK) use of force [3.04(2)(b)(i)] (-) No defense if aggressor or committing crime that was-but for cause (Mayes, IN)

Protection of property / Law Enforcement

Deadly Force Common law MPC Property (+) No deadly force unless defense of Only available against home intruder if home (CA, CO, FL – Make My Day) force other than deadly force would (-) No deadly force unless stop atrocious substantial danger of GBH [3.03(d)] felony (Ceballos, CA; Sydnor, MD) Law enforcement (-) To apprehend any felony, but not for Arrest of felons by those authorized to act misdemeanor (Durham, IN) as police or helpers [3.07(2)(b)(ii)] (+) Only if felon poses a threat of serious & no risk to bystanders [3.07(2)(b)(iii)] physical harm (TN v Garner, SCt) & felon is dangerous [3.07(2)(b)(iv)]

Necessity / Choice of Evils

Necessity Common law MPC Requirements Harm avoided > harm caused by offense 1) Harm or evil to be avoided > harm  Specific threat of death > prison escape caused by the offense [3.02(1)(a)] (Lovercamp, CA; Unger, IL) 2) No exceptions or defenses [3.02(1)(b)]  Medical pot < drugs (Hutchins, MA) 3) No legislative purpose excluding a Imminence defense of necessity [3.02(1)(c)] No squatting unless will die and no other options (Southwark, UK) Distribute syringes !imminent (Leno, MA) No prior legislative statement / purpose  No medical pot since Congress said so already (Oakland Buyers, CA) Limitations Arise through no fault of the actor (NY Not available for R or N if actor R or N Penal Code) put themselves in the situation [3.02(2)] Homicide K killing of innocent bystander ok to K killing of innocent to save others avoid death of > 1 (# saved > # die) No P killing [3.02 commentary p811] No P killing (Reg v Dudley + Stephens)

Necessity as it relates to torture: 1) Torture is never ok 2) Ticking time bomb only – certainty of useful info & risk of harm (Bybee), imminence, alternative techniques, sufficiency of torture 3) Top level operatives only – P(top level operative) 4) Any terrorist – P(terrorist) 5) Anyone with K of terrorist activities – P(useful info) 6) Anyone who could induce terrorist to talk – i.e. daughter or wife Legal process for torture 1) Ex ante (Dershowitz) – ex-post will lead to under-over inclusiveness 2) Ex pot (SCt Israel) – ex-ante breaks rule of law and retaliatory torture

I. Excuse

Duress

Duress Common law MPC Requirements for Use or threat of harm which is present, 1) Use or threat of force a person of coercion imminent, and pending re: death or GBH reasonable firmness can’t resist (Toscano,  No defense for POW (Fleming, CMR) NJ) [2.09(1)] 2) Unavailable if R for being in situation or N and MR = N [2.09(2)] Reasonableness (if Objective standard based on actor’s situation jurisdiction allows it) (?) Mental factors ok – retarded (DeMarco, PA), BWS (Williams, WA) (?) Mental factors not ok - !retarded (Johnson, 6th), !BWS (Willis, 5th) Homicide No defense to murder (Anderson, CA) Defense to murder [2.09 notes p838] (?) No defense to FMR (Gimotty, MI) (?) Defense to FMR (Serrano, IL) Comparison with Source of D’s crime is D’s crime is Necessity pain / threat < evil >= evil Human Necessity Duress Nature Necessity No defense

Insanity Insanity Common law MPC Test for insanity (+) Cognitive – know act was wrong Cognitive and volitional –substantial (M’Naughten; Lyons, 5th; 22 states) capacity to appreciate wrongfulness of (-) Cognitive – right from wrong (9 states) conduct or conform to law [4.01(1)] (-) No insanity defense (4 states) Substantial is loose std (15 states) Definition of right from (+) Unaware conduct was morally wrong (Serravo, CO) wrong (-) Unaware conduct legally wrong or “God told me” (Crenshaw, WA) Definition of mental 1) Left to jury, but wider than medical definition (Guido, NJ) disease 2) Does not include psychopaths [MPC 4.01(2)] Rotten social 1) No defense if juveniles prosecuted as an adult (25 states) background 2) Built into juvenile adjudication system if prosecuted !adult (Gammons, AZ)

Competence 1) To stand trial – can consult lawyer w/ reasonable degree of rational understanding 2) To be executed – mental capacity to understand death penalty and why imposed Civil commitment 1) As long as D is dangerous to others, even if longer than statutory guilty max 2) Mandatory commitment ok if opportunity to demonstrate recovery reas. Quickly

J. Entrapment

Entrapment Common law MPC Requirements Inducement by govt and non- Inducement by govt and conduct occurred predisposition by D (Sorrells, SCt) in response to entrapment [2.13] Predisposition Ready and willing at the beginning of the inducement (Jacobson, SCt; Poehlman, 9th) (+) Willingness = absence of reluctance (Lakhani) (-) Willingness = absence of reluctance OR capability (Hollingsworth, 7th) Outrageous government Yes = romantic relationship to induce drug buy (Lively, WA) conduct No = prostitute informants, fake job center, giving addicts drugs as payment