Criminal Law Outline s6

Criminal Law Outline

Substance I. Homicide A. The Problem of Definition: A.1. What is a life? What does it mean to kill someone? A.2. People v. Chavez (Cal. 1947) A.1.a) Facts: The defendant, a 21-year old gave birth to a baby above/in a toilet. She cut the umbilical cord and failed to tie the cord. She then hid the body under the bathtub. A physician testified that the baby was born alive. She was charged with murder and found guilty of manslaughter. She appealed. A.1.b) Holding: The death of a baby may constitute homicide if “a living baby with the natural possibility and probability of growth and development was being born”-rejects previous rule that a person was not “alive” until after separation from the mother, at which point it becomes a distinct “being.” Judgment affirmed. A.2. Keeler v. Superior Court of Amador County (Cal. 1970): A.2.a) Facts: Man beat up a pregnant woman and stomped her stomach in an attempt to kill the baby. A.2.b) Holding: A fetus before the process of birth has begun cannot be the victim of a homicide. A.3. Singleton v. State (Alabama 1948) A.3.a) Facts: Defendant gave birth to the baby and then threw it over a wire fence. She was indicted for murder in the first degree and found guilty of second-degree murder. A.3.b) Holding: In infanticide cases, there must be a showing that the deceased baby was born alive; the State must also show that criminal agency caused the death. There was a life, but there is no duty, in the throes of childbirth, to not commit nonfeasance (court unwilling to attach criminality even though the actions resulted in the death of the baby, esp. when the mother is ignorant, uneducated, and unattended.) A.4. General Rule: Most states draw the line at process of birth, saying that before the process of birth has begun, the fetus cannot be the victim of homicide. A.5. The Model Penal Code, promulgated in 1962, defines homicide as the killing of a person who has been born. A.6. People v. Eulo (NY 1984): “when a determination has been made according to accepted medical standards that a person has suffered an irreversible cessation of heartbeat and respiration, or when these functions are maintained solely by mechanical means, an irreversible cessation of all functions of the entire brain, including the brain stem, no life traditionally recognized by the law is present in the body.” A.7. “Wrongful Life”: Courts have generally rejected the claim of a child to recover damages for the infliction of a wrong that both gave the

1 child life or sustained its life and harmed it in some way. (Ex. A child born with a hereditary disease after a doctor confirmed that he would free from it). While wrongful life cases are not actionable, sometimes parents and children can recover for emotional or medical expenses. A.8. Year and a day rule: According to common law, a death that occurred more than a year and a day after the act that appeared to cause it is not a homicide, or at least not a homicide for which the actor can be held criminally responsible. This rule is followed by about half the states. It is distinct from the statute of limitations, which does not ordinarily apply to homicide. If a state has a year and a day rule, you can typically still prosecute the assailant for some other offense, like assault, arising out of the same facts. B. The Problem of Sorting: Types of Homicide B.1. Murder Elements: B.1.a) Unlawful killing (no legal justification or excuse) B.1.b) Intentional killing B.1.c) Of a human being B.1.d) With “malice aforethought-refers collectively to the states of mind that, accompanied by a homicide, characterize the homicide as murder. (See “C. Malice aforethought”) B.2. Degrees: B.2.a) First-degree: requires premeditation and deliberation. A.1.a.i. “Deliberation” is often explained as “mature and meaningful reflection;” evaluating the major facets of a choice or problem, while premeditation is simply thinking about the crime beforehand. A.1.a.ii. To find first-degree murder, often look to three things: o Actions prior to the killing o Prior relationship with the victim (to infer motive- prior threats are admissible) o Facts about the nature of killing from which the jury could infer that the manner of killing was so particular and exacting that the defendant must have killed according to a preconceived design to take his victim’s life in a particular way for a reason (which can be inferred from the first two). B.2.b) Second-degree: presumed. Same elements as the murder elements. (In the absence of premeditation or provocation, the charge will be second-degree murder.) B.2.c) The defense of diminished responsibility, e.g. that a mental defect or character trait negates your ability to form requisite intent, has fallen out of favor, though those factors can be considered in sentencing. B.2.d) Caruso (N.Y 1927): Man killed doctor after his son died, believing that the doctor laughed. The court determined that the homicide were not premeditated or deliberated because the assault

2 that precipitated it was neither. (Note: there is no set time for sufficient deliberation to require a first-degree murder charge/conviction) B.2.e) State v. Forrest (N.C. 1987): Defendant shot and killed his father, who was terminally ill. He claimed that he did so to end his suffering. The court rejected his argument that his extreme distress over his father’s suffering was adequate provocation. (The jury found him guilty of first-degree murder). B.2.f) State v. Bingham (Wash. 1986): The passage of time while a killing is carried out is not enough to support a finding of premeditation. Additional evidence of premeditation, such as motive, acquisition of a weapon, or planning related to the killing is required. B.2.g) Commonwealth v. Mazza (Mass. 1974): The defendant was indicted and convicted for murder in the first degree and robbery. He requested that the court reduce the degree of guilt on the basis that he was mentally retarded and therefore had diminished responsibility. The court rejected this defense on the basis that “there was no intermediate stage of partial criminal responsibility between insanity and ordinary responsibility.” The defendant must be either incapable of the necessary intent or must be subject to the same standard. B.2.h) People v. Wolff (Cal. 1964): Boy methodically killed his mother to make room for the girls he planned to lure to his house and rape. He then pled not guilty by reason of insanity. The jury found that he was legally sane at the time of the killing B.2.h.a. Court articulates the following test for premeditation: not the duration of time of the reflection but rather the extent of the reflection-the extent to which the defendant maturely and meaningfully reflected on the gravity of the contemplated act. The minimum essential elements of first-degree murder are reflection, comprehension, and the turpitude of the offender. B.2.h.b. Court reduces the conviction to second-degree murder on the basis of his mental illness. (Thus, mental illness goes to willfulness, not to malice aforethought-thus it can reduce a conviction from first to second-degree murder but not to manslaughter). B.2.i) Conley: A person who is intoxicated or otherwise impaired, though capable of premeditation, does not have the ability to form malice aforethought and is therefore guilty of manslaughter, not murder. B.2.j) Zygmaniak: injured man begged brother to kill him. Brother did, he was found not guilty of murder. B.3. Voluntary Manslaughter: B.3.a) Elements

3 A.1.a.i. Unlawful killing (no legal justification or excuse) A.1.a.ii. Intentional killing A.1.a.iii. Of a human being A.1.a.iv. With adequate provocation-no malice aforethought; the provocation must be calculated to inflame the passion of a reasonable man and tend to cause him to act for the moment from passion rather than from reason. Only the defendant’s conduct is evaluated. Details vary from state to state in terms of provocation’s mitigation of culpability. A.1.a.v. Adequate provocation must fit into one of the following categories o Heat of passion o No cooling period (sudden passion-no time for the assailant to control him/herself): asks whether, under the circumstances, the average reasonable person would have brought himself under a control-time is a relevant factor in this consideration. o There must be a causal connection between provocation and homicide o Traditional examples that “create passion in the defendant and are not considered the product of free will”: extreme assault or battery upon the defendant; mutual combat; defendant’s illegal arrest; injury or serious abuse of a close relative of the defendant’s; the sudden discovery of a spouse’s adultery. B.3.b) Evolution: Voluntary manslaughter evolved from “chance- medley”-used to refer to killings that occurred in a sudden fight. The fight was considered adequate provocation, removing the possibility of malice aforethought  manslaughter B.3.c) Girouard v. State (Maryland 1991) A.1.a.i. Facts: A husband and wife got into an argument. Joyce, the wife, began taunting the husband. Girouard, the husband, procured a knife and returned to the room. The argument continued, and he stabbed her with a knife 19 times. A.1.a.ii. Holding: Words alone are not adequate provocation to justify a conviction of manslaughter rather than second- degree murder. The court rejected the idea that they should consider the “peculiar frailties” of Girouard’s mind and instead imposed the reasonableness standard. B.3.d) “Mere words rule”-words alone, no matter how abusive, can never be adequate provocation. However, they can be adequate when they: A.1.a.i. Indicate a present ability to do harm A.1.a.ii. Are accompanied by provocative conduct/gestures

4 A.1.a.iii. Convey information (not accepted in every jurisdiction) B.3.e) Reasonable person standard: Would a reasonable person, under the circumstances, been provoked to violence? (To what extent should the particular characteristics of the defendant be taken into account when the adequacy of provocation is assessed?) A.1.a.i. Bedder (H.L 1954): Impotent defendant mocked by a prostitute, who he then killed. The court rejected impotence as a characteristic to be considered, stating “if the reasonable man [standard] is then deprived in whole or in part by his reason or the normal man endowed with abnormal characteristics, the test ceases to have any value.” A.1.a.ii. Camplin (H.L.1978): The court determined that the “reasonable person” to be considered is the self-control expected of a person of the sex and age of the accused. A.1.a.iii. Newell (1980): Defendant was a chronic alcoholic who killed his friend while in a drunken stupor. The judge charged the jury to consider the adequacy of the provocation from the perspective of a “reasonable man, sober.” The appellate court upheld the conviction, determining that the only characteristics that could sufficiently show that the man’s self-control was somehow weakened would be those characteristics of a “definite and sufficient significance to make the offender a different person…with a degree of permanence to warrant it being regarded as something constituting part of the individual’s character or personality.” A.1.a.iv. Gonzales (1985): A Hispanic defendant claimed that his race and income should be considered in determining the degree of insult sufficient to enrage him. The court rejected this contention as counter to the purpose of the reasonable person standard-to avoid different applications of the law of manslaughter to different defendants on the basis of race, sex, creed, social status, etc. B.3.f) Model Penal Code conception: “provocation” is not limited to acts of the person killed. It states “reasonableness should be determined from the viewpoint of the person in the actor’s situations under the circumstances as he believes them to be.” This conception is deliberately ambiguous, giving the legislature room to determine what is relevant to considerations of the adequacy of provocation. A.1.a.i. Comment: “The ultimate test is objective” A.1.a.ii. Often physical characteristics, e.g. blindness, are appropriate for consideration, but not emotional characteristics (e.g. sensitive person) A.1.a.iii. The ultimate question is how much sympathy we have for the defendant. “Can the actor’s loss of self-control be

5 understood in terms that arouse sympathy in the ordinary citizen”? B.3.g) U.S v. Alexander (D.C. cir. 1972) A.1.a.i. Facts: Black men kill white Marines after they say a racial slur. A.1.a.ii. Holding: Evidence sufficient to indicate that the words did not constitute adequate provocation; the second-degree murder conviction was upheld. The Court acknowledged, however, the difficulty of considering provocation, noting first that it is a degree to a second-degree murder charge, so the Government does not have to disprove it until the defendant brings it up. Second, the court noted that the criminal justice system is a crude medium for social change. B.3.h) Mullaney v. Wilbur (U.S. 1975) A.1.a.i. Facts: Wilbur claimed he attacked the victim in a frenzy provoked by Herbert’s homosexual advance. The defense argued that he lacked criminal intent. The Maine statute on provocation seemed to suggest that the defendant had to prove that he acted in the heat of passion to reduce homicide to murder. He claimed that the statute deprived him of due process. (Based on Winship: prosecution must establish beyond a reasonable doubt every element of their claim.) A.1.a.ii. Holding: State must prove beyond a reasonable doubt the absence of adequate provocation B.3.h.a. Cf. with Patterson v. NY (U.S. 1977): court determined that it was permissible for NYC to put the burden on the defendant to show the presence of provocation when putting forth emotional distress as an affirmative defense. B.4. Transferred intent: when a defendant’s conduct would make him guilty of some form of intentional criminal homicide (voluntary manslaughter or murder) except for the fact that the person killed is not the person he intended to harm, the guilt that he would have had he killed the person intended transfers. The homicide takes the quality of the original act so that the guilt of an accused is exactly what it would have been had the shots been fired at the intended victim. C. The requirement of malice aforethought can be satisfied by: A.1.1. Intention to kill- can be negated by adequate provocation A.1.2. Intention to grievously injure (omitted from the MPC’s definition of homicide): A.1.2.a. The use of a deadly weapon typically permits an inference of malice

6 A.1.2.b. The use of fists or shoes can be considered “use of a deadly weapon” with intention to grievously injure in some circumstances. A.1.2.c. Unprotected sex when you are HIV+ or have AIDS is another example (though the MPC includes this under extreme recklessness) A.1.3. Extreme Recklessness- formerly known as a “depraved mind” or “an abandoned and malignant heart,” it is depraved indifference + recklessness-can lack specific homicidal intent but still be guilty of extreme recklessness. Ordinary recklessness  unintentional killing. A.1.3.a. People v. Poplis (NY 1972): The repeated beatings of a child constitute murder. A person is guilty of murder when “under circumstances evincing a depraved indifference to human life, he recklessly engages in conduct which creates a grave risk of death to another person, and thereby causes the death of another person.” A.1.3.b. Intoxication and drunk driving pose questions of subjective versus objective perceptions of risk-typically need more than just drunk driving to get this charge, e.g. if a person sets out with purpose to go drunk driving. A.1.4. Felony Murder (death accompanying the commission of felony)- an unsettled area of the law; it is necessary only to establish that the defendant committed a homicide while engaged in the commission of a felony, no requirement of an intention to commit murder-the intent to commit the underlying felony is sufficient. The murder must be in the furtherance of a felony. A.1.4.a. Mens rea (intention) satisfied by felony; immaterial if take care to ensure that nobody dies. Thus, in some jurisdictions, felony murder is sufficient for a first-degree murder charge on the basis that the commission of a felony was inherently dangerous to human life. The prosecution does, however, have to prove the remainder of the elements of homicide. A.1.4.b. If the lethal act is in the furtherance of their common purpose, co-felon can be guilty even if there is express agreement not to kill, and even if co-felon attempts to stop the killing A.1.4.c. Heinlein (D.C. Cir. 1973): Three men rape woman; she slaps one of them and he stabs her-all three are convicted of felony murder. The judges articulate the standard that because the killing occurred in the furtherance or scope of the felony, this result is permissible. If a felon kills someone during the felony, but in a separate and distinct act and to satisfy his own end, the accomplice is not guilty of first-degree murder. (Court reversed the

7 convictions however because the defense was not allowed to argue that the murder occurred outside the scope of the felony). A.1.4.d. Stamp (Cal. 1969): Bank robbers liable via felony murder for heart attack of bank robbery victim, since the heart attack would not have occurred but for the defendants’ robbery. It was immaterial that the victim might have died anyway-there is strict liability so long as there is a causal connection between the felony and the death. (If there is proof that the death resulted from the commission of a felony, it’s felony murder.) A.1.4.e. Smith v. Myers (Pa. 1970): Do not want to punish the fortuity (coincidental death) but the felony-thus, malice only attaches to what a criminal does. Felony murder only applies if the “killing was done by the defendant on by an accomplish or confederate or by one acting furtherance of the felonious undertaking.” Here, the court determines that a closer causal connection is required than in torts since the objective is punishment rather than allocating the burden of loss. A.1.4.f. Taylor v. Superior Court of Alameda County (Cal. 1970): Taylor was a getaway driver in a robbery. His accomplice assaulted the clerk and the clerk killed the accomplice in response. The court rejected the felony murder claim, but allowed the first-degree murder charge to stand because of extreme recklessness. A.1.4.g. The MPC abandons the felony murder rule but provides that the recklessness and extreme indifference which characterize a homicide as murder are presumed if the actor is engaged or is an accomplice in the commission of, or an attempt to commit robbery… A.1.4.h. Limitations of felony murder (varies by jurisdiction): A.1.4.h.i. The felony must involve violence or danger to life A.1.4.h.ii. Felony in the abstract-not specific facts of the felony (must be a clear connection between the felony and the murder). E.g. possession of an unlawful weapon cannot give rise to felony murder. Some courts look to specific facts A.1.4.h.iii. Felony confined within a period of time. Typically includes fleeing up until the point when the felon is at rest. A.1.4.i. Merger Doctrine: The death has to be independent from the underlying felony, otherwise manslaughter and felony murder will always overlap (all manslaughter would be murder  assault is the felony)-this also depends on the

8 statutory formulation, as the merger doctrine has been rejected in some states. A.1.4.j. Resistance to felony murder/calls for abolition: some states have rejected this rule on the basis that the requisite malice for homicide should not be inferred as it is in felony murder. A.1.5. Resistance to lawful arrest (in theory)-lawful arrest is not considered adequate provocation appropriate to lessen a crime from murder to manslaughter. The resistance constitutes malice aforethought. D. Defenses: Justification and Excuses: It is not always a crime to kill someone intentionally, but accepted justifications for the taking of the life may depend on a large, complicated set of uncertain observations and judgments. D.1. Self Defense D.1.a) Elements: A.1.a.i. D actually believes in grave danger A.1.a.ii. D reasonably believes in grave danger A.1.a.iii. D reasonably believes there is no possibility to escape A.1.a.iv. The threat is imminent A.1.a.v. Note: the law does not tend to closely scrutinize a person’s perception of his own danger, a reasonable appearance of bodily harm/death is sufficient. However, the victim cannot be an “innocent aggressor,” one who by their very appearance has done nothing wrong-instead they have to have the appearance of aggression. There is also no requirement of “detached and reasoned reflection” prior to the use of deadly force D.1.b) Imperfect Self-defense: when self-defense is used as a defense but fails because the response was excessive or the fear unreasonable. D.1.c) The Model Penal Code requires that a person believe that the use of force is “immediately necessary” to protect himself on the present occasion. D.1.d) Kendrick (Mass. 1966): Defendant was sleeping with the victim’s wife and went to his house to break the news to him. A fight ensued and the victim ended up dead of stab wounds. Kendrick claimed self-defense. A.1.a.i. Analysis: When a killing is caused by the intentional use of a deadly weapon, there is a presumption of malice aforethought, however the circumstances of the killing may rebut the presumption of malice. If one fights in self- defense but uses excessive force, then he is guilty of manslaughter. The court considers: the physical capabilities of the fighters, the characteristics of the weapons used, the ability to escape, etc. A.1.a.ii. Self-defense with deadly forces requires:

9 o Reasonable apprehension of great bodily harm o A reasonable belief that no other means would suffice to prevent such harm. o Response of proportional violence o Necessity: the right of self-defense does not accrue until he has availed all proper means to avoid physical combat and ends when the necessity to avoid bodily harm ends. D.1.e) Retreat: There is no requirement to retreat before using non-deadly force to prevent an attack. Retreat is only necessitated only if you have a safe, obvious means of retreat. A.1.a.i. Under the Model Penal Code: deadly force not justifiable if the defendant knows he can escape with complete safety. It does not include a duty to retreat if you are in your home or workplace (unless assailed by a coworker). A.1.a.ii. Some states expand the right to not retreat to anywhere the assailant has the lawful right to be. (so-called “Stand Your Ground” laws.) A.1.a.iii. People v. Humphrey (Cal. 1996): Under California statute, expert testimony regarding “battered women’s syndrome” was generally admissible in criminal cases. Here, Humphrey killed her husband abusive husband and the jury found her guilty of voluntary manslaughter. The standard does not become the “reasonable battered woman.” In some ways, this case represents both our failings as a society to deal with domestic violence and our tendency to try to rectify it through the criminal justice system. The court determined that the syndrome may be relevant to both: o Whether the defendant actually believed it was necessary to kill o Whether the belief was reasonable. o If the jury finds the first but not the second, it is imperfect self-defense. The test is objective, but requires consideration of “all the relevant circumstances in which the defendant found herself.” A.2. Defense of Others: Only applies to deadly force (you can defend anyone with non-deadly force). Difficulty comes when you’re mistaken about the aggressor in the situation. The larger the circle of those you can help, the more likely you are to make a mistake, so the court limits the circle you can protect and treats the mistakes of fact as if it were the fact with an “act at your peril” attitude. The MPC does not limit the people you are allowed to protect-instead, you can aid anyone who reasonably seems to be in peril-though this is distinct from adequate provocation. A minority of jurisdictions requires you to put yourself in the shoes of the person you aid.

10 A.2.a) Commonwealth v. Martin (1976): The defendant was convicted for assaulting a guard who was fighting with another inmate. The court determined that the following conditions justify the use of intervening protective force: A.1.a.i. A reasonable person in the actor’s position would believe his intervention to be necessary for the protection of the third person A.1.a.ii. In the circumstances as that reasonable person would believe them to be, the third person would be justified in using such force to protect himself. The reasonableness of the belief may depend on the relationships among the persons involved. A.3. Defense of Property: cannot typically use deadly force to protect property and you can never use it to recover property, though you can attempt to prevent the felony (robbery) from being completed-if the felony is dangerous, it may difficult to distinguish self-defense and defense of property. A.3.a) Crawford (Maryland 1963): Man shoots intruder breaking into his house for money. There is no duty to retreat from the home, nonetheless the force may not be excessive. Crawford met the burden of proving that he acted reasonably. A.3.b) Defense of Habitation: The right to use deadly force in defense of one’s habitation seldom arises in circumstances that do not also create a right to act in defense of oneself or others. This right is restricted, its significance is generally that it may allow the use of deadly force somewhat sooner (to prevent entry) that would some other defense. A man against whom one would be entitled to use deadly force after entry if he persisted can be prevented, with whatever force is necessary, from entering at all. However, it still has to be necessary force. A.4. Prevention of felony: This rule used to effectively permit killing to protect property. However, since felonies have been expanded, it must be accompanied by force or pose danger. A.5. Prevention of escape: Only permissible to prevent escape from felonies that threaten death/grave harm. The suspicion that the person committed the felony must be correct. A.5.a) Prison escape: A very limited defense of duress/necessity under which you must face a very specific threat and you have to return to custody. A.6. Duress and Necessity: the defenses of duress and necessity not available for murder. The MPC rejects this rule and allows both, with duress if a person is coerced to kill; necessity: “choice of evils”-killing is justifiable only if the harm sought to be prevented is greater. E. Unintentional Injury E.1. Elements of Involuntary Manslaughter: “the killing of one accidentally, contrary to the intention of parties, in the prosecution of

11 some unlawful, but not felonious act, or in the improper performance of a lawful act. E.1.a) Unlawful killing E.1.b) Unintentional killing E.1.c) Gross negligence (this is the mens rea required) E.2. Higher degree of negligence (lack of care) than for tort liability. It has to be higher than the typical gross and reckless. Note: there is no contributory negligence in criminal law-although you are entitled to assume that others are going to act reasonably, it is not a separate defense. E.3. Proximate causation is considered-to hold a defendant criminally responsible for a homicide, the defendant’s act must have been a proximate cause of the injury-mere proof of the negligent act does not establish its causal relation to the injury. E.4. Misdemeanor manslaughter: In theory, any homicide that results from the commission of an unlawful, non-felonious act. In practice, proximate causation is required-mere violation of statute insufficient. Some courts limit it to situations where: E.4.a) The violation of law is one that endangers life E.4.b) Conduct that is the violation is grossly negligent. E.5. Bell v. Commonwealth (Va. 1938): Driver hits two women on a dark, narrow street, killing one of them. Court rules that given the cumulative effect of several negligent acts (lights not burning, high speed, etc.). Bell is guilty of involuntary manslaughter. (Today Bell would likely just be an accident.) E.6. Maryland v. Chapman (Maryland 1951): Air force pilot abandoned a plane and the plane crashed into a house, killing two children. The court determined that although there was negligence, there were prudent attempts to save the plane, and so no gross negligence  no manslaughter. E.7. Feinberg: Sterno case-31 people died of alcohol poisoning. Feinberg was convicted of involuntary manslaughter based on his disregard for human life. E.8. Gian-Cursio v. State (Fl. 1965): Chiropractors charged with manslaughter for hastening death via nontraditional method. The court ruled that they could be convicted for involuntary manslaughter for their gross negligence in ignoring accepted scientific methods and rejected the defense that the person consented to medical treatment. F. Failure to Act F.1. The duty of care ordinarily imposed/implied in manslaughter is a legal duty, not a mere moral obligation. It is a duty that is imposed by law other than the law of homicide or contract, and the omission to perform that duty must be the immediate and direct cause of death for a charge of manslaughter (voluntary or involuntary) to follow. F.2. Beardsley (Mich. 1907): Man is with a woman who overdoses on morphine. He asks his friend to watch out for her and she dies. The court

12 determined that because he had no duty to care for her (as they had no protected relationship like spouse or parent-child), there could be no liability even if he intended her to die (thus he could not be guilty of involuntary manslaughter) F.3. Failure to act constitutes a breach of legal duty (sustaining liability for homicide if death results) in four situations (Jones v. U.S., D.C. Cir. 1962): F.3.a) Statute imposes a duty of care: where the duty is otherwise imposed by law, failure to meet that duty is evidence of negligence F.3.b) There is a special relationship between the deceased and the accused: typically, there is no duty of a child to a parent. A spousal duty of care is presumed to exist, though few cases exist in practice. F.3.c) There is a contractual duty of care-requires more than just a breach of contract, there must be some sort of assumption of duty/care F.3.d) The accused voluntarily assumed care and isolated the helpless person as to prevent others from rendering aid-if you have a duty and don’t perform it with the intention the person dies, you can be liable for murder. F.4. Sheridan (1967): A little girl died in her home following an episode of fever/listlessness. Her mother was a member of the Christian Science Church and had only given the girl prayer, no medical attention. The girl later died from a complication of pneumonia. Sheridan was found guilty of involuntary manslaughter and placed on probation. In cases involving religion as a defense, the size and permanence of the religious sect matters. Typically, unless a child’s life is in peril, a state will not order medical attention. G. Causation G.1. Causation is an element of both intentional and unintentional killings. In most criminal situations, the problem of causation does not arise because the defendant either intended by his conduct to produce the harm that occurred or there is a direct causal link between an act and its harm. A person is held liable for all consequences proximately caused by his criminal conduct. However, fortuitous situations that result in death are more problematic. If there is an intervening cause, the defendant is not liable for death. In sum: G.1.a) Take the victim as you find him G.1.b) If the defendant’s act causes death, it is irrelevant that the victim might have avoided death unless his negligence involved a high degree of recklessness G.1.c) If a defendant’s act creates a chain of causes, he is liable G.1.d) If an intervening cause kills the victim, the defendant is likely not liable for the death (if you shoot someone and the ambulance gets in an accident, if it is the fault of the other driver, you won’t be liable for the death.)

13 G.2. Fine v. State (Tenn. 1952): The defendant choked the victim, the victim has a stroke and dies two months later. The lower court convicted him for voluntary manslaughter, but the court of appeals found that there was no causation and thus no criminal liability; the court also rejected the finding because there was no proof that choking caused the death, only speculation. G.3. Frazier (Missouri 1936): The defendant punched the deceased, who was a hemophiliac, in the jaw. The blow caused a slight laceration which resulted in hemorrhage. The victim died ten days after the assault. The defendant was convicted for manslaughter and the judgment was upheld on the basis that you take the victim as you find him. G.4. United States v. Hamilton, (D.D.C 1960): The defendant brutally beat up the victim outside the bar. The victim woke up in the hospital and pulled out his tubes, resulting in his death. The manslaughter conviction was upheld on the basis that the circumstances (that he might have lived) have no effect on the liability and responsibility for the death of defendant resulting from the cause of his being in the hospital (defendant’s assault/battery). The degree of homicide depends on the state of mind of the injurer, and causation is attributed to the injurer unless there is extreme recklessness on the part of the injured. “it is well established that if a person strikes another and inflicts a blow that may not be mortal in and of itself but thereby starts a chain of causation that leads to death, he is guilty of homicide. This is true even if the deceased contributes to his own death or hastens it by failing to take proper treatment.” H. Punishment H.1. Theory: Two general approaches H.1.a) Retribution: Punishment as retrospective and in return for what you deserve (as a result of your actions) A.1.a.i. You right a wrong by punishing someone (Hegel) A.1.a.ii. By punishing, you treat the person as a full human-you are not punishing to reform, but rather giving their just desert. (Kant) A.1.a.iii. Criticism: Why is it that justice kicks in at this point? If the person did not deserve the circumstances/initial situation, how can they deserve the result? If punishment produces no good, why do it? H.1.b) Utility/utilitarian: Punishment is forward-looking and good for society A.1.a.i. Justify punishment for the good that it does the community, not necessarily the criminal. A.1.a.ii. Punishment is the lesser of two evils-it promises to exclude some future evil (harm to society, etc.) (Bentham) H.1.c) While these theories disagree on the purpose of punishment and how punitive the law is, there is general agreement that there must be punishment and that there are those who should be

14 punished. (Greenwalt). Typically, our laws are utilitarian but our application is retributive H.1.d) The Model Penal Code takes a primarily utilitarian position. H.2. Capital Punishment: H.2.a) The U.S. is one of the only remaining countries (aside from China, the Republic of Congo, Iran, and Saudi Arabia) that still employs the death penalty. According to Gregg v. Georgia, the death penalty serves the societal purpose of retribution and deterrence of capital crimes by prospective offenders. So far, approximately 16 states have abolished capital punishment entirely. H.2.b) The Constitution prohibits capital punishment for a crime committed by a person who was less than 16 years old at the time of commission (Thompson v. Oklahoma); in 2005 in Roper v. Simmons, the age was changed to 18. It is also prohibited capital punishment for rape, in the absence of any other crime. Some forms of felony murder can warrant the death penalty. H.2.c) Atkins v. Virginia (2002): In determining that the mentally retarded are less culpable, the Court ruled that it is unconstitutional to execute the mentally retarded (cruel and unusual punishment). The Court relied on statutes in other states as confirmation that other legislatures had determined that contemporary values and the execution of the mentally retarded did not line up. H.2.d) In McClesky v. Kemp (1987), the Court determined racial bias in sentencing does not invalidate the death penalty on Constitutional grounds and that the safeguards against such bias are sufficient. Congress responded with strict requirements regarding juror instructions. H.2.e) Aggravating and mitigating factors “death qualified” jurors consider in capital sentencing: A.1.a.i. Aggravating factors: death during commission of another crime, previous conviction, grave risk of death to others, heinous manner of killing, payment, substantial planning, vulnerable victim, drug offenses. A.1.a.ii. Mitigating: Impaired capacity, duress, minor, equally culpable defendants, no prior record, severe mental/emotional disturbance, victim consent

II. Theft & Fraud A. Theft, Fraud, and Breach of Trust A.1. Theft: Larceny, robbery, extortion, blackmail, embezzlement A.2. Fraud: (obtaining valuable property from the possession of another with his consent and will, by means of some artful device, against the subtlety of which common prudence and caution are not sufficient safeguards) False pretenses, larceny by trick.

15 A.3. Breach of Trust: the abuse or misuse of property which the owner has, without any fraudulent seducement, and with his own free will and consent, put or permitted to be put, either for particular or general purposes, into the possession of the trustee. A.4. Modern laws group crimes of theft and of fraud together to avoid loopholes. In the MPC, theft crimes, including fraud, are all a type of larceny. B. Theft: In the U.S., typically divided between two classes according to the value of the property stolen. The general rule for the value of classification of theft offenses is market value. B.1. Theft requires an intention to permanently deprive-taking without permission is not theft in the criminal sense without intention to permanently deprive. B.2. Elements to consider in classifying theft: B.2.a) Is the item protected by the conception of property? B.2.b) Relevance of value of the property B.2.c) Was there an intention permanently to deprive? B.2.d) What methods were used? B.3. Petty larceny: Theft of property worth less than $50, commonly a misdemeanor with a maximum penalty of not more than a year B.4. Grand larceny: theft of property worth more than $500, punishable by fine or imprisonment of not more than five years. B.5. The MPC has three classifications, with an intermediate stage for property valued between $50 and $500 that warrants up to a year in jail, with value less than $50 only punishable by up to 30 days. C. Larceny; The taking (and carrying away) of valuable property from the possession (actual or constructive) of another without his consent and against his will with the intent to permanently deprive the person of property. Elements: C.1. Intentional taking and carrying away (asportation)- even slight movement is sufficient C.2. Of personal property C.3. In the possession/presence of another-the MPC says this includes anything of “value” C.3.a) If a person is the agent of someone, they are considered to only have custody over the property. They are liable for larceny once they have possession. C.3.b) Found property belongs to no one-but if it has any value, most states impose a statutory duty to try and find the owner. C.4. Without consent (trespassory taking) C.5. With intent to permanently deprive of possession (excludes borrowing, joyriding, etc. though some states may make joyriding a crime) D. Robbery: An Aggravated Theft, Elements: D.1. Taking of property D.2. From victim’s person or presence

16 D.3. By force or intimidation: need not cause actual injury, slight force is sufficient. (Typically excludes pickpocketing) D.4. With intent to permanently deprive E. Extortion and Blackmail E.1. Taking of property by threat of future violence (larceny + threat of injury). Elements: E.1.a) Taking of property E.1.b) From another E.1.c) By threat of future violence E.1.d) Typically, the mere threat to take property is sufficient. F. Embezzlement F.1. Definition: Conversion of property already in the defendant’s possession; embezzlement was criminalized to try and stop individuals with certain statuses (bankers, cashiers, etc.) from being able to steal and get away with it due to the loophole (money already in their possession) F.2. Elements: F.2.a) Fraudulent F.2.b) Conversion of (misappropriation) F.2.c) Property of another F.2.d) That the defendant already possesses G. Fraud Crimes: G.1. False Pretenses: Defendant obtains title to goods or money through acts of deceit or misrepresentation. (Theft by deceit). Elements: G.1.a) Taking title and possession of property of another G.1.b) By knowingly making false representations with regard to material facts G.1.c) With the intent to defraud G.2. Larceny by trick (theft by stealth): defendant obtains possession, but not title, because of misrepresentations or acts of deceit. Elements: G.2.a) Taking of possession of the property of another G.2.b) By knowingly making false representations with regard to material facts or making false promises G.2.c) With an intent to defraud H. Defenses H.1. The property taken does not qualify as property under the law H.2. Owner consented to the taking H.3. No intention permanently to deprive (simply borrowing w/o permission) H.4. Claim of right-an affirmative defense in which the defendant claims he is the true owner of the good or money. Generally not a valid defense if possession involved violence or threat of violence, but works if you believed the property belonged to you (under the MPC.)

III. Rape A. Difficulty: What makes rape different? A.1. Highly gendered crime: largely female victim, male criminal

17 A.2. Rape is the only major crime that constitutes conduct that is otherwise permissible A.3. Highly fact-specific and often involves competing accounts regarding consent A.4. Men shaped the law and so didn’t consider women’s viewpoint (this effects precedent, the myths we have surrounding rape and its prosecution, etc.). For this reason, courts have tended to place disproportionate emphasis upon objective manifestations of non-consent by the woman instead of affirmative consent. A.5. Social attitudes about sex roles and relationships are highly salient B. Elements B.1. Intercourse B.2. By force or threat of force: previously required either resistance that the defendant had to overcome or the prevention of that resistance. Violence is not necessary to show force. The law is now satisfied if there is compulsion by the male and non-consent by the female. B.3. Against the will and without the consent: the former is an imposition of the male, the latter is a lack of consent by the female. B.4. Defenses: the law is unsettled about the defense of mistake (in terms of consent): some jurisdictions accept it, others reject it. C. Cases C.1. State v. Rusk (Maryland 1971): Rusk was found guilty of second- degree rape on the basis of the threat of force he exerted while having intercourse with the victim. Rusk claimed that it was consensual. The court’s analysis focused on whether the prosecution proved the threat of force beyond a reasonable doubt. The court emphasized that the victim’s fear must be reasonable. His conviction was upheld. C.2. Commonwealth v. Sherry (Mass. 1982): Three doctors rape a nurse. The court determined that a victim need not use physical force in resisting. Evidence of fresh complaint can be relevant to determination of consent. More significantly, evidence of prior statements, where relevant, can be excluded. C.3. People v. Williams, (Michigan 1982): Four defendants were accused of gang raping a woman. A defendant contested the constitutionality of a rape shield law that prevented the admission of evidence regarding her past prostitution and sex with one individual. The court determined that the law was constitutional and the evidence properly excluded. D. Trial and Punishment D.1. Tend to punish stranger rapes more harshly and to have a higher level of disbelief in acquaintance rape. D.2. There was previously no recognition of marital/spousal rape, but this conception is changing (though the MPC still does not recognize it) D.3. Corroboration: while common law and MPC requires corroboration, most states have abolished the requirement because of the difficult burden it places on victims.

18 D.4. Rape Shield Laws: every state has some form of rape shield laws. Most jurisdictions bar evidence of the victim’s previous sexual experience, with the exception of prior consensual sexual contact between the defendant and victim. Prior false accusations of rape are sometimes permitted. The MPC does not include a rape shield law. Note: shield laws do not apply to defendants: history of conviction for prior sexual abuse is admissible within the relevant rules of evidence. IV. Insanity A. Tests A.1. M’Naghten (H.L 1843): The case formulated by the Court asked whether at the time of the commission of the crime, the accused knew he was acting contrary to law, then he is punishable unless the accused was laboring under “such defect of reason, from disease of the mind, as not to know the nature and quality of the act he was doing, or if he did know it, that he did not know that what he did was wrong.” (First test for insanity). While this test considers the intellectual understanding of one’s right and wrong and includes a minimum group for whom the defense should apply, it was criticized because: A.1.a) Most people who are insane can tell right from wrong, yet they still commit the crimes. A.1.b) The reliance on experts at the time that M’Naughton was passed was problematic because of scientific uncertainty regarding insanity. Despite these criticisms, there has been a shift back to this test. A.2. “Irresistible Impulse”: Consider the will and ambition of the accused along with their (in)ability to control their impulses to determine culpability. This test focused on compulsion rather than brooding, but it was problematic because it focused only on control (excluding pathological, but still mentally unstable individuals). (Shaw 1844) A.2.a) Parsons (Ala. 1887): The proper test has the first two steps of M’Naghten (disease of mind and did he know right from wrong) plus suspended responsibility if: A.2.a.i. By reason of duress of the mental disease, he lost the power to choose between the right and wrong, and to avoid doing the act in question (no free agency) A.2.a.ii. The crime was so connected to the disease, in the relation of cause and effect, that it was the product of it solely. A.3. Durham v. United States (D.C. 1954): An accused is not criminally responsible if his unlawful act was the product of mental disease or mental defect. Thus, if it is clear that the defendant was suffering from a defective mental condition when he committed the act, but that act was not the product of such mental abnormality, he can still be found guilty. This test has been read in an increasingly expansive way:

19 A.3.a) The court said that if the defendant would not have committed the act “but for” the disease or defect, it was not necessary that the act be an immediate issue of the disease. A.3.b) Judge Burger’s view (McDonald): if a person was unable to substantially comply or lacked the capacity to comply within the law, he is not guilty. Juries, not experts, should determine the resolution. A.4. MPC Test: Person not responsible if he lacks the “substantial capacity either to appreciate the criminality [wrongfulness] of his conduct or to conform his conduct to the requirement of law. “Mental disease or defect” does not including mere anti-social conduct. In this way, it follows M’Naghten closely (as does the federal and most states tests). Some states have abolished the insanity defense but permit “guilty but mentally ill” verdict B. Burden B.1. There is a rebuttable presumption of sanity. If insanity is raised as a defense, the courts are split on whether the plaintiff or defendant bears the burden. A defendant must give notice of its intention to raise the defense. B.2. The Supreme Court has upheld a standard requiring the defendant to prove something beyond a reasonable doubt. C. Competence C.1. Distinct from insanity: While an insanity defense is a defense to a charge, issues of competence are due process claims that may attempt to provide an administrative solution to the insanity problem. C.2. Most defendants who make claims of incompetence are civilly committed until their disease is no longer a factor (i.e. indefinitely). The Supreme Court has said that proof of criminal conduct is enough to justify continued commitment. This extends to those convicted of sex crimes.

V. Mistake, Attempt, and Conspiracy A. Mistake A.1. General rule: if the mistake negates an element of the crime or substantiates a defense, it is significant. Otherwise, it is not. Traditionally, ignorance of the law is no defense to it. Most courts do not accept mistake of law as a defense. A.2. Traditional examples: traditionally, statutory rape and bigamy were crimes in which defenses of mistake were not allowed, and the actor was considered to be acting at his/her own risk. A.3. “Willful blindness” is not a sufficient claim for a defense of mistake-if the only reason the accused made a mistake is because of conscious disregard of a circumstance, the defense cannot be sustained. (Jewell) A.4. We typically avoid punishing/condemning someone who conscientiously tries to obey the law, and there is a strong presumption

20 that the law permits what it does not explicitly prohibit (Horning). We thus leave a lot to prosecutorial discretion. This applies if: A.4.a) The defendant was unaware that his conduct was criminal because he did not know that the conduct in general was proscribed or A.4.b) If he knew of the general proscription but concluded that it did not apply to him A.4.c) A good-faith, albeit mistaken and unreasonable, belief that conduct is lawful is a defense if willfulness is an element of the offense (Cheek v. U.S.) A.5. The MPC allows the defense of mistake only if the defendant relied on certain kinds of “official statements of the law.” A.6. It is constitutionally permissible to make something that is not obviously unlawful a crime. B. Attempt B.1. Generally: A narrow view of attempt states that there is no attempt unless the action that constitutes the crime is in process (but for timely intervention, the crime would have been committed.) B.2. Rizzo (1927): Men were trying to plan a robbery, but had not chosen a victim. They were arrested and charged. The court distinguished between preparations and attempt-namely, there is a line drawn between remote actions and those that are proximate and near to the commission of the crime. Only the latter can be prosecuted. B.3. The following elements are relevant to a determination of whether something is an attempt or is mere preparation: B.3.a) The nature of the intended crime B.3.b) The nature of the act B.3.c) The manifestation of criminal intent B.3.d) How much has been done B.3.e) How much remains to be done B.3.f) Opportunity to desist B.3.g) Proximity in time and space B.4. Under the MPC, attempt is defined through consideration of culpability (criminal mind), whether their act was a substantial step toward the commission of the crime, and whether it is “strongly corroborative of the actor’s criminal purpose.” C. Impossibility C.1. Generally: Factual impossibility is not a defense, but legal impossibility is. Doing something with criminal intent that is not criminal does not change your culpability (still no crime) C.2. In cases where impossibility is raised as a defense, the following circumstances exist: C.2.a) An intention to commit a crime C.2.b) An effort to commit the intended crime but C.2.c) The effort it is bound to (or does) fail D. Conspiracy

21 D.1. Generally: To have a conspiracy, there must be a meeting of the minds/agreement (in some states, there must also be an overt act to create the conspiracy) to commit a crime. Each player does not have to know the other players or the details, so long as they have a common goal. Conspiracy is not limited temporally. D.2. Aiding and abetting: distinct from liability as a conspirator. D.2.a) Majority view: For one to be liable as an aider and abettor, there must be more than knowledge of an intended illegal purpose- he/she must make the purpose his own. D.2.b) The MPC provides liability for an accomplice only if he has “the purpose of promoting or facilitating the commission of the offense.” D.3. U.S. v. Falcone (1940): Distillers, distributors, etc. of yeast, sugar, and cans were charged with conspiracy to help promote the distillation of alcohol. D.3.a) Issue: Does the seller of goods become a conspirator of a buyer because he knows the buyer means to use the goods to commit a crime? D.3.b) Holding: No. It is not enough that he does not forego a normally lawful activity, of the fruits of which he knows that others will make an unlawful use. He must in some sense promote their venture himself, make it his own, have a stake in the outcome. D.4. Direct Sales (1943): Direct Sales sold morphine sulfate to Dr. Tate in such quantities, so frequently and over so short a period that they had to know he was not distributing the drug lawfully. The court upheld the conviction against Direct Sales, distinguishing it from Falcone in that DS had more than mere knowledge of possible wrongdoing-they furthered, promoted, and cooperated with the crime. They also had an economic interest in the crime (and so encouraged buying in bulk); narcotics are subject to regulation, sugar is not. D.5. Metaphors: D.5.a) Conspiracy as a wheel: A central actor with multiple outposts-the question is whether each spoke is aware of the necessary existence of the others and their dependence on each other. Don’t have to be aware of the details, only the kind of crime (Rosenblatt). D.5.b) Chain conspiracy: Consecutive transactions leading to the crime in which each conspirator is seen as a link taking part in one or more of the transactions. D.6. The Pinkerton rule: The Supreme Court held that all the participants are liable as principals for the substantive crimes committed by each in furtherance of the conspiracy. (Knowledge of your co- conspirators actions not required). The rule has been accepted in some but not all states.

22 D.7. Overt act: Under the common law rule, the prohibited agreement is all that is required to constitute the crime of conspiracy. The statute is not considered violated until the conspirator does an act in furtherance of the conspiratorial objective. The required “overt act” may be that of only a single one of the conspirators and need not itself be a crime. D.7.a) Attempted conspiracy is not typically considered a crime D.8. Termination: The extent of a conspiracy is defined not only by its scope or conspiratorial objective, but also by its duration. Since the agreement constitutes the crime, a conspiracy ends when the agreement ends. It does not necessarily end when the crime is completed or a co- conspirator is arrested. Completion of the object of the conspiracy, however, may complete the conspiracy (a conspiracy involving a bank robbery that results in someone investing in your company would not be completed until the conspiracy was complete). D.9. Withdrawal from a conspiracy: D.9.a) Requires more than an un-communicated decision not to abide by the agreement. A conspirator must withdraw in a manner reasonably calculated to inform his co-conspirators of his withdrawal. D.9.b) A conspirator’s disavowal or abandonment of the conspiratorial agreement removes him from the conspiracy, but he is still liable for the previous agreement and for the acts of his conspirators in furtherance of the conspiracy up until the point that he abandons the conspiracy. D.10. More than one: A conspiracy requires more than one person. If all but one of the alleged conspirators is acquitted, it is commonly held that the one remaining may not be convicted unless the acquittal was at a separate trial. D.10.a) Sears Rule: No conspiracy when one of the two supposed conspirators is a government agent who intends to frustrate the commission of the crime D.10.b) Wharton rule: where it is impossible under any circumstance to commit the substantive offense without cooperative action, the preliminary agreement between the same parties to commit the offense is not an indictable conspiracy.

VI. Limitations of Punishment A. No Crime Without Law A.1. A penal statute must define a criminal offense with sufficient definiteness that ordinary people can understand what conduct is prohibited and in a manner that does not encourage arbitrary and discriminatory enforcement. A.2. Criminal statutes must also be construed strictly, in a manner that defines the offense narrowly rather than broadly. B. Criminalizing Addiction

23 B.1. Statutes making narcotics addiction a criminal offense are unconstitutional. (Robinson) B.2. In Powell, the defendant claimed that being drunk in a public place was a addiction under Robinson, but the court rejected that claim, moving away from questions of compulsion and toward the definition of an act and whether you can regulate it. Penal sanctions do not have to be designed solely to achieve therapeutic or rehabilitative effects. (Clarifies that Robinson elucidated the doctrine that criminal penalties are only properly inflicted if the accused has committed some act or has engaged in some behavior which society has an interest in preventing.) C. Proportionality of Punishment: Elements for Consideration C.1. The gravity of the offense and the harshness of the penalty C.2. The sentences imposed on other criminals in the same jurisdiction C.3. The sentence imposed for commission of the crime in other jurisdictions C.4. Reddish: Demonstrates how slowly the law proceeds

Procedure-see “Criminal Law Outline” on procedure in downloads

Steps In the Formal Process: 1. Crime 2. Complaint (historically, directed at police who then investigate and create an incident report) 3. Investigation for probable cause leading, Arrest 4. Initial Appearance (in front of a magistrate and marks the beginning of formal proceedings): where defendant comes before a magistrate who details the charge and then determines bail, detainment, or appointment of a lawyer. 5. DA gets involved, potentially charges dismissed 6. Preliminary Hearing/ Preliminary Examination (review basis for prosecution): Attorneys contest the validity of the charges/detainment. If the magistrate concludes that there is probable cause for continuing, the process goes forward. 7. Indictment (formal accusation-if it’s a felony, this is from a grand jury) 8. Arraignment (defendant pleads in response to accusation) 9. If “not guilty” plea, trial 10. If “guilty” plea or found “guilty,” sentencing.

Actual Process 1. Crime 2. Arrest under police powers (usually w/in 48 hours) 3. Internal incident report 4. Initial Appearance, appoint attorney, shift to law from order (to Magistrate usually w/in 8 hours) 5. Attorney gets involved, gets fee 6. Preliminary Hearing (get attorney): all that is available/considered at this stage is the police report 5. Police write up incident report including a “charge”-there may be further investigation

24 6. Incident report to DA’s office 7. DA automatically charges maximum crime possible (indictment) 8. Arraignment: Automatic Not Guilty plea 9. Nothing happens... no investigation...time just passes... 10. Week before trial, defense attorney contacts DA and asks for deal 11. Plea accepted (no trial) 12. Sentencing

- Gergstein & Pugh: Police judgment is sufficient for arrest, not continued detainment. A judicial determination of probable cause is a prerequisite to extended restraint of liberty following arrest. 48 hours of detention prior to an initial appearance before a judge is permissible.

- Appointment of Counsel: You have the right to hire any lawyer you choose or to have one appointed for you (Gideon v. Wainwright). This right only exists when you are facing jail time, as well as with your as right appeal (the first appeal). It extends even when the defendant can no longer pay (Gipson) - Stack v. Boyle: Under the Eighth Amendment, bail cannot be set higher than reasonably calculated to ensure the defendant’s appearance in court. There may not be any amount that meets both the requirement that the defendant is able to pay and ensures that he stays there. Bail was originally based on the idea of sureties (putting up property to ensure the presence of a defendant friend.) Dangerousness is irrelevant, the only important thing is the flight risk of the defendant.

- There is a right to counsel at the preliminary hearing under Coleman because it is a preliminary stage at which an attorney can disprove probable cause. - The right to a speedy trial is not triggered until the defendant is formally accused (in indictment) under Marion. A defendant can only make a claim if delay prejudices the right to a fair trial and was a strategy. To determine fairness, a court can consider the defendant’s assertion of rights, the length of delay, the reason for the delay, and the prejudice to the defendant. (Banker). Unless the defendant demands a speedy trial, he is unlikely to prevail on the issue.

Plea Bargaining: - Bargaining is an informal process, initiated by defense counsel. There is an extensive procedure for accepting the plea to make a record. A defendant can withdraw from a prior guilty plea, but it is extremely difficult. Waiver of the right to trial through plea bargain must be knowing and intelligent with sufficient understanding of the circumstances and consequences. (Brady). Even if the plea is induced by bargain, so long as it is voluntary, it is valid based on the idea that allowing such procedures is mutually beneficial-it allows the defendant to solemnly admit his guilt and allows society to inflict such punishment as will lead to its healing. Threats, misrepresentations, and improper promises are impermissible. (Questions to consider: does plea-bargaining undermine the idea of punishment as deserved? Why does a blanket 10% reduction in charge/sentence rule violate the constitution, but the regular practice of doing so does not?). If an authorized sentence is higher than the bargain, the defendant should not complain. A guilty plea, however, leaves us without a convincing demonstration of guilt. 25 - There is a difference between a heightened sentence after appeal following conviction and raising indictment charges after a rejection of plea. (Hayes). - Pleas are valid so long as the defendant had competent, though perhaps mistaken counsel, and the plea was valid. Federal Rule 11 (a) (2) allows conditional pleas. - A plea must be a waiver and admission. The latter is sufficient, but not necessary. So long as there is a factual basis for the plea, it is accepted. Alford. This obscures the difficulty of conviction. The plea does not have to be accepted by the judge if the defendant protests innocence. - In a case with multiple defendants, a plea can take co-defendants into consideration. Cortez.

Voir Dire - General disqualifications for jury: age, disability, competence - Lawyers ask questions to lay foundation for challenges for cause. Peremptory challenges follow challenges for causes. “Peremptory” = for any reason or no reason at all. In the federal system, judges do the question. - Each side has a number of peremptory challenges and switches off. Defense counsel is more likely to challenge. Before Batson there was no restriction against peremptory charges on the basis that any other system would undermine the system. Under Swain, it was presumed that prosecutors made good faith challenges. Batson moved from scrutiny of group discrimination (removal of all black jurors from the jury pool) to individual (striking a juror because they are black). Once a defendant makes a claim of discrimination, the prosecutor has to offer another reason aside from race. The defense is also not allowed to discriminate on the basis of race, and neither side can discriminate on the basis of gender. (McCullogh and J.E.B). Age discrimination is permissible.

The Adversarial Process - Allen: The defendant has no right to confront witnesses, only to be confronted (see/hear the witnesses). The defendant has a duty to be at trial, and is necessary for identification, however a disruptive defendant has no right to remain in the courtroom- decorum is also important. - Faretta: A waiver of the right to assistance of counsel has to be knowing, intelligent, and voluntary. There is a tension between due process and liberty-the former requires an attorney for the sake of a just result (ensured by effective assistance of counsel) but the latter (the liberty to refuse counsel) is based on the idea of a person has an autonomous decision-maker. - Agurs: To prevail on a claim for a new trial on the basis of newly discovered evidence, the defendant must prove a lack of diligence on the part of the prosecutor. Whether a prosecutor has to disclose the existence of evidence depends on the significance/denial of the defendant’s rights by a failure to do so. Brady: where there is a specific request, the prosecution cannot ignore it. A boilerplate request that the prosecutor “give everything” can be ignored. - Evidence is considered in the context of the whole case. If its presence undermines confidence in the outcome, it must be disclosed.

26 - Youngblood: identification testimony is the more vulnerable testimony. Unless the defendant can show bad faith on the part of the plaintiff or police department in failing to maintain evidence, there is no violation of due process.

Defense Burdens: - Only have a burden not to make evidence less accessible to the government. - Defense counsel is not obligated to assist a defendant in committing perjury (Nix) - There is more room for discretion that is often acknowledged. Much of professional ethics is about avoiding difficult choices.

Sentencing - Williams: The information contained in presentencing reports is permissible in determinations of sentencing, even if the jury never had the opportunity to evaluate the information. (The judge may impose a heavier sentence than the jury) - Disclosure: The defendant is typically given the pre-sentence report, except in rare circumstances, and allowed to respond, though their response is usually not allowed until the sentencing phase (at which point it is too late). - Grayson: A judge can take his disbelief of the defendant into account when sentencing.