Purposes of Punishment

Criminal Law Outline: Hoffheimer, Spring 2003

Purposes of Punishment: 1) Incapacitation: keep criminal from harming others 2) Retribution: eye for an eye, vengeance against criminal for his crime 3) Deterrence: -Specific deterrence(deter that particular criminal from doing something again) -General deterrence(deter others from committing that crime) 4) Rehabilitation: rehabilitate the criminal so that they can safely interact with society.

6th Amendment: -speedy and public trial by an impartial jury, -safeguards against corrupt or overzealous prosecutor or eccentric judge *note: juries in federal system and most states composed of 12 people; constitutionally may be as few as 6; federal system and most states require unanimous verdicts for conviction(though subst’l majority Const’lly OK)

Proof beyond a reasonable doubt: -Sup. Ct. raised in In re Winship; -Required by Due Proces; -Hard to quantify b/c that would seem to make it “insufficient” to meet reas.doubt

*corpus delicti(body of the crime): 1) material on which the crime was committed (i.e.,body or house) Doesn’t mean there has to be a body in a criminal case. 2) fact of crime

Enforcing the presumption of Innocence: -Owens v. State: (man found passed out in car w/lights on,engine running…drunk, not his house, parked in private driveway); *circumstantial evidence: MS requires guilt, if proven solely on circ. evid., to be not only beyond reas. doubt, but that there be “no other reasonable hypothesis of innocence.” (very high burden for prosecutor, but also means that if convicted, uphill battle for Δ on appeal) Jury Nullification: jury basically disregards the law, though it may apply, for reasons such as a) don’t think it should be the law, b) sympathy

State v. Ragland: -Court here says jury null. is not a right, even though it is a power…however court does NOT want to encourage jury null. -Jury selection: Oath by giving special instructions regarding its existence to the jury. Voir dire (policy=laws are made to be followed) Oath (double j. attaches) -Opening statements -Prosec. Witnesses Stages of crim. prosecution: 1) arrest [jurisdiction] Direct/cross -Motion for acquittal 2) Initial appearance [charge/set bail] -[defense witnesses] 3) Preliminary hearing[probable cause] -Closing arg.s -Jury instructions 4) Grand jury [indictment] -Deliberation 5) Arraignment [plea] -Verdict (polling) -Judgement -sentencing hearing -notice of appeal 1 CL

Necessity: Queen v. Dudley and Stephens: (sailors adrift on boat eat boy “to survive”); -murder is obviously present, but does necessity justify the act? -Ct. says No duty to save your own life at the expense of another exists. -guilty verdict b/c otherwise, the necessity defense would easily be abused MPC : §3.01 says justification is an affirmative defense, and even if conduct proves justifiable, that doesn’t bar Civil remedies. §3.02 says conduct actor believes necessary to avoid harm or evil to himself or another is justifiable provided that: a) evil/harm sought to be avoided is greater than that sought to be prevented by the law defining the offense charged; AND balance b) no exceptions dealing w/the specific situation AND c) no apparent legisl. purpose to exclude the justification.

BUT, if actor was reckless/negligent in bringing about the situation requiring the “choice of evils/harms”, justification is NOT a defense if the offense’s required culpability may be established by recklessness/negligence. MS: McMillan v. City of Jackson: (OBGYN protests at abortion clinic and is arrested for trespassing…claims defense of necessity b/c she thought they were illegally killing viable fetuses)

-Elements of Necessity in MS: 1) act being done to prevent significant evil 2) no reas. alternative 3) harm by actor not disproportionate to avoided harm MS adds this req. 4) reasonable belief that death or serious bodily injury is imminent. Applying to Dudley: Summary: 1) CL=NO necessity defense, 1) guilty 2) MPC=belief of actor, 2) not clear at all 3) MS= modified version. 3) unclear as to some elements.

ACTUS REUS:

-Voluntary Acts: (voluntary=any conscious bodily movement) Martin v. State: (drunk man taken onto hwy and arrested for public drunk) -court says voluntary aspect implied in the statute is not present b/c the man was involuntarily taken from his home. (Note: does the fact that he cursed and ranted voluntarily once in Hwy matter?) State v. Utter: (drunk war veteran snaps and stabs son) -Automatism is normally a defense, b/c can’t control actions in an unconscious state, but here, the state of unconsciousness was voluntarily induced, which makes automatism NOT a defense.

2 -Omissions:(as an act) People v. Beardley: General Rule is there is no duty to act. -However, there are exceptions: 1) status, 2) statute 3) contract 4) voluntarily assume 5) Δ created the risk 6) possession[in certain circumstances] Some MR necessary for Barber (p.124): possession…known or should have (Dr.’s unplugged patient’s life support) known works. -Unplugging=Omission or Act? -Ct. says No duty to continue to act where family asked Dr.’s to unplug. *note: If unplugging were looked at as an Act, rather than viewing the ceasing of feeding as an omission conviction would’ve been likely. MENS REA: -“guilty mind”, culpable mental state required for crim. liability. -generally the same as “intent”.

Regina v. Cunningham: (man rips off gas handle to sell for scrap, but ends up causing gas leak in mother-in-law’s house, nearly killing her)

-here, “malice” is defined as i) actual intent to do the particular harm, OR ii) foresaw the risk and acted anyway.

People v. Conley: (high school kid at party hits other kid w/bottle, permanently injures him);

-court says it is fair and normal to infer intent from result.

*note: the presumption is that one intends the reas. consequences of their acts.

Note-Strict Liability is an exception to culpable state of mind requirement. So in Common Law, Intent often proven simply via circumstances, or juries may infer intent from result or consequences….though confession is always the easiest way to prove.

Specific Intent: 3 general things are called specific intent crimes; 1) those that require intent(purpose/knowledge) 2) some further “goal-directed” or “motivational” element (i.e., “assault” not SI distinguish crime, but “assault w/intent to rape” is.) 3) attendant circumstances

General Intent.

3 *transferred intent: (arises most often in homicide cases; i.e., Δ tries to kill one person, but accidentally kills another instead…intent to kill the 1st person is transferred to the 2nd.)

CL: used transferred intent

MPC: Uses transferred intent through Causation.

MS: MCA § 97-3-19, (1)(a)“with deliberate design =death of the person killed or any other human being.”

-Strict liability: (MR not necessary) U.S. v. Cordoba-Hinscapie: Often must look to -2 categories of strict liab. crimes: 1) public welfare offenses, legislative history to 2) statutory rape type crimes. determine. -Mistake is NOT a defense (“I didn’t know!” doesn’t cut it) ●1) public welfare doctrine(strict liability): -2 principles in this: 1) If punishment outweighs regulation of a social order as a purpose of the law, MR Note: if congress intended to have no MR, liable even if likely necessary. person completely lacks any 2) if light penalty(small penalty, no jail time), sort of culpable mental state (Dotterweich) MR is NOT likely required.

►We don’t normally know until Sup. Ct. tells us, but some factors in determining if legis. silence means an offense is a pub. welfare(strict liab.) offense are:

1) history of the crime: if an “old “crime, not likely pub. welf. offense…”newer” crimes more likely to be. 2) Whether malum prohibitum(“bad b/c prohibited”), or malum in se(“bad in itself”)..latter far less likely to be strict liability. 3) Purpose of the legislation; -To achieve some policy goal?(more likely pub. welfare.), or -to punish an individual wrong?(less likely p. welf.) 4) If “area of behavior” of crime is subject to heavy STAPLES v. U.S.: (unregistered altered AR- regulation, it’s more likely to be pub. welf. 15 rifle but Δ “didn’t know” was altered) 5) Is the behavior hazardous?(create great risk of harm… -No specified Legis. intent; Court interprets silence here to mean Knowledge is required, less likely pub. welfare. b/c severe penalty w/ up to 10y. 6) severity of the punishment: greater the punishment, imprisonment, and would criminalize a broad range of “apparently innocent conduct.” the less likely it is to be a pub. welfare offense.

Note: strict liab. in stat. rape is only with respect to the AGE of ●2) Express legislative intent that no MR is required: the victim element … intent as to intercourse element hasn’t really been adressesed. 4 -Statutory rape: MS: strict liability (mistake not def.)

MPC: no strict liability for anything in the MPC unless child is under 10y.o. in stat. rape.

CL: strict liability. Note: some jurisdictions allow MISTAKE as a defense as to the age element, though the Majority does not allow that as defense.

MS: elements: CL: elements: (ex. From IL) 1) person 17 or older, 1) vaginal intercourse Does strict liab. here as to age 2) sexual intercourse, 2) w/person under 14 really create a general deterrent? If 3) child at least 14, but 3) offender=4 years or more someone simply wrong as to age, under 16, older than victim. how can they be deterred if they 4) offender=at least 36 don’t know anyway? m.o.’s older than victim, 5) victim is not offender’s MPC: elements: §213.4, Sexual Assault spouse. 1) sexual contact OR 2) with another 1) person of any age has 3) not spouse intercourse w/child under 4) a) victim less than 16, AND 14, b) actor at least 4y older. 2) who is 24 m.o.’s or more younger than offender, 3) and is not the person’s spouse.

X-Citement Video: -statute said “don’t ship, etc. depiction of minor engaged in certain conduct…is lack of knowledge of contents of tape a defense?(MR required?) -court here said there was a knowledge req. b/c otherwise would be inconsistent w/ 1st Am.

►note: also, as we saw in Yermian, jurisdictional facts don’t require MR.

MPC: §2.02 General requirements of culpability: 1) Minimum req.’s of culpability: except as provided in § 2.05, a person is not guilty of an offense unless he acted purposely, knowingly, recklessly, or negligently, as the law may require, with respect to each material element of the defense. a) Purposely: person acts purposely when: (i) if an element involves the nature or result of his conduct, it is his conscious object to cause such a result, OR (ii) if the element involves attendant circ.’s, he is aware of the existence of such circ.’s or he believes or hopes they exist.

b) Knowingly: person acts knowingly when:

5 (i) if element involves nature of his conduct or attendant circ.’s, he is aware that his conduct is of that nature or that such circumstances exist; OR (ii) if the element involves a result of his conduct, he is aware that it is practically certain that his conduct will cause a result.

c) Recklessly: person acts recklessly when, considering nature of conduct and circ’s known to him, grossly deviates from conduct of a law abiding person in his situation.

d) Negligently: person acts negligently with respect to a material element when he should be aware of a substantial and unjustifiable risk that the material element exists or will result from his conduct. Risk must be such that failure to perceive it, considering nature of conduct and circ.’s known to him, = gross deviation from RPP standard.

► Under the MPC, if specific MR not mentioned, any of the types above satisfies the MR aspect.

►if a law mentions a specifically required type of culpability w/o distinguishing b/t the elements, the MPC says that type of culpability applies to all elements of the offense unless legis. purpose shows otherwise. U.S. v. Morris: (student made a “worm” in computer network to highlight security issues, but it malfunctioned and caused national slow down.); -statute required intent to put in in federal computers… -MPC would require intentionally in every element, but ct. doesn’t mention MPC. -Ct. looks to legis. history to determine if strict liab.

►MPC types of culpability work on a kind of tier system: if you establish purposely, you establish all the other types below it (knowingly,recklessly, negligently)…knowingly, all below it…etc.

See STATE v. NATIONS: (16 y.o. ►When Knowledge of a particular fact is an element, if a person is dancing for tips in club) aware of a high probability of its existence, knowledge is established.

►Knowingly satisfies any “willfulness” requirement. -Also, “willfull blindness” satisfies knowingly in most ct.’s.

►Ignorance/Mistake is NOT generally a defense under the MPC.

-MISTAKE:

6 -Mistake of fact: People v. Navarro: (man “steals” wooden beams believing them to be “abandoned”) -Does a good faith belief (mistake of fact) have to be a reasonable belief to be a defense? - No. Court says here Good faith (Mistake of fact) is a valid defense, whether unreasonable or not.

CL: Distinguishes b/t: Specific intent crimes and General intent crimes

Good faith mistake Good faith mistake excuses PLUS reasonability (even if unreasonable) excuses *Note: willful blindness = bad faith, so it doesn’t work here.

MPC: -MR required for every offense (minus the 10.yo. exception.) -BUT says if someone is mistaken, but the intended act is a crime too, they are charged with the intended crime. (Note; common law is harsher in this aspect b/c it punishes the crime commited)

-Mistake of law: In general, mistake of the law is NOT a defense.

-Problematic examples: When mistake of law can apply to 2 diff. things: 1) law in CA that felons can’t possess handguns… Δ doesn’t know he’s a felon…does MR apply to that element? -it depends; CA has ruled differently at diff. times 2) Δ doesn’t know the above is a crime in CA… this would be more like mistake of law…

-1st example more like MoF…if MoL, No excuse.

People v. Marrero: (prison guard says he “misread” the law) -Ct. says NO DEFENSE.

Exception #1 to the rule: when the law makes knowledge of the law an element of the offense.

Cheek v. United States: (man was told and thought that tax evasion was

7 unconstitutional, so when charged, pleaded mistake of law.)

-Ct. says Δ’s belief about the validity of the law is irrelevant; he knew that it existed, so satisfied the knowledge element of the tax evasion law.

Note: this is an exception case where knowledge is an element that the prosecutor must prove.

Exception #2: when you rely on a state agency or authority’s assertion about that law, it MIGHT be a defense.

(Marrero kind of shows this, but guard wasn’t really an authority on the law)

CAUSATION: *NOTE: Causation is only an issue with result crimes. This is not the case with crimes such as “attempted murder” where they are conduct crimes.

-causation is a moral concept(a lot of time “fairness” comes into play)

-standards for “but for” and proximate causation often vary, and some jurisdictions avoid language concerning prox. cause altogether.

Velasquez v. State: -ct. uses 2 part test: 1) “but for causation”: ( or substantial factor test; where there are 2 independent, simultaneous, sufficient causes, where “but for” wouldn’t really work b/c person would have died either way). 2) proximate causation:

Oxendine v. State: (6.y.o. kid dies from beatings of both dad and gf) -medical testimony was inconclusive to prove causation b/c only evidence was a projection of a possibility.

State v. Rose: (guy runs over pedestrian and drags him under car when fleeing accident.) -concurrence of the elements: if pedestrian died on impact, no crime, but if not, negl. manslaughter. -insufficient evidence that victim died on impact, so no conviction.

Note: There are infinite “but for” causes potentially, so that’s why we have proximate cause.

CL: ●Black letter on prox. cause: “ which in the natural and continuous

8 sequence causes [result], and (without which it would not have happened.)

Last part is really just but for cause. MPC: § 2.03: 1) Conduct = cause of result when: a) but for which result wouldn’t have happened, AND b) relationship b/t conduct and result satisfies any additional cause req.’s in the offense/code. 2) when purposely/knowingly causing a result is an element, it’s not established if the actual result is not w/n the purpose/contemplation of actor UNLESS: a) actual result only differs Note that all 3 require (i) b/c diff. person/prop. than “but for” cause. intended is affected, OR (ii) intended result = more extensive than the one caused, OR (iii) actual result involves same kind of injury as that designed/contemplated, and is not too remote/accidental as to be unjust.

3) when recklessly/negligently causing a partic. result is an element, it’s not established if actual result is not w/n the risk of which the actor is aware, OR in the case of negligence, should be aware UNLESS: a) [same as 2(a)] b) [same as 2b] 4) if partic. result is an element of a strict liab. offense, it’s not established unless the actual result is a probable consequence of the conduct.

MS: prox. cause= jury Q.

Kibbe v. Henderson: (2 men rob drunk man and leave him on side of hwy ¼ mile from a gas station…he is hit and killed by a truck.) -possible intervening causes here: -truck driver went into shock when he saw guy in road, so didn’t brake -guy was in middle of road -gas station ¼ mile away -jury inst.’s didn’t include any standard for causation, so Δ alleges violation of due process(in habeas corpus petition).

9 -Ct. says negligence of a 3 rd party is not generally held to be an intervening/superceding cause in crim. law, though Gross negligence may be. Note: -victim’s contributory negligence is not generally a defense -Eggshell skull rule generally applies in crim. law as in torts -even a victim’s religion may fall under eggshell skull rule

Malice; 4 kinds of intent: 1) intent to kill[can be formed spontaneously] 2) intent to inflict serious HOMICIDE: bodily injury 3) extreme recklessness CL: MURDER if: 4) felony murder rule. 1) unlawful killing Trick is finding out 2) of a human being what “malice” Note: We are also means in each responsible for the material 3) with malice( “malice aforethought”) version. in Murder and Manslaughter in MS, the professor’s MSLJ article. California: adds “fetus,” allowing it to satisfy the “human being” element. Year and a day rule: at CL, victim had to die within a year and a day after the infliction of injury by Δ for murder conviction (didn’t apply to manslaughter)…MS has never addressed this. MPC: MURDER if… 1) Causes death of a human being 2) a) purposely or knowingly, OR b) recklessly under circumstances manifesting an extreme indifference of human life.

Note: MPC also presumes recklessness when attempting certain felonies.

MS: MURDER if… 1) unlawful killing 2) of a human being 3) a) “with deliberate design, OR b) by an act eminently dangerous to others evincing a depraved heart regardless of human life (even though w/o design to kill).

note: deliberate design does not necessarily mean premeditated, just intent to kill.

Note: there are no degrees of murder in CL /MPC/MS(though some state legis. impose)

Summary: -CL = malice(intent). -MPC = purposely, knowingly -MS = deliberate design

Note: with regard to newborns, most CL jurisdictions follow the “born alive” rule, where if a baby is born alive and then dies, it may be murder, where as stillbirth may not. B/c issue was, unborn fetus might not be considered a person at CL.

10 State v. Schrader: (West Virginia) -says premeditation and deliberation can be formed at the time of the killing….defines the terms as meaning basically just “intent”. THEN, Michigan in People v.Morrin says there must be a “long enough time to reflect” to constitute premed/delib. AND, West Virginia revisits the topic in Guthrie, saying simply has to be some time to reflect.

Midgett v. State: (child abuse, boy dies) -insufficient evidence for 1st degree murder, though sufficient for 2nd. -note though, that in MS, the “in the course of child abuse” part would allow capital murder conviction [§ 97-3-19(2)(f)] State v. Forrest: ( man shoots dying father in hosp. 4 times in the head to “stop his suffering”) -Ct. says that the number of shots may indicate premed./delib. -However, CA says the opposite, that multiple wounds are more indicative of non-premed, while one lethal shot indicates greater evidence of premed.

- Manslaughter:

CL: Manslaughter if… a) gross/criminal negligence, OR b) killing w/o malice during an unlawful act, OR c) mitigated down from murder(i.e., by provocation) Involuntary manslaughter MS: Manslaughter if … a) unlawful killing done with culpable negligence that isn’t murder, OR b) killing w/o malice during a misdemeanor commission/attempt, OR c) heat of passion, w/o malice (not in self-defense),OR d) killing of an unborn quick child by injury to the mother, which would be murder if the mother died, OR e) Nonlisted felonies(for FM rule), OR f) Any other unlawful killing not provided for that isn’t murder. Intentional injury of a pregnant woman as a Separate offense in MS: Aggravated DUI as a separate offense in MS: 1) intentionally injures preg. woman 1) operation of a vehicle under the influence 2) a) if miscarriage/stillbirth = felony 2) resulting in death/disfigurement/permanent b) great bodily harm to fetus = felony disablement/destruction of an organ. c) serious/aggravated physical ….is a felony in MS. (can be punished more severely physical injury to fetus = misdemeanor than manslaughter, i.e., 25 years). d) physical injury to fetus = misdemeanor. *these provisions do not apply to legal medical abortions performed by licensed physicians.

MPC: Manslaughter if… 1) homicide committed recklessly, OR 2) otherwise would be murder, but committed under extreme emotional disturbance for which there is a reasonable excuse. (reasonability is to be determined subjectively from the viewpoint of the actor’s situation under the circumstances as he believes them to be.)

Negligent Homicide: (as a separate offense under MPC) -negligent homicide if it is committed negligently…this is a 3rd degree felony. 11 -provocation: mitigates murder to manslaughter(in CL, MS, and MPC) -one reason for mitigating for provocation is b/c victim “asked for it.” -may also look at killer’s conduct for justification. -some jurisdictions allow instructions for manslaughter mitigation, while others do not.

CL: elements necessary for provocation to mitigate: 1) actual provocation (heat of passion/rage) 2) legally sufficient provocation? Many jurisdictions Killing the spouse may be a) spouse in act of adultery replace all this by able to qualify under this. b) assault/battery (“mutual combat”) on Δ saying, “Is the provocation c) “ “ on Δ’s relative sufficient to make d) “imperfect self-defense” an RPP act rashly?” e) resisting an unlawful arrest. 3) no “cooling off period” “modern trend” jurisdiction: this (reasonable time, judicially imposed) is a question of law, not a jury Q. Note: mere words are not enough alone…but can be enough if accompanied by present intent and ability to commit bodily harm. [ reasoning words alone may not be enough is that Δ might have been original aggressor, or was not entitled to self-defense, etc.]

note: when addressing a homicide, see if there is anything that would mitigate murder to manslaughter.

note also: manslaughter is NOT a defense; just reduces sentence as compared to murder…it is also still an intentional killing.

MPC: 1) extreme mental/emotional disturbance 2) for which there is a reasonable excuse Jury Q.

Note: external things, such as race, sex, etc., are taken into account, but other more subjective traits, we don’t look at….such as culture, etc, which are a grey area and probably would go to a jury.

●Killing w/o malice, but unlawful act: (unjustified risk taking as intentional killing)

12 CL: 1) criminally culpable negligence = gross

MS: criminal culpability = 1) “wanton and reckless Repetitive, but 3) character showing disregard for safety of others leaving it in the outline (as opposed to disregard for human life in MS’s MPC: a) recklessly = manslaughter murder statute) b) negligently = negligent manslaughter

Berry v. Superior Court: (man owns illegal fighting pit bull, guarding his marijuana field…shares driveway w/ family that has 4 small kids, unfenced yard…dog kills 4 y.o. kid.) -CAL sort of follows CL rules: CAL black letter here = 1) actual appreciation of risk 2) high probability of death 3) base antisocial motive w/ wanton disregard for life. -Δ convicted of involuntary manslaughter

State v. Hernandez: ( hammered guy wrecks van and kills 2 people…slogans on his visor might as well say “hooray for drunk driving!”) -drunk driving in theory can be the same as shooting into a crowded building as far as malice is concerned.

State v. Williams: (baby gets gangrene, parents thought it was toothache) -ordinary standard for negligence convicts here, but Hoffheimer says it’s a bad decision, and that’s the minority standard…CL, MS, MPC use much higher standard for negligence.

Felony Murder Rule:

13 MPC: does NOT actually have felony murder rule, but has this take on the idea: § 210.2(a): “homicide = murder, when… 2) recklessly, 3) under circumstances manifesting extreme indifference to the value of human life

*the felony-murder-like aspect is that “such recklessness and indifference are presumed if the actor is engaged or is an accomplice in the commission of, attempt to commit, or flight after committing or attempting to commit: a) robbery b) rape c) deviate sexual intercourse by force or threat of force d) arson e) burglary f) kidnapping g) felonius escape.

MS: Felony Murder = 1) killing 2) w/o design to kill 3) while committing; a) rape Note: Felony b) burglary murder w/ the c) kidnapping listed felonies is d) arson a capital offense e) sexual battery in MS f) unnatural intercourse w/child under 12 g) nonconsensual unnatural sexual intercourse with mankind

* OR any ATTEMPT to commit any of the offenses listed above!

CALIFORNIA: Has degrees of murder…crime must first be MURDER in Cal., then, if during the commission of one of the listed offenses, it becomes 1st degree murder. -this in essence sometimes makes a killing murder that would not otherwise be, as well as aggravating the listed murders.

CL: felony + murder = felony murder -sidenote, in England, where this was originally conceived, they no longer use the FM rule.

People v. Stamp: (man enters office w/blackjack and gun and when escaping, tells

14 people to lay on floor….man w/heart disease has heart attack-dies.)

-Δ argues that death should at least be foreseeable to convict. -court says Strict liability with FM rule regardless of forseeability. (forseeability ≠ required)

People v. Fuller: (high speed chase after thieves steal tires from vacant car lot results in death of driver that thieves hit when running red light)

-note: another theory here could be extreme recklessness

-again, Ct. here says forseeability ≠ required, and further refuses to make exceptions for certain types of felonies such as unarmed, etc.

Note: Make sure you have all elements of the felony present before even thinking about felony murder.

●Limitations to the felony murder rule: 1) “inherently dangerous” 2) “independent felony” (“not included in fact”)[merger doctrine] CL 3) “in furtherance of/in perpetration of” limits 3 sub-views in this limit: 4) “mala in se” (bad in itself) 1) some jurisd’s require that 5) restrict it to common law offenses the felon or his agent cause the death. 6) restricting time period (during which death occurs) 2) some say N/A if one of one of the felons=victim. *Note : even jurisdictions that use these limits are generally divided. 3) some exclude justifiable homicide.

Examples: People v. Burroughs: (new age healer’s massages cause hemorrhage in cancer patient, who then dies) -inherently dangerous felony limitation: if felony is not inherently dangerous, the court won’t apply FM rule.

-court says that “practicing medicine w/o a license”(the felony involved) is not “inherently dangerous.”

-Court also adds requirement that “the felony can’t be committed w/o substantial risk of death.”

Note: California later amended its FM rule to apply only to felonies that “create a high probability of death”……also makes that a jury Q.

This doctrine ●merger doctrine: (this is a majority rule in some form or other, though not all jurisd.’s use.) sucks b/c it is confusing and I don’t understand it very well… 15 -felonies must be independent from each other in order for the felony murder rule to apply(“independent felonius purpose”): -if not independent, the felonies merge. For example: People v. Smith, the court cites another case stating “where a person enters a building with an intent to assault his victim with a deadly weapon, he is not deterred by the felony-murder rule…..that doctrine can only serve its purpose when applied to a felony independent of the homicide.” Examples: -in Smith, it was child abuse resulting in death, Not independent: and the court said it is hard to see how the attempted murder + felon would be further deterred from accidentally felonious assault. or negligently killing the child by the FM rule. Grey areas: arson, burglary, etc. guess -hence, the reasoning behind this doctrine seems to be that, b/c FM’s purpose is supposed to be “deterrence,” if it is not likely to deter the initial felony b/c of its application, there is no need to apply it. -another reason is, w/o it, prosecutor ends up able to get a murder conviction where otherwise it might just be manslaughter. Note: in MS, burglary and felonious child abuse don’t merge, so FM rule would still apply.

●“death in furtherance/perpetration of the felony:” -reasons that something more than just a death while the felony is going on is required…the death must be “advancing” the felony in some way.

King v. Commonwealth: (plant crash while carrying marijuana, guy dies) -the crash wasn’t in furtherance of the drug smuggling, so court declines to apply FM

note: if the plane had been at low altitude, fleeing/avoiding detection, might have been “in furtherance”.

State v. Bonner: (cop kills one of the fleeing robbers) -Ct. says FM not applicable, even if in furtherance of, b/c dead person is one of the felons. -agency theory: person committing the fatal act must at least be the agent of one of the felons. (so in these jurisd.’s, FM rule = barred, if dead guy = felon)

16 DEATH PENALTY:

-Note: Retribution and Deterrence are the policy goals of the Death Penalty. (also note though, that there is no evidence that the D.P. deters capital crimes.)

-Note: there are a shrinking number of crimes punishable by death.

Important cases leading up to current status of Death Penalty:

-Witherspoon: said only people that didn’t have a problem with convicting and sentencing a person to the death penalty could be on a jury in a death penalty case. (excludes those with reluctance).

-McCleskey: discrimination in due process cases cannot be proven simply by statistics…it must be proven that there was discrimination in that particular case (i.e., sentencing someone to death b/c of their race.)

-Furman: said unlimited juror discretion in sentencing to death = unconst.’l

-Woodson: said mandatory capital sentencing (i.e., no jury discretion)= unconst.’l

Gregg v. Georgia: (GA provides statutorily aggravating circ.’s which must be proven beyond reas. doubt before the death penalty may be imposed)

-also imposes “bifurcated trial”: 1) guilt phase 2) sentencing phase.

-also adds automatic appeal to GA supreme ct. upon death penalty conviction.

So, GA system = 1) Guilt phase 2) Sentencing phase 3) Automatic appeal

The U.S. Sup. Ct. finds this scheme constitutional, so other states thus see an example of const’l scheme which they may now adopt.

Crimes punishable MS: a) peace officer/fireman, while in official capacity, and actor

17 by death: is aware of that. b) if prisoner kills while under life imprisonment c) kills with bomb or other explosive device d) offered or received value for the killing e) [felony murder rule, discussed above] f) kills child in child abuse, or attempted child abuse g) kills on educational property h) kills an elected official w/knowledge of that. Not sure we even need to know this stuff. MPC: a) actor under life imprisonment b) previously convicted of violent felony or murder c) Δ committed another murder at same time d) Δ created great risk of harm to many e) committed during commission/attempt/flight of(listed FM rule felonies) f) committed to escape lawful arrest/custody g) committed for pecuniary gain h) especially heinous/atrocious/cruel, manifesting exceptional depravity.

CL: all murders punishable by death.

RAPE and SEXUAL BATTERY: When looking at rape, also think about Mistake, etc. and other CL: defenses( i.e., mistake as to consent element) FORCIBLE RAPE 1) carnal knowledge (sexual intercourse) 2) force (use of force sufficient, OR threat of sufficient bodily harm) 3) against the will of the victim.

Note: -at CL, some evidence of resistance was required to show the “force” element. -CL also had a “marital” exception (done away with in most jurisd.’s, including MS). -note 1, p.416 says that a defense may be “reasonable good faith mistake as to the consent element” = the general (but not universal) rule in the U.S., b/c it removes the MR necessary to convict.

MS: RAPE 1) sexual intercourse 2) force (note precisely clear what force required, but CL force rules probably definitely enough) note: we don’t know if we need “lack of consent” in MS to convict, b/c not a listed element. Note: MS also says intercourse induced through intoxication or drug use so as to prevent effectual resistance may be rape. (?) SEXUAL BATTERY: 1) sexual penetration (any penetration of genitals/anus/oral by organ or object) a) w/o the consent of, OR

18 b) mentally retarded/physically helpless person c) w/child under 18 if actor is in “position of trust” d) [statutory rape ages, whether consent or not]

MPC: see §213.2…not sure if we need to know this.

LARCENY/BURGLARY/ROBBERY:

LARCENY: 1) trespassory 2) taking 3) carrying away 4) personal property 5) of another a) deprive person of the 6) with intent to steal. property permanently b) convert to own uses ROBBERY: 1) larceny (all 6 larceny elements) *Be aware of double jeopardy hazards w/ 2) from a person these. 3) violence or intimidation.

BURGLARY: 1) break 2) enter 3) dwelling 4) of another 5) at night 6) with intent to commit felony.

MS/MPC: not in notes or discussed.

ATTEMPT:

MS: 1) design and endeavor [specific intent]

19 direct frustrated act 2) overt act ( )* *Ishi v. State: (MS Case) 3) fail or be prevented. must be proven beyond a -9.y.o. boy at grocery reas. doubt. -Δ makes sexual proposition -boy tells mom diff. element from murder -Δ didn’t touch, restrain, etc. -Court held that this was enough to satisfy the *note: lesser offense included (i.e., larceny to robbery). overt act, and Δ was sentenced to 30 years.

*Note: one strange quirk of MS law is that attempted murder may be punishable by up to life imprisonment, while capital murder attempt punishment can’t exceed 10 years imprisonment.

CL: -most jurisdictions criminalize attempt; majority requires: a) specific intent b) act beyond mere preparation. Different jurisdictions use different tests to determine what is “beyond mere preparation”. Think of it as a spectrum with “Idea” on one end, and “Target Offense” on the other, with different jurisdictions drawing the point at different points on the line as to how far one has to go to be beyond mere preparation.

MPC: § 5.01

1) Has the kind of culpability otherwise required for the offense, AND (i.e., purposely/knowingly,etc.) a) purposely engages in conduct that would constitute a crime if the circ.’s were as he believes them to be, OR b) when causing a particular result is an element, he does something with the belief that such conduct will cause that result, OR c) purposely does something which, under the circ.’s as he believes them to be, constitutes a substantial step* in a course of conduct that would end in the crime being committed.

*substantial step in MPC: behavior which is strongly indicative IMPOSSIBILITY: of a criminal purpose to commit the crime.

Examples: CL: a) lying in wait for, searching for, or following the contemplated victim,etc. -Legal impossibility: (a defense to attempt exists) Problems-“if with the Attempt intended: act is notVoodoo criminal, case: we theredon’t know can what be happens no criminal b/c they pled guilty…under MPC, since they believed 1) Impossiblity liability for an attempt toit would commit kill the thatjudge, act.” they would [excuse=defense] be guilty. 2)-FactualAbandonment impossibility: (no defense)[no excuse, no defense] *jurisdictions are divided-“if the as to intended whether substantive crime is impossible of accomplishment these are defenses. b/c of some physical impossibility known to the accused, the elements of criminal attempt are present.” (i.e., gun misfires when Δ shoots, so couldn’t actually have killed anyone, though Δ wouldn’t have known it would misfire.) U.S. v. Thomas: (3 military guys rape deadgirl); -“what [the offenders] think of the crime doesn’t have any effect on their liability.” (i.e., they thought it was the crime of rape, but it wasn’t, b/c she was dead.)

MPC: no defense of impossibility20

MS: professor doesn’t know. So on exam, say “these are the elements of attempt …not sure if impossibility is a defense, b/c no defense in MPC, MS we don’t know, and CL distinguishes b/t factual and legal impossib., so can argue either way in any case.

ABANDONMENT:

CL: divided as to whether to recognize.

MPC: recognizes abandonment (“renunciation”); Must be 1) complete, AND 2) voluntary abandonment. - not voluntary if motive for abandonment is a) b/c criminal realizes they might get caught, b) realize crime will be harder to commit than they thought c) transferred to another target or incomplete.

MS: complete and voluntary renunciation (w/ same limits as MPC). *w/ regard to crimes w/victims, “through 1) verbal urgingby the victim, 2) with no physical resistance or external intervention, 3) perpetrator changes his mind.”

One problem with assault: ASSAULT AND BATTERY: State v. Boutin: proximity was a problem here: Court held that Δ was 10ft. away and thus not close enough for CL: assault to take place.

Mayhem: unlawful injury that precluded a victim from defending themselves.

21 (felony at CL)

Battery: unlawful application of force to victim.

Assault: 1) attempted battery 2) present ability to complete the battery *later expanded to include “threatening behavior, intentional subjection of the victim to a reasonable apprehension of receiving a battery.”

MPC: 1) Simple assault: Attempting to cause bodily injury, OR Purposefully, recklessly, or knowingly causing bodily injury, OR Negligently causing a bodily injury w/ a serious weapon, OR Putting someone in fear of serious bodily injury (i.e., unloaded gun.)

2) Aggravated Assault: 1) attempts to cause serious bodily injury, OR 2) Actually causing serious bodily injury purposefully, knowingly, or recklessly under circumstances that show extreme indifference to human life, OR 3) attempts to cause injury w/ deadly weapon, OR 4) by causing bodily injury either purposefully or knowingly with a deadly weapon.

Serious bodily injury = an injury which poses a substantial risk of death, serious permanent disfigurement, or loss of a function of a bodily organ.

MS: Basically the same as MPC, though MS adds some add’l language of deadly weapons or other means likely to cause death. Also adds that simple/aggravated assault on certain persons enhances the seriousness of the offense, elevating simple assault to a felony….Solicitation in MS still falls under attempt.

Solcitation: most jurisdictions have a criminal solicitation statute.

CL: 1) solicits 2) specific intent that other person will commit the crime

MS does not have such a statute, but there is a specialized statute making it

22 a separate crime to solicit a person under 17 y.o. to commit a crime. (MS covers the solicitation offense through attempt basically)

MPC: 1) purpose to promote or facilitate commission of the offense 2) solicits another to engage in conduct that would constitute the crime/attempt, or the other person’s complicity in that crime/attempt.

CONSPIRACY:

General Federal version:

1) 2 or more persons 2) conspire 3) a) federal crime OR b) fraud against U.S. government, 4) overt act by any co-conspirator.[act “in furtherance” of the conspiracy]

MCA § 97-1-1: 1) 2 or more persons 2) conspire 3) any crime, or certain intentional torts, or any unlawful conduct. Note: no overt act needed in MS. MPC: If a person engages in conduct “with the purpose of aiding another to commit a crime, he is guiltyof conspiracy under the MPC even if the crime is not committed or attempted by the other person. Quirks about the MPC: -if the conspirators go through w/the crime, merger in MPC says they will not be held liable also for simple conspiracy to commit that crime…

- BUT an exception to this is, if conspirators planning on “going into the Most business” of committing crime,(i.e.,Bonnie and Clyde plan to rob banks for a living) jurisdictions DON’T merge target offense -the Pinkerton doctrine(below) does not apply under the MPC. and conspiracy to commit it… can be convicted This might not apply -MPC does not require an overt act. of both. in MS. ●Pinkerton doctrine: parties to the conspiracy are liable for all crimes by the co- conspirators in furtherance of the conspiracy.

Note: -object of a conspiracy must be Specific Intent crime. -knowledge is often enough to infer intent.

Problem: Can conspiracies be committed by one person? (bilateral consp. v. unilateral consp.) - Authority is split: MS/Traditional CL: requires 2 people. MPC, some jurisdictions: permits unilateral. 23 Special defenses to conspiracy: 1) Wharton’s rule: (some jurisdictions apply) -If a crime by its nature requires 2 people for its commission, can’t convict the people of conspiracy to commit it. (i.e., drug sale takes a buyer and a seller).

-Ianelli v. United States: -Ct. says the Wharton rule is only applied in the absence of legislative intent to the contrary. [so Wharton rule may be Tyrell’s rule: -can’t convict a victim, such limited if there is clear contrary legislative intent].) as the girl in statutory rape, for being a co-conspirator… -also talks about not being -Gebardi v. U.S.: able to convict on -Ct. refuses to apply conspiracy to victims of a crime, which conspiracy charges when crime necessarily requires 2 in this case, is a woman transported across state lines people to commit, but where in violation of the Mann act. there is no punishment at all for one of the parties…also like in consensual statutory rape. 2) withdrawal: -( jurisdictions agree that someone can withdraw from a conspiracy, but jurisd.’s are split as to what is required for withdrawal, as well as to whether withdrawal can still occur after the conspiring/overt act has taken place.) MPC: must not only withdraw from the conspiracy, but must Notice similarity 1) thwart the success of the conspiracy to abandonment. 2) under circumstances manifesting complete and voluntary renunciation of the criminal act.

ACCOMPLICE LIABILITY: MS: MCA § 97-1-3, 97-1-5: Accessories before the fact: accessory to any felony, before the fact is guilty as a principal whether the principal is convicted or not.

Accessories after the fact: 1) a) concealed/received/relieved any felon, OR

24 (separate offense) b) aided/assisted any felon, 2) knowledge that the person committed felony, 3) intent to enable felon to escape/avoid arrest,etc., 4) after commission of the felony

*In MS, for accessories after the fact to be guilty, the principal has to have convicted or tried.

CL: Distinguishes b/t: 1) 1st degree principal, 2) 2d degree principal.

1) accessory before the fact, 2) accessory after the fact. Knowledge not enough, but may be sufficient evidence for fact MPC: person is guilty as an accomplice of the substantive crime if: finder to infer the proper MR. 1) for the purpose of promoting or facilitating an offense, 2) either solicits, agrees, aids, or attempts to aid the offense. OR When causing a particular result is an element, an accomplice in the conduct causing the result is guilty of complicity if he acts with the kind of culpability otherwise required for the commission of the offense. OR Culpability otherwise required + innocent agency.

Note: MPC does not deal with the problem of “attendant circumstances:” (i.e., statutory rape, where alleged accomplice doesn’t know age, and knowing age is not necessary for the principal to be guilty) -2 approaches possible for this: a) no MR, so not guilty, It’s not really b) no MR required for principal offense, so accomplice clear what would be guilty even w/o MR result here.

-State v. Foster: -Ct. says a person can be held liable as an accessory to a crime that does not require specific intent (i.e., negligent homicide).

-State v. Linscott: -(robbing coke dealer, principal shoots dealer w/ a shotgun…not part of the plan) -“natural and probable consequences” doctrine: (foreseeable consequences) -murder here was held to be a foreseeable consequence of armed robbery.

Note: -what about FM rule here? Or just inferring intent to kill from circ.’s? -How does this differ from Pinkerton rule? (Pinkerton only applies to conspiracy) -If we apply conspiracy here: 1) agreed to rob, 2) murder in furtherance of the consp.

25 Note: Could someone be an accomplice but not a co-conspirator? [see case where one brother raped girl in the presence of the other brother…no agreement, but he doesn’t want to get bro. in trouble…might be accomplice w/o being conspirator.] Also, simple conspiracy merges with attemp t under some jurisdictions such as MPC.

-State v. Vallaincourt: (guy’s friend watches and chats w/ him while he pries open window) -Ct. says “mere presence” is not enough for accomplice liability. Note: “mere” anything is not enough in criminal law. Note: what about “omission” as a crim. act here? -problem is, if we impose a new duty, what is enough to resist/thwart? -where is the line drawn? -what about safety of thwarting party?

State v. Helmenstein: (drunken teen banana thieves): -corroboration rule: can’t convict simply on testimony of an accomplice unless other evidence corroborates the testimony…also, corroborative evidence showing simply that the offense occurred, etc., is not enough.

Some jurisdictions have this rule and/or a jury instruction saying to treat accomplice testimony with caution. MS does not require corroborated testimony, but DOES require the cautionary jury instruction.

Aiding: note, it IS possible to aid w/o the principal being aware of the aid (example, guy leaves door unlocked for thief, but thief doesn’t know and uses door instead.)

-if Aiding, some courts require some causal link b/t the aiding and the crime, while others, like the MPC, say a simple attempt to aid is enough. -the CL requires some connection b/t the attempt to aid and resulting crime, though “but for” causation is not required.

Encouraging: encouraging IS enough to establish accomplice liability for the resulting crime. This is true even if the encourager is lying to the principal. (i.e., saying “I’ll watch for cops!” but then running away instead.)

-What if the crime is not committed by the principle?

-People v. Genoa: (undercover agent tells guy he’ll let him in on coke deal for $10k, but there was never any actual cocaine to be sold.)

-Ct. says Δ was financing a deal that didn’t exist, so financed nothing. SO

26 No crime by principle = no accomplice liability here.

Note: BUT, if the crime is attempt, there could still be conviction if the principal was guilty of attempt, though here, the cop never intended to commit the crime, so not applicable.

Note: Under MPC, 1) “purpose of promoting or facilitating the offense,” and 2) “attempts to aid” -both elements are met, so Δ would be guilty regardless of whether the cop committed any crime.

-Bailey v. Commonwealth: (man tricks other drunk man w/poor vision into standing on porch w/gun…then calls cops…cops end up killing drunk guy.) -Innocent agency doctrine: “one who effects a criminal act through an innocent or unwitting agent is a principal in the first degree.”

-Ct. convicts Δ, saying guilt through the above doctrine, and that there was no intervening act, so death was foreseeable.

-State v. Hayes: (Δ proposes burglary of a store to a guy that turns out to be the owner’s son…son tricks Δ into stealing bacon, and cops catch him.) -Principal not guilty, so can there be accomplice liability?

CL: = has to have been an offense committed in order for someone to be guilty of complicity to that offense.

Note: -What about attempt here? -What about conspiracy? -What about legal impossibility as a defense?

-U.S. v. Lopez: (guy’s gf is in prison…she tells him her life is in danger…he lands a helicopter in the prison yard and helps her escape.) -ISSUE: Can the defense of necessity bar accomplice liability b/c the principal ends up not being convicted of the crime?

-Ct. says an accomplice in justification is not guilty of a crime, while an accomplice in an “excuse” crime may be liable.

27 wrongful ●Excuse: i.e., insane person robs bank…not guilty b/c of insanity excuse not wrongful ●Justification: i.e., Δ burns corn field to make a fire break for a spreading forest fire…not wrongful b/c Δ’s actions would be justified b/c of the “greater good.”

-Ct. says Δ’s act had justification, so no complicity.

-Regina v. Richards: (woman tells two men to beat up her husband badly, but they only end up scratching his head…she signals them with a candle, etc., so seems to MR for a worse crime than that committed by the principals.) -holding: CL: An accomplice can’t be convicted of a greater harm than the principal…regardless of difference in levels of intent.

Limits to Accomplice Liability: In re Meagan: (statutory rape case, prosecutor tries to find some way to convict the girl…conspiracy, complicity, etc.)

-Court says Wharton’s rule and Tyrell’s rule: (see conspiracy limits for explanation) bar prosecution of the girl.

Brown: -Ct. says abandonment/withdrawal defenses are available, though here, attempt had already taken place, so was too late to withdraw. [note, for abandonment, would have to be complete undoing of past effectiveness OR report to authorities, etc.]

: ASSISTED SUICIDE Note: Why are we discussing this Now?..b/c it looks like these people SHOULD be convicted of murder through MS: MCA § 97-3-49: Guilty of assisted suicide if: complicity at the very least. 1) willfully, or in any manner [Prof. says use willfully, high level of MR], 2) advises/encourages/abets/assists 3) suicide or attempted suicide.

28 Interesting MS Case(1996): -Δ tried to kill himself, but in the act, accidentally killed his wife. Argues that it was an accident. Jury convicted of manslaughter, b/c accident was not a defense since the intended act, attempted suicide, was an unlawful one….thus, manslaughter.

MPC: §210.5 (1) Causing suicide is Homicide if: a) purposely, and b) through force, duress, or deception.

(2) Aiding/Soliciting suicide (as a separate offense): a) If someone purposely aids or solicits the suicide/attempt, AND (i) causes suicide/attempted suicide…it’s a felony. (ii) otherwise, it’s a misdemeanor.

CL: Seems that suicide was the same as homicide at CL, though the casebook has some assumptive inconsistencies with this which irritate Hoffheimer. -this means we should probably use attempted homicide at CL…I think…

-Washington v. Glucksburg: U.S. Sup. Ct. says that there is NO FEDERAL CONSTITUTIONAL RIGHT TO TAKE YOUR OWN LIFE.

-note: conflicting policies with this are moral problem v. right to your own body. Note: what about state law?

-People v. Campbell: (guy sleeps w/Δ’s wife…Δ and deceased get drunk and Δ encourages deceased to kill himself…gives him a gun…then leaves. Δ kills himself.) -Ct. says suicide not homicide simply by definition.(Hoffheimer doesn’t like this assumption.) -Problem: What about a child/retarded person/insane person/drunk person w/o the mental faculties to comprehend what he is being encouraged to do? We don’t know the result really.

-People v. Kevorkian: (Dr. Kevorkian assists 2 women in suicide w/ a suicide machine, and carbon monoxide)

-“merely providing the means” is held not to be murder in MI.

-for murder, Ct. says death must be the “direct and natural result” of Δ’s act.”

(overt and direct act + natural result of death = murder)

DEFENSES:

“failure of proof” defenses, such as mistake of fact, where it is disproving one of the elements like Mens Rea, or keeping the prosecutor Contrast: from meeting his burden of proof. “special defenses” which are more narrower…these defenses are basically conceding the elements of an offense, but saying that there is some other reason that the Δ still should not be guilty such as

29 the following LIST:

-Choice of Evils -Protective Force(self/others/property) 2 views on this: -Law enforcement (by gov. or private) 1) subjective: whether Δ’s will -Duress was overcome, etc. -Entrapment (by police officers) 2) objective : (MS uses) -Insanity whether the crime was brought about by the police. *If the State chooses to make these “affirmative defenses,” then Due Process is not violated by putting the burden on Δ to prove by preponderance of the evidence. BUT this doesn’t mean that the State always does put such a burden on Δ…for example, in MS, for the Insanity defense, the state has the burden of proving the absence of insanity.

With these defenses, look at them in terms of whether they are 1) Justification OR 2) Excuse (“good”) (“not necessarily bad”)

*BOTH of these result in a verdict of Not Guilty, so why the distinction?

*3 Different Legal Consequences of the distinction: 1) civil liability 2) things like the FM rule, where some jurisd.’s bar that rule’s application if the homicide is justifiable(i.e., case where cop shot fleeing bank robber) 3) Accomplice Liability: justification of principal’s offense prevents conviction of the accomplice for accomplice liability in some jurisdictions [Lopez].

SELF-DEFENSE:

CL/MS: (same requirements in both)

1) person NOT the aggressor, 2) reasonable belief, 3) necessity 4) protect self

30 5) from imminent use 6) of unlawful force Deadly force: only if threat of death or great bodily harm.

NO RETREAT “retreat”: MS and the majority of CL jurisd.’s do NOT require retreat… EVER -even those in the minority that DO require it only require retreat REQUIRED UNLESSS when it can be done in complete safety. (also, some that do DEADLY require retreat when possible in complete safety do NOT impose FORCE. a duty to retreat when one is in their own home).

“Imperfect self defense” defense not available, but mitigates murder to manslaughter(adequate provocation at CL). Some jurisdictions bar imperfect self defense as a defense completely where the Δ is the aggressor, as in Peterson (below).

United States v. Peterson: (deceased stealing Δ’s windshield wipers, Δ goes in house, gets gun. Meanwhile, deceased started to leave, but Δ comes out w/gun and tells him not to move…deceased starts to advance on Δ with a lug wrench, and Δ shoots him in the face.) -Issue= whether Δ being aggressor bars the defense. Ct. says it does.

MPC: §3.04,3.09:

1) belief (doesn’t mention reasonability of that belief) 2) immediately necessary 3) protect self 4) unlawful force 5) on the present occasion.

Deadly force under MPC authorized only if threat of: a) death, OR b) serious bodily harm, OR c) kidnapping, OR d) forcible sexual intercourse. Retreat: MPC requires retreat Another exception: Recklessness or before the use of deadly force, if negligence eliminates the defense where actor knows he can retreat with mens rea is recklessness or negligence. complete safety. Actor does not have a duty to retreat in his dwelling or workplace, except where Voluntary Intoxicationdefendant is the: aggressor or victim is a coworker. i.e., aggravated DUI problems: -criminals very often intoxicated while committing crimes in MS…(not a -should voluntary intoxication be a defense, or aggravate a defense? crime to run over someone through civil negligence, but CL: majority: (in American jurisprudence) Aggravated DUI is a crime with a more Voluntary intoxication was available to prove lack of severe punishment necessary mental state/specific intent as an element. than manslaughter) [NOT available as a defense in general intent crimes.]

31 -Commonwealth v. Graves: (guy and cousins go rob/burglarize old man…old man dies… …Graves was on LSD/wine and reaaal screwed up.)

-ct. says failure of requisite MR b/c of drunkenness, and since that was an element of the specific intent crime, no crime was committed.

Note: in this case, the issue was whether evidence of the Δ’s drunken state could be admitted to jury ….didn’t say jury would automatically find the lack of MR, just said that they could.

MS: McDaniel case (handout):

- Involuntary Intoxication is NO defense in MS.

-Ct. says if Δ was capable, when sober, of distinguishing b/t right and wrong, and the Δ voluntarily deprives himself of the ability to distinguish by reason of becoming intoxicated, and he commits an offense, he is criminally liable for that offense. (However, it CAN be a mitigating circumstance in the sentencing phase of murder trial)

MPC: -Involuntary Intoxication IS an available defense when it negatives an element (i.e., purposely/knowingly).

-BUT, when Recklessness establishes the necessary MR, if actor would have been aware of the risk sober, recklessness still established if voluntary intoxication (so involuntary intox. not a defense there.)

-also has exception for if intoxication not self induced (so really makes it not voluntary). -note also, it’s possible that the CL wouldn’t apply the defense if recklessness either. (the answer is not clear…of course.)

Insanity: 3 important things: 1) “ incompetence to stand trial ” aspect: when a Δ is so out-of-it that he can’t understand the trial or what is happening around him, or communicate with his lawyer. [Hoffheimer says “sufficiently nutsy”] (Usually someone can be pretty whacked and still be competent to stand trial)

2) NGRI ( Not Guilty by Reason of Insanity):

32 3) Capital punishment: Constitutional requirements do not permit putting an insane person to death.

NGRI: (see handout) (We are focusing on these aspects for the purposes of this course.)

CL: -vast majority at CL recognized some form of insanity (“lunacy”) defense, although a very few didn’t have any sort of insanity defense at all. Various Tests: there are many tests used both in CL and today to determine.

●Mc’Naghten Test: 1) disease/defect of mind (MS follows this) 2) a) not know nature and quality of the acts, OR b) not know that the act is wrong.

Problem: what does wrong mean? What about where the actor thinks God told him to commit a certain act? He doesn’t think that’s wrong. -Courts are divided on how to handle these cases.

Burden: Up through the 80’s, prosecutor had the burden of proving absence of insanity in a majority of jurisdictions (which MS still does). Majority now says Δ must prove insanity by preponderance of the evidence.

●Irresistable Impulse test: (traditionally supplements tests like Mc’Naghten) -theory that Δ can’t control his actions, irresistibly had to commit act. (think about temporary insanity as some irresistible impulse) *says “appreciate”, ●MPC/ALI test: whereas McN. test says “know”. -combines aspects of the McN. Test and I.I. test…a 2 pronged test: 1) cognitive prong: lack of substantial capacity to appreciate* criminality of conduct. 2) volitional prong: lack of substantial capacity to conform conduct to requirements of the law.

●Federal Test: 1) SEVERE mental disease or defect, 2) Renders Δ unable to appreciate a) nature and quality of the acts, OR b) wrongfulness of the acts.

Burden: Δ must prove by clear and convincing evidence under federal test.

*this test seems to revert to the cognitive portion of the McN. rule, and drop the volitional part of MPC…BUT picks up on the language from MPC about “appreciate”, etc.

33 Note: Insanity is still a changing area. There is a lot of debate about it, but it is actually only very rarely successful as a defense, so rarely used. Handouts: 1)

34 2)(MS)