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THEORETICAL DIMENSIONS

Why punish?

Deterrence (Bentham) 1. Bentham was a utilitarian a. Main concern was maximizing utility in human welfare 2. Deterrence argument a. If the consequence for committing an act is greater than the pleasure of good that come from it, people won’t commit the act b. Gain < Penalty x Probability of penalty 3. Doctrine of “wasted punishment” a. Sometimes, the costs of punishing people are not worth it b. “When it is unprofitable, or too expensive: where the mischief it would produce would be greater than what it prevented,” the crime is “unmeet for punishment”

Individual Desert (Kant) 1. Humans have moral obligations to each other; when they invade someone else’s rights they deserve punishment a. People may not use other people as means to an end 2. Punishment must be proportional to the crime

Expressive Value (Jean Hampton) 1. Laws reflect the ideals and morals of society 2. By committing a crime, a person expresses that their own worth is greater than the worth of their victim a. Punishment restores equality between persons b. Level of punishment reflects how society thinks of a given crime

Individual conceptions of punishment: 1. Specific deterrence 2. Individual desert

Societal conceptions of punishment: 1. General deterrence 2. Expressive value

How to punish?

People v. Chaney 1. Facts of the case a. Chaney raped woman four times and stole from her b. Chaney was a member of the military, generally a good person 2. Outcome a. Prosecution asked for 5 years for rape, 2 years for robbery b. Judge only sentenced Chaney to one year, with recommendation for quick parole 3. Why was this sentence too light? a. Deterrence a.i. Possibly only ten days in jail… Other soldiers might think they can get away with crimes too b. Proportionality (Kant) b.i. Punishment must be proportional to the crime, otherwise it seems like the society condones rape/violence c. Expressive value (Hampton) c.i. Chaney devalued the woman severely, so the punishment should also be severe

People v. Du 1. Facts a. Du shot a girl in the back of the head after a fight in her liquor store b. Defense said that the shooting was in self defense, and the gun was faulty and Du didn’t mean to fire 2. Outcome a. Du ended up with a suspended sentence (probation), community service and a fine 3. Theoretical analysis a. Deterrence (Bentham) a.i. No need for strong punishment as a deterrence because this was an extraordinary incident, probably won’t happen again a.ii. Or does it set a precedent for similar violence in the future? b. Fairness/proportionality (Kant) b.i. Du was under great duress, her victim was very aggressive b.ii. However, robbery is not proportional to murder c. Expressive value (Hampton) c.i. This was not an intentional devaluation of the victim; Du was merely protecting herself c.ii. However, does the light sentence show that society puts little value on the lives of young black people?

Bernard Bergman 1. Facts a. Old, well-respected philanthropist pled guilty to two separate felonies (submitting false claims and filing false partnership information) 2. Outcome a. Maximum penalty would have been $15,000 fine and 8 years in prison b. Defense proposed no prison time

Arguments for shaming sentences 1. Less costly for society as a whole 2. Less debilitating for criminals 3. Still expresses condemnation 4. Imprisonment is costly for taxpayers, families, etc.

Argument against shaming sentences 1. It makes sense objectively, but it is still offensive 2. Re-integration and therapeutic justice would make more sense

What to punish?

Wisconsin v. Mitchell 1. Facts a. Mitchell and a group (all black men) decided to beat up a white boy 2. Outcome a. Mitchell was charged with aggravated battery; received enhanced sentence b. Wisconsin Statute (found to be constitutional) allows criminal conduct to be more heavily punished if the victim is selected because of race or other protected status 3. Reasoning a. Bias-inspired confuct inflicts greater individual and societal harms b. Bias crimes are more likely to provoke retaliatory crimes and cause unrest

Lawrence v. Texas 1. Facts a. Two men were charged with sodomy after having sex inside their home 2. Outcome a. The statute prohibiting individuals of the same gender from engaging in private, consensual sex acts violated privacy rights secured by the Due Process Clause b. Overturns Bowers v. Hardwick

Do we legislate morality? 1. Sometimes a. Public interpretation of an act can be the basis for criminality 2. NO example (Lawrence v. Texas) a. Moral disapproval is not a legally cognizable reason for criminalization b. The crime must actually be harmful 3. YES example (Wisconsin v. Mitchell) a. The hateful nature of hate crimes is additionally harmful b. Legislation works… disapproval of racially motivated crimes has increased dramatically

INSITUTIONAL DIMENSIONS

Courts v. Legislatures

Doctrine of Desuetude 1. Long and continued non-use of a law renders it invalid 2. Doctrine applies in some, but not all, jurisdictions

Commonwealth v. Stowell 1. Facts a. Two police officers in MA observed a woman having a conversation with a man in a van; she then entered the van b. The police followed the van and observed the pair having sex c. They were both arrested on charges of adultery 2. Outcome a. Defense argue that the statute is rarely enforced and thus should be rendered invalid; people may not realize the act is criminal b. Court holds that only the legislature can invalidate the law b.i. This could be problematic since the legislature has no incentive to act and it may be politically difficult to repeal

Doctrine of Legality 1. The law must be clear, ascertainable and non-retrospective. Criminal sanctions may not be imposed for acts that were not criminal at the time of their commission.

Rationale for legality 1. Fairness – we should be able to rely on the law to tell us what is wrong 2. Liberty – we can’t curtail liberty just because we have an intuition that something was wrong 3. Legislative supremacy – The court can’t make new criminal law by broadly interpreting a statute

Under/Over Punishment 1. Courts should err on the side of under-punishment (Bentham) a. Under-punishment is easier to correct by the legislature than over-punishment b. “Senator Self-Interested” wants to seem tough on crime

Keeler v. Superior Court 1. Facts of the case a. Keeler was in the process of divorcing her husband; she was pregnant with another man’s child b. Keeler’s soon-to-be-ex husband kicked her in the stomach with the intention of killing the fetus 2. Outcome a. The man was not charged with the murder of the fetus, because there was no law against killing a fetus at this time 3. Reasoning a. Due process extends to all people, good and bad b. Legislature must be the ones to change the law b.i. Legislature can expand/change the law more precisely b.ii. If the court rules that feticide is murder, no legislator would ever go against it b.iii. Strictly interpreting statutes allows for error-correction

Doctrine of Lenity 1. In construing an ambiguous criminal statute, the court should resolve the ambiguity in favor of the defendant… they should always choose the narrow reading of the law

United States v. Zavrell 1. Facts of the case a. Rosemary Zavrell decided to “get back at” two boys for getting her son in trouble by framing them b. She sent cornstarch in the mail under the boy’s names to prominent officials, making them think it was anthrax 2. Outcome a. Court defines this act as a threat to injure 3. Reasoning a. The court overreaches… there was ambiguity in the statute, but they chose to go against the doctrine of lenity and punish anyway a.i. The harm was immediate, not prospective… she didn’t threaten to expose them to the powder, she DID expose them a.ii. Court found that recipients could be threatened by possible future harm from this hostile sender b. Court overreached due to public hysteria over anthrax at the time

The community

Gang congregation ordinance: 1. Suspects must be loitering with “no apparent purpose” 2. An officer must reasonably believe that two or more are gang members 3. An officer must order them to disperse 4. They must refuse to disperse

Pro/Con Arguments 1. Pro-ordinance a. Increases liberty for non-gang members b. Increases gang members liberty by offering an alternative to “tough on crime” policies and long prison sentences c. Many minority members of the community approve 2. Anti-ordinance a. Allows police to arbitrarily target gang members b. Members could be congregating for innocent purposes c. How can a person know if they are “loitering”? d. Expressively offensive because it targets minority citizens

The jury

Duncan v. Louisiana 1. Facts of the case a. A dispute broke out between a group of boys, seemingly race-based b. Duncan, a black man, attempted to break up the dispute and slapped one of the white boys… Duncan claimed he merely touched him 2. Trial Outcome a. Duncan was denied a jury trial and charged with battery; Louisiana Constitution grants jury trials only in cases in which capital punishment or imprisonment at hard labor can be imposed 3. Appeal Outcome a. If the potential sentence is 6 months or more, criminal defendants have a right to a jury trial 4. Benefits of jury trial a. Judge could be racially biased b. A jury might be more likely to see the ridiculousness of the case c. Less likely to get 12 racist people than one definitely racist judge

US v. Moon 1. Facts of the case a. Moon was an Asian religious leader charged with tax fraud b. Moon got bad press for taking out an ad in the NY Times claiming he was the victim of racial/religious discrimination c. Prosecution asked for jury trial, defense wanted bench trial c.i. Defense claimed that because of the bad press he would be unable to find an unbiased jury c.ii. Prosecutors said that because the defendant raised concerns about the fairness and propriety of the trial, a jury trial was necessary to prove to the community that this was a fair and transparent process 2. Outcome/Holding a. The defense had to go forward with a jury trial b. There is no right NOT to have a jury trial

Right to a jury trial: If you can’t find a fair jury, the trial cannot go forward 1. A normal defense would never ask for a bench trial to avoid an unfair jury… they would just skip the trial altogether

Jury nullification: Should jurors disregard the law? Can/should we deny them instructions regarding that power?

ACTUS REUS

Voluntary Acts

MPC Section 2.01: Requirement of a Voluntary Act 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 of which he is physically capable” 2. The following are NOT voluntary acts: a. Reflex or convulsion b. Bodily movement during unconsciousness or sleep c. Conduct during hypnosis d. A bodily movement that otherwise is not a product of the effort or determination of the actor

When there are multiple acts, courts can read the voluntariness requirement as applying to any or all of them People v. Newton (unconsciousness) 1. Facts a. Huey Newton got into a fight with several police officers b. Newton was shot and also shot an officer, he claimed that he was unconscious from his own bullet wound when he fired the fatal shot 1. Outcome a. Newton was initially convicted of voluntary manslaughter; courts finds that he was entitled to an instruction that involuntary unconsciousness is a defense b. Unconsciousness defeats liability, jurors should be instructed as such

Sleepwalking may result in acquittal 1. Kenneth Parks – acquitted for attempted murder of his parents-in-law 2. Alan Ball – acquitted for sexual assault after kissing a child on the lips

Jacobs v. Commonwealth (conscious but involuntary) 1. Facts a. Jacobs killed a man after an argument b. His defense tried to claim that his temper rendered his acts involuntary 2. Outcome a. Jacobs’ acts were NOT involuntary a.i. Courts sometimes view people to be the moral authors of their own impulses, even when their actions are involuntary a.ii. The law is unforgiving when it comes people like Jacobs who have no control over their actions due to a bad temper

Martin v. State (conscious but involuntary?) 1. Facts a. Martin was convicted of being drunk in public b. He had been arrested in his home and then taken onto the highway by the police, where he “manifested a drunken condition” 2. Outcome a. Martin was not guilty because he was involuntarily taken into public b. Where there are multiple acts, courts can read the voluntariness requirement as applying to any or all of them b.i. Circumstances help courts make these determinations (such as placing oneself in a position where future acts will be compelled, like being drunk at a bar at closing time… was the act getting drunk? Was it appearing in public?) b.ii. Courts can thus “roll back” the act to which they apply to voluntariness requirement where it seems appropriate

Virginia bar raids (arresting people for public drunkenness)

Causation

A defendant’s actions are usually said to be the “cause” of a forbidden result only when they are both the “but-for” and “proximate” cause of that result “But-for” Cause 1. The act is necessary to the result, “but for” the act the crime would not have happened (doesn’t have to be the only cause of the result)

Proximate cause 1. The crime was a reasonably foreseeable consequence of the act

People v. Acosta (proximate cause/foreseeability) 1. Facts of the case a. Acosta led the police in a car chase for 48 miles, engaging in egregious driving tactics b. There were helicopters tracking the cars in the chase, two of these helicopters collided, killing three people 2. Holding: Acosta is charged with manslaughter a. “But-for” cause a.i. If Acosta hadn’t have started the chase, the helicopters wouldn’t have collided b. Proximate cause b.i. A reasonable person could have foreseen helicopters getting involved b.ii. Any high speed chase situation has inherent risks for crashes 3. Dissent: No proximate cause a. Acosta’s egregious driving tactics had no effect on the helicopters in the air; he may not have even known that helicopters would be involved; an FAA expert testified that the crash was a result of pilot error… how could Acosta have predicted this chain of events?

People v. Arzon (proximate cause/foreseeability) 1. Facts of the case a. Arzon set fire to a couch on the 5th floor of an apartment building b. The fire got out of control, firemen got involved c. One of the firemen died after being exposed to dense smoke d. It was found that the smoke that killed the fireman came from a DIFFERENT fire on the second floor 2. Holding: Arzon was found guilty (of….??) a. Arzon had put the firefighter in such an obviously dangerous situation… it was reasonably foreseeable that he could’ve been injured b. But for Arzon’s arson, the fireman wouldn’t have died

People v. Warner-Lambert Co. (proximate cause/foreseeability) 1. Facts of the case a. There was an explosion at a gum factory… Management had been told by inspectors that the chemicals they were using were dangerous and at risk of exploding 2. Holding: Defendants were NOT criminally liable a. The explosion was not reasonably foreseeable a.i. It is unknown what ignited the explosion… The fact that the explosion happened at that moment wasn’t foreseeable

MPC Section 2.03: Causal relationship between conduct and result 1. Conduct is the cause of a result when: a. It is an antecedent but for which the result in question would not have occurred, AND b. The relationship between the conduct and result satisfies any additional causal requirements imposed by the Code 2. When purposely or knowingly causing a particular result is an element of an offense, the element is not established if the actual result is not within the purpose or the contemplation of the actor UNLESS: a. A different person or different property is injured or affected or that the injury or harm designed or contemplated would have been more serious or more extensive than that caused b. The actual result involves the same kind of injury or harm as that designed or contemplated and is not too remote or accidental in its occurrence to have a just bearing on the actor’s liability or on the gravity of his offense 3. When recklessly or negligently causing a particular result is an element of an offense, the element is not established if the actual result is not within the risk of which the actor is aware, or in the case of negligence, of which he should be aware UNLESS: a. A different person or different property is injured or affected or that the probably injury would have been more serious or more extensive than that caused b. The actual result involves the same kind of injury or harm as the probable result and is not too remote or accidental in its occurrence to have a just bearing on the actor’s liability or on the gravity of his offense 4. When causing a particular result is a material element of an offense for which absolute liability is imposed by law, the element is not established unless the actual result is a probably consequence of the actor’s conduct

Different between common law and MPC causation: 1. Proximate cause = Reasonably foreseeable 2. MPC = “Actual result is not too remote or accidental to have a just bearing on the actor’s liability or on the gravity of the offense”

Intervening Acts 1. The act of another person may “break the chain” of causation between the defendant’s wrongful act and some forbidden result

Stephenson v. State 1. Facts of the case a. Defendants kidnapped and repeatedly assaulted and raped Oberholtzer over several hours/days b. At one point she was escorted out to make some purchases… she bought and ingested poison c. She later asked for medical care or an antidote to the poison, but the defendants refused and she died 2. Holding: The defendant was liable for murder a. The assaults drove her to suicide a.i. She became unreasonable/insane as a result of the assaults a.ii. She is no longer “the author of her own acts” a.iii. She also asked for help and wasn’t given it b. The intervening act (the suicide) was reasonably foreseeable b.i. Shame and despair capable of prompting suicide was a logical consequence… Related cases show precedent for women committing suicide after similar experiences

Hendrickson v. Commonwealth 1. Facts of the case a. Husband and wife got into a fight, wife ran outside and didn’t return b. Husband left the door propped open for her, but she was found the next day dead in the snow 2. Outcome: Defendant is NOT liable a. The husband did not force his wife out of the house b. The decision to stay outside in the snow was her own c. Her decision was dangerous and unreasonable

Regina v. Blaue 1. Facts of the case a. Defendant stabbed a young Jehovah’s Witness with a knife b. She was taken to the hospital and told she would die without a blood transfusion, she refused the transfusion and died 2. Holding: Defendant convicted of manslaughter a. Criminals must “take their victims as they find them” b. The girl’s decision may not have made sense to us, but because it was a strongly held religious belief, it was valid

Two perspectives on causation: 1. A person doesn’t deserve punishment unless they actually caused a harm 2. A person should be punished for behaving immorally

Legally: Cause  Blame (someone causes harm, so we blame them) Psychologically: Blame  Cause (we blame someone, so we think they caused harm)

Problems of intuition: We may punish people more harshly because they fit out stereotypes about criminals

Intervening acts 1. Volitional approach a. A victim’s act breaks the chain of causation when it’s voluntary 2. Reasonableness approach a. “Was the victim’s intervening act reasonably foreseeable?” 3. Moral Penal Code a. Says nothing about intervening acts

Intervening acts and medical care (majority rule) 1. Balances the severity of the harm inflicted by the defendant with how problematic the care was

Omission MPC Section 2.01: Requirement of Voluntary Act; Omission as Basis of Liability 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 of which he is physically capable 2. Liability for the commission of an offense may not be based on an omission unaccompanied by action unless… a. The omission is made sufficient by the law defining the offense; OR b. A duty to perform the omitted act is otherwise imposed by law

People v. Beardsley (failure to provide care for a woman) 1. Facts of the case a. Beardsley was a married man who rented out rooms at his house b. His wife was away and Beardsley ended up drinking with a woman at his house over a long period of time c. Beardsley brought the woman pills, she took morphine and passed out, and later died 2. Holding: Beardsley is not liable for the woman’s death a. Because they were not married, Beardsley did not have any duty to care for the woman b. It would be “repugnant to our moral sense” to expect Beardsley to care for this woman… she was not a very sympathetic character

Importance of “special relationships” 1. We can’t be expected to care for every person we meet… we must reserve responsibility for our special/close relationships

Pope v. State (failure to care for a child) 1. Facts of the case a. The defendant (Pope) takes a mother and child into her home b. The mother is having psychotic episodes, she begins beating her child c. Pope fails to call for aid or report the crime, the baby later dies 2. Holding: Pope is not liable for her inaction a. Pope does not have a special relationship with the child b. Pope may have had a moral obligation, but no legal obligation

Four instances where you can hold someone liable for an omission: 1. When there is a specific statutory duty to care 2. Where one stands in a certain status relationship to another 3. Where one has assumed a contractual duty to care 4. Where one has voluntarily assumed the care of another under circumstances in which that person becomes dependent on the defendant

Good Samaritan Laws 1. Common in Europe, very rare in the US 2. The function of the law is to prevent harm, not to enforce benevolence 3. Vermont has a “Good Samaritan” statute a. General duty to assist others in need b. Assistance must be reasonable, can’t endanger the rescuer c. Only a small fine for violating the statute

Duty to notify 1. Sherrice Iverson Child Victim Protection Act a. “Any person who reasonably believes that he or she has observed the commission of any of the following offenses [murder, rape] where the victim is a child under the age of 14 shall notify a peace officer” b. Doesn’t apply if failure to report is based on a reasonable mistake of fact or the witness’ fear for his own safety 2. Response to a not-guilty verdict, where a man saw his friend killing a 7 year old girl and didn’t do anything to stop it

MENS REA

Mistake of Fact

Result crimes: The forbidden result must actually occur Conduct crimes: Does not require a result, just a particular act

Ignorance or mistake of fact is a defense if it defeats proof of the mental state element of the crime

MPC Mental States 1. Purposely a. A person acts purposely if it is his conscious object to engage in conduct of that nature or to cause such a result b. If the element involves attendant circumstances, the person is aware of those circumstances or he believes/hopes they exist b.i. You consciously seek to achieve a certain result 2. Knowingly a. A person acts knowingly if he is aware that his conduct is of a certain nature or will cause a certain result a.i. You are fairly certain a forbidden result will occur 3. Recklessly a. A person acts recklessly if he consciously disregards a substantial and unjustifiable risk that the material element of a crime exists or will result from his conduct a.i. You consciously disregard the risk that the result will occur 4. Negligently a. A person acts negligently if he should be aware of a substantial and unjustifiable risk that the material element of a crime exists or will result from his conduct, and his failure to perceive this risk involves a gross deviations from the reasonable standard of care a.i. There is an unreasonable risk the result will occur 5. If a statutory offense specifies no mental state element: a. The offense requires proof that the defendant acted purposely, knowingly or recklessly 6. Mens rea applies to all elements of an offense, unless otherwise stated MPC 2.04: Ignorance or mistake 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

MPC Default Rules 1. Higher mental state satisfies lower mental state 2. Unless otherwise stated, mens rea applies to ALL material elements 3. Silence: read in recklessness

Common Law mistake of fact 1. If mens rea is knowledge, mistake of fact must be honest 2. If mens rea is negligence, mistake of fact must be honest AND reasonable 3. Value-laden approach a. Had the facts been as the defendant imagined them to be, would the underlying act be a “good act” or a “bad act”?

Common Law Mental States 1. Intentionally 2. Willfully 3. Maliciously 4. Negligently

Morissette v. United States 1. Facts of the case a. Morissette took metal from a government bombing range, he honestly thought it was abandoned and not of any value; he had no criminal intent to steal 2. Relevant law a. “Whoever… knowingly converts to his use or the use of another… any… thing of value of the United States” shall be held liable b. Under the Model Penal Code, the word “knowingly” applies to all elements of the statute 3. Holding: Morissette is not liable a. He didn’t know that he was taking anything of value b. Applying a knowledge standard avoids the chilling effect of strict liability

Regina v. Prince 1. Facts of the case a. Prince was charged with taking an underage girl without the consent of her father; the girl lied about her age and looked older 2. Criminal Act: Causing any girl to be “taken away” from her guardian a. Attendant circumstances a.i. The girl being under 16 a.ii. The guardian not consenting b. Mens rea: The statute is silent on mens rea, so we assume that the mens rea is recklessness 3. Holding: Mistake of fact was no excuse a. Failing to obtain the father’s permission shows bad intent b. Here the court isn’t bothered by chilling the behavior

United States v. X-Citement Video 1. Facts of the case a. A video store was distributing pornography including minors b. For the defendant to be held liable, did they have to know the individuals depicted were minors? 2. Holding: For the defendant to be liable, he had to have known that the individuals depicted were minors a. If we don’t use a knowledge standard, everyone in the chain of transportation would be liable for prosecution a.i. The mailman, for instance, doesn’t know that he was transporting sexually explicit material a.ii. If the mail is delivered to the wrong address, an unsuspecting person could be liable for the receipt of pornography 3. Alternate argument: a. MPC says that mens rea applies to ALL elements of the crime b. “Knowingly” appears in the main clause (about transportation), and thus applies to all subordinate clauses (about depiction of minors)

Tyco Case 1. Facts of the case a. CEO and CFO of Tyco were accused of stealing millions from the company to fund their extravagant lifestyles 2. Holding: Insufficient mens rea a. They didn’t know they were committing a crime b. Prosecution argued that the defendants felt entitled to the money… however, if the defendants felt “entitled,” they probably didn’t know they were stealing

Strict liability can result in a chilling effect… depending on the behavior being chilled; this could be a good or a bad thing

“Reasonable mistake of fact” defense = Similar to a negligence standard 1. Should the standard be knowledge or negligence? “Knew” or “should have known”?

United States v. Feola (unknowing assault on federal officer) 1. Facts of the case a. Narcotics bust: Federal officers posed as people buying drugs b. The drug dealers had decided to rip off the buyers and rob them in the process of the sale c. Since the buyers were actually federal agents, the dealers were charged with assaulting federal agents and conspiracy to assault federal agents 2. Question/Issue a. Are defendants liable even though they didn’t know their victims were federal officers? 3. Holding: Defendants are liable, it doesn’t matter that they didn’t know they were dealing with police officers a. “In order to incur criminal liability, an actor must entertain merely the criminal intent to do the acts therein specified” b. A defendant takes his victim as he finds him 4. Alternate argument a. The statute is meant to deter assaults on officers… The statute doesn’t deter any behavior if it penalizes people who didn’t know they were assaulting an officer to begin with

State v. Stiffler (statutory rape) 1. Is an honest and reasonable mistake of fact as to a victim’s age a defense to the charge of statutory rape? a. NO – A reasonable mistake as to the victim’s age is no defense b. This decision is based on public policy declaring that minors cannot consent to unlawful sexual activity

State v. Jadowski (statutory rape) 1. Court also applies a strict liability standard (this is the majority view)

Public Welfare Offenses

Strict liability: Intent is not a necessary requirement for public welfare offenses 1. Even if the accused didn’t intend the act, he probably could have prevented it 2. Penalties serve as an effective means of regulating dangerous behavior 3. Penalties are normally quite small

United States v. Balint 1. Facts of the case a. Balint was charged with distributing drugs; which was not actually illegal at this point 2. Charge: Failing to report narcotics sales to IRS 3. Mens rea: nothing specified 4. Public welfare offense = Strict liability a. A reasonable person should know that the activity is subject to stringent public regulation and may serious threaten the community’s health or safety

Staples v. United States 1. Charge: Failure to register a firearm 2. Mens rea: Nothing specified a. Defendant argues that the prosecution should have to prove the defendant KNEW he was in possession of an automatic weapon a.i. In this case, the defendant claimed not to know that the weapon had been modified/made automatic 3. Case turns on whether or not the weapon is known to be firing automatically a. Gun possession is licit and ubiquitous; it becomes morally suspect only when the weapon possessed the properties defined by statute 4. Why require mens rea? a. It is common to read in mens rea when the statute is silent

Mistake of Law

“Every person of the age of discretion and compos mentis is bound to know the law, and presumed so to do”

Ignorance is no excuse EXCEPT when: 1. The law itself requires knowledge of the law 2. The defendant is mistaken about a law that is “collateral” to the law that is being enforced 3. The defendant relied on an official empowered to interpret the law

Penal law: The law that defines what is right and what is wrong Collateral law: Technical stuff, trivial details, etc.

MPC Section 2.04: Ignorance or mistake 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

New Jersey’s Approach 1. Ignorance or mistake as to a matter of fact or law is a defense if the defendant reasonably arrived at the conclusion underlying the mistake and: a. It negatives the culpable mental state required to establish the offense; OR b. The law provides that the state of mind established by such ignorance or mistake constitutes a defense 2. A belief that conduct does not legally constitute an offense is a defense when: a. The statute defining the offense if not known to the actor and has not been published or otherwise reasonably made available b. The actor acts in reasonable reliance upon an official statement of the law, afterward determined to be invalid or erroneous c. The actor otherwise diligently pursues all means available to ascertain the meaning and application of the offense to his conduct and honestly and in good faith concludes his conduct is not an offense

Long v. State (mistake regarding divorce based on attorney’s advice) 1. Facts of the case a. Defendant married a second wife without divorcing the first b. Defendant had moved from Delaware to Arkansas and sought a divorce in Arkansas; he later moved back to Delaware and met another woman he wanted to marry c. Defendant had been told by his lawyer that his Arkansas divorce was valid and he would be able to marry again in Delaware 2. Outcome: Long was not criminally liable 3. Reasoning: Mistake of collateral law, not penal law a. Penal law = It is illegal to be married to two people at once a.i. Long didn’t actually think he could marry two people at once; he was mistaken as to whether or not his divorce was valid (collateral law) a.ii. Long did everything a reasonable person would do to ascertain the collateral law, so he cannot be held liable a.iii. If Long had been mistaken about the penal law, he would be criminally liable

Common law applies a strict liability standard for mistake of penal law 1. Ignorance of the existence or meaning of a law defining a crime is no defense

Common law applies a negligence standard for mistake of collateral law 1. Ignorance of the collateral law must be reasonable

MPC says that mistake of collateral law is a defense if it negates the requisite mental state for the offense

People v. Marrero 1. Facts a. Federal corrections office from Connecticut was carrying an unregistered weapon in NY b. Peace officers are allowed to carry unregistered weapons c. The officer looked up this statute and honestly thought that he was a “peace officer” as defined by the statute, but it turns out that the statute doesn’t apply to federal peace officers 2. Holding: Mistake of law was no excuse a. Why was the officer liable for his mistake? a.i. It seems like the he was trying to find a loophole that would allow him to carry an unregistered gun a.ii. Guns are dangerous, so courts don’t want to encourage this type of behavior b. The appellate court was split… this wasn’t an easy decision

State v. King 1. Facts a. King was found guilty of unlawful possession of a Schedule 4 drug b. King argues that the drug was not specifically listed as a Schedule 4 substance before she was arrested (the state board had approved it for addition to the list, but it hadn’t been amended into law yet) c. Even the legislature doesn’t appear to believe it’s illegal yet 2. Holding: The drug became illegal as soon as the board said it was a. Anyone dealing with these types of substances has the responsibility to keep up with the decisions of the board b. We don’t want to encourage this type of behavior… if the court found for the defendant, many people would claim ignorance of the law when dealing with new drugs c. Courts get upset when people try to find loopholes to the law Mistake of law is no excuse if the intended act was also criminal, although the degree of the offense will be reduced to that of the intended crime 1. MPC 2.04: “Although ignorance or mistake would otherwise afford a defense to the offense charged, the defense is not available if the defendant would be guilty of another offense had the situation been as he supposed… however, the ignorance or mistake of the defendant shall reduce the grade and degree of the offense of which he may be convicted to those of the offense of which he would be guilty had the situation been as he supposed”

United States v. Albertini 1. Facts of the case a. Albertini was an anti-war protestor, he had previously been ordered to stay off military bases, he decided to go protest at a naval base on an “open house” day and is prosecuted and convicted b. 9th Circuit overturns his conviction, so he continues protesting c. Supreme Court eventuall reverses the 9th circuit decision 2. Outcome: ???

Cox v. Louisiana 1. Facts of the case a. Civil Rights protestors held a demonstration outside of a court b. There was a statute prohibiting protests “near” the courthouse c. The police told them that their protest was sufficiently far away and allowed them to go through with their demonstration d. The protestors were later charged with staging an unlawful protest 2. Outcome a. The protesters were found not guilty 3. Reasoning a. The police officer acted arbitrarily by first telling the protestors they could congregate and then changing their mind b. The protestors were right to rely on the police, therefore they were not in violation of the statute

Pre-Watergate Break-In 1. Facts: a. CIA agents working for the Nixon White House broke into the office of Daniel Ellsberg’s psychiatrist b. Agent Baker honestly believed the search was constitutional because he had been told that it was authorized by a high-ranking White House official on the grounds of national security 2. Outcome: a. Baker was entitled to a jury instruction on the “reliance” mistake of law defense… his conviction was overturned and a retrial was ordered

OLC Torture Memo 1. Facts of the case a. A CIA officer was charged with torture for waterboarding a suspect b. He claims that he read an OLC Memo offering the opinion that waterboarding was not torture and thus didn’t know he was doing anything illegal 2. Outcome a. Government officials engaged in unlawful interrogation techniques cannot be held liable if they didn’t know that the techniques were unlawful 3. Reasoning a. People on the front lines of war need to be able to make decisions quickly based on the information they have… therefore, the officer was right to trust the OLC memo

RAPE

Mens Rea

MPC Section 213.1: Rape and Related Offenses 2. A male who has intercourse with a female not his wife is guilty of rape if: a. He compels her to submit by force or by threat of imminent death, serious bodily injury, or extreme pain or kidnapping; OR 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; c. OR the female is unconscious d. OR the female is less than 10 years old 3. Rape is normally a 2nd degree felony 4. Rape is a 1st degree felony if: a. The actor inflicts serious bodily injury upon anyone, OR b. The victim was not a voluntary social companion of the actor upon the occasion of the crime and had not previously permitted him sexual liberties 5. A man who has intercourse with a female not his wife commits a 3rd degree felony (Gross Sexual Imposition) if: a. He compels her to submit by any threat that would prevent resistance by a woman of ordinary resolution; OR b. He knows she suffers from a mental disease or defect which renders her incapable of appraising the nature of her conduct; OR c. He knows that she is unaware that a sexual act is being committed upon her or that she submits because she mistakenly supposes that he is her husband

Maryland Criminal Code: Rape in the 2nd Degree

NY Penal Law: Sex offenses

Wisconsin Statute: Sexual Assault

Marital rape exception says that by “accepting the marital contract, a woman has tacitly consented to sexual intercourse any time her husband demands it” 1. Spousal rape is criminalized in all 50 states 2. BUT, some states differentiate spousal rape from other types

Craigslist rape case (reasonable mistake defense) Regina v. Morgan 1. Facts of the case a. One man tells 3 other men to come home with him and rape his wife b. The husband told the men that the wife would resist, but she was consenting nonetheless 2. Mens rea = Knowledge a. Court decides that the men should be allowed a defense based on an honest mistake of fact 3. Outcome a. The men are ultimately still convicted; the jury found that the men didn’t actually believe the woman consented

Commonwealth v. Fischer 1. Classic date rape case 2. Issue: Should jury be instructed as to mistake of fact? a. Jury was initially not instructed and defendant was convicted b. On appeal he argues that his lawyer was incompetent for not asking for a “reasonable mistake of fact” defense 3. Holding: Defendants ARE allowed a reasonable mistake of fact defense a. Negligence standard

Why is the court moving away from a strict liability standard even in a period of rape reform and “tough on crime” policies? 1. In past years, women didn’t bring many rape cases to court at all, because they were so highly scrutinized 2. The negligence standard in PA is a response to the success of rape reform, and the fact that more cases are getting to court

“No means no” v. “no means maybe”

Mens rea in rape cases 1. Knowledge – Honest mistake of fact allowed (even if unreasonable) a. Consensual sex isn’t wrongful, so if someone makes an honest mistake when pursuing consensual sex the mistake should be a defense b. See Morgan 2. Recklessness – Not generally used for rape cases (only in Alaska) 3. Negligence – Reasonable mistake of fact allowed a. It isn’t unfair to expect men to act reasonably, if a man chooses not to act reasonably he is blameworthy and should be punished b. Jury decides whether a man was acting reasonably 4. Strict Liability – No mistake of fact allowed (“no means no”) a. There must be affirmative consent to engage in intercourse b. This may have a chilling effect, but it might be justified (it’s worth preventing some “romantic” moments if it helps stop rape) c. See Simcock

Most jurisdictions follow a negligence standard for mens rea Actus Rea

Majority rule: Force + Resistance 1. “No” is only valid when accompanied by physical resistance

Reform rule: Lack of consent + Penetration 1. Followed in NJ

Wisconsin Approach: Gradation 1. 1st degree sexual assault 2. 2nd degree sexual assault a. Non-consensual sex with force 3. 3rd degree sexual assault a. Non-consensual sex

State v. Rusk 1. Facts of the case a. It was obvious that there was no consent b. Issue is whether or not there was force or threat of force; specifically, whether the victim displayed enough resistance to prove force 2. Rusk dissent (controversial) a. Acquiescence must be generated by substantial/reasonable fear b. Merely saying “I’m scared” shouldn’t be enough… The feeling of being threatened isn’t sufficient because its subjective c. A truly “proud woman” would strongly resist d. Men won’t know whether “no” actually means “no” without some form of physical resistance 3. Why isn’t choking enough evidence of violence for the dissent? a. This is something that happens within the normal course of seduction

The most common type of resistance is verbal… rape victims who physically resisted were more likely to be injured than ones who did not

“Our male dominated society accepts a certain amount of coercion, aggression or violence against women as a normal, even desirable part of sexual encounters”

Rape victims often end up “on trial” along with their rapists… there is “an unspoken standard… of something like ‘contributory negligence’ as negating the rapist’s culpability”

State in the interest of M.T.S (underage rape case) 1. How does the court justify removing the force requirement? a. The court is engaging in its own revision of the doctrine, subsequent to the legislature’s revision b. Generally, courts ought to be resistant to changing the standards of criminal conduct through their own reform efforts

Commonwealth v. Berkowitz 1. Pennsylvania requires forcible compulsion for rape a. Therefore Berkowitz was not guilty of rape, but he was guilty of indecent assault 2. “What’s in a name?” a. Indecent assault doesn’t seem as weighty as sexual assault b. Rape conviction says the expressive harm the victim suffered is very significant; society values the victim

“The ‘force or threat of force’ element can be understood to accommodate the ‘no sometimes means yes’ norm… a woman's non-consent is genuine and not ‘feigned’ if she resists to the point that a man must use force if he is to engage in intercourse”

Alaska Statute 1. Defines rape simply: “sexual penetration with another person without consent of that person” 2. Silent on mens rea, but a court construed it as requiring proof that the defendant “recklessly disregarded” his victim’s lack of consent

HOMICIDE

First v. Second Degree

PA Statute (follows majority rule) 1. 1st Degree: Murder perpetrated by posion or lying in wait; or by any other kind of willful, deliberate and premeditated killing (or felony murder) a. No time is too short for premeditation 2. 2nd Degree: All other kind of murder

Approached to premeditation 1. PA Approach (Carrol) a. Premeditation can happen in an instant and with very little volition…. Rarely grounds for second-guessing factfinders 2. CA Approach (Anderson) a. Premeditation requires real planning (as evidenced by prior acts, motive and manner of killing)… Judges can second-guess factfinders

Intentional Homicide: Common Law/Majority Approach 1. 1st Degree murder a. Premeditated 2. 2nd Degree murder a. Unpremeditated 3. Voluntary manslaughter a. Adequate provocation a.i. Provocation is adequate if it would cause a reasonable person to act from passion rather than reason b. Heat of passion c. Insufficient cooling time Missing packet?? 249-265

Murder v. Voluntary Manslaughter

Unintentional homicide 1. 1st Degree murder: Felony murder 2. 2nd Degree murder: a. Felony murder OR b. Gross recklessness OR c. Intent to cause great bodily harm (that results in death) 3. Involuntary manslaughter a. Gross negligence/recklessness OR a. Unlawful act

You can’t have an “attempt” for an unintentional homicide 1. Attempts require purpose 2. Since you would have the have the purpose of actually killing, you can only have an attempt for an intentional homicide

Model Penal Code: Manslaughter 1. “A homicide which would otherwise be murder is committed under the influence of extreme mental or emotional disturbance for which there is reasonable explanation or excuse” 2. “The reasonableness of such explanation or excuse shall be determined from the viewpoint of a person in the actor’s situation under the circumstances as he believes them to be”

MPC Approach: Volitional Inquiry 1. Tries to determine whether the defendant was emotionally disturbed a. Would a reasonable person in the defendant’s shoes have also been emotionally disturbed? 2. This often turns into a “battle of experts” – dueling psychologists testifying as to what is going on in the mind of the defendant

Common law uses a more straightforward moral evaluation of the crime and whether it was justified

State v. Thornton 1. Facts of the case a. Thornton was a law student; he was a small/frail person b. Thornton’s wife told him she was dating someone else, Thornton spied on the couple through the window of their house c. After observing the couple having sex, Thornton shoots the man in the hip, the man later dies from an infection from the wound 2. Volitional assessment a. There was some level of planning… he got a camera and a gun, and waited outside the house observing the couple 3. Characterological assessment a. The man was arguably not acting reasonably; he was engaging in stalking behavior b. The prosecutor argued that he had financial motives for wanting to stay with his wife; it wasn’t all romance 4. Court’s holding a. Originally Thornton was convicted of 1st degree murder, on appeal this charge was reduced to voluntary manslaughter b. Judge gets to second-guess the jury… in this case the judge obviously favors the defendant, and overrules the jury’s determination that there was not adequate provocation

In the majority of states, discovering an unfaithful spouse is adequate provocation

Commonwealth v. Carr 1. Facts of the case a. A man killed two lesbians after witnessing them having sex b. The defense argued that the man suffered sexual abuse and had been rejected by his mother, which is why he was so upset by the sex 2. Court’s holding a. The man was convicted of murder; not manslaughter b. Witnessing lesbian sex is simply NOT adequate provocation b.i. The man’s psychological history was not legally relevant, because even considering all these factors, a reasonable person still wouldn’t have killed the women

People v. Casassa 1. Facts of the case a. A man kills his ex-girlfriend after she rejects him 2. Outcome a. Casassa was convicted of 2nd degree murder under MPC 3. Reasoning a. Voluntary manslaughter was denied because there was not reasonable provocation b. Manslaughter charge was not inadequate as a matter of law; but the evidence was insufficient for mitigation to manslaughter b.i. Psychologist testimony regarding Casassa’s psychosexual history was admitted into evidence, but rejected

Missing packet?? 265-280

Involuntary Manslaughter

Involuntary manslaughter: Common Law 1. Results from recklessness, wanton/gross/criminal negligence, or use of a “dangerous instrumentality” (such as a gun)

MPC Section 210.3: Manslaughter 1. Criminal homicide constitutes manslaughter when it is committed recklessly

State v. Barnett Florida jury instructions on manslaughter 1. “The State must prove that… the death of the victim was caused by the culpable negligence of the defendant” a. Culpable negligence = gross and flagrant, showing reckless disregard for human life

Commonwealth v. Welansky 1. Facts of the case a. There was a fire in defendant’s restaurant and the emergency exits had been locked, so many people couldn’t escape and died b. Welansky was actually in the hospital at the time of the fire 2. Charge = Involuntary manslaughter a. He was responsible for the practices leading up to the incident… he knew that the doors were locked, etc. b. He was negligent by blocking the exits b.i. He was in violation of various Fire Safety Codes b.ii. But was he criminally negligent? 3. Why punish? a. Bentham’s perspective a.i. General deterrence… We want to encourage other businesses to avoid this type of negligence b. Kant’s perspective b.i. Welansky is treating profits as more valuable than people; he was focused on people as means (means to make profit) rather than as ends (valuing their humanity) c. Hampton’s perspective c.i. Because this was such a massive tragedy, a monetary tort settlement would not be enough to rectify it c.ii. Through his negligence, Welansky was demonstrating that the victims lives mattered less than his profits

Great White concert fire (misdemeanor manslaughter) 1. Facts of the case a. The band’s manager decided to use pyrotechnics in the show b. The building caught on fire, and many people died c. Should the manager be held criminally liable? 2. Charge = Misdemeanor manslaughter (Rhode Island) a. Applies when a misdemeanor was the proximate cause of death b. Here, the misdemeanor was a violation of fire safety code

State v. Williams 1. Facts of the case a. Baby had a toothache and parents did not seek medical attention; the baby later died… Should the parents (who were said to have loved their baby) should be held criminally liable? 2. Standard for manslaughter a. Ordinary negligence… would a reasonable person have sought medical attention for the child? 3. Parent’s reasoning a. They were worried that the baby would be taken away from them if they sought medical attention a.i. On the other hand, this proves that they thought about seeking medical attention, and knew that maybe they should have

When should people not be held responsible for their crimes? 1. When we punish, we should ask TWO questions: a. Did the accused fail to take the precautions which any reasonable man with normal capacities would in the circumstances have taken? b. Could the accused, given his mental and physical capacities, have taken those precautions? 2. On the other hand, do we demean others by holding them to a lower standard or care due to their diminished mental or physical capacities?

What makes negligent or reckless conduct criminal? 1. Two approaches: a. Welansky – wanton and reckless conduct b. Williams – ordinary negligence suffices

Dennis case (woman who falsely claimed rape gets 5 years in prison)

Kelly case (man required to volunteer on the anniversary of his daughter’s death)

Depraved and Malignant Heart Murder

MPC Section 210.2: Murder 1. Criminal homicide constitutes murder when… a. It is committed recklessly under circumstances manifesting extreme indifference to the value of human life 2. Does the actor’s conscious disregard of the risk so far depart from acceptable behavior that it constitutes a “gross deviation from the standard of conduct that a law-abiding person would observe in the actor’s situation”? a. The question of whether the recklessness is sufficiently extreme is left to the trier of fact

“Depraved and malignant heart” murder 1. Requirements a. Conduct is unusually callous b. Risk of harm is great 2. Qualities of gross recklessness a. Wickedness of disposition, hardness of heart, cruelty, recklessness of consequences, and a “mind regardless of social duty”

Commonwealth v. Malone 1. Facts of the case a. Defendant and victim were friends; defendant asked the victim if he wanted to play “Russian Poker,” victim agreed b. Defendant pulled the trigger 3 times, on the last time the victim was shot; defendant was genuinely surprised/seemed remorseful 2. Charge = 2nd Degree Murder a. Defendant tried unsuccessfully to convert to manslaughter a.i. The distinction between 2nd degree murder and manslaughter is malice… Malice does not need to be directed specifically towards to victim; it also includes wicked or depraved acts b. Why wasn’t this 1st degree murder? b.i. Intent is lacking… the action (shooting the gun) was premeditated, but the killing was not 3. Defendant’s mens rea = Gross recklessness a. He demonstrated unusual callousness to the welfare of others b. He was conscious of the risk of death

United States v. Fleming 1. Facts of the case a. Fleming was in a car, speeding down the GW parkway, constantly crossing over the median into oncoming traffic; he eventually hit the victim’s car, killing her b. His BAC at the time was .315% 2. Charge = 2nd Degree Murder a. Was there subjective awareness of risk? a.i. If you’re driving 100 mph into oncoming traffic, you are obviously disregarding the safety and welfare of others a.ii. On the other hand, he was incredibly intoxicated… he wasn’t actually trying to kill himself or anyone else, he was so drunk he probably wasn’t conscious of anything 3. Holding: Unawareness of the risk due to intoxication is not an excuse

People v. Watson 1. Court’s holding a. Intoxication exception allows for a murder charge in absence of consciousness of risk a.i. Prosecutors no longer have to show consciousness of risk a.ii. Converts many vehicular manslaughter charges to murder 2. Legislative response a. Expressly affirms Watson, but creates some lower-grade offenses b. Allows jurors to choose between lesser and more severe offenses

Felony Murder

Most states follow a PA-style felony murder rule (below)

“All murder… committed in the perpetration, or attempt to perpetrate any arson, rape, robbery or burglary… is murder in the first degree” (1794 PA Statute) 1. Later statutes sometimes supplement their felony murder lists with additional offenses (espionage, carjacking, cocaine distribution…) 2. Intent to commit any felony constitutes “malice aforethought”

Why is felony murder so unpopular? 1. Doesn’t appear to deter 2. Doesn’t match our intuitions about justice 3. Doesn’t create a clear idea about who should be punished and why

Felony murder doctrine 1. MPC approach a. Applies to robbery, rape, arson, burglary, kidnapping, or felonious escape (from jail or police custody) 2. Common law approach a. Applies to felonies that are inherently dangerous a.i. Elements approach = just looking at the elements of the crime to determine if it was dangerous a.ii. Facts approach = focuses on the particular facts of the case to determine if it was dangerous

Regina v. Serné 1. Facts of the case a. It is alleged that defendant set a fire that caused his son’s death b. Circumstances were very suspicious (father had just taken out insurance policy, there was flammable material strewn around the house, etc.) 2. Jury acquits, after being instructed on felony murder theory a. Absent the felony murder rule, a 1st degree murder charge would require premeditation… Felony murder would be easier to prove than intentional 1st degree murder

Controversy 1. Felony murder rule is inconsistent with contemporary notions of culpability a. First degree murder usually requires not just malice, but premeditation and deliberation b. Liability should be proportional to culpability c. Liability for a particular offense requires fault for that offense c.i. “If death is accidental, then by definition the state can prove no mental fault with regard to the element of causing the death of another human” 2. Deterrence argument is not as strong as proponents make it out to be 3. Two states have abolished the rule

MPC on Felony Murder 1. Drafters were critical, but allowed it anyway 2. “Recklessness manifesting extreme indifference to human life” can be “presumed” where a person causes death in the course of certain enumerated felonies

People v. Aaron 1. The court says that Michigan’s felony murder rule does not absolve the prosecution of proving premeditation a. This caveat essentially dispenses with felony murder b. This was a radical reform at the time

Some courts have limited application to “dangerous” felonies 1. Two approaches: a. Underlying felony must be dangerous b. Individual act is inherently dangerous

People v. Phillips 1. Facts of the case a. Defendant convinced plaintiffs that he could cure their daughter’s eye cancer without surgery; the daughter eventually died from the cancer b. Defendant charged an advance fee of $500 as well as $200 for pills, etc 2. Charge = 2nd Degree Murder a. Based on a felony murder rationale (felony was grand theft) 3. Holding: The felony murder rule does NOT apply a. In order to apply, the felony must be inherently dangerous a.i. Elements-based analysis a.ii. It doesn’t matter that the overall situation (doctor providing insufficient care) was dangerous

Merger: The felony/“inherently dangerous” act cannot be part of the act of killing 1. Paradox: The more dangerous the felony, the more likely it is to count towards the felony murder rule; but if the felony is dangerous it is more likely to be the cause of the death, creating a “merger” situation where the felony murder ALSO won’t apply

People v. Smith 1. Charge = 2nd Degree Murder a. Felony murder based on child abuse 2. Merger a. Since the felony (child abuse) caused the death, the two crimes merge and the felony murder rule can’t be used

INCHOATE CRIMES

Attempts

Definition: Failure to commit a crime that the defendant attempted to commit

MPC Definition of Attempt (majority approach) 1. The defendant must have purposely engaged in the conduct that would constitute the crime a. Requires the same mens rea as the actual crime (for conduct crimes) b. Requires the same purpose as the actual crime (for result crimes) 2. Punishment is the same penalty as the offense

Common Law approach 1. Must have specific intent, regardless of mens rea 2. Punishment is usually ½ the penalty of the offense

Common Law Actus Reus 1. “Dangerous proximity” a. But for interference, the crime would have been committed b. Abandonment of the crime is not a defense

MPC Actus Reus 1. “Substantial step” a. The defendant must have taken a substantial step towards completing the crime (lesser requirement than dangerous proximity) b. Conduct must be “strongly corrobative of criminal purpose” b.i. Lying in wait, enticing, possession of materials with no lawful use, reconnoitering, etc. c. No penalty for abandoned crimes (more incentive to abandon)

Common law punishments 1. High penalty for completed crimes 2. Medium penalty for attempted crimes 3. Medium penalty for abandoned crimes

MPC punishments 1. High penalty for completed crimes 2. Medium penalty for attempted crimes 3. NO penalty for abandoned crimes

You can’t have an “attempt” for an unintentional homicide 1. Attempts require purpose 2. Since you would have the have the purpose of actually killing, you can only have an attempt for an intentional homicide

Buffington 1. Facts of the case a. Defendant planned to dress up as a woman to rob a bank b. The bank was tipped off and locked its doors/stationed security around the premises, so defendant wasn’t able to commit the crime 2. Outcome a. Court finds defendant not guilty 3. Reasoning a. Court applies a “dangerous proximity” test a.i. Because of the security he was never dangerously close to committing the crime, despite showing up at the bank with guns, dressed as a woman (clearly a substantial step)

Dorsey 1. Facts of the case a. Defendant was trying to make meth and was buying pills as supplies b. He was caught with 552 pills, which would make 10g of meth c. He was charged with intent to manufacture 30-150g 2. Outcome a. Dorsey was found guilty of attempting to manufacture the larger amount 3. Reasoning a. The plaintiff stated that he wanted to make 100g of meth, and by buying even a small quantity of pills he was taking a substantial step towards making that amount 4. This is a fairly common case, the court has ruled both ways

Factual impossibility is not a defense 1. Example: Even if you can’t actually blow up a synagogue with a fake bomb, if you believe the bomb is real and plant it somewhere, you can be liable for the attempt

Accomplice Liability

Actus reus: Soliciting, aiding, agreeing to aid, or attempting to aid 2. Very minimal requirement 3. Encouragement is enough (Wilcox) 4. Can be convicted even if the principal doesn’t know about the encouragement or assistance (Tally)

Mens Rea 1. Accomplice must have the mental state required by the underlying offense 2. The accomplice must purposely assist the principal (Gladstone) a. May be determined by whether he has a stake in the venture

Purpose requirement serves the function of eliminating liability where there is another possible purpose for the help

There are no distinctions between perpetrators and accomplices… all are principals

For accomplice liability, you need purpose of attempting or aiding + intent for the underlying act…. You can be an accomplice to felony murder if a death occurs

Derivative liability: What if the principal doesn’t actually commit the crime? 1. Common Law a. The accomplice’s liability is limited to the liability of the principal b. If the principal couldn’t be convicted, neither could the accomplice 2. Model Penal Code a. Accomplices can be convicted even where the principal has not been b. Accomplices can be convicted of a more serious offense than the principal

State v. Hayes 1. Facts of the case a. Hill enlisted Hayes to help him to “steal” some bacon b. In reality, Hill didn’t actually want to steal the bacon, he wanted to trick Hayes and get him in trouble c. Hayes boosted Hill through the window and Hill took the bacon… d. Hayes was charged with burglary and larceny If the roles had been reversed and Hill had boosted Hayes, then Hayes may have been liable 2. Outcome a. Hayes was found not guilty 3. Reasoning a. No liability for the accomplice unless the principal is also liable b. Hayes didn’t enter the building or steal the bacon c. If the roles had been reversed and Hill had boosted Hayes, then Hayes may have been liable

Vaden v. State 1. Facts a. Illegal fox-hunting was taking place in Alaska b. Vaden didn’t actually shoot the foxes, but he provided guns/aircraft and transported the foxes after they were killed c. Agent from the Alaska Dep’t of Fish and Game posed as a hunter and had Vaden take him out; the agent made some kills while with Vaden 2. Outcome a. Vaden was found guilty 3. Reasoning a. The agent killed the foxes, but he had a defense to the crime (he was authorized to do so)… this defense doesn’t extend to Vaden b. Vaden’s participation was essential for the commission of the crime

Gebardi Exception: The victim of the crime can’t be prosecuted as an accomplice, even if he or she consented 1. The case involved a consenting woman who was transported between states for an “immoral purpose” in violation of the Mann Act

Pino-Perez 1. Facts of the case a. Pino-Perez is a drug dealer who supplies drugs to a drug ring in Wisconsin, run by a kingpin named Nichols b. Pino-Perez is charged as an accomplice to the kingpin… there are significant penalties (mandatory minimum 10 years, plus $100,000) c. Prosecution charged Pino-Perez because he was close to the operation and had a broad knowledge of the drug network 2. Outcome a. Pino-Perez can be charged under the kingpin statute b. If Congress wanted to exclude accomplices, they could have said so… only th legislature should be able to correct it 3. Reasoning a. The Kingpin statute is designed to allow heightened penalties for kingpins, because they are more deserving of punishment b. Argument that Pino-Perez should be punished equally: b.i. He is arguably higher on the food chain than Nichols b.ii. The purpose of the statute was to break up drug rings, not just to punish kingpins c. Argument that Pino-Perez should be punished less harshly: c.i. There are separate penalties meant to punish dealers c.ii. It isn’t fair for accomplice liability to be used to punish Pino Perez with a penalty reserved for kingpins c.iii. Better for the judiciary to under-punish than over-punish… The statute should be read narrowly, so Pino-Perez should be excluded and only charged as a drug supplier… If this actually violated Congress’ intent, the legislature will correct the error

Conspiracy

Radical expansion of criminal liability 1. The most common charge leveled against defendants in federal jurisdictions

Most important element is agreement by two or more individuals that one or more of them will commit a crime

Elements of conspiracy: 1. Must prove at least the degree of criminal intent necessary for the substantive offense 2. Must demonstrate that the defendant purposefully sought the objective of the conspiracy 3. Must prove that at least one of the conspirators engaged in some “overt act” in furtherance of the conspiracy… this could be a very minor act

Conspiracy = Agreement + Overt Act

Withdrawal: To leave a conspiracy, defendant must show that he has taken affirmative steps to disavow or to defeat the objectives of the conspiracy; and that he has made a reasonable effort to communicate those acts to his co-conspirators or that he disclosed the scheme to law enforcement

Actus Reus – What is an agreement? 1. Mutual understanding to violate the law, knowingly entered into 2. Need not be formal, written, or even expressed directly in detail 3. “Partnership in crime”

Impossibility does not defeat liability for conspiracy

Punishment 1. Relatively modest punishments 2. May be committed of the offense AND conspiracy separately (not under MPC)

Rationale: Special danger of group activity 1. Size allows members of a criminal group to specialize and avoid detection 2. People act more dangerously in groups 3. “Social identity that groups create can induce individuals to behave against their self- interest” 4. Making conspirators liable from the moment of agreement creates an incentive for members of the group to defect early Benefits to prosecutors 1. Penalty a. Many jurisdictions allow for additional punishment 2. Exception to hearsay doctrine a. Someone who conspired in a crime can give information to the court that would normally be hearsay 3. Venue a. Allows the prosecution to try the case in any district in which an overt act took place; thus a defendant might be forced to litigate in an inconvenient forum based on the act of a co-conspirator 4. Statute of limitations a. Even when a defendant’s last act falls outside of the limitations period, he can be prosecuted if one of his co-conspirator’s acts falls within it 5. Collective acts/Guilt by association a. The defendant is accountable for all the acts of his co-defendants b. Minor players are prosecuted along with major players

Pinkerton v. US 1. Facts of the case a. Walt and Danny Pinkerton are brothers who have been involved in crimes together in the past b. The brothers were charged with conspiracy and evading the IRS, but only one performed the substantive acts (the other was in prison) 2. Outcome a. There is liability for both brothers b. Mens rea isn’t purpose, but reasonable foreseeability

Pinkerton Doctrine: A conspirator is liable for any foreseeable crime that falls within the scope of the conspiracy (rejected by MPC)

Interstate Circuit v. United States 1. Facts of the case a. Film distributed were alleged to have fixed prices, violating the Sherman Antitrust Act b. There was no direct written/verbal evidence, but a memo was sent out saying what one theater was going to do, and then all the other theaters followed suit 2. Outcome a. Theaters were liable for conspiracy in violation of the Sherman Antitrust Act 3. Reasoning a. It had to be more than a coincidence that all of the theaters decided to adopt these uniform prices b. If nobody is willing to make more money by undercutting the others, we can infer that they give assent to the agreement

United States v. Alvarez 1. Facts of the case a. Alvarez is charged with conspiracy to transport 110,000 pounds of marijuana from Colombia to the US b. Alvarez was a small-time player, he drove the truck in which the drug lords were riding, and he was allegedly going to unload the cargo c. He confirmed his involvement to an undercover official by “nodding and smiling” when asked if he would be unloading the cargo 2. Outcome a. Alvarez was charged with conspiracy, and receives the same penalty as the principal a.i. Lack of gradation of punishment is one risk of conspiracy theory… in some cases, outcomes are not just

United States v. Stavroulakis 1. Facts of the case a. Stavroulakis and a conspirator were charged with money laundering and conspiracy b. The conspirator didn’t know that the laundered money had come from drug sales, and wouldn’t have gotten involved if he had 2. Outcome a. Both conspirators are liable 3. Reasoning a. The mistake as to the source of the money is inconsequential b. They agreed to launder the money; its source doesn’t matter c. “So long as the unlawful source is proven to be one of the illegal activities enumerated in 1956(c)(7), it is not essential that the conspirators agree on the same illegal activity”

Statutory Conspiracies – Statutes that criminalize particular types of group crime 1. Racketeer Influenced and Corrupt Organizations Act (RICO) a. Using or investing the proceeds of racketeering activity to acquire an enterprise b. Acquiring or maintaining an interest in an enterprise through racketeering activity c. When a person employed by or associated with an enterprise conducts or participates in the conduct of the enterprise, directly or indirectly, through racketeering activity d. A conspiracy to commit any of the above offenses d.i. No overt act is required d.ii. Agreeing to participate in the criminal enterprise does not require that the co-conspirators know the identities of other members; they just need to know of the enterprise’s existence d.iii. As long as the co-conspirators share a common purpose, each is responsible for the acts of the others committed with the intent to further the enterprise’s affairs 2. State Gang Laws a. Conspiracy principles are often used to combat street gangs b. Most common definition of a gang: b.i. An ongoing association that consists of three or more person, has a common name or common identifying sign or symbol, has as one of its primary activities the commission of certain specified criminal offenses, and engages through its members in a pattern of criminal gang activity b.ii. “Pattern of criminal activity” = The commission of at least two enumerated offenses on separate occasions or by two or more members c. Most states punish gang participation, not membership Harvard Hypo: 1. A is the organizer and ringleader of a conspiracy to rob banks. He hires B and C to rob banks 1 and 2 respectively. Although B and C do not meet face-to-face, both know that they are members of a large conspiracy and each knows of the other’s assignment. At A’s instigation, D, knowing of the conspiracy, steals a car for use in the robbers. B and C perform their robberies, the former using D’s car 2. Who is liable, and for what? a. Car theft: a.i. All are liable for conspiracy a.ii. Accomplice liability for A & D b. First bank robbery: b.i. All are liable for conspiracy b.ii. Accomplice liability for A, B & D c. Second bank robbery: c.i. All are liable for conspiracy c.ii. Accomplice liability for A & C 3. Under Pinkerton, all co-conspirators are liable for all substantive offenses

DEFENSES

Two types of affirmative defenses:

1. Justifications a. Self defense and necessity b. The defendant did the right thing in a difficult situation… the crime resulted in a net positive social outcome 2. Excuses a. Duress, involuntary intoxication, insanity b. The defendant’s behavior is not socially desirable, but the defendant should not be blamed

Self-Defense

Definition of self-defense: The defendant must honestly and reasonably believe that lethal force is necessary to repel and imminent threat of death or great bodily harm

Requirements for self-defense 1. There must have been a threat of the use of deadly force against defender 2. The threat must have been unlawful and immediate 3. The defendant must have believed that he was in imminent peril of death or serious bodily harm, and that his response was necessary to save himself 4. Beliefs must have been honest and objectively reasonable

“State v. Nahak” 1. Facts of the case a. Nahak goes into a bar where he has been repeatedly harassed by two men… this time the men threatened to pour a beer over his head b. When threatened with the beer, Nahak shoots and kills the men c. Nahak claims that he was overcome by fear; prosecution claims this was a “vigilante” killing as revenge for previous harassment 2. Outcome a. Court finds that the killing was justified 3. Reasoning a. Nahak could have honestly and reasonably believed that deadly force was necessary to protect his dignity b. Individual dignity is as important as life itself

People v. Goetz 1. Facts of the case a. Goetz was on the subway when he was approached by four teenage boys, who demanded $5; he had been attacked before on the subway b. Goetz shot all of the boys, killing one and injuring others c. He fired multiple shots and said that he would have continued to shoot if he had more bullets and time 2. Outcome a. Goetz acted in self defense; he reasonably believed there was an imminent threat b. Many people rejoiced when he was acquitted 3. Reasoning a. His use of lethal force was necessary to repel a lethal threat b. His circumstances/prior experience can be taken into account… the threat was reasonable to him

Imperfect self-defense (MPC) 1. Honest but reckless belief that deadly force is necessary = Manslaughter 2. Honest by unreasonable belief that deadly force is necessary = Negligent homicide

True Man Doctrine: There is no duty to retreat, even if one can safely do so, IF: 1. The defendant is without fault in provoking the confrontation 2. The defendant is in a place where he has a lawful right to be

Evaluating the True Man Doctrine 1. Expressive a. The man who stands his ground has done nothing wrong; he appropriately attached more value to his rights and liberties than to the life of a wrongful aggressor 2. Deterrence a. A deadly attack triggers an unthinking impulse to fight, so punishment wouldn’t influence behavior anyway

Castle Doctrine: No duty to retreat in your own home (nearly every jurisdiction)

Yoshihiro Hattori killing 1. Facts of the case a. A man shot a Japanese exchange student who came to his door looking for a party b. The student “appeared to be running towards the house” 2. Outcome a. The man was found not guilty 3. Reasoning a. Under the castle doctrine, the family had no duty to retreat into their home b. The husband and wife were honestly scared of the stranger 4. Aftermath a. Community supported the verdict b. Plaintiff won a civil wrongful death suit (killing was unjustified) c. Legislature passed a law barring wrongful death suits in cases involving a “lawful” shooting by a homeowner

Battered Woman Syndrome 1. Evidence of a history of abuse is NOT itself a defense 2. Evidence of long-term abuse may be relevant to a claim of self-defense or insanity 3. Typical question: Is defendant guilty of voluntary manslaughter (doesn’t satisfy self- defense requirements) or is she not guilty (satisfies requirements)

State v. 1. Facts of the case a. Norman killed her husband in his sleep after a terrible history of abuse 2. Outcome a. Norman was convicted; the jury was not instructed on self defense 3. Reasoning a. The threat wasn’t immanent because her husband was sleeping a.i. However, one could argue that there was a constant state of threat because her husband had threatened to kill her before b. Norman should have just left or called the police b.i. However, Battered Woman Syndrome made this impossible (she had tried to escape before, to no avail)

Should we have a doctrine of justifiable homicide? 1. Could lead to unfair results… who decides what is justifiable? a. Some people though Goetz/killer of Japanese students were justified

Necessity

Balancing of Evils: If the defendant has chosen the lesser of possible evils, they should not be condemned for their actions

Common Law Necessity 1. Threat must be immanent 2. Defendant can’t have brought the harm upon herself 3. Defendant must choose the lesser evil 4. Necessity is not a defense to murder 5. Can’t be contrary to a policy decision made by the legislature

MPC 3.02: Justification/Choice of Evils 1. Conduct which the actor believes to be necessary t avoid a harm or evil to himself or to another is justifiable, provided that: a. The harm or evil sought to be avoided by such conduct is greater than that sought to be prevented by the law defining the offense charged b. Neither the Code nor other law defining the offense provides expectations or defenses dealing with the specific situation involved c. A legislative purpose to exclude the justification claimed does not otherwise plainly appear 2. When the actor was reckless or negligent in bringing about the situation requiring a choice of harm, the justification is unavailable in a prosecution for any offense for which recklessness or negligence suffices to establish culpability

MPC Summary 1. Immanency is not required, but helps prove a lack of alternatives 2. No bar on self-created choices, but the defendant may be liable for crimes of recklessness or negligence 3. Available in homicide prosecutions

Necessity across jurisdictions 1. Most common approach: No necessity defense 2. Second most common approach: Common law 3. Least common approach: MPC

Buckoke v. Greater London Council (fire engine)

London Borough of Southwarkk v. Williams (homeless man)

People v. Unger 1. Facts of the case a. Unger was a prisoner at a low-security facility called an “honor farm” b. He claims he was sexually abused and threatened with death by other inmates c. He ran away from the farm and hid out in a hotel… He claimed that he was trying to find a lawyer and his intention was to return to the farm 2. Outcome: Unger entitled to necessity defense a. Prosecution says there was no imminent threat, and Lovercamp standard not met b. Defense says the Lovercamp standard is just a court-created test and not appropriate in all cases

Lovercamp Standard 1. Specific, immediate threat of death, forcible sexual attack or substantial bodily injury 2. There was no time for a complaint to authorities or a history of futile complaints 3. There was no time opportunity to resort to the courts 4. There was no force or violence towards prison personnel or other innocent persons, AND 5. Prisoner immediately reports to authorities when he is safe from the immediate threat

United States v. Schoon 1. Facts of the case a. Schoon took part in a demonstration protesting United States involvement in El Salvador; the protestors spilled simulated blood in the IRS building in Tucson b. Schoon tried to invoke a necessity defense based on the imminent threat of death of people in El Salvador 2. Outcome a. Necessity defense not available 3. Reasoning a. The protest had no direct correlation to the deaths in El Salvador b. No causal connection between spilling blood and stopping the policy

United States v. Hill 1. Facts of the case a. A pro-life activist killed an abortion provider and his escort b. Necessity defense based on the need to stop the killing of unborn children 2. Outcome a. Necessity defense not available, because abortions are legal b. Concerns should have been addressed through the legislature

Regina v. Dudley & Stephens 1. Facts of the case a. Four people were stranded on a boat, three voted to kill and eat the youngest/weakest one to save themselves 2. Outcome a. Court convicts and crown commutes the sentence b. Public opinion was in Dudley & Stephens’ favor 3. Kantian argument for Dudley & Stevens a. A person shouldn’t be used as a means for another person’s ends b. If EVERYONE voted or drew straws, then the situation might be different because everyone would have a stake in the outcome 4. Benthamite argument a. No need for specific deterrence; this situation is exceptional b. There might be an argument for general deterrence… we don’t want to weaken deterrence about homicide generally 5. Expressive perspective a. The killers are expressing that they value their lives over the boy’s b. On the other hand, maybe the killers value life generally, because they only acted in order to save three lives

Necessity as a defense to homicide? 1. Most jurisdictions say necessity is NO defense to homicide 2. MPC allows it… a net saving of lives is ethically warranted if the choice among lives to be saved is not unfair

Duress

Duress is an excuse, not a justification 1. The defendant made a bad choice, but is excused because of the duress under which he was placed MPC Section 2.09: Duress 1. The actor engaged in the conduct charged to constitute an offense because he was coerced to do so by the use of, or a threat to use, unlawful force against his person or the person of another, that a person of reasonable firmness in his situation would have been unable to retreat

MPC Summary: 1. Threat of unlawful force that a person of reasonable firmness wouldn’t resist 2. May not be recklessly, knowingly or purposefully self-created (negligently created is okay)

Common Law Duress 1. Immanent threat of death or great bodily harm against a defendant or a close friend or relative to which an ordinary person would yield 2. The threat may not be self-created 3. Duress is not a defense to murder

Main difference: MPC has no immanent threat requirement

Kant/Bentham’s View 1. Voluntarist Theory: The defendant is excused from her bad acts because she could not resist the threat of force a. When the will has been overcome it is impossible to deter and unjust to punish

Jean Hampton’s View 1. Expressive Theory: The defendant is only excused for her bad acts if they reflect appropriate values… people must make the right choice, even in hard situations b. As with necessity, the court should weigh the moral quality of the choice made

People v. Romero 1. Facts of the case a. Romero assists her husband with several armed robberies, but claims that she only did so under duress b. Romero lost and sought a new trial because her lawyer did not raise a “Battered Woman” defense… would have enhanced her claim of duress 2. Outcome: a. Romero granted a new trial b. Experts should be brought in to testify to Battered Woman Syndrome, because that could help prove her case c. Battered women often don’t feel like they have an escape, don’t call the police

United States v. Webb 1. Facts of the case a. Webb’s child died after being abused by Webb’s boyfriend; Webb was charged with child abuse b. She asserts duress, claiming that her boyfriend frequently beat her and threatened to kill her if she reported him c. She submitted evidence of Battered Woman Syndrome to bolster her defense 2. Outcome: Guilty… her acts were voluntary 3. Possible arguments a. Webb wasn’t capable of overcoming the threat; her judgment/ability to choose was impaired by fear b. However, because the woman’s child was involved, the duress would have to be incredibly extreme to justify the abuse c. Allowing her child to die violates social norms, so juries would probably be unforgiving towards Webb, regardless of duress

State v. Toscano 2. Facts of the case a. Toscano was a chiropractor, he made out a false medical report in order to commit insurance fraud, he claims to have been acting under duress b. He was pressured by someone who was threatening him and his family 3. Outcome a. Toscano is entitled to a duress defense (takes an MPC-style approach) 4. Potential arguments a. A reasonable person would be afraid for their life in this situation b. On the other hand, the threat was not immanent c. Leonardo was only threatening Toscano to resolve gambling debts

United States v. Fleming 1. Facts of the case a. Fleming is a POW who broadcast inflammatory things about the US b. He claims duress because his captors threatened to send him to “the caves” or march through the snow to camps in the North if he didn’t comply c. He is tried under a military law that says you can’t collaborate with the enemy 2. Outcome a. Fleming is denied a duress defense 3. Reasoning a. The threat was not imminent… he hadn’t actually been forced on the march a.i. This seems like a way around the defense… it’s not like Fleming could have called the police even if he had time to do so b. There can’t be a necessity defense if there is clear contrary legislative intent… the anti-collaboration law covers precisely this scenario b.i. Soldiers are faced with these kinds of choices all the time, we expect them to sacrifice themselves for the country

United States v. Contento-Pachon 1. Facts of the case a. Contento-Pachon swallowed many bags of cocaine to smuggle into the US after his family was threatened 2. Outcome a. Duress was a valid defense 3. Reasoning a. Contento-Pachon said that he couldn’t go to the police because they were corrupt b. Smuggling cocaine was the lesser of two evils, compared to the death of his family Difference between duress and necessity 1. Under duress, your ability to choose has to be impaired, and you make the wrong choice… but you are still excused 2. Necessity means that you choose the lesser of two evils, you make the “right choice” in a difficult situation… this is like the Hamptonian view of duress

For the hard cases, courts can expand or contract notions of imminence to absolve the people they think made the “right” choice, and punish the people who made the “wrong” choice

Insanity

Cognitive Approach to Insanity: M’Naghten 1. Court holds that the defendant is excused when, by virtue of a mental disease, she lacks the capacity to understand the nature or wrongness of her a. Example: An insane woman thinks she is wringing out her laundry, but is actually squeezing her baby to death b. Rationale: An insane person cannot establish the required mens rea

Causal Approach to Insanity: Durham 1. The defendant is excused when a person would not have committed the crime but for the mental illness

Volitional Approach to Insanity: MPC 1. The defendant is excused when a mental disease impairs her capacity to control her behavior (“irresistible impulse”)

John. F. Hinkley 2. Facts of the case a. Hinkley tries to assassinate Ronald Reagan, but fails to do so b. He didn’t like his politics and was also trying to impress Jodie Foster 3. Outcome: Not guilty by reason of insanity a. The jury was instructed according to the MPC approach b. After this, states re-examine their insanity statutes and switch back to a McNaghten standard

State v. Green 1. Facts of the case a. Man is diagnosed as a paranoid schizophrenic at a young age, as an adult he wanders the streets laughing hysterically and talking nonsense... because he hasn’t harmed anyone, he initially can’t be institutionalized b. Eventually he kills a park police officer because he is worried about some sort of brain control… after the killing he seems coherent 2. Outcome: a. Trial Court convicts Green a.i. Jury is given the MPC instruction but convicts anyway, probably because they think Green might be allowed back on the streets otherwise b. Appeal Court shifts the burden to the prosecution to show Green wasn’t insane Lorena Bobbit 1. Facts of the case a. Ms. Bobbit cut off her husband’s penis after she allegedly raped her b. Claimed an “irresistible impulse” defense… this was possible under the Model Penal Code, and potentially under the Durham standard 2. Outcome a. Bobbit was not guilty by reason of insanity 3. Reasoning a. There was much evidence presented that Lorena had been abused… this was arguably a “justifiable” crime b. “Irresistible impulse” defense also often used when someone kills a rapist for assaulting their spouse

Many states have moved towards abolishing the insanity defense

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