Criminal —a body of public law that prosecutes crimes that involve social harm.

I. History and Purpose a. Crime—act/omission and its state of mind, that if proven, incurs a formal and solemn pronouncement of the moral condemnation of the community b. vs. Civil Law—there are a number of fundamental differences. i. Higher evidentiary burden ii. Higher levels of punishment—deprivation of liberty vs. monetary judgments only (although civil commitment is possible) iii. Double jeopardy—jeopardy attaches when the jury is seated. No DJ if prosecuted in civil trial later or if prosecuted in both state and federal . iv. Victim has no control over charges/proceedings v. Criminal conviction results in moral condemnation c. Originally a large body of common law crimes, but now, most crimes determined by the legislature. i. Prohibition of ex post facto —laws made after crime committed ii. Prohibition of bills of attainder—laws specific to one person’s conduct

II. Criminal Process a. Crimes are defined in advance b. Crime must have been committed/reported (victim has discretion not to report) c. Investigation by police into allegations (police have discretion on whether to pursue) i. Standards of Proof 1. arbitrary and capricious—lowest standard 2. probable cause—standard for arrest warrant/indictment by grand jury 3. preponderance of —more likely than not—civil standard 4. beyond a reasonable doubt—standard at trial for conviction d. arrest of suspect—can search at this point without a warrant and then booking e. probable cause hearing—before a magistrate to determine if can hold (defendant can waive this hearing)—if have grand jury indictment then no probable cause hearing needed (discretion of magistrate/grand jury not to issue warrant/indictment) f. order of arrest issued—from either magistrate or grand jury. Arrest warrant gives details of what charged with, bond set here or at initial appearance g. initial appearance—before district judge, informed of charges, appointment of counsel (if don’t have any), bond set, sufficiency of indictment investigated (prosecutor has discretion not to pursue charges, judge has discretion not to charge) h. Discovery—no formal discovery in federal, open discovery in state— failure to turn over exculpatory evidence is a constitutional violation i. Arraignment—pleading (guilty or not guilty) j. Jury selection—strike for cause or not, unanimous verdict required k. Motion for directed verdict—MUST do this—std for defendant is no rational fact finder could believe guilt beyond reasonable doubt l. Jury instructions—important m. Sentencing—how much time, additional hearing/investigation n. Appeal i. Direct—something wrong at trial ii. Collateral—constitutional claims raised at trial iii. Discretion of judge, clemency

III. Theories of Punishment a. Utilitarian theory—punishment is justifiable if the expected result is a reduction in overall pain of the crime that would otherwise occur (maximize good in society)—forward looking theory i. Criticisms— 1. deterrence—justifies using people solely as means to an end (examples to society) 2. utilitarianism theoretically could justify punishment of a person known to be innocent of wrongdoing if it furthers the good of society (arresting someone just to placate a mob) 3. criminals can’t really be reformed b. Retributivism—punishment is justified when deserved by the wrongdoer—justified even if no reduction in overall crime levels— backward looking theory i. Criticisms— 1. intentional infliction of pain is senseless and cruel 2. retributivism glorifies anger and legitimizes hatred 3. irrational because it is founded on anger rather than reason c. Reasons for punishment i. General deterrence—punishing A so B and C won’t commit the same offense (utilitarian) ii. Specific deterrence—punishing A so A won’t commit crime again (utilitarian) 1. indimidation—punishment reminds A not to commit the crime again (utilitarian) iii. Incapacitation—make it so A can’t commit the crime again 1. civil commitment—committing and individual before they commit a crime, but with no moral condemnation. iv. Rehabilitation—changing a behavior to conform to the societal norm (fix A so A won’t commit crime again) (utilitarian) v. Denunciation—public statement of condemnation for an action that was wrongly taken—alternative to either retributivist or utilitarian vi. Retribution—repayment of A for the wrong that they have done. “lex talionis”—an eye for an eye 1. retribution is a limiting principle—don’t punish for more than the wrong a. assaultive retribution—morally right to hate criminals b. protective retribution—principle of personhood— punishment secures the moral balance c. victim vindication—punishment reaffirms that the victim is worthy as a human being of respect d. negative retributivism—guilt is a necessary condition of punishment (even utilitarianism embraces this concept) d. Sentencing Guidelines—parole no longer in play, so statutes set max and leaves room underneath or will set several options for judge to choose from. Death option is always left up to a jury. i. Jail time usually increases if the offender is bad (repeat offender) or if the offense is particularly bad (, etc) e. Jury Nullification—when the jury, believing that all of the elements of a crime have been proven, chooses to acquit the defendant on other principles. i. Arguments against—fairness (leads to inconsistent sentences), reduced deterrence, encourage defendants to go to trial and give sob stories, reduces confidence in system, evidence becomes about defendant rather than the crime. ii. Arguments for—serves as truth seeking , avoids overly harsh sentences, reflects community’s decision not to place moral condemnation on act, checks the power of the system (to charge) and the legislature (in defining the crime) iii. Nullification instructions are never given to a jury and counsel usually cannot make the argument to the jury that they should consider nullification 1. race based nullification—some people advocate self help for racial minorities being charged. If stealing from department store then let them off, if stealing from neighbor then convict—teach community values.

IV. Limitations on Punishment a. Standards of Proof—if problems arise in proving all of the elements of a crime then legislature may reduce burden to make it easier to prove. i. Judges can also affect the standard 1. jury instructions—tells jury what law is and what requirements of prosecution are (reviewed de novo on appeal) 2. directed verdict—takes fact finding away from the jury (appellate review is clear error on issues of fact) 3. JNOV—reverse jury’s decision (appellate review is clear error on issues of fact) a. Since last two have higher standards on appellate review they are safer for the trial judge to have ruling upheld b. Proportionality—closely linked to retributive theory—what punishment is appropriate for the crime that was committed? Punishment is right and morally obligatory. Utilitarians use it to deter future harm, thus punishment is undesirable unless it results in a net benefit. i. Two concepts: 1. How much or what punishment is excessive or disproportionate to a particular crime? 2. Under what circumstances is disproportional punishment not only unwise or unfair, but also unconstitutional (8th amendment)? a. Cruel and unusual punishment—judged on standard of ‘as applied’ in this case. For death penalty—is it cruel and unusual on its face, or only when it outweighs the crime committed? i. Coker v. Georgia—criminal escapes and a woman (prior /), convicted to death, Supreme Court overturns because said out of proportion with crime of raping adult woman (strongly retributivist approach) ii. Retributivitists—focus on individual, range of sentencing options—offender owes a debt to society and punishment is mode of repayment. Rejects ‘lex talionis’, but favors treating offender with dignity, punishment scaled in proportion to the ‘badness’ of the crime ( is low, is high) iii. Utilitarians—want punishment that is right amount to deter and no more—what is the effect on society—set punishments to let criminals know what they are in for. 1. punishment not less than required to outweigh potential profit to criminal for committing the crime 2. greater the mischief, greater the punishment 3. grade offenses in such a way as to induce person to choose the lesser evil 4. punishment induce criminal to do no more mischief than necessary for his purpose 5. punishment no more than necessary to bring into conformity with previous goals. c. Legality principle—prohibition on retroactive criminal lawmaking— overriding criminal law doctrine i. Rationale— 1. prevent government from enacting vindictive, retroactive legislation 2. furthers individual autonomy—allows individuals to pursue their own purposes and ends a. ex post facto requirement applies to legislature in a similar fashion as due process does to courts—if a statute is constructed narrowly (or interpreted that way by the court) then it can’t be enlarged later to pick up an unwanted behavior. 3. fair notice—gives warning to effects of actions and allows individuals to rely on laws as enacted a. retribution and deterrence are both in play here— can’t punish people for things that they didn’t know were wrong and if people don’t know then they aren’t deterred ii. Void for vagueness—statutes cannot be so unclear such that people of ordinary intelligence have to guess at the meaning. 1. Wrainwright v. Stone, In re Banks—void for vagueness— definition of crime not clear, or could be prosecuted for exercising a constitutional right (like free speech) 2. City of Chicago v. Morales—void for vagueness— definition of loitering was not clear and allowed for too much discretion for police/prosecutor in deciding who was violating the law. d. Rule of Lenity—if a statute is unclear or subject to conflicting interpretations then it is strictly construed against the government. i. This is a last shot kind of thing ii. Some states have abolished this rule

V. Components of Crimes a. —a voluntary act that causes social harm (acts committed under duress still count as voluntary under actus reus). Small component of in this because cannot be punished for involuntary acts (questions like multiple personality disorders, hypnotism). i. Voluntary Acts 1. State v. Utter—father stabs son to death while he is severely intoxicated. Claims actions were reflexes taught by years in the military. Denied instruction on involuntary acts—if had met burden of production then could have gotten instruction. Voluntary intoxication not complete defense for unconscious acts. 2. People v. Decina—man killed people with car because had epileptic seizure while driving—held was culpable because failed to take precautions and knew was subject to seizures (foreseeability) 3. Martin v. State—charged with public intoxication when police took him from his home while drunk and he cursed outside—not voluntary act, so no conviction ii. Omissions—generally no duty to act affirmatively except—courts don’t like to impose duties because it limits our freedom. Law seeks to prevent people from doing harm, but absent specific statutory duties, does not see that people prevent harm from occurring. 1. Exceptions: a. statutory duties—duty to pay taxes b. special relationships—parents/children, husband- wife c. contractual duties—day care providers d. voluntary assumption of duty—can’t stop and leave them worse off e. misfeasance—if caused harm (even innocent) then must aid 2. Cases: a. People v. Beardsley—married man did not aid woman having affair with when she OD on drugs— no duty to act b. Genovese—woman being murdered outside apartment—no one called police—no duty to act c. Barber v. Superior Court—is allowing someone to die (by removing artificial support) an act or omission—no recognized legal duty to prevent death, so omission and no charge. iii. Possession—inchoate, or incomplete, offense. Their purpose is to provide the police with a basis for arresting people that they suspect will commit a crime relating to the contraband material. 1. Actual possession—you actively possess the object 2. constructive possession—you request that the object be given to you 3. joint/exclusive possession—are in presence of contraband object but don’t touch or leave—failure of duty to dispossess b. Mens Rea—a guilty mind— i. Categories of culpability—statutes and jury instructions often contain the requisite state of mind required for conviction of the offense. 1. purpose/intent—having a goal to cause social harm or acts with knowledge that social harm is virtually certain to occur 2. knowing—act with knowledge that something bad will probably happen 3. —adverted to and ignored a known risk 4. negligence—conduct that deviates from the standard of care that a reasonable person would have observed in the actor’s situation—convicted of objective fault 5. strict liability—no concern for mental state ii. Intent 1. General—covers all categories of culpability—does not inquire as to actual mental state of actor, merely that act has occurred, however, some blameworthiness is required or it is strict liability 2. Specific—covers purpose, knowing, and high degrees of recklessness 3. State v. Nations—charged under child welfare statute for allowing underage girl to dance. Requirement of statute was to aid/encourage underage child to engage in conduct that is injurious. Dispute as to knowledge of age of child. Willful blindness problem—the statute doesn’t have the language, so rule of lenity applies and construed against state. 4. United States v. Morris—earlier statute had knowingly inserted with two elements of crime, whereas recent statute only has it with access to computer (so no mens rea required for first element—worse for defendant). Government claims that the mens rea only applies to access and all consequences that logically flow are included. iii. Cases— 1. Regina v. Cunningham—defendant took off gas meter in order to get money from meter, woman in adjoining apartment nearly died from inhalation of gas. The judge issued instruction that said an evil intent or bad motive was enough to satisfy the specific intent of statute. 2. People v. Conley—fight after party, defendant swings bottle at one person and misses, striking another in the face—mental state for crime is intentional or knowing— defendant challenges because he didn’t mean to hit the person that he hit. a. Transferred intent—liability is attributed to defendant who intends to do one evil and commits another instead—justified on grounds of /proportionality i. Limitations—does not work when mens rea requires intent to harm ACTUAL victim, does not work for intent to harm property and result is harm to person iv. Willful Blindness—actor is aware of high probability of existence of a fact and deliberately fails to investigate as to avoid confirmation of that fact. 1. United States v. Jewell—defendant asked to drive car with 110lbs of marijuana in compartment. Claims didn’t know about the compartment—willful blindness—was it almost certain that the defendant knew? v. Natural and Probable consequences—the law assumes that people mean the consequences of their actions, but cannot rely on this or instruct the jury because it flips the burden onto the defendant and relieves the prosecution from proving all elements of the crime (Sandstrom v. Montana—unconstitutional for a judge to instruct the jury that the law presumes that a person intends the ordinary consequences of his voluntary acts. c. Strict Liability—presumption is that some mens rea is required i. Public welfare offenses—these often have strict liability elements (presumed that you had to have some culpability to get to that point) ii. Non-public welfare—most common example is statutory rape— ignorance of female’s age is not a defense. iii. Statutory construction—some crimes can have elements that are strict liability iv. Cases: 1. United States v. Yermian—lying on government forms about prior . Statute was silent as to mens rea, assumed some was required because not a public welfare statute (also, higher the penalty, less likely that S/L will apply) 2. United States v. Freed—strict liability as to an element of the crime—firearm registration is strict liability 3. Garnett v. State—statutory rape example—strict liability as to age of woman—even if honest belief—court may have applied moral wrong doctrine to convict 4. United States v. Dotterweich—strict liability for distribution of adulterated drugs—public welfare offense— strict liability—the SC case on S/L d. Mistakes of Fact— i. Effects— 1. Specific Intent—an honest belief that is a of fact is exculpatory for specific intent crimes (knowledge or purpose) 2. General Intent—honest and reasonable belief is required when mistake of fact is coupled with general intent crime ii. Defense—not really a defense, but an argument that requisite mens rea was not present for the crime. iii. Cases— 1. People v. Navarro—took wood beams from construction site—charged with —if specific intent crime (which this was) it only requires an honest belief to negate. e. Mistakes of Law—in general, ignorance of the law is no excuse. i. Exceptions— 1. reasonable reliance or by estoppel—if rely on statement of law obtained from person/public body with responsibility for interpretation, administration, or enforcement of the law 2. fair notice—must have notice of the duty/law in order to be responsible for it—only used in extreme cases where due process is a concern. a. Malum inse—inherently wrong b. Malum prohibitum—wrong because prohibited c. Lambert v. California—woman arrested because did not register as felon. SC held unconstitutional because 1. omission, 2. duty was based on location and not activity, 3. malum prohibitum offense ii. Different Law mistakes— 1. Legal wrong—thought you were breaking one law but actually broke a more severe law—can be punished for more severe crime (may negate specific but not general intent) 2. Moral wrong—thought what you were doing was morally wrong only, but actually was illegal—can convict if actually illegal iii. Cases— 1. People v. Marrero—defendant was guard in federal prison and was convicted of having a gun in a nightclub. Statute exempted peace officers from criminal liability—defendant thought this was him—it did not—mistake was no defense 2. Cheek v. United States—defendant did not file tax returns—thought didn’t have to—statute says ‘willfully fails to make’. Willful is voluntary, intentional violation of known legal duty

VI. Liability a. Types— i. Innocent Instrumentality—having an innocent commit the crime (dog steal newspaper from neighbor)—the is guilty 1. Bailey v. Commonwealth—defendant encouraged police to come to victim’s house and he ends up dead—police were used as innocent instrumentalities. No accomplice because police did not commit crime. Principal in first degree. ii. Derivative Liability—if you aid, abet, procure, encourage, etc. the person who committed the crime then you are guilty of committing the crime yourself b. Definitions— i. Principal in first degree—person committing the crime ii. Principal in second degree—having aided, counseled, etc, and were present at time crime committed (actual or constructive) iii. before the fact—aided, encouraged...but not actually at scene when crime committed (still ) iv. Accessory after the fact—knowledge of other’s guilt but help them to avoid detection, arrest, etc. Liable for actions after you knew of crime. v. Accomplice—must have intent to aid, abet, procure the behavior itself AND the mens rea for the offense itself. c. Cases— i. State v. Hoselton—kids stealing stuff from barge—wanted to charge with intent to commit larceny—had to show had same mental state as actual thief ii. People v. Lauria—defendant runs answering service and some of clients are prostitutes (he knows this). Cannot convict because did not have mens rea because no purpose to aid the . There is a greater duty to report if they are committing a felony. iii. Riley v. State—two idiots shoot into a crowd of people—rule in Echols v. State was that could not convict unless person intended result. Court changes rule to be 1. intent to aid, abet or procure the behavior and 2. requisite mens rea for offense (here recklessness) iv. State v. Etzweiler—cannot be an accomplice to a negligent crime—this is a MINORITY rule. d. Mens Rea— i. Natural and Probable Consequences—(minority rule, followed in NC) 1. did principal commit the crime? 2. did accomplice act as accomplice? 3. did principal commit second crime? 4. was 2nd crime a natural and probable consequence of first? If yes, then accomplice can be held liable. ii. Model Penal Code— 1. did accomplice aid, abet, procure behavior? 2. did accomplice share mens rea to commit crime? Has a requirement that you actually succeed in assisting the crime. iii. Cases— 1. State v. Linscott—armed robbery, defendant just wants money but other guy shoots homeowner—on for 1st degree murder because death was natural and probable consequence of armed robbery 2. State v. Vaillancourt—defendant alleges that just watching someone break into a home does not trigger accomplice liability—court agrees, must actually aid, abet, etc. 3. Wilcox v. Jeffery—editor of magazine held as accomplice when club owners get musician to play illegally—he knew about the guy being illegal and ‘enjoyed’ the performance—held this was encouraging. 4. State v. Helmenstein—group was bored and decided to rob grocery store—could not convict because it required independent corroborating evidence and they were all held to be . 5. People v. Genoa—no crime because police officer did not have mens rea (undercover drug sting)—can have inconsistent verdicts—principal acquitted and accomplice convicted iv. Justification and Excuse with Accomplice liability—accomplice cannot be convicted if principal was acquitted on justification, but can be if principal was acquitted on excuse. 1. United States v. Lopez—Lopez claims that she was justified in prison escape because of defense of necessity (duress)—this is justification, so if successful then no charge for boyfriend who helped her escape. 2. People v. McCoy—principle that sometimes accomplice can be convicted of greater offense than principal—if mens rea of accomplice is greater—drive by shooting— accomplice arranged event. e. Limits on Accomplice Liability— i. Statutory limits—if protected by statute then cannot be convicted as accomplice under it. 1. In Re Megan R—14 year old cannot aid/abet her own statutory rape, no conviction under either because did not have mens rea to commit felony therein (statutory rape) ii. Withdrawal/Renunciation—if back out then cannot be held as accomplice if principal goes through with crime 1. People v. Brown—backs out of burglary, so no charge on that, but still can be charged with attempted burglary because he did before withdrawing.

VII. —the killing of a human being by another human being (People v. Eulo—definition of death, human life begins at birth). Can be lawful or unlawful. Lawful arises in war time, self defense, executions by state, police. Unlawful are discussed below: a. Intentional Killing i. First degree— 1. deliberate, premeditated, willful (express malice) a. State v. Schrader—defendant kills shop owner in argument over authenticity of war souvenir by stabbing him 51 times—appeal challenging jury instructions as erroneous as to definition of premeditation was denied—can happen in ‘twinkling of an eye’ b. Midgett v. State—man beat child so badly that he died—held that did not have intent to commit murder, so no first degree murder conviction allowed c. State v. Forrest—man kills terminally ill father in hospital room—he clearly premeditated and deliberated—first degree upheld—no mitigation. 2. if grievous bodily harm, then death could be foreseeable (implied malice)—usually second degree 3. abandoned and malignant heart—firing randomly into crowded room (implied malice)—usually second degree 4. intent to commit a felony—felony murder (implied malice) 5. method crimes—poison, lying in wait—substitute actus reus for mens rea requirement ii. Second Degree—implied malice 1. if grievous bodily harm intended and death results if is foreseeable 2. if you are extremely reckless and acting with abandoned and malignant heart then this can be second degree. iii. Voluntary —intentional killing in heat of passion or upon sudden and adequate . 1. Girouard v. State—man kills wife after she verbally abuses him and pulls hair/hits him. Court ignores physical contact because she is much smaller and holds that mere words are not sufficient provocation. a. Requirements from case: i. Must have been adequate provocation ii. Killing must have been in heat of passion iii. Must have been sudden heat of passion—no time to cool off iv. Must be causal connection between provocation, passion and fatal act. 2. Mitigating factors—mitigation from higher charge to manslaughter depends on circumstances. Mere words never enough (unless have physical capability to back it up), mutual combat and are recognized mitigating factors. 3. Defense—is a partial justification/partial excuse defense— if excuse then can mitigate if kill third party, if justification then can mitigate only if provoker iv. Lesser included offenses—if charged with highest degree then the lesser offenses are included and are options for convictions unless a party protests to their inclusion. b. Unintentional Killing i. Involuntary Manslaughter—unintended killing that resulted from an unjustified risk. Some states allow simple negligence to qualify while others require some higher degree of recklessness. 1. Berry v. Superior Court—man allows pit bull to kill child (trained for fighting/protecting pot field). No purpose or knowledge of death—negligence is easiest to prove 2. State v. Hernandez—drunk driving results in manslaughter charge, had drinking stickers on car (defendant contended not relevant). a. Elements for crime of Involuntary Manslaughter: i. Defendant acted with ii. In doing so, caused person’s death iii. Fails to be aware of substantial and unjustifiable risk, gross deviation from standard of care. 3. State v. Williams—man and woman charged because failed to get care for their infant child. They didn’t know better and were afraid they would lose child if took to hospital. Simple negligence/duty to care for children enough. Good faith not matter—if not RPPUTC then guilty of involuntary manslaughter. c. Felony-Murder—felony + death = murder (first degree) i. Effects can be reduced by— 1. statutory limitations—only qualified felonies listed can trigger the rule 2. requirement of inherently dangerous felony a. People v. Burroughs—leukemia patient goes to healer which prescribes a wacky regimen. Does deep tissue massage that results in hemorrhage and death—practicing medicine without a license is not inherently dangerous so does not qualify for felony murder. b. Versions of inherently dangerous— i. Objective—is behavior inherently dangerous on its face? ii. Sum of cases—is normal charge of this crime represent a dangerous activity— probably most logical iii. Fact specific—was this activity inherently dangerous—circular inquiry 3. requirement of causative link between felony and death a. causative link is requirement in NC to trigger felony murder—possession of firearm by felon doesn’t count if you hit someone with your car 4. merger doctrine—felony must not a predecessor to murder—can’t trigger with assault—but can with burglary a. People v. Smith—CA court said purpose was to deter those engaged in felonies from killing negligently or accidentally. Because you can’t use offenses included in homicide (assault) it prevents prosecutors from making end runs around mens rea. So beating child to death () merges with murder, so can’t charge with felony murder. b. People v. Wilson—burglary case where man broke in for purpose of assaulting victim—charges merge so no felony murder c. People v. Sears—intent to assault/kill wife but killed daughter—no felony murder although state pointed out two separate people were at issue d. People v. Burton—armed robbery does not merge because separate intent for robbery (money) e. People v. Hansen—drive by shooting, kills someone—no merger 5. actor/agency limitations—if agreed to commit felony then on hook if death results as accomplice. a. State v. Sophophone—defendant charged with homicide as accomplice because his partner in crime was killed by police officer. Defendant can’t be guilty because he and officer weren’t in concert (agency limitation) b. Res Gestae—are an agent until something breaks the chain of —time or supervening event ii. Arguments for and against— 1. deterrence—how do you deter an accidental death? Purpose is to deter underlying felony altogether 2. felony murder removes mens rea requirement for convictions—strict liability 3. retributive analysis—if you caused death, you should pay for it 4. utilitarian analysis—prevent because no inquiry into mental state. iii. -Manslaughter—rule somewhat similar to Felony Murder, but is just for that result in death. 1. malum prohibitum—misdemeanors aren’t usually dangerous, so this seems to be unfair—bad because we say so. Some states have law that any bad act will trigger this rule.

VIII. Defenses a. Defenses to crimes— i. Failure of proof—prosecutor failed to prove an element of the crime that he charged 1. Patterson v. New York—in a ME statute the burden was shifted onto the defendant to show that there was no malice—this was impermissible (Mullaney v. Wilbur). Here it was ok because there was no mens rea stated, but defendant could prove extreme emotional disturbance to mitigate to manslaughter. ii. Offense modification—alteration in charge to something lower or crime doesn’t cover this person’s act iii. Justification—affirmative defense that this was the right thing to do iv. Excuse—affirmative defense that the act was wrong, but you are off hook for some other reason v. Public policy—statute of limitations defense—won’t charge because too much time has passed b. Necessity—justification defense i. Queen v. Dudley and Stephens—two sailors eat third when stranded—no necessity defense allowed ii. Elements—classic common law 1. natural force caused harm 2. based on honest and reasonable belief 3. necessary to avoid harm: SPLIT a. actually necessary b. defendant honestly believed it was necessary 4. harm is imminent 5. defendant is not at fault iii. Elements—modern 1. balance of harm that favors D’s action—utilitarian a. act done to prevent significant evil b. no adequate alternative c. harm caused not disproportionate to harm avoided 2. necessity is NEVER a defense to homicide (minority approach) iv. Civil Disobedience— 1. indirect—never a defense—you must be protesting the actual thing (splattering blood on walls of IRS won’t work—United States v. Schoon) 2. direct—this can sometimes work—must show that you avoided greater harm (seeking shelter to prevent severe dehydration/sunburn) c. Self defense—justification defense—must have an honest AND reasonable belief, mere words cannot trigger self defense, if you are aggressor then no claim to self defense i. Elements— 1. threat must be actual or apparent of deadly force 2. must be unlawful, immediate deadly force 3. defendant must believe that faces imminent threat of death or serious bodily harm 4. response chosen was necessary to avoid that harm ii. Duty to retreat—you have a duty to retreat to the interior of your property (if you can do so safely), but there is no duty to retreat in your own home or business (castle doctrine) iii. Proportionality—your response in self defense must be proportional to the threat you are facing 1. People v. Goetz—man shot five kids on subway because he thought they were going to mug him—no showing of weapon or threat—force used was disproportionate, also objective reasonableness that you are in danger a. Characteristics of defendant—relevant to your honest and reasonable belief in your safety (or lack thereof) 2. State v. Wanrow—lure child molester over to house and then shoot him, claiming self defense—jury instructed on circumstances at or immediately before killing—court ruled this too narrow of a timeframe 3. State v. Norman—battered wife syndrome—difference between imminence and inevitability—NC court held need imminence iv. Defense of property—cannot use deadly force (generally) in defense of property 1. People v. Ceballos—spring gun case—teenager trying to steal stuff gets shot in face—no self defense allowed because not at home to exercise discretion 2. McCombs—NC law is ‘gentle hands’ 3. Intruders in home a. Any force necessary to repel from home b. Force if you think it is a felony c. Force if threat to personal safety (or defense of others) d. Law Enforcement Defenses i. Crime prevention—take actions that would otherwise be a crime if trying to prevent a crime—must be proportional—no deadly force for misdemeanors but for bad felonies it is ok. ii. Arrest after a crime—if some reason to believe that fleeing criminal poses continuing threat to public then may use force to stop—limited to felonies that cause death or bodily injury 1. Tennessee v. Garner—cop shoots kid who had stolen $10 and a purse—how much force is too much? iii. Public authority—committed crime because acting as agent of state (undercover cop buying drugs/firearms). This comes up in dope cases with snitches—who is legit and who isn’t? e. Duress—an excuse defense—defendant has all burden of production/persuasion to convince factfinder i. Elements— 1. imminent threat of death or serious bodily harm (to self or family)/ 2. defendant reasonably believes that threat is real 3. defendant reasonably believes necessary to comply with orders/no opportunity to escape ii. Limitations— 1. defendant not at fault for bringing situation about 2. majority rule is duress not a defense to homocide iii. Cases— 1. United States v. Contento-Pachon—man claims that he had to ferry drugs because threat to self/family. These cases come up a lot 2. People v. Unger—prisoner walks off honor farm because being raped. Did not turn self in—found two days later— claimed raising money for lawyer a. Lovercamp—factors for prisoner escape i. Prisoner faced with specific threat in immediate future ii. No time for complaint or complaints would be useless iii. No time/opportunity to resort to courts iv. No evidence of force/violence used in escape v. Prisoner immediately reports to proper authorities when reach safety

IX. Intoxication— a. Involuntary— i. Coerced—drug in drink ii. Pathological—unintended response to drug/alcohol iii. Mistaken—special brownies iv. Medically prescribed—oxycontin v. May negate general intent as excuse b. Voluntary—generally not an excuse, however, may be so intoxicated that it negates mens rea i. No dice for strict liability ii. If sober RPPUTC would not have done it then maybe no defense to negligence iii. Recklessness—did you advert to risk iv. Time framing is important—when did you recognize the risk? c. Government has burden to prove every element—so can’t legislate around intoxication