ELEMENTS OF A CRIME (mens rea + actus reus) 1. An Act or Omission 2. Harm to person or property (not always required) 3.

Causal connection 4. Culpable Mental State (mental state not required in strict liability crimes) 5. Statute defines it as a crime 6. No defense, excuse or justification PHILOSOPHIES ON CRIMINAL LAW I. Legal Pragmatism (Holmes): Prediction of power and the state s action constitutes law; the fear of consequences. What will the executive branch or judge do? What will the police do? This is what criminals are thinking of, they are pragmatic. Holmesian prediction of law as power and action (pragmatism). II. Analytical Positivism (HLA Hart): Law is words and a the system of rules, we follow these rules because we believe in the system that the rules are an instance of, not just because we fear the exercise of police power over us. Positivism = law as the word and the rules III. Natural Law/Absolute Morality (Kant): There is an absolute morality or natural law, immutable by culture the evil will is more important than the harm caused by the act we should be punishing intent in his view. Something can be worse just because it is! IV. Relative Morality: Morality is a function of culture, and there are no absolute morals. Blecker dislikes this. NYPL = structured with the assumption that most people control most of their actions and behavior most of the time. Criminal law or criminal procedure: Game vs. Sport analogy. Crimes as defined will be crimes as detected and should be punished accordingly. Punishment is usually not the maximum sentence. NYPL not construed strictly! NYPL is a volitional-intent-based system!

JUSTIFICATIONS FOR PUNISHMENT

Forward Looking y Rehabilitation: Acquisition of skills or trade to convert him into a law abiding citizen; release after better; not about punishing; forward looking y Deterrence: discouraging certain behavior o General deterrence: Deter others from committing the same crime, deterred by the idea of punishment o Specific: Deter the criminal from committing crime in the future, usually after they ve been punished once. y Denunciation the sociological justification added by Durkheim. Says that we derive a social cohesion from distancing ourselves from criminals by denouncing their acts. y Incapacitation: Criminal is in jail or executed, so he can t commit any more crimes. Backward Looking y Retribution: Intentional punishment to extent criminal deserves for crime he committed. Limited, proportional and not future oriented. Justification is because it is deserved . Moral/ethical justification. y Revenge: Condemnation/Denunciation: ( you deserve to die ), not proportional, not uniform, ritually affirms societal values. Deep conflict in criminal law between deterministic and free will punishment schemes. Degrees of Punishment y Violation: Not a crime. Prison up to 15 days y A, B, C D & E felonies, and A & B Misdemeanors -- What makes an A felony? The A sentence. y Most sentences are indeterminate and are given as a range. -- You automatically get the minimum but you can serve more if you don t behave well in prison. A class felony 20-25 years to life in prison B Class felony 8 1/3 to 25 years in prison C Class felony 5 to 15 years in prison D Class felony 2 1/3 to 7 years in prison 1

y y

E Class felony 1 1/3 to 4 years in prison A class misdemeanor cannot get an excess of 1 year in prison B class misdemeanor cannot get an excess of 1/3 year in prison Indeterminable sentence - Judge will give you a range of years (25 to life) Determinable sentence - Judge slaps a number on you - 20 years o *The federal system is a determinable system with no parole, no plea bargaining w/o judge s consent in fed system

Test on appeal is whether the evidence viewed in the light most favorable to the PEOPLE could lead a rational trier of fact to find the elements proven beyond a reasonable doubt.

CIVIL vs. CRIMINAL LIABILITY

Kansas v. Hendricks: Kansas law involuntarily commits sexually violent offender after his sentence is served. Holding: Civil commitment is not punitive or retributive; public safety is the justification, conviction not pre-requisite for the statute s use of commitment. Rule: If a person is mentally ill and cannot control his behavior after being released from prison for a crime, then courts can involuntarily civilly commit him to a mental institution. P had burden to prove D was likely to (1) engage in repeated acts (look to past history) AND (2) he is unable to control his behavior to civilly commit him. Kansas v. Crane: civil confinement of a sex offender, who suffers from exhibitionism and personality disorder. Rule: SCOTUS has consistently upheld involuntary commitment statutes when 1) the confinement takes place pursuant to proper procedures and evidentiary standards 2) there is a finding of dangerousness to oneself or others 3) proof of dangerousness is coupled with the proof of some additional factor such as mental illness or mental abnormality. (Don t have to show a complete lack of volitional control!) Cognitive problems != problems controlling desire/want (volition)

CRIMINALIZING SEXUAL CONDUCT

People v. Onofre (NY): Making sodomy a crime is an improper exercise of governmental power and violates fundamental right to privacy, equal protection clause, due process. Court of Appeals did not address whether or not it violates the NY state constitution. Had they stated this then Bowers would not have been binding in NY. Bowers v. Hardwick (Constitutional Right to Engage in Certain Acts?) No Longer Good Law  Supreme Court says state can prosecute for sodomy w/o violating Constitution rights. (Reverses the NY Court of Appeals decision in Onofre.) o Reductio ad absurdum: If not x is an absurd conclusion, then you have established x. *Sodomy should be illegal because if you legalize sodomy just because it s adult, consensual and private, then illegal drug sales, incest etc, should be legal also. The law needs to be supported by something other than morality to be constitutional. Lawrence v. Texas (Overruled Bowers; dissent in Bowers became majority in Lawrence) Is TX anti-sodomy law a violation of Equal Protection? Violation of vital interest in liberty and privacy? A: Yes. Violates 14th Am; majority cannot use the power of the state to enforce these views RULE: Individual decisions regarding consensual and private sexual behavior among consenting adults is a liberty protected by Due Process. No state criminal code can restrict rights more than the US constitution allows, but a state code can give Ds MORE rights than the US constitution gives them.

STATUS CRIMES: FREE WILL & ADDICTION

Robinson v. California (status of being a heroin addict was a crime ok to arrest w/o any possession?) 2

RULE: You cannot punish someone purely for status without having a specific criminal act (actus reus); violates 8 and 14 amend. Robinson did not possess heroin, merely had track marks showing he was an addict or had been an addict. CT says that punishing someone purely for status even for a day is cruel and unusual punishment! Powell v. Texas (act of being publicly drunk, not status of suffering from alcoholism, ok to criminalize?) RULE: Criminal penalties may be inflicted only if the accused has committed some act which society has an interest in preventing.

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US v. Moore (non-trafficking addict prosecuted for possession of heroin, can he use addiction defense?) Q: May the status as an addict be used as a defense to drug possession? A: No. USES REDUCTIO AD ABSURDUM ARG. RULE: An addict may be convicted for possession. Addicts choose their behavior to some degree; rob a store instead of a drug addict or police station, etc. So they are making choices that constitute criminal acts, not just the status of being addicts. ***ct is presupposing here in their reductio ad absurdum that addicted robbers must be punished.

CRIMES OF OMISSION
Generally, no crime of omission, except in certain circumstances: 1. Statutorily- Failure to Register as a Sex offender, failure to pay your taxes 2. Status- Special Relationship (parent-child) imposes a duty 3. Contractual- Nursing Home Care, babysitter, etc. imposes a duty 4. Voluntary assumption of care - someone asks you to watch her baby for a minute & you agree to do so 5. Failure to Act- Could have acted to prevent harm, but chose not too (Retributive) 6. Autonomy- We do not require children to care for parents the same way parents are required to care for children. Failure to Act is a Crime when: the person was aware of failure or had an opportunity to act AND it was reasonable/not dangerous to act. People v. Wong (NY): 2 caretakers, one shook the baby, neither got medical assistance, baby died, manslaughter. o Conviction overturned because there was no way to show who of the two actually shook the baby beyond a reasonable doubt. We d rather let a guilty person go than convict an innocent person. o Use Immunity (testify & it won t be used in court) or transactional immunity (testify to something but not be prosecuted for it). Hard to smoke out 1 guilty defendant when there s more than 1. People v. Williams (NY): Girlfriend failed to tell police her man robbed Burger king (she was a witness). RULE: This is criminal assistance because her omission rose to the level of an affirmative act; she called the cops but failed to give his identity, crossed line from non-disclosure to active concealment by giving a description.

DIMINISHED CAPACITY
In NY diminished capacity cannot get you out of all liability but might knock down the charge if you have less capacity. Commonwealth v. Mazza (MA) D uses friend s apartment to kill someone; hides body & uses dead man s things Mentally retarded D uses friend s apartment to kill another. He hides and disposes of body, uses dead mans car/credit cards and threatened owner to keep him quiet. RULE: NO diminished capacity because his actions were premeditated and intentional and he could appreciate that what he was doing was wrong. People v. Wolff (CA) man kills mother b/c he wants to rape women D wanted to photograph, drug and rape a woman, but had to get his mother out of the way. D acted with intent (premeditated/planned), was consciously aware of the consequences of being discovered, knew the difference between right and wrong, but he was not a fully mature and mentally well person, so his charge was lessened to Murder 2, but he was not acquitted.

THRESHOLDS OF LIFE AND DEATH

People v. Gray (NY): car accident, baby delivered by c-section 3

RULE: Baby boy delivered by c section had a pulse and blood pressure for some time after the car accident, making him a person who was born and alive when he was killed by the defendant. State v. Ard (SC): Threshold of fetal life D found guilty of murder when he shot and killed pregnant girlfriend and their unborn viable child, sentenced to death row b/c they say he intentionally killed two persons. RULE: Fetus (child) is a person if it is able to sustain life outside mother w/o support. (Unborn child lived for 8 min after mother was shot). If this case happened in NY, D would not be guilty of murder 1 even if he intentionally killed both the fetus and the mother. People v. Valdez (CA) homicide of fetus that would not have otherwise survived? CA law does not define fetus in the same was as it defines human being, so there is no crime of manslaughter of a fetus. Murder is never more than the shortening of life; if a defendant's culpable act has significantly decreased the span of a human life, the law will not hear him say that his victim would thereafter have died in any event. The fact that the victim murdered was an unborn child did not render defendants less culpable, or the crime less severe, in light of the legislature's determination that fetuses receive the same protection under the murder statute as persons. Commonwealth v. Morris (KT) Car accident kills fetus, is that its own homicide? Court of Appeals held that the common law born alive rule precluded homicide of unborn child in KT. KT says Viable fetus means a child has reached such a state of development that it can presently live outside the female body as well as within it. (usually 6-7 months of existence). As medical technology improves, the time which a fetus can live outside the body could get earlier. People v. Eulo: Threshold of Death while on mechanical life support D shoots P, but P did not die instantly. She was kept alive mechanically for lungs and heart, but brain dead. P family pulls plug. D claims he did not cause her death. Rule: Death occurs when heart and lungs cease functioning this was the old rule. Court recognizes brain death as a death threshold as well for criminal liability. Reasoning: Heart and lungs were maintained by mechanical means; we must look to see to brain, which has irreversibly ceased = death.

CULPABLE MENTAL STATES

MODEL PENAL CODE S CULPABLE MENTAL STATES y Purposefully: the actor has the "conscious object" of engaging in conduct and believes or hopes that the attendant circumstances exist. y Knowingly: the actor is practically certain that his conduct will lead to the result. In the NYPL: he is aware that his conduct is of such a nature or that such circumstances exist. y Recklessly: the actor is aware that the attendant circumstances exist, but nevertheless engages in the conduct that a "law-abiding person" would have refrained from. In the NYPL: aware of and consciously disregards a substantial and unjustifiable risk that such result will occur or that such circumstance exists. y Negligently: the actor is unaware of the attendant circumstances and the consequences of his conduct, but a "reasonable person" would have been aware. In the NYPL: fails to perceive a substantial and unjustifiable risk that such result will occur or that such circumstance exists. gross deviation of the standard of care that a reasonable person would observe in the situation. y Strict liability: the actor engaged in conduct and his mental state is irrelevant. NEW YORK PENAL CODE S CULPABLE MENTAL STATES 1) Intentionally: his conscious objective is to cause such result or to engage in such conduct. Cognitive intends those consequences which he knows will result from acts (knowledge, awareness, consciousness). Volitional - intends those consequences, which he desires to result from his acts (objective, goal, chose) Intent is volitional with a cognitive modifier.

2) Knowingly: he is aware that his conduct is of such nature or that such circumstance exists. BELIEVING IT PROBABLE NYPL 115, Facilitation -- here it is not considered 1 of the 4 mental states 3) Recklessly: he is aware of and consciously disregards a substantial and unjustifiable risk that such result will occur or that such circumstance exists. Risk must be of such nature and degree that disregarding it = gross deviation from the standard of conduct that a reasonable person would observe in the situation. **A person who creates such a risk but is unaware due to voluntary intoxication also acts recklessly 4) Criminal negligence: he fails to perceive a substantial and unjustifiable risk that such result will occur or that such circumstance exists. The risk must be of such nature and degree that the failure to perceive it constitutes a gross deviation from the standard of care that a reasonable person would observe in the situation. Blecker s Views on the NYPL: if D is doomed to fail but tried anyway b/c free to try, that s intent. Your objective (purpose) was to do that act and you were conscious (aware) of it, the probability of it actually happening has no bearing on intent. NYPL has transferred intent - D intended to kill A but B is killed, then intent is transferred. Intoxication: can mitigate/negate culpable mental state BUT voluntary intoxication cannot negate/mitigate recklessness General Hierarchy for Homicide (from greatest offense to smallest) I. Intentional Murder 125.27 1st Degree II. Intentional Murder 125.25 (1) 2nd Degree III. Felony Murder 125.25 (3) IV. Reckless Murder 125.25 (2) V. Manslaughter (intentional or reckless 125.15) 125.20 12 VI. Criminally Negligent Homicide 125.10 VII. Abortion 125.45 (1st Degree) and 125.50 (2nd Degree) VIII. Self Abortion 125.55 (1st Degree) and 125.50 (2nd Degree) IX. Issuing Abortional Articles (125.60)

RECKLESS & CRIMINALLY NEGLIGENT HOMICIDE

Commonwealth v. Feinberg (PA): Sale of concentrated Sterno D guilty of involuntary manslaughter by selling Sterno to alcoholics knowing they would drink it. D was aware of or should have been aware of his drinking customers purchases for illicit (wrong) purposes AND consciously disregarded; told store clerk to tell cops no Sterno in store; cans were clearly labeled poisonous. People v. Boutin (NY): Criminally negligent homicide with car accident at night in rain and fog D driving at night w/ rain and fog failed to see the emergency lights of police car in the right lane w/ disabled truck. RULE: criminally neg. homicide requires 1) a failure to perceive a risk of death and 2) some serious blameworthiness in the conduct that caused it, above and beyond civil negligence. Unjustifiable risk depends on circumstances (i.e. person driving 80 mph w/ hand on horn hoping to hit nobody at a crowded intersection b/c wants to joyride vs. person driving 80 mph w/ hand on the horn also hoping to hit nobody at crowded intersection b/c taking dying parent to hospital). People v. Cabrera (NY): Kid driving on temp license flips over SUV and kills passengers; not guilty RULE: CNH needs the creation, rather than the non-perception, of risk. He let his passengers ride without seatbelts, which increased their risk of death but did not cause the accident. He should be punished for the RISK OF DEATH not the actual accident. People v. Owusu (NY): Are teeth a dangerous weapon? RULE: Legislature intended dangerous instruments to be limited to external objects. Person s body never considered within statute s scope of dangerous weapon. Employing a device to assist in crime raises the liability; teeth not a device.

DEPRAVED INDIFFERENCE RECKLESS MURDER

NYPL 125.xx: Under circumstances evincing a depraved indifference to human life, he recklessly engages in conduct which creates a grave risk of death of to another person. 5

Depravity v. Gravity (the relationship between the circumstances and the risk of death) 1. Each are Independent, both are necessary: Grave circumstances show depravity 2. They are related to each other: depravity makes the gravity  Gravity is a function of depravity - the seriousness of the risk creates an implied indifference to human life  Acts w/ depravity become risks w/ gravity - indifference to human life creates a grave risk. 3. Combination of both in most cases Darry v. The People: oldest DRIM case in NY Man beats his wife to death over the course of several days apparently unprovoked by the heat of passion, and designed to do great bodily harm, but there was no evidence of a depraved mind without regard for human life. He got a new trial after a murder conviction. Ct did not want manslaughters to be tried as murders. People v. Poplis: D brutally beat child to death over several days no need to have intent if you have DRIHL State charged Murder 2nd based on depraved indifference, D contends Manslaughter 2nd recklessly RULE: Court said no need to have intent as mental state so long as there is a depraved indifference to human life; D was aware of the risks of beating & consciously disregarded, creating grave risk of death and killing the kid. People v. Register: Depravity makes the gravity / can intoxication be used to negate a depraved mind? No. Rule: Depraved Indifference to life + recklessly (mens rea) engages in conduct creating grave risk of death (actus reus). Court of Appeals (wrongly) holds that depraved indifference is an objective assessment of the act and not a culpable mental state and in the instant case cannot be negated by drunkenness as intent can be. Dissent argues that this opens the DMM convictions up too much, and that the subjective mental state should decide, not the objective factors. Register Majority Rule this is no longer good law Recklessness is the culpable mental state of depraved indifference murder. Depraved indifference to human life is an element of the crime, not a culpable mental state. To find DMM instead of reckless manslaughter, 2 objective circumstances need to be proved: 1) Grave risk was created and disregarded, instead of substantial risk 2) Objective circumstances which evince a depraved mind in the facts People v. Gomez (NY): D drove car on sidewalk and killed two people; Court cited Register to find depraved indifference murder based on an objective assessment of the circumstances and not on mental state. People v. Roe (NY): Gravity makes the depravity; kid playing Polish roulette w/ friends = a very substantial risk of death? Even though D did not intend to kill friend, he engaged in reckless conduct creating a grave risk of death and caused such death & his acts were wanton when objectively considered. Majority says D s reaction after the shooting does not matter because the mental culpable state is recklessness and it is based on an assessment of objective circumstances. Dissent thought it was recklessness. People v. Davis (NY): What is grave risk? D shoots at cops, gun fails to discharge; previous shell trapped in chamber. *this is good law but only when the gun can t fire. D acquitted of reckless endangerment because the factual impossibility eliminates grave risk. (Looks at the result in hindsight/using a God s Eye View). Gun jammed, no firing. Determines risk objectively by judging risk by result. Seeks to prevent the risk created by the actor s conduct and not a particular outcome (Factual Impossibility). Officers not at risk of death. Dissent argued that the risk was there even with the factual impossibility. People v. Galloway (NY): Shooting at a van 10 times create a grave risk of death to another person? Rule: Yes. use of a gun created a grave risk of death to the occupants in van. People v. Chrysler (NY): Holding a cocked gun to a person s head = creating grave risk of death? Holding: D admitted gun was loaded and cocking the weapon is a significant part of the evidence that makes conduct reckless endangerment. **Court distinguished Davis since there was a factual impossibility that eliminated the grave risk. But jarring the gun in Davis could have easily made it fire! 6

People v. Galatro (NY): man left unconscious on Flatbush avenue: substantial risk of serious physical injury? Yes. Rule: The purpose of the statute is to prevent risk, not harm. Although there were people were around preventing victim being hit, it s irrelevant because he still disregarded the substantial risk that victim could have been hit by a car. People v. Tuck (NY): 3rd Party intervention caused shooting rd D placed loaded gun next to the head of victim. When 3 party intervened and shook D s arm, the gun was went off Holding: This case was found to be reckless endangerment according to Chrysler, putting a gun up to someone s head creates a grave risk of death . It s not immaterial whether a 3rd party intervened. People v. Dellemand (NY): D sitting 10 ft away from victim pulled trigger of gun 3 times. On 3rd pull, gun fired, killing victim Citing Roe, court said this was DRIM, D was aware of the risks of aiming & pulling trigger of loaded & operable gun at victim, consciously disregarded a grave risk of death & caused death. This is obviously Intentional Murder, but because of Roe, there is a blurring of the line between Depraved Indifference and Intentional Murder. *Prosecution opted for depraved indifference because it s easier to meet the burden of proof since they do not need to prove intent. People v. Benedict (NY): D strangles wife and then beats her to death. D claims EED due to upcoming divorce. RULE: Intentional murder is mitigated by EED, BUT NOT DIHLM; D convicted of DRIM. EED cannot negate recklessness. People v. Thompson (NY): D shot twice and killed a person w/ semi automatic rifle. Can D be charged w/ two counts of murder, intentional and DRIM? Yes, since D acted w/ both intent to kill, as he said, AND reckless conduct of firing weapon at another s chest (creating a grave risk of death) AND causing such death. D s acts objectively considered, which show cold and wanton indifference thus can be found guilty of BOTH. (No subjective intent). People v. De La Rosa: Repeated threats and expression of desire to D s accomplices that victim be killed is DIHL. D injured and prevented victim from escape while one of his accomplices shot and killed victim. (D s threats and expressions sound more like intentional murder). This case was affirmed on appeal under Register. People v. Gallagher: D cannot be convicted twice for a single murder; once for acting intentionally and once for acting recklessly. Intentional murder and reckless manslaughter are inconsistent counts because guilt of one necessarily negates guilt of the other. *Blecker says this is wrong because you can intend to kill and at the same time create a grave risk of death. The analytical problem is still intentional murder and depraved indifference murder, not intentional murder and reckless manslaughter. People v. Trappier: Ct of Appeals held it ok to charge for both reckless and intentional murder Can a D intend to cause serious physical injury to another person AND at the same time recklessly create a grave risk that death will result from that conduct? RULE: A defendant can intend serious physical injury and create a grave risk of death at the same time. Court of Appeals upheld convictions. People v. Sanchez: D Fired a gun 12-18 inches from the chest of another person. DRIM or intentional murder? Depraved indifference due to point blank shooting? But it seemed intentional. Purposeful homicide is the ultimate manifestation of indifference to human life. Paradox: The more clearly intentional the act, the more clearly reckless. WTF! Court says depraved indifference to a grave risk not what the statute says. The statute says DI to human life. Dissent: Upholding a conviction of depraved indifference murder in this case is to authorize the substitution of depraved indifference murder for all intentional murder. People v. Hafeez: Co-D showed D knife, but D didn t know he was going to use it. Co-D stabbed decedent in the heart. D is charged w/ being an accomplice, and guilty of depraved indifference. Court of Appeals reversed conviction, says that this is an intentional murder, not recklessness. *Distinguishing Sanchez: there was a scheme to kill here, where there was no scheme in Sanchez Children in the line of fire becomes crucial fact thus creating two perspectives on the same situation. 7

NEW DRIM/INTENTIONAL MURDER RULES People v. Gonzalez (NY) NEW RULE: there is a Culpable mental state is required for depraved indifference murder. Court did not once cite Register because it s wrong; Judge Kaye would not admit she was wrong in Register. People v. Policano (NY): Killer walks free because prosecution allowed both charges to be considered by jury Prosecutor argued that evidence of intentional murder could be construed as recklessness, based on Sanchez; Ct of appeals disagreed. Policano shot someone at point blank range at a bus stop intentionally, was released via a federal habeas corpus claim, then later rearrested. People v. Payne (NY): Tells prosecutors to stop charging for both intentional and reckless murder. Rule: Ct says that absent others being endangered as in Sanchez, a one on one shooting, knifing, or similar killing can almost never qualify as DRIM. Prosecutors should stop charging both DIRM and intentional murder. Register and Sanchez are being silently eroded but not specifically overruled. People v. Suarez/McPherson (NY): Was McPherson indifferent to the victim s death? Called 911 after stabbing, then fled. a killing does not turn into DRIM just because the killer does not summon aid for the victim reckless homicide != DRIM merely because a risk of death was created Statute calls for an utter disregard for human life one simply doesn t care . This rule seems to directly contradict Register. Applied prospectively only. People v. Feingold (NY): Unhappy lawyer attempts suicide, fills apt with gas, causes huge explosion. a killing does not turn into DRIM just because the killer does not summon aid for the victim RULE: reckless homicide != DRIM merely because a risk of death was created Ct says statute calls for utter disregard for human life one simply doesn t care which seems to directly contradict Register FINALLY in THIS CASE the court OVERRULES Register and Sanchez --- and says they should no longer be followed FINALLY the court says, 22 years later, depraved indifference to human life is a CULPABLE MENTAL STATE Court says this rule applies prospectively only so people don t get out of jail. People v. Wells (NY): Now that DRI is a culpable mental state, can intoxication negate it? No. culpability can be found when D started drinking knowing that he would have to drive home later. This disregards the classic requirement that the mens rea and the actus reus have to exist at the same point in time. People v. Valencia (NY): Drunk D drives 4 miles the wrong way on a high speed parkway. NY Ct of appeals affirmed the lower court ruling that there was insufficient evidence for a depraved indifference assault finding. People v. Prindle (NY): Most recent DRIM case in NY. D stealing snowplows, police chase caused accident, killing a person. Under Feingold, Jean-Baptiste and Gomez, D guilty of reckless manslaughter not DRIM. Feingold overruled Register. Prindle s trial was before that happened so the jury charge was under Register.

ATTEMPT
NYPL 110.00 People v. Rizzo: Attempt to commit a crime = acts must advance very near to the accomplishment of the intended crime. There must be dangerous proximity to success. Robbers not guilty; they did not find or reach the presence of the property they intended to rob. VERSUS People v. Warren NYPL 110.10: guilty of attempt when he engages in conduct which tends to effect the commission of such crime. The legislature by definition of attempt did not chance the rule in Rizzo. By this opinion, 110.10 cannot be consistent to Rizzo. ** Attempts = where Model Penal Code & NYPL differ. Model Penal code emphasizes the substantial step test, focusing on what the D has already done In NY, the Rizzo test holds whether D is dangerously proximate to completing the crime. 8

People v. Mahboubian & People v. Sakhai (NY): Conspiracy to steal own fake antique coins to collect insurance proceeds. Rule: D s act need not be the final one towards the completion of the offense. Possibility of abandoning their plan does not preclude liability for attempt. Attempt when you put it into motion and abandoning is no longer within your power. People v. Acosta (NY): Attempted possession of coke; purchaser ultimately rejected for quality reasons. Rule: Rejection is abandonment if it s permanent, not temporary or contingent. A decision to postpone until another time is not rejection. Dissent: Dangerously close argument; Evidence is not sufficient. Police never saw what was in the bag. The dealer and buyer used code words tickets . Also, wiretap evidence is no good. People v. Fair (NY): Escape case. D dug hole and had tons of stuff to help him escape prison. Was convicted of escape 1st. D s conduct came dangerously close to escaping. Conduct carried the project forward within dangerous proximity to the criminal end to be attained. Need not be actually in the process of escaping when caught. People v. Naradzay (NY): D must have reached the point of dangerous proximity to completion of the crime; there must be immediate nearness to the criminal act, in order to be guilty of attempt.

INCHOATE CRIMES
NYPL 100.XX: Attempts, solicitation, facilitation, conspiracy (105.xx), full accomplice liability Criminal Facilitation: Less severe than accomplice liability; Believing it probable, need a result; a person must have actually committed a felony in order for the facilitator to be charged Ex. Gun salesman sells ammo believing it probable that he is rendering aid to a criminal guilty Accomplice Liability: More serious than criminal facilitation, parties share community purpose in crime and are as equally guilty as the others. (Guilty Mental Culpability) 2) The difference is the interest or stake in the action. The more interest than the more likely you will be an accomplice. Criminal Solicitation: (100.00 -.20) You can intend this without achieving the result. Rendering aid to another person that that engages in conduct constituting a crime. Soliciting, requesting, commanding, importuning or attempts to cause such other person to engage in conduct. 2 Types of Conspiracy: Spoke-wheel, conspiracy where a center figure is distributing to others. Others are co-conspirators, because they re all linked to a central hub. Chain theory: One end is the manufacturer, and on the other is the end-user. In between are the intermediaries: shipper, storage person, distributor, wholesaler, retailer, etc. Conspiracy Rules y NY s Unilateral Approach: Can be guilty of conspiracy when only one side agrees to the conspiracy (if you essentially conspire alone because there is a police officer on the other side of the deal) y Must prove overt act for a conspiracy; one overt act by one conspirator is sufficient y Renunciation to get out of conspiracy or other attempt must be voluntary and complete renunciation; sometimes you have to have prevented it, other times its enough you made an attempt to stop it. Affirmative defenses to attempt 1 that you prevented the crime from being completed or 2 that you withdrew from your initial attempt Either stop it or make a substantial effort to stop it; for accomplice charges, you cannot actually stop it, but renunciation is enough. With an attempt itself (not as accomplice): you have to manifest renunciation AND abandon the criminal effort, and you have to actually prevent the crime from happening. y Conspiracy and solicitation you have to prevent the crime from occurring y Accomplice make a substantial effort to prevent it from occurring y Accomplice to an attempt prevent it from occurring y Facilitation make a substantial effort to prevent it from occurring People v. Macklowitz: Sale of coke to ADA user; conspiracy charged dismissed. 9

Unilateral approach to conspiracy. Focus on individual rather than collective liability. Evidence is only that he bought coke for his use. (If there is evidence he bought it to sell, then maybe he s a co-conspirator) RULE: Mere possession as a user without intent to sell or distribute is not enough to be considered conspiracy. Here the Conspiracy chain ends in retail sale, so a user is not part of conspiracy. People v. Llanos: D warned neighbors the police were coming, had no other interest in them or their activities. th Criminal facilitation 4 degree dismissed; the crime had already been committed and she was just hindering the prosecution by warning them so they could flush drugs.

FELONY MURDER
See NYPL 125.25(3). y Strict liability crime; abolished by the Model Penal Code but not by the NYPL. Do not need intent to kill to charge it. y Applies to certain felonies: BREAKS. Burglary, robbery, escape, arson, kidnapping, sex crimes. y Felony murder embraces only murder committed by D, not by third party coincidence. y 2 things cut off criminal liability for accomplices w/r/t felony murder: o Death caused by a personal motive cuts off liability for accomplices to the felony o Death brought about by bystanders and not accomplices 4 Affirmative defenses to Felony Murder: 1. D did not commit the homicidal act or in any way solicit, request, command, importune, cause or aid the commission 2. D not armed with a deadly weapon, or any instrument capable of causing death/serious physical injury 3. D had no reasonable ground to believe that any other participant was armed with such a weapon/instrument 4. D had no reasonable ground to believe that any other participant intended to engage in conduct likely to result in death or serious physical injury People v. Lozano (NY): Defining In Furtherance Of for felony murder w/arson nd D sets fire & fireman dies from heart attack/ D Charged w/ Murder 2 ; but Ct says causing a firefighter to have a heart attack is neither comprehensible nor consistent with furtherance of arson. Lozano created an exception by saying that the in furtherance element does not apply to arson; no other cases have dealt with this. *Arson: only needs reckless damage of building or intentionally cause an explosion. Can damage w/out intent. People v. Lewis (NY): Defining in furtherance of D and accomplice planed and carried out a robbery, Accomplice shot her former lover on the way out, not in furtherance. Court concedes that a private unlawful purpose (killing an ex-lover) does not fulfill in furtherance of. RULE: Legal relationship had to exist between the felony and the killing; more than mere coincidence of time and place is necessary. Ct held the murder was logically an integral aspect of the felony although it didn t advance it. The nexus still exists, so D was held liable. People v. Gladman (NY): defining immediate flight therefrom Factors include: y Did the homicide and felony occur at same location /what is the distance between the two? y What is the interval of time between the two crimes? y Did D had possession of the fruits of criminal activity? y Was someone was in close pursuit? Had the criminals reached a place of temporary safety? Canons of Interpretation of Criminal Code Criminal legislation not applied retroactively, unless they say so; only acts explicitly defined as crimes can be crimes. *Ex. Ct acquitted someone for making and distributing ecstasy b/c the chemical name was misspelled in the statute. NYPL contains a segment saying it is NOT strictly construed.

MERGER DOCTRINE & KIDNAPPING

TEST: Whether restraint was so much the part of another substantive crime that the substantive crime could not have been committed w/out such acts, and that independent criminal responsibility may not be fairly attributed to them. 10

y y

y y

Merger doctrine is a judicial doctrine; it says that you cannot append kidnapping to other crimes that involve restraint or confinement without the requisite intent for other crimes, b/c the penalty for kidnapping is much worse. 95% of Merger issues deal w/ robbery and rape D restraining victim using deadly or physical force o Almost all robbery and rape are really include kidnapping (by definition), but that s not their intent. o This prevents multiple convictions fairness of single convictions If the restraint is egregious or distinct from the other crimes then do not merge. st nd 1 degree kidnapping never merges; 2 & down can.

Revised statute distinguishes between restrain and abduct Restraint: intentionally interfering with movements or liberty, knowing this is unlawful; restraint requires a culpable mental state, so this carries over into abduction. Abduction: restraint in a place where someone is unlikely to be found or through the use of actual or threatened deadly force; keeping or moving someone. People v. Cain (NY): D robbed victim outside restaurant forced him to travel home and back to restaurant in seeking $50G. When two crimes are factually separable and clearly constituting a change in purpose and direction, then the kidnapping is removed from the doctrine of merger. People v. Gonzalez (NY): Did legislature intend to punish rape restraint or abduction separately as kidnapping? No. Woman tricked into getting into car, driven around & assaulted. Court held merger doctrine doesn t apply here because the elements of kidnapping 2nd were completed before there was any sexual assault. D acquitted of rape but not kidnapping.

RAPE & SEXUAL ASSAULT

Forcible Compulsion, current legal definition: to compel by either a) use of physical force or b) a threat, express or implied, which places a person in fear of immediate death or physical injury to himself or another person, or in fear that he, she or another person will immediately be kidnapped. *forcible compulsion is only 1 of several ways to show lack of consent.s People v. Liberta (NY): No longer good law, this is the case that reformed the rape statute D and P were married, but separated by restraining order. D raped her and made their son watch. RULE: Ct reformed the rape statute by taking out the marital exception and making the language gender neutral. People v. Thomas (NY): Victim physically unable to consent. st Woman smoking pot/drinking, guy convicted of rape 1 ; claims victim woke up & consented, she does not remember. RULE: Incapable to consent only applies when you were given a narcotic against your will; here victim smoked pot and drank alcohol willingly. People v. Williams (NY): How much should the victim s past history count? Evidence about past consent to group sex not admitted. Court holds intent is implicit in the statute, there is a culpable mens rea (intent to forcibly compel) needed to prove rape, in this case there was evidence to show they did intend to forcibly compel her. Dissent believes the culpable mental state was not met because D believed that victim consented. People v. Cratsley (NY): D had sex with a mentally retarded person who had an IQ of 50. D was guilty of Rape 3rd. Victim is not cognitively able to give consent, though victim might be volitionally able to. In determining whether a defective consented to sex, look at factors like: (1) whether victim understood nature of conduct (cognition NYPL cares about cognitive capacity only) (2) was the sex was exploitative of victim. There is no presumption of inability to consent in defectives; but person must be able to understand their actions to consent. People v. John Z. (NY): Date rape Girl had sex with two boys; Girl did not reject sex with an affirmative no but D still convicted of rape y Blecker thinks date rape falls under rape in the 3rd degree, class E felony (130.25), which uses a reasonable person standard. o Ask: would a reasonable person have understood she didn t want to have sex rather than was there forcible compulsion? 11

Post penetration rape? In CA says once a person says stop the other person has to stop immediately

BURGLARY
Burglary: Crime against premises, can occur when no one is present. Robbery: Crime against a person, by forcible stealing. People v. King (NY): D put his arm through a hole in a security grate in a jewelry store. RULE: You have broken and entered as soon as you ve crossed the threshold into the building; even the vestibule; you don t have to actually break anything to break and enter. Any part of your body going into the building unlawfully counts. People v. Gaines (NY): D homeless guy went into a building and took overalls; sought refuge from cold. *LEADING CASE IN NY; GOOD LAW rd Burglary 3 : you must enter unlawfully, w/ intent to commit a crime therein. If you later have intent to commit a crime, it s not burglary. Intent must be contemporaneous. * Intent to commit any crime not just larceny, when combined with trespass can constitute burglary * As long as you knowingly enter without license and have the intent contemporaneously the burglary is complete, long before you ve actually committed the crime you intended to commit People v. Glanda (NY): Husband and wife separated but were still tenants by the entirety. He s still owner and had possession interest. Husband was convicted of murder as well as burglary. D argued no burglary cause of his tenancy by the entirety. Court held owner can property be convicted of burglarizing his own premises he owns but which are occupied by another. Evidence sufficient to conclude D had no license or privilege to be there since he was separated and living elsewhere. In re Charlotte K.: Kid stole things by stuffing in them in her girdle. Girdle a burglar s tool under NYPL 140.35? Court says no. It s more of a pocket than a tool. 140.35 envisions tools as instruments used in taking an item and not hiding. They re things used to break in and pick up. People v. Quattlebaum: Is an office building a dwelling under NYPL? Court of appeals says no D broke into school with a bed on 5th floor. A building is a Dwelling if it is usually occupied by a person lodging therein at night. The school does not fall under this definition; normally occupied only for school and church. Usually occupied depends on: nature of structure, intent of owner to return, whether or not a person could have occupied it the night of entry.

LARCENY
Punishment Justifications for Larceny: Main principle is deterrence not retribution b/c we impose greater punishment on theft of things that are worth more money. People v. Norman (NY): P contracted with D to buy a log home kit, D failed to deliver but kept P s money. D convicted w/ grand larceny for false promise, ct of appeals upheld it. (False promise != false pretenses). RULE: Prosecution cannot infer false promise from the fact that the promise was not fulfilled. *Must show that D intended not to fulfill the promise when he made it. People v. Collins (NY): D repeatedly falsely promised quadriplegic she would marry and take care of him . Induced victim nd to give D control over bank accounts, D took money. Evidence is legally sufficient for larceny 2 . RULE: It is immaterial that the promise could not be performed immediately. People v. Jennings (NY) (4-3 split): D was to fine count $$ in their own warehouse and deposit in Federal Reserve in 72 hours, but they finished in 24 hours, in meantime transacted w/ another bank to get interest, kept interest & returned original cash. (Analogize to joyriding). Court found a taking under the statute BUT there was no intent to deprive or appropriate under def n of the statute. Banks do the same thing with money deposited. They use your funds to make money on float. Larceny requires permanent or virtually permanent control over the property taken. The mens rea element is not satisfied by intent to appropriate by temp using property w/o owner s permission. Dissent: Disagrees with majority s view of an intent to appropriate as permanent or near permanent appropriation. People v. Wilson: D stole carton of shoes from a truck, went to mall, security guard saw them and told them to stop. 12

D convicted of forcibly stealing boots, stating shopping mall security guard as owner of the boots. Ct of Appeals reverses the conviction; P failed to prove that security guard had a right of possession superior to that of the D, and that D took the items from that person. *Security guard is not a bailee, b/c he never had possession or relationship w/ true owner of property. *Theft must be from someone who had superior title to your own. People v. Garland: Grand larceny 1 conviction for stealing rights to tenants to occupy and possess their apt. Court of Appeal disagrees and states that right of occupancy to a leased apartment is property . Construe property broadly. US v. Delano: D extorted employees by forcing them to perform work on private homes and business. RULE: Labor is considered services but NOT property under NY law. People v. Bayusik: D stole two gravestones and was charged with larceny 4 . One gravestone was broken. Conviction reduced to petit larceny b/c of worth of items. RULE: value means the market value of the property at the time and place of the crime, or if no market value, the cost of replacement of the property w/in a reasonable time after the crime. Larceny valuation rules 155.30 talks about the ways to get grand larceny certain items are listed as well y 4th degree grand larceny up to $1000 in value y 3rd degree $3000+ y 2nd degree $50,000+ y 1st degree larceny -- $1 million+ Why not value things that have sentimental value? we only do this for gravestones and religious materials. All other things equal, we assume that the greater the value of the item, the more attractive it is to thieves, so the main principle at play here is deterrence, not retribution People v. Hinds: pursuant to a single intent and one general fraudulent plan, steals in the aggregate as a felon and not as a petty thief. Ex. a subway clerk steals 20 tokens a day over the course a year; the prosecution will attempt to aggregate all those thefts into one larceny charge.
th st

ROBBERY
3 degree robbery when you forcibly steal property nd 2 degree when you display a firearm, are aided by someone else, cause physical harm, or your carjacking someone 1st degree when you rob and cause serious physical injury in the courseof/flight therefrom, or if you are armed with a deadly weapon, regardless of if you are displaying it. People v. Baskerville: D pointed something wrapped in a towel at victim and threatened to kill. If victim testifies he saw a gun or something that looked like a gun, then it s on the D s part to show it was not a gun. Ct recognizes any sense that victim has he is being threatened by a firearm, sensed by touch, sight or sound. 1. something real has to be displayed that could reasonably be perceived as a firearm (objective) w/ intent 2. the display has to be perceived by the victim as such (subjective) through sight sound or touch People v. Lopez: D put hand inside vest as if he had a gun and robbed victim st D convicted of robbery 1 RULE: All that is required is that D consciously manifest the presence of an object to victim in such a way that victim reasonably perceives that the D has a gun People v. Smith: D assaulted victim, raped her and then threatened to kill her, then took $ from purse instead. RULE: Mens rea, D must intend use of physical force to compels the owner to deliver property or prevent resistance to the taking of property. People v. Reid: If D has a claim of right in good faith, does it negate larceny & does it also negate robbery? Court says when it comes to money the answer is no, but perhaps larcenous intent is negated if it s other property. 13
rd

In re Hammer: Claim of right defense used for stolen radio. Court rejects claim of right defense because it will cause tons of people to go enforce property rights so long as court cannot prove beyond reasonable doubt that the property does not belong to him. Reversed: In Reid, owner who recovers his own property (except cash) is not guilty of robbery. People v. Green: If it s your property, a claim of right defense to robbery can negate larcenous intent but does not entitle D to a jury instruction on claim of right. People v. Zona: 3 cops taking property from police warehouse -- also D seeking claim of right jury instruction; this is not an affirmative defense, so the people have the burden of proving the defense beyond a reasonable doubt. Ct held that the D had a good faith belief in his claim of right.

CAUSATION
A caused B = independent of what A consciously or unconsciously desires. Causal Connection appears to be a question of fact between a cause and effect, which causes a result. y Causation not defined in the Penal Code POSSIBLE CAUSATION ARGUMENTS o P will usually argue that the ultimate result must be viewed broadly; try to argue but-for causation (reasonably related). o The D usually argues the ultimate result viewed narrowly: death by freezing instead of just death, similar to a proximate cause filter (looking for the exact triggering point). o It appears the court uses both approaches often depending on the D. o Jurors often do not need an instruction on causation because it is often incorporated in the mens rea element.  For instance, recklessness requires ignoring a foreseeable risk. Respondent was aware of and consciously disregarded a substantial and unjustifiable risk that death would occur. (Must also foresee the ultimate harm the risks entail.) o When a street crime the courts usually apply the broad standard and convict D. i.e. Kibbe o When a white-collar crime occurs the courts have applied a narrow standard. i.e. Warner Lambert People v. Eulo: Organ failure, Dr removes organs too early, who caused death? RULE: If a doctor is negligent in determining death, and then removes organs causing death, that negligence does not constitute a superseding cause of death relieving D of liability. HOWEVER If a doctor is grossly negligent or intentionally causes death, then it would break the causal chain. People v. Griffin: Victim stabbed and died a month later after some malpractice; did the stabbing cause death? RULE: Regular medical malpractice does not cut off criminal liability for original harm. Henderson v. Kibbe (LEADING CASE ON CAUSATION IN NY) Is trial court s failure to instruct jury on causation issue a constitutional error? (Victim left drunk with no shoes and glasses on side of road; killed by a car). SCOTUS held that b/c jury found recklessness beyond a reasonable doubt, it necessarily means that ultimate harm is foreseeable by definition of recklessness . The ultimate harm is death in general, and not any particular means of death. RULE: Causation established if the ultimate harm should have been foreseen as being reasonably related to the defendant s conduct (Here it s related by virtue of creating a substantial risk and disregarding it.) People v. Warner-Lambert: gum factory explosion case. INCONSISTENT W/ KIBBE; but only applied to corporate crime Ct. of Appeals dismissed indictment for manslaughter/ CN homicide; examines culpability here in terms of both forseeability and causation. Proof of actual cause of explosion is speculative only; the standard is MORE THAN but for causation D did not meet criminal standard of causation here even though there was a sufficient risk. *Deterrence would be really effective here because if you lock one corporate exec up, you will see a huge change! People v. Deitsch: Fire erupted in six story warehouse, killing some people. OPPOSITE WARNER; MORE LIKE KIBBE. Trial court dismissed indictment b/c evidence insufficient to establish causal connection, citing Warner-Lambert. 14

Appellate Ct reverse and reinstated indictment. AD Relies on Kibbe (ultimate harm is foreseeably related to D s acts) D s created conditions in the warehouse, which they should have foreseen could result in death. Thus, the D s caused death in a sufficiently direct manner. Blecker: Inconsistent; one type of law for the street & another type for the boardroom. In re Anthony M. / People v. Cable & Godbee: Heart attacks killed the elderly victims in these two cases. One victim was purse-snatched and the other burglarized and robbed; Sufficient evidence in causal connection in burglary/robbery, but not purse snatching. People v. Hernandez / Santana: D convicted of felony murder when cop shot during robbery attemp; cause under Kibbe. Transferred intent theory the ultimate harm was foreseeably related to D s acts of robbery; D set in motion the chain of events that led to cops death. The old standard was that if someone else broke the chain of causation to cause a death during a felony then it s not felony murder (ie a shopkeeper shoots in defense during a robbery and hits a pedestrian.) Here the court uses Kibbe to uphold causation. People v. Matos: When Cop was chasing D up a ladder to the roof, he fell down airshaft and died later This is causation under Kibbe. But For Test set in motion chain of events (causation) AND Foreseeability Test Ultimate harm was foreseeably related to D s acts (Proximate Cause) D set in motion the chain of events that led to cop s death b/c but for D s robbery the cop would not have been on that roof top at that time (causation); the ultimate harm was foreseeable related to D s acts (proximate cause) People v. Hart: Instigating street race and causing other car to swerve into oncoming traffic, killing people is foreseeable. Ct cites Kibbe: ultimate harm is reasonably foreseeable given the defendant s actions/reasonably related to D s actions People v. DaCosta: Most Current Case. Ct cites Matos citing Kibbe: D has to set in motion the chain of events that leads to the victims death to be criminally liable for homicide, says there s one standard for corporate liability cases, and another for felony murder cases **Ct upholds both Warner Lambert & Kibbe at the same time, only wants to apply them to different types of cases.

INSANITY DEFENSE
Insanity is an excuse for murder, not a mitigation. Every man is presumed sane unless proved otherwise (Burden of Production on D) NYPL 40.15: As a result of mental disease or defect, D lacked substantial capacity to know or appreciate either: 1. The nature and consequences of such conduct; or 2. That such conduct was wrong. Intent: Volitional (will, choice, wants, desire, goal) vs cognitive (expects, knows)  Intent in NY is volitional w/ cognitive modifier. You have to know that you desire. o Lack substantial capacity to know or appreciate the conduct Is insanity loss of self-control (cognitive) or loss of will (volitional)? NY is different from the model penal code. NY changed insanity defense to an affirmative defense so D has burden to show insanity by preponderance of evidence. Legislature deleted volitional part of insanity definition. M Naghten: at time of committing criminal act D was laboring under such a 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 h did not know what he was doing was wrong. (Lacks the concept of appreciation.) ALI-MPC Test: asks whether defendants have a substantial incapacity to appreciate the criminality of their conduct or to conform their conduct to the law rather than the absolute knowledge required by M'Naghten and the absolute inability to control conduct required by the Irresistible Impulse Test. AMA: wants to abolish insanity defense. Put burden of disproving cognitive on prosecution, and volitional on defendant. Possible Verdicts include: Guilty, Not guilty, Not guilty by reason of insanity, and Guilty but insane/mentally ill (not NY) (Michael Ross in CT) -- Treated then punished when cured 15

Current views of Insanity Defense American Medical Association would abolish it. American Psychological Association would keep it. American Bar Association would keep it, but alter it. People v. Serravo (CO): Define incapable of distinguishing right from wrong ? God told D to build sports complex; he stabs his wife because she is getting in the way of the plan. RULE: Examine defendant s cognitive inability to distinguish right from wrong under societal standards of morality. Can be D is insane if he knew his was illegal but was unable to distinguish b/t moral right and wrong. D is not insane if he does not know the act is illegal, but knows it s morally wrong. M Naughten Test is a Cognitive Standard: Must be clearly proved that at the time of the act, D was laboring under some defect; party did not know the nature and quality of the act (subjective) OR that it was wrong. * M Naughten says that a person is legally sane so long as they commit an unlawful act and know that the act is morally wrong, without regard to their factual knowledge of legality the CO supreme court still upholds this People v. Schmidt: Cardozo says wrong means a moral wrong not contrary to the laws of the state Someone can know something is against the law but be so deluded or crazy or psychotic that they think it s still something they should morally do. People v. Adams: D gave husband pudding w/ sleeping pills. When he fell asleep, she killed him with a hammer and knife. Leading insanity case in NY Modifications of M Naughten in NY Penal Code: Knowledge and appreciation. Appreciation requires something more than mere surface knowledge; it seeks to exclude people who know what they are doing and know it s wrong, but don t fully appreciate the consequences/wrongness of their actions like a child who knows she shoved someone off a building but doesn t appreciate that they die when they hit the ground. Lacks substantial capacity to know or appreciate Andrea Yates: Under NYPL, Andrea Yates may not be guilty under because she didn t appreciate what she was doing People v. Napier: If there are multiple personalities, then the jury evaluates the state of mind of the personality D had at time of crime Davis v. United States: Half crazy D found guilty of murder on Indian reservation. Burden of production for insanity defense met. US Supreme Court reversed conviction because it was not proved beyond reasonable doubt that he was not insane, RULE: Legal presumption of sanity and that D had to show BRD that he is not sane, and the burden of persuasion on P is to find beyond a reasonable doubt for every element of the crime. SCOTUS said in this case that the presumption of sanity is consistent with the presumption of innocence. *A state may require a D to produce some evidence as to his insanity to rebut presumption of sanity.

THE ENTRAPMENT DEFENSE

Main tension: 1) Stings and scams necessary evil to catch the crooks but also 2) Undermines our sense of liberty and freedom Entrapment is an affirmative defense to gov t undercover operations; Used to prosecute victimless crimes 1) In NY entrapment can be from a Subjective View - Focuses on intent and predisposition of D. Is a question of the mind and asks where the origin of the intent to commit the crime is coming from - with the government or the defendant. Key: Was the defendant predisposed to commit the crime? Otherwise ready and willing and the government merely induced it? Problems: What kinds of evidence are admissible at trial? Prior crimes, testimonial from people that he had met with before, prior reputation - all of this type of evidence is usually not admissible Why doesn t it extend to entrapment by a private person? If government not part of the planning, then the entrapment defense is not available. 16

You are never actually predisposed to commit this exact crime, maybe you are predisposed to commit this type of crime. If the gov t wants to, they can make the deal as sweet as possible - can anyone really ever not take such a sweet deal? 2) In NY entrapment can also be from an Objective View - Focuses on the conduct of the government - asks the question: was the government agents conduct so extreme and outrageous so that they placed at risk a law-abiding citizen, regardless of whether they did? Purpose is to keep the government in check. Sorrells (SCOTUS, unanimous holding): War veteran goes in to place and talks about war, then asks for a drink and the guys says no. He asks 3 times, and the guy finally says ok, and he was busted. Entrapment is based on subjective predisposition of D, and they reversed the conviction because they didn t show that D was predisposed to selling alcohol. Sherman: D was in drug rehab, and the undercover officer was at the office too. Undercover kept begging for drugs, and was busted. Sup. Ct. reversed the conviction based on predisposition. United States v. Russell: Undercover FBI agent went to D selling rare speed ingredient in return for of the speed. Rule: Sorells - Entrapment is instigating criminal acts by persons otherwise innocent in order to lure them to committing crimes. If D was not predisposed to commit the crime, then the gov t implanted intent into D and it was entrapment. If D was predisposed, then he was just given opportunity & the intent was already there. Jacobson v. United States: D bought child porn before it was banned. After ban, P got his name from mailing list and solicited him for 26 months to buy more child porn. RULE: Predisposition is (a) reasonable indication that the subject is engaging, has engaged, or is likely to engage in illegal activity of a similar type or (b) the opportunity for illegal activity has been structured so that there is reason for believing that the persons drawn to the opportunity, or brought to it, are predisposed to engage in the contemplated illegal activity. RULE: If D was predisposed to committing the crime, then he was not entrapped. Entrapment is not a crime but a defense! Can only be used in response to conduct by government actors.

SELF-DEFENSE DOCTRINE
What is self defense? Pre-emptive strike against someone who you think will kill/hurt you later on is not self-defense. Attacking too early is not self-defense. Too late (retaliation) isn t self-defense either. Self-defense only occurs in intermediate time when someone is actually coming at you w/ unlawful, deadly physical force. Deterrence says that people will kill when faced with great danger/their lives in danger Retributivism says that people who kill in self-defense don t deserve to be punished, aren t morally blameworthy General Rules Can use deadly physical force to stop a rape, robbery or kidnapping or to stop an arson or burglary Can ONLY use deadly physical force when you reasonably believe other person is using or about to use deadly physical force. Duty to retreat: cannot use deadly physical force if you know you can retreat with complete safety No duty to retreat if: person is in his dwelling and is not the initial aggressor No duty to retreat: if you are a police officer or a person assisting police officer Cannot use deadly force in self defense if you provoked the attack physically or escalated it People v. Baez: Self-Defense only valid when D was not the initial aggressor The Court erred when it refused to explain and define initial aggressor. Calling someone s name is not provocation. People v. Santiago: D found guilty of intentional murder for stabbing a guy in the chest with a knife and killing him. The deceased had record of violence and boasted that he could kill with his bare hands. D claimed self-defense Trial Court charged jury with reasonable man in the circumstances (objective). App. Div. said it should be D s reasonable belief (subjective). Judgment reversed, new trial granted. 17

People v. Goetz: D indicted for shooting four youths on a subway. Court of Appeals holds there is an objective as well as subjective element to self-defense jury should be charged on both Deadly force only allowed when crime has been committed, not merely attempted People v. Wesley: 3 teenage guys arrived and accosted D, and got a pipe and threatened and struck D, who fatally stabbed on of the attackers Trial court refused to charge self-defense, claiming it s unnecessary because of Goetz. Ct of Appeals remanded for new trial with the charge for the subjective element. Use of physical force in self defense is justified under NYPL 35.15 when: 1. Jury finds that D actually believed that deadly physical force was necessary [subjective] AND 2. Jury finds D has a reasonable belief that deadly physical force was necessary [objective] People v. Torres: Deceased, common law husband, had history or savagely beating D & had stabbed other people. The night when D shot deceased, he beat her and placed a pistol in her mouth and repeatedly threatened to kill her claiming that D had an affair w/ deceased s son.

PERJURY
Theories of truth 1. Correspondence or literalist theory: a proposition is true if there is a fact to which it corresponds. (This is the view taken by SCOTUS in Bronston). Every statement is either true or false; nothing in the middle. As long as you say something that relates to an actual fact it s not perjury. 2. Coherence theory: a true proposition is part of a systematically coherent whole. Context is important to truth. This is the perspective taken by the NY Ct of Appeals in Neumann. 3. Pragmatic theory: a proposition is true insofar as it works or satisfies. US v Bronston: Federal majority view on truth in perjury Issue: Perjury to say something that is true on its face, but untrue by negative implication of another fact/misleading? Holding: No. The federal perjury statute should not be broadly construed to hold this. That was not the legislature s intention. It s the lawyer s job to tease out answers from the witness by using specific questions. A shrewdly calculated answer deserves more pointed questioning, not an overbroad construal of the perjury code. RULE: the burden is on the questioner to pin the witness down to a specific line of inquiry. People v Neumann: Prospect Park supervisor shot pellet gun at animals; said he never shot a firearm in the zoo. (NY CASE) Court rejects Bronston. Statements have to be taken in context - it doesn t matter so much anymore if it is literally true. RULE: Witness cannot isolate one word from its context in a question and construe it to mean something else, then respond truthfully only to the isolated thing. NY demands contextual truth, whereas SCOTUS standard demands literal truth. NYPL 210.15 Perjury 1: D perjures when he swears falsely and when his false statement a) consists of testimony and b) is material to the action, proceeding in which it is made.

PRESUMPTIONS
Presumptions & the Burden of Proof Presumptions are devices that we use to establish facts indirectly because we cannot establish them directly. Based on experience. (If you find X, then you must find Y, unless there something that proves not Y) y X is proven, and Y is presumed y Must: commanding; unless: rebuttable y y Conclusive presumption: Mandatory, NOT rebuttable Permitted inference of fact: not commanding, permissive. i.e. Jury may conclude 18

Presumption of innocence: not based on fact or experience, not a true presumption

Morgan Presumption: Burden of persuasion and entailing either a directed verdict or a jury instruction  Imposes a burden of persuasion against the party on whom it operates (i.e. presumption that people are sane, D raises insanity defense, D has the burden of production and persuasion to show that he is insane  Imposes the burden of persuasion on D once the defense is in play: o (1) Prosecution must prove guilt beyond reasonable doubt and must disprove D s defense. o (2) D must prove affirmative defenses by Preponderance of the Evidence Thayer-Wigmore Presumption: Burden of production against the party on whom it operates.  Shift only the burden of going forward with the evidence and which totally dissipates or disappears from the case once that burden is met. (i.e. presumption people are sane. D raises insanity defense and has burden of production to show that he is insane.)  Imposes the burden of production on D: o (1) Prosecution has burden of production to prove all crime s elements beyond reasonable doubt o (2) For D to raise defense, he must meet the burden of production Defense D has burden of production to raise & P has burden of persuasion to disprove defense beyond reasonable doubt Affirmative Defense D has burden of production (produce evidence to raise the affirmative defense) AND burden of persuasion (persuade jury by a preponderance of the evidence)

HOMICIDE AND MITIGATION BY EMOTIONAL DISTRESS

3 DIMENSIONS OF MALICE 1. The act which causes the homicide is intentional o Intent to kill express malice (Intentional Murder, or 1st degree) o Intent to do serious bodily harm implied malice (reckless manslaughter) common law, no longer exists o Depraved indifference implied malice (depraved indifference murder) o Intent to commit a dangerous felony, that leads to a killing, ex felony murder implied malice 2. The killing is without justification or excuse, such as self-defense 3. The killing is without mitigation such as extreme emotional distress MacKalley s Case: Malice is presumed in murder where there is no provocation, even if you can t prove malice. Defendant has burden to prove a quarrel. King v. Oneby RULE: If person is calm and appears to reflect, deliberate and consider before killing, then he is not influenced by passion. **Reason and passion are fundamentally inconsistent. D had the burden to persuade that victim did raise passion and could not, so he was sentenced to death. Cooling Off Time Rule: if sufficient cooling time has passed, then it s deliberate murder; D must continually be under Heat of Passion in order to claim that as a defense. Rowley Court: NO fixed Cooling Off Time (father runs mile to beat down abuser) Commonwealth v. York RULE: D has burden of production and persuasion to reduce Murder to M.S. RULE: State must prove all facts of crime beyond a reasonable doubt, or D is not-guilty. D must prove adequate provocation (excuse) by preponderance of evidence or there is implied malice. Fact of killing is prima facie evidence of malice and unless overcome by preponderance the other way it must be held murder. Commonwealth v. Berry (minority view) Mere Words Doctrine words are NOT adequate provocation to use heat of passion defense Berry modifies Mere Words Doctrine: mere insults not enough, but if someone tells you something that can reasonably provoke you to passion, that is sufficient (your kid telling you someone beat them, for example). THERE IS NO LONGER A MERE WORDS DOCTRINE OR HEAT OF PASSION DOCTRINE IN NY -- ONLY EED. Bedder v. Director of Public Prosecution: Guy killed a prostitute who made fun of him for not being able to get an erection. 19

Reasonable person in his shoes would have felt the same way. Cultural and other idiosyncratic factors are taken into account as what counts as reasonable. People v. Casassa: Obsessed D kills his ex lover. RULE: Murder can be mitigated to manslaughter, as long as there are 2 things, one subjective and one objective: (1) an extreme emotional disturbance and (2) there is a reasonable explanation or excuse for the disturbance. Subjective component: were you really under passion adequately provoked when you killed? Objective component: was there a reasonable explanation or excuse for the emotional disturbance causing the passion? RULE: Heat of passion does not have to be spontaneous. Could have been simmering in the mind. (Unlike Oneby). 2 Prong Test for Extreme Emotional Disturbance in NY 1. Subjective did D act under EED at the time act was committed? 2. Objective did D have a reasonable excuse or explanation for the EED from the viewpoint of a person in the D s situation under the circumstances, as D believed them to be? -- Reasonable excuse for the passion, not the act (killing); (May be a series of escalating acts, can stew and stew and stew) People v. Moye: Impotent guy jeered at when he goes to a hooker. Determination for EED should be made by viewing the D s internal situation here (seems to be very subjective), thus murder is mitigated to manslaughter Aphaylath: Consider the D s culture in determination (what s next?) The more peculiarities you allow, the further you stray from objectivity and the truth. Bedder: Reasonable person standard does not include peculiarities of D. People v. Walker: Guy puts hands into someone else s food. RULE: A normal level of anger and embarrassment over a long-standing dispute not adequate to find loss of control from EED. RULE: EED requires some immediate provocation of a dramatic kind; not a long-standing dispute. People v. White: Rare case of objective EED burden met but not subjective one. Court holds burden was met on the objective part (reasonable excuse) but there was no connection to subjective component. No evidence he was under extreme emotional disturbance when he actually killed her. For a burden of production to be met, a reasonable fact-finder must be able to find that (giving maximum possible weight to evidence) the burden of persuasion was met.

LOCATING THE BURDEN OF PERSUASION FOR AFFIRMATIVE DEFENSES

EVANS v. STATE Burden of proof connotes 2 things: 1. burden of ultimate persuasion (the risk of non-persuasion) 2. burden of producing some evidence (the risk of dismissal and or the risk of not getting a case before a jury) Presumption can mean 5 things: 1. a mere statement as to who has and what is the burden of persuasion (eg the presumption of innocence) 2. a rule of substantive law (a conclusive presumption) 3. a permitted defense of fact (eg the so called presumption that the possessor of recently stolen goods is the thief 4. a presumption of law/or true presumption in the Morgan tradition of shifting the burden of ultimate persuasion and entailing either a directed verdict or a jury instruction 5. a presumption of law/true presumption, something that shifts only the burden of going forward with the evidence and which totally dissipates or disappears from the case once that burden is met. the bursting bubble concept Over time the presumption of guilt evolved into a permissible inference True presumptions have the word MUST and unless in them; Inferences use MAY LELAND v. OREGON: In Oregon, the burden of persuasion is on D to prove insanity beyond a reasonable doubt. 20

21 states require D to prove insanity defense by preponderance of evidence. SCOTUS: Insanity was collateral matter and NOT an element of the crime; ok to have D prove it instead of the state. Dissent: State has the burden to prove beyond a reasonable doubt on every element to prove guilt or due process violated IN RE WINSHIP (NY): Juvenile system (family court) only required preponderance of evidence, no right to jury trial. RULE: Court requires proof beyond reasonable doubt to every fact necessary (not only the elements) to constitute the crime charged. (this was also the same standard used in Davis) RULE: Winship facts, or those that bring a criminal stigma or a loss of liberty, must be proven by the prosecution beyond a reasonable doubt. ARE LELAND & WINSHIP COMPATIBLE? 2 Perspectives that contradict one another: 1. Winship overrules Leland because sanity is a necessary fact of crime/culpability that must be proven by People BRD. 2. Winship does not overrule Leland because insanity is still a collateral fact which D Must prove BRD. State can determine whether a fact is essential or collateral by how it writes its penal code. State rights v. Federalism: Winship said Constitution requires uniformity in the location of burdens of proof in the criminal code, while Leland say states can place the burden on either party. Winship requires the state to establish all essential facts BRD Leland permits a state to require a D to establish all collateral facts by any weight.

MULLANEY v. WILBUR (ME): Maine murder statute requires malice aforethought; malice is presumed; burden is on D to show there was not malice aforethought (with an affirmative defense) To mitigate to manslaughter, D has burden to prove no malice aforethought The statutory scheme in Maine puts Murder and M.S. under one category: Felonious Homicide. Both Murder and M.S. are intentional and unjustifiable, but Murder has the additional requirement of malice aforethought. Since, both were satisfied, the killing was a felonious homicide. P must prove every element of the crime. Defense of Provocation thus only affects the 1) degree of felonious homicide OR 2) sentence and not the determination of guilt of crime. Since, sentencing/degrees are NOT elements, not subject to the reasonable doubt test & Winship does not apply. Thus, prosecution does not have to establish malice aforethought BRD. Malice can be presumed and D must negate it w/ an affirmative defense. (At this point Winship Not Retroactive) MULLANEY AT THE STATE LEVEL  State v. Lafferty State distinguished Malice from Intent and Premeditation (need one for other) and defined it as blameworthiness or wickedness. This is the old common law interpretation; often synonymous w/ depraved indifference. In light of the new Maine ruling, which was a unanimous concurrence, SCOTUS remanded Mullaney. Malice will be implied w/ murder, unless D proved acted heat of passion  Maine held that manslaughter and murder are same crime (felonious homicide), but of different degrees. Also stated malice has been implied for a long time. MULLANEY AT THE FEDERAL LEVEL  Federal District court held that the crimes are not the same crime and that malice is the distinguishing element. They conclude P has to prove malice BRD.  Fed Court of Appeals also rejected Maine court s construction of the state homicide statute.  The federal courts found that malice is an element of a distinct crime of murder and vacated Mullaney s conviction. o While cert for Mullaney was pending, Maine Supreme Court reaffirmed their reading of the law in Lafferty  Fed ct insists that malice = premeditation and vacates Mullaney s conviction, putting them into conflict with the state supreme ct in Maine who are upset they aren t being allowed to interpret their own law. US SUPREME COURT S VIEW ON MULLANEY  SCOTUS agrees with fed cts and disagrees with state ones; holds that due process does not permit shifting to D the burden of proving the absence of malice. (Necessary element of crime) 21

Court observed that a murder conviction results in a more serious deprivation of liberty and of reputation than does a M.S. conviction. Rejects State s contention that due process requires proof BRD only of the elements of a unified felonious homicide offense. o Court rejects that applying Winship to Maine Law unduly interferes w/ the State s power to define the substantive grounds of criminal liability.  It would invite the States to circumvent Winship by redefining crimes in the broadest possible terms, shifting the burden of proof on the D to a host of newly denominated mitigating factors.  On the other hand, Court recognizes that inflexibly requiring proof BRD might discourage states from establishing new defenses. o Court interprets Malice as the converse of Heat of Passion/Provocation o Logical Inference Mullaney applies to Affirmative Defenses, Policy Presumptions and Mitigating factors.  USSC take this case because of Lafferty, and rejects federal court s argument that murder and manslaughter are 2 distinct crimes. They value state s right to make and interpret their own law is that it s one crime, but it s still unconstitutional. Concurrence holds that Leland is still good law. o PEOPLE v. BALOGUN: Applying Mullaney in NY-- NY court moved sua sponte to bring up validity of NYPL s requirement that D prove affirmative defense of Extreme Emotional Disturbance. Court holds that heat of passion on sudden provocation in Mullaney is same as NYPL s EED and it s unconstitutional to put the burden on D for EED. PEOPLE v. PATTERSON (NY): This case tried long before Mullaney Issue: Is it unconstitutional to place burden to prove he acted under EED on the defendant in NY? NY Court of Appeals held that it is constitutional to place burden of proof on D, because Maine law in Mullaney is significantly different from the NYPL. (Grossly incorrect according to Blecker) Reasoning: 1. Maine only has felonious homicide, whereas NYPL has murder and manslaughter. Intent is a required element in NYPL, but in Maine, it s not. In Winship, the Supreme Court says it doesn t matter if it was just one crime, and not two NY not const.! 2. Maine presumes malice, while NY requires proof of intent. They cite Lafferty s concurring opinion and says Maine did not require proof of subjective intent,(although in the actual opinion, it does say it many times that they do require proof of subjective intent). The laws are the same in both states. Dissent: The statutes in the two states are the same. Maine just gives a name to the absence of the emotional disturbance, i.e. malice. (Blecker agrees with the dissent). Patterson constitution of shifting the burden turns on legislative form and not on the function of the D s claim (this is contrary to Winship) Patterson holding is that D s should prove affirmative defenses by a preponderance of the evidence ***by not labeling the absence of EED as Malice (Maine), by simply not mentioning this absence at all, NYPL circumvents Winship, undermines Mullaney and encourages other states to follow. Legislative Formalism, not based on D s actual culpability) In Patterson, the Court explained that due process does NOT require that every conceivable step be taken, at whatever cost, to eliminate the possibility of convicting an innocent person. !!! This sharply contrasts Winship and Mullaney. DISTINGUISHING MULLANEY AND LAFFERTY, a state case in Maine State distinguished Malice from Intent and Premeditation (need one for other) and defined it as blameworthiness or wickedness. This is the old common law interpretation; often synonymous w/ depraved indifference. In light of the new Maine ruling, which was a unanimous concurrence, US SUPREME remanded Mullaney. Malice will be implied w/ murder, unless D proved acted heat of passion HANKERSON v. NORTH CAROLINA: Decided same day as Patterson; makes Mullaney Retroactive Facts: NC rightfully changed burden of persuasion of affirmative defenses from D to State. But NC did NOT want Mullaney to apply retroactively b/c it would mean the release of 997 murderers on mistrials. Rule: SCOTUS says that Ivan from NY controls Where a new constitutional doctrine is to overcome an aspect of the criminal trial that substantially impairs its truth finding function and so raises serious questions about the accuracy of guilty verdicts, then new rule must have a retroactive effect. SANDSTROM v. MONTANA: Mandatory Presumption of intent is Unconstitutional 22

RULE: A jury instruction that the law presumes that a person intends the ordinary consequences of his voluntary acts is not proper in a criminal case. There are many other mandatory presumptions other than burdens of proof REED v. ROSS: Overrules Hankerson The need for an objection to preserve the grounds for appeal cannot be waived unless D had reason to object or notice, but Mullaney was too novel at time to reasonably make objections. Keepin those NC murderers in jail! FRANCIS v. FRANKLIN: Affirms Sandstrom state cannot use evidentiary presumptions, even permissive Presumption: The acts of person of sound mind are presumed to be the product of his will (Intentional) BUT Court also tells jury the presumption may be rebutted. So it s a permissive presumption of intentional action. RULE: State prohibited from using evidentiary presumptions that have the effect of relieving the state of its burden of persuasion beyond a reasonable doubt of every element of the crime committed. EVEN if the presumption is permissive. PEOPLE v. MACKENZIE: NY Ct of appeals on the constitutionality of permissive presumptions Here the NY ct of appeals says the presumptions in the NYPL that are labeled as such are ok because they are actually permissive inferences; not mandatory for the jury to presume them The NY Ct of appeals also says the affirmative defenses are not presumptions; They re trying to avoid being found unconstitutional by renaming things. NEW YORK: tries to avoid the application of this rule to their law by stating presumptions are permissive and NOT mandatory, so it s constitutional. -A mandatory rebuttable presumption in the jury instruction is unconstitutional if it burden shifts.

CONSTITUTIONALITY OF SENTENCING BURDENS

MARTIN v. OHIO: Patterson upheld again w/r/t self defense in OH OH calls self-defense an affirmative defense, just like NY labels EED; no mention of presumptions or of malice. IF THERE S ANY FACT THAT S A WINSHIP FACT, IT HAS GOT TO BE SELF-DEFENSE; ultimate justification if you get it and ultimate consequences if you do not get it. SCOTUS affirms conviction here, reaffirmed Patterson and said the jury instruction did not violate the due process clause (?!?!?!) SCOTUS MAJORITY NEVER CITES MULLANEY IN THIS OPINION just avoided the whole thing the 4 dissenters are just asking where s mullaney? Didn t we already deal with this and say the opposite? MCMILLAN v. PENNSYLVANIA: Constitutionality of PA Minimum Sentencing Act, Patterson upheld again the beginning of the shift away from elements/facts necessary to sentencing factors just as Maine called it punishment categories in Mullaney. It s just putting new labels on a similar move. McMillan upholds state sentencing structure and says it s not elements so Winship and Mullaney don t apply. Labeling game/legislative form game. Dissent: In McMillan, we re talking about minimum sentences potentially crucial to the amount of liberty taken away from the D. Dissent said that Winship controlled and the fact used to increase the floor of the sentence would be a Winship fact. ALMENDAREZ-TORRES v. US: Alien w/ agg felony RULE: Aggravating factors that impose a higher maximum penalty do not have to be proven BRD. Arguably only applies to recidivism after Jones. Based on Patterson and McMillan recidivism is traditionally a sentencing factor thus NOT an element of crime charged. Court wrongly refuses to apply Winship here. 1st acknowledgement that Patterson is contradictory in a crucial way to Mullaney. JONES v. US: Federal carjacking degree of injury case. 3 offenses or single crime w/ choices of maximum penalties. RULE: The aggravating factor of degree of injury, even if written into a statute as a sentencing distinction, must be proved by P, BRD. After 22 years Mullaney prevails. Any fact (other than recidivism arguably because of Torres, which is not overruled) that leads to greater stigma is to be proven like a necessary element of the crime. The court holds in Jones that states cannot label their way out of Winship and Mullaney by calling some facts different things!! RULE: It s unconstitutional for a legislature to remove from the jury the assessment of facts that increase the range of penalties by labeling those facts something else! 23

APPRENDI v. NEW JERSEY: Man fires shotgun at black residents in neighborhood; the hate crime motive adds additional length to sentence ISSUE: Does Due Process require hate crime to be found by a jury? -- YES and it must be proven BRD RULE: Ct follows reasoning in Leland, Winship, Mullaney instead of following Patterson, McMillan, Martin. Any fact other than prior conviction that increases penalty for crime (thus affecting loss of liberty and stigmatization) must be submitted to a jury and proven beyond a reasonable doubt.

POST-APPRENDI CASES
WALTON v. ARIZONA **Later overruled by Ring v. Arizona State proved two aggravating factors that the murder was committed in an "especially heinous, cruel, or depraved manner," and that it was committed for pecuniary gain. In mitigation, D argued his relative youth (he was 20) and his diminished capacity to appreciate the wrongfulness of his conduct. Issue: Can an aggravating factor in determining the validity of a death sentence be found by a judge, as Arizona law specifies, or does the Sixth Amendment's jury trial guarantee, made applicable to the States by the Fourteenth Amendment, require that the aggravating factor determination be entrusted to a jury? Rule: Jury did not need to be involved in capital sentencing process. Burden of persuasion is on the D to bring mitigating evidence that would save his life in a capital sentencing procedure. Court cited Martin v. Ohio, Leland, NY in Patterson; said there were differences in the AZ state system that made this comport w/ due process. This is counter to Apprendi, obviously, which is why it was overruled. RING v. ARIZONA Apprendi rule in the death penalty context ISSUE: Could judge look at aggravating factors after the defendant was already found guilty, in order to do sentencing? RULE: D is entitled to jury determination on any fact which the legislature conditions increase of max punishment SCOTUS bases this on apprendi, mullaney, and winship. Doesn t matter that they re called sentencing factors- the label doesn t matter! BLAKELY v. WASHINGTON STATE man kidnaps his wife and kids; sentenced to 90 months for deliberate cruelty ISSUE: Judge issued a sentence that exceeds the sentence found by a jury. Does it violate Apprendi? RULE: Judge may impose statutory max punishment solely on the basis of the facts reflected in the jury verdict or admitted by the defendant; here deliberate cruelty was not proven to jury or admitted by D. **Though the sentence was within the proper timeframe it was not OK how it was found. The State of Washington's criminal sentencing system violated the Sixth Amendment right to a jury trial, because it gave judges the ability to increase sentences based on their own determination of facts. Ct applied apprendi: the "statutory maximum" punishment was "the maximum sentence [the judge] may impose without any additional findings." US v. BOOKER cocaine possession case; fact at issue was the weight of the cocaine relevant to sentencing. ISSUE: Can the judge sentence using facts that RULE: Yes; Any fact (other than prior conviction) that is necessary to support a sentence must be proved beyond a reasonable doubt to a jury. *this case overruled state sentencing guidelines, and showed that the federal ones were about to be invalidated too. *here the court is choosing to emphasize the roles of judge and jury instead of the burden of proof. CLARK v. ARIZONA: D thought police officers were aliens; wanted to introduce mens rea evidence for insanity ISSUE: Can D introduce evidence of insanity to disprove mens rea even if he knew the difference b/t right and wrong, which is the normal standard for being able to use the insanity defense in AZ? RULE: Arizona does not allow mental health evidence to show that the defendant did not possess the required mental intent level necessary to satisfy an element of the crime. The evidence is only admissible if used to show that the defendant was insane at the time of the crime's commission. OUTCOME: upheld Arizona's restriction of admissible mental health evidence only to the issue of insanity ** Due process does not prohibit Arizona's use of an insanity test stated solely in terms of the capacity to tell whether an act charged as a crime was right or wrong. DIXON v. US: D arguing duress as an affirmative defense to an unlawful weapons purchase 24

ISSUE: Issue is whether the burden of proof in the jury instruction violated the Constitution's Due Process Clause and, if so, what should the proper burden of proof be? D s argument: Dixon contended that since she was under duress, the government should have to prove that she willingly fulfilled all of the elements of the crime. The government contended they need only prove the elements of the crime, and that Dixon needed to establish duress to be found not guilty. SCOTUS agreed with the government. RULE: A criminal defendant who claims to have acted under duress must prove the claim by a preponderance of the evidence (rather than the people having to show that every element was done willingly). OREGON v. ICE consecutive sentences after judge finds a fact constitutional under 6th amendment? HOLDING: the Sixth Amendment does not prevent states from assigning to judges rather than to juries fact finding responsibilities necessary to imposing consecutive sentences on criminal defendants. The Court drew its reasoning from the historical record. Since the nation's founding, judges have served in this capacity. Additionally, the Court reasoned that judges serving in this capacity do not infringe upon the traditional responsibilities of a jury in a criminal trial. **reasoning that the rule of Apprendi applies only to the length of a sentence for an individual crime THIS CASE LIMITED THE APPLICATION OF THE RULE IN APPRENDI which was extended in Blakely, that rule being: requiring juries to find the existence of certain facts before increasing the length of a defendant's prison sentence beyond the statutory maximum. Court thought this limit of the rule in Apprendi did not damage the jury s role as a bulwark b/t D and judge; also they thought the judge doing this sentencing was not encroaching on the facts that the jury found, which was also one of the main problems considered in Apprendi. Dissent said in this case that Apprendi should control, and then the consecutive sentences based on a judge s findings would definitely not be constitutional. US v. KREIGER Court found that victim's death resulted from the distribution of fentanyl (by a preponderance of the evidence, but again, more on this later), the court had no choice but to impose the mandatory minimum sentence triggered by that fact-in this case, 20 yrs. Issue: Does the death of a victim under this federal drug charge mean that the judge can extend the sentence as per the statute, or does the victim s death have to go to the jury and be proven beyond a reasonable doubt by the prosecution? th Rule: 7 Circuit held that a victim s death is a sentencing factor that may be found by the judge by a preponderance of the evidence, not an offense element that must be proven by the prosecution beyond a reasonable doubt. Shouldn t Apprendi prohibit this??

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