Criminal Law I.

Theory Dimension

Broader Theories Applied to Punishment o Efficiency -> Optimal Deterrence o Fairness -> Individual Desert o Social Meaning -> Expressive Condemnation Optimal Deterrence o Central Question: What legal remedy will benefit society the most? o The individual is considered only insofar as they bear on this broader question. o Marginal Deterrence: There must be a distinction between gradations of offenses in order to discourage people from committing the great offense o Typical considerations: Individual Deterrence: will the offender be deterred in the future? General Deterrence: will others be deterred? o Deterrence questions, because they are empirical, can become very complex (substitution effects, etc.). o Deterrence is forward looking in nature Individual Desert o Central Question: What does the individual deserve? o Disavows consideration of broader societal welfare concerns insofar as they conflict with individual desert. o Heavy focus on choice o Typical consideration: Proportionality: Is the punishment proportionate to the crime? o This is a philosophical question that is difficult to determine with any precision. Expressive Condemnation: o Central Question: Does the defendant's act express illicit values, and if so how can the law reassert appropriate values? o Typical Considerations: Suggests that both deterrence and just deserts arguments depend on social norms. Because norms are social, these evaluations are always contingent on values that vary across the population. This is likely to lead to conflict in the law. o The hardest question: How should the law handle this kind of conflict?

A. Optimal Deterrence Bentham: Pain and pleasure are springs of human action. The value of the punishment must not be less in any case than what is sufficient to outweigh the profit of the crime. Between 2 offenses, punishment for the greater offense must be enough to make one prefer the lesser offence (if you get murder for everything, might as well steal and kill). Easier to err on overpunishing. No need for punishment if it wont be effective, it costs more than it prevents Posner: Offers similar economic approach to deterrence as Bentham.

Meares, Katyal, and Kahan Updating the Study of Punishment: Not enough attention is paid to how deterrence of one crime increases another (economic substitutes). In 3 strikes and youre out situation, might as well make the 3rd crime heinous (death penalty could serve as incentive to crime). Punishment can breed crime by increasing taste for it and reducing price of future crime. Imprisonment increases crime as it labels/stigmatizes individuals and they band together, and also more people are criminals, less social shame. Hubcap Example (p.22) Say that $50 fine for stealing just a $25 fine and catch only 1/5000big problem To deter hubcap theft, going to have to raise fine $250,001 but also unrealistic So you have to go toward imprisonment, say 15yrsbut the cost of that will be high plus marginal deterrence plus if a rapist only gets 15yrs, what does that say to the rape victim -If the costs of preventing a crime are too high, utilitarians would say dont enforce it -Criminal law is usually the last and least effective way to deal with a problemoption of last resort. At same time, crim law is the expression of our society so big temptation to use it. B. Individual Desert Kant: Punish only for what one did and for what he deserves, not to set an example. Morris: Punishment about restoring equilibrium C. Expressive Condemnation Feinberg: Expression of communitys condemnation is an essential ingredient in legal punishment. Hampton: Must punish in a way to show victims worth, under-punishment diminishes victims status in community. People v. Du (CA 1992, p.43) -Female store owner kills teenage girl after shoplifting dispute/fight in a very bad neighborhood -D given leniency because she is not likely to repeat, first time offense, extenuating circumstances of the neighborhood State v. Chaney (AL 1970, p.47) -Chaney convicted of rape. P recommends 7yrs for rape and 5yrs suspended sentence for robbery, D recommends 2 yrs for rape 2 yrs suspended sentence for robbery -The judge sentences only one year and invites very early parole -What kind of message does this send? Fairness, Deterrence and Expressive Concerns are all seemingly ignored by judge Message conveyed of the relative worth of this guy and this woman Maybe the judge didnt believe the guy was actually guilty? He feigns belief and respect for jurys verdict so finds a way around it by drastically reducing the sentence (which in Alaska cannot be lengthened) This would also send an awful message. Certainly for general deterrence and to the community for their expressive condemnation

-Talk is cheap, punishment/action is really giving meaning to your expressions -For the victim in the Chaney case, what does she take away? That Alaska doesnt care about rape? -Different legal actors will approach the same outcome differently (different values). Look at the Chaney case. If the judge doesnt think raping a prostitute is that bad, then the judge wont see it fair to lock up Chaney for life. If you can change the judges values, you can tailor arguments to convince that judge that the women deserves greater protection, that she has some greater value, and he needs to send a stronger message D. How Do We Punish? Imprisonment & Its Rivals US v. Bergman (SDNY 1976, p.51) -Bergman pleads guilty to defrauding Medicaid -The defense argues that there is no utility in sending him to prison. They propose fines and community service for Bergman (once proud member of the community) -The prosecution objects to him doing this because he used to do the community service stuff in his spare time plus it would be an honor to serve the community in the capacity suggested by the defense -From a utilitarian stand point the defense has a strong case because he is not a repeat offender, he is been pilloried in the community, unusual for someone of his stature to commit this crime no need for deterrence -A Kantian may say he shouldnt go to jail because that would use Bergman as a means to an end by making him a deterrent to othersbut then again he put himself in this position -From an expressive point, the court cant devalue the crimes he committed by not giving him jail timeeven the ripping in the press hes taken cant be considered b/c his high status is what is making him a target in the press, the press is just bringing him down to equilibriumA fine could come across as just the cost of doing businessif you have money you can break the law US. Gementera (9th Cir. 2004, p.60) -D stole from mailboxes, sentenced to a shaming penalty (sandwich board, lecturing at HS, etc) -Dissent finds public humiliation to not aid in rehab and to be barbaric step backward in justice system Shaming -To see so many criminals and so many minorities on the street might be very distressing to the publicwhat is wrong with our criminal justice system -Is shaming only effective in small towns? -Incarceration rates are through the roof in every state, people are seeking alternativesin every aspect prison is way too costly Kahan On Shaming: Shaming is good: frees up valuable resources for prison system, shaming penalties impose serious costs (reputation, etc), expresses community norms more openly, shaming is no more cruel than prison, especially good where no reason to incapacitate. Need more empirical data though.

Massaro: Shaming may produce more deviance than deterrence. Encourage stigma immune criminals to commit certain crimes. Not good because it rejects people from society. Whitman: In allowing public to condemn, government is delegating its power where it shouldnt, can lead to mob justice. Unpredictable response from the public, not fair to the criminal who deserves predictable punishment. -The problem is the social meaning these alternative sanctions convey a) Fines seem like a sale more so than an offense b) Community service doesnt seem fair because it is a laudatory act c) Shaming has distressing implications in society -seems like mob justice, many other negatives associated with it II. Institutional Allocation

Central Question o How should power be allocated across different institutions to achieve the best fit between the law the various theories of punishment? Courts & Legislatures o Desuetude Gives courts the power to invalidate defunct statutes. (Stowell) Is formally available in a minority of jurisdictions, but plays an informal role in most jurisdictions. o Legality Law should be clear, strictly interpreted, and non-retrospective. Vagueness: Laws cannot be so vague that a reasonable person will not know whether or not they are violating the law. (Morales) Lenity: Where there is uncertainty, construe statutes narrowly and err on the side of lenity towards the offender. (Keeler, Zavrel) This reflects a deep concern not only about the dangers of judicial lawmaking, but a concern about a particular type of mistake o If a judge reads a statute too narrowly (and thereby underpunishes a defendant), the legislature is likely to correct the courts mistake o But if a judge reads a statute too broadly (and thereby overpunishes a defendant), the legislature is unlikely to do so. Ex-Post Facto: No punishment for a law that wasn't in place, or in a manner that was not established, at the time of the crime. (Rogers, Carmell) Important Note: As you've no doubt noticed, courts often disregard Legality considerations. An important part of the class will be devoted to understanding why courts do this. Courts & Juries o Right to a Jury Trial

Defendants have a constitutional right to a jury trial for "serious" offenses. (Duncan) Prosecutors can refuse to consent to a defendant's waiver of jury trial in many jurisdictions. (Moon) Determining where to hold a trial and whether to prefer a jury or bench trial can be complicates. (Koon) o Jury Nullification Juries have the power to nullify the law, but need not be informed of this power (Dougherty) Courts & Communities o To what extent should courts defer to local democratic decision-making? (Chicago Housing Authority, Morales) A. What to Punish? Central Question o How should power be allocated across different institutions to achieve the best fit between the law the various theories of punishment? Courts & Legislatures o Desuetude Gives courts the power to invalidate defunct statutes. (Stowell) Is formally available in a minority of jurisdictions, but plays an informal role in most jurisdictions. o Legality Law should be clear, strictly interpreted, and non-retrospective. Vagueness: Laws cannot be so vague that a reasonable person will not know whether or not they are violating the law. (Morales) Lenity: Where there is uncertainty, construe statutes narrowly and err on the side of lenity towards the offender. (Keeler, Zavrel) This reflects a deep concern not only about the dangers of judicial lawmaking, but a concern about a particular type of mistake o If a judge reads a statute too narrowly (and thereby underpunishes a defendant), the legislature is likely to correct the courts mistake o But if a judge reads a statute too broadly (and thereby overpunishes a defendant), the legislature is unlikely to do so. Ex-Post Facto: No punishment for a law that wasn't in place, or in a manner that was not established, at the time of the crime. (Rogers, Carmell) Important Note: As you've no doubt noticed, courts often disregard Legality considerations. An important part of the class will be devoted to understanding why courts do this. Courts & Juries o Right to a Jury Trial Defendants have a constitutional right to a jury trial for "serious" offenses. (Duncan) Prosecutors can refuse to consent to a defendant's waiver of jury trial in many jurisdictions. (Moon)

Determining where to hold a trial and whether to prefer a jury or bench trial can be complicates. (Koon) o Jury Nullification Juries have the power to nullify the law, but need not be informed of this power (Dougherty) Courts & Communities o To what extent should courts defer to local democratic decision-making? (Chicago Housing Authority, Morales) Central Question o How should power be allocated across different institutions to achieve the best fit between the law the various theories of punishment? Courts & Legislatures o Desuetude Gives courts the power to invalidate defunct statutes. (Stowell) Is formally available in a minority of jurisdictions, but plays an informal role in most jurisdictions. o Legality Law should be clear, strictly interpreted, and non-retrospective. Vagueness: Laws cannot be so vague that a reasonable person will not know whether or not they are violating the law. (Morales) Lenity: Where there is uncertainty, construe statutes narrowly and err on the side of lenity towards the offender. (Keeler, Zavrel) This reflects a deep concern not only about the dangers of judicial lawmaking, but a concern about a particular type of mistake o If a judge reads a statute too narrowly (and thereby underpunishes a defendant), the legislature is likely to correct the courts mistake o But if a judge reads a statute too broadly (and thereby overpunishes a defendant), the legislature is unlikely to do so. Ex-Post Facto: No punishment for a law that wasn't in place, or in a manner that was not established, at the time of the crime. (Rogers, Carmell) Important Note: As you've no doubt noticed, courts often disregard Legality considerations. An important part of the class will be devoted to understanding why courts do this. Courts & Juries o Right to a Jury Trial Defendants have a constitutional right to a jury trial for "serious" offenses. (Duncan) Prosecutors can refuse to consent to a defendant's waiver of jury trial in many jurisdictions. (Moon) Determining where to hold a trial and whether to prefer a jury or bench trial can be complicated. (Koon) o Jury Nullification

Juries have the power to nullify the law, but need not be informed of this power (Dougherty) Courts & Communities o To what extent should courts defer to local democratic decision-making? (Chicago Housing Authority, Morales) A. What to Punish

Gusfield: Agents of government are only persons who can legitimately claim to represent the total society. Designation of behavior as violating public norms confers status and honor on those groups with conventional cultures and derogates those whose cultures are considered deviant. Bowers v. Hardwick (US SC 1986, p.88) (overruled by Lawrence v. Texas (US SC 200) -Bowers was charged with violating GAs sodomy laws (he was a homo), challenging constitutionality of such a law -Just because it was in private and is a moral issue doesnt mean the state cant regulate it, does this all the time -Dissent argue this violates individual liberty and right to be left alone -If someone doesnt share your same values, their perception on the same crime will likely be very differentone sees it as dangerous and the other sees it as fine (e.g. marijuana) Wisconsin v. Mitchell (US SC 1993, p.92) -Issue whether you can enhance crime because it was a hate crime -Sentenced increased b/c D selected victim based on his race -Court contends that hate crimes are likely to provoke retaliations more unrest, reason for punishing them more seriously, not a threat to the 1st amendment Utility/Deterrence -Prevent future hate crimes; the greater the desire to commit the crime, the greater the need to deter it Social Meaning/Expressive Condemnation -Could argue the hate crime is even more abhorrent by saying that a certain group doesnt count -The hate crime statute expresses the values of Wisconsin a) But theres not necessarily a consensus around this issue Devlin: A common morality is part of the bondage that keeps a society together. If majority of society dislike something, they shouldnt be denied right to eradicate it (he points to sodomy) Kahans Secret Ambition of Deterrence: Hate crimes expresses perpetrators perceived value on victim and his punishment will express societys view of his crime (low crime for homo hate crime, low value of gays) Posners Emotion versus Emotionalism in Law: Posner opposed to hate crime enhancement because varying punishment not to deter but to make a political/ideological statement; believes this is a wrong and dangerous practice. B. Institutional Dimension 7

1. Desuetude -Desuetude holds that a prolonged failure to enforce a law in the face of widespread vilations renders it void -Why not? Legislative Supremacy This is not how we organize our government, there are no common law crimes, the legislature reigns supreme and the courts need to understand that -Why yes? Legislative Process Failure -Judges do it because politicians cant be trusted to do what the public wants them to do all the time. In particular, repealing legislation is very hard to do by politicians (who is going to repeal a law on adultery, how will that play in a campaign) -The risk here might be under-punishment, but is the risk that great? Not really because politicians will no doubt grandstand over judicial activism here; thats why many jurisdictions still allow for the open practice of desuetude -Desuetude also deals with over-punishment; legislatures never override courts decisions when they read a statute broadly and give over-punishmentNo one in the legislature is going to cry foul and rollback punishment, would look soft on crime Commonwealth v. Stowell (MA 1983, p.100) -D contests MA law against adultery as being unconstitutional -On its face, court doesnt think its unconstitutional just b/c it deals with privacy -Court rules that if the legislature wanted law void, it would act -The court doesnt have the power to say this is not a law, its just not how things work -When courts do try enforcing something like this, it gets repealed in the legislature -There is a message sent by these older statutesat what time they may have showed a communitys value, now they might just express a disregard for the law when its not enforced -The laws are enforced very selectivity, which can be very dangerous (Bowers)an abuse of authority -In Stowell, we cant get you on prostitution, but well get you on adultery -If a judge struck down a rule that is popular, thered be an outcrywhat happened to legislative supremacy?? Posners Sex and Reason: punishing nonmarital sex is a way of making a substitute more costly and encouraging marriage. 2. Legality -Legality holds that the law should be clear, strictly interpreted, and non-retrospective -Prevents judges from making their own law or expanding the current law -No common law crimes, need strict construction Keeler v. Superior Court (Cal. 1970, p.108) -Issue is whether unborn fetus is a human being. Court construes statute to hold that it is not -D attacked ex-wife and killed her unborn baby intentionally a) Was charged with murder for killing fetus -Court says if liability is to be extended to fetus, its a matter for the legislature to decide -No notice in criminal code to D that his actions would constitute murder

-Is there really a notice issue here? He shouldve known beating a pregnant woman was wrong -Dissent disagrees and finds D to have committed murder b/c how was it different than if he had stomped on a newborn, the guy knew what he was doing -Immediately after case, CA legislature changed statute to make killing a fetus murder -If theres an ambiguity in the law courts are directed to find in favor of justice This can swing both ways. Its unfair to read the law in a broad way, unfair to the mother and fetus to read it narrowly though -Reading Keeler case narrowly is going to prompt under-deterrence (thats why the legislature steps in immediately and amends the statue) -The more narrowly courts read statutes the more work the legislature is going to have to do -Judges need to have some leeway in identifying injustice and having broad interpretations of the caseHave to follow moral intuition -The social background of the case cant be ignored, shadowed by the huge abortion debate a) Courts are thinking about thisdoes making feticide a homicide make abortion illegal Lenity: directs courts to construe ambiguous statutes narrowly a) Need fair warning and legislature should establish criminal statutes/penalties -Legislative resistance to lenity based on creating more work for the legislature -So when legislature eschews specific prohibitions and enacts general ones, effectively transferring law defining power to the courts US v. Zavrel (3rd Cir. 2004, p.118) -D faked an anthrax scare to get someone else in trouble -D argues her actions didnt count as a communication or threat (just envelope with cornstarch) -Court disagrees and thinks that it shouldnt have to follow dictionary definition and applies a reasonable person standard for interpretation -Dissent disagrees and says it is not right to expand meaning here to get harsher penalty -In this case should we risk under-punishment because if we get it wrong, the legislature can get it right? That said, in this case, the remedy may be worse. In the 9/11 climate, the legislature may go nuts and overreact Judges do worry about the legislative landscape and the effect their decision could have C. Common Law Crimes Commonwealth v. Keller (PA 1964, 123) -D had miscarriages and disposed of the bodies in gruesome ways -Invokes McHale doctrine, which asserts that people should conform behavior to societal norms -CL that whatever openly outrages decency and is injurious to public morals is punishable at law -But what about the principle of legality, no common law crimes -Certainly no federal common law crimes -Common law rules are not absolute; theyre rules of thumb from a moral grounding D. Ex Post Facto Rogers v. TN (US SC 2001, p.126)

-Majority finds that the rule and day law, which only existed under TN CL, does not apply to this case. D can be charged with murder even though under CL it would just be manslaughter. The law was repealed after Ds crime but it was nowhere in TN statutes and had tenuous foothold in the state -Strong dissent that D had no warning that TN Court would retroactively eliminate one of the elements of murder Carmell v. Texas (US SC 2000, p.131) -Government needs to abide by its own rules and can alter them to advantage the state E. The Defendants Right-----and the States Duncan v. Louisiana (US SC 1968, p.136) -Duncan convicted of simple battery, but was denied jury trial -Court holds that 14th amendment guarantees a right of jury trial in all criminal cases (in federal court 6th amendment would guarantee that right) -The Bill of Rights is incorporated against the states, so the 6th Amendment is considered to apply (that is if the crime is greater than 6 months, if it less than that it is a petty crime) -Why else, besides protecting against abuse of power do you need a jury? 1) As a group the jury can draw on commonality with D and use common sense 2) Jury gives a greater appearance of fairness (had a jury convicted Duncan it would look more fair than just the judge) -But jurys everywhere are unrepresentative Kalven and Zeisels American Jury: Jury provides important civic experience, guarantor of integrity, buffer for the judge and legal process (they can be the lightning rod). On the flip side, jury is expensive, social costs on those who serve, disenchants citizens. Can go both ways on competence (juries arent that bright but 12 heads better than 1). Jury produces government by man rather than by rule of law. US v. Moon (2d Cir. 1983, p.139) -Rev. Moon ran a cult religion and prosecuted for tax evasion -How can it be that forcing someone into a jury trial is violating their 6th amendment right? -Also, since its a complex trial, a jurys misunderstanding may force them to rely on their own biased opinions (D argument) -D only has right to jury trial not to bench trial -No reversible error, conviction upheld -Can a prosecutor be trusted by a D? He certainly has motives to be more concerned with convictions than with letting innocent people go free -If you can never get fair or unbiased citizens, then you dont have a trialif youre the D counsel, you should demand a jury trial when you cant get impartial jurors because then you can never have a trial -The standard is so high to find that no good jury can be found that it never happens -Jury can serve to defend individual liberty of innocent against malicious prosecutor judge -Jury also serves societal purpose, as it reflects community morals with its actions

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-In Rodney King a prosecutor might want a jury trial for the appearance of fairness, while the D counsel would want a bench trial because of biased jurors -But how do you determine excessive force? Not an easy question, a lot of balancing has to take place in this situation a) A legislator cant come up with a hard and fast rule for excessive force b) Seems like the duty falls to the jury. But what about legality? Should they be the ones resolving this? c) The police need some better determination for excessive force because they need to know for their daily activities what it is, it cant just be on a sliding scale -No strict formula for changing venues US v. Booker (US SC 2005, p.143) -Question is whether federal sentencing guidelines violate 6th amendment -Judge allowed to sentence within guideline range but cannot sentence beyond guidelines by finding facts beyond those found by the jury (in this case that Booker possessed more crack ina duffel bag) F. Nullification US v. Dougherty (1972, p.151) -Case over break-in to DOW chemical labs during Vietnam protests -7 people convicted and appeal because judge refused to instruct the jury of its right to acquit appellants without regard to the law and evidence (nullification) -Jury knows its power and does need formal instructions because that could lead to excessive you and anarchy a) Not to mention it would be an extreme burden on the D -Tremendous burden on jury, theyre creating the law when they nullify -In this case challenging the legislature, in Duncan theyre challenging an overzealous prosecutor/judge -According to Horowitz article, counsel instructions carry more weight than jury instructions -As a defense counsel you would certainly want the nullification principal to be known by the jury -Is there a community interest in having laws executed and adjudicated in a predictable way? Butler Debate on Race and Acquittal -People dont want to send another young black male to jail, even if he did it -Butler contends that it is moral responsibility of black jurors to emancipate some guilty black outlaws a) Only if accused is nonviolent -Counter is that blacks then will be removed from the jury process and is a racially divisive way to think, to take care of your own -Cost of incarceration greater than that of certain crimes -Black community has been betrayed by American legal system -If youre going to have nullification, should you be explicit about with every jury? Would it be unfair not to have it told to some and not other juries?

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-Zenger trial is most famous instance of nullification, during revolutionary times the guy printed bad stuff about Royal Governor of NY -Around Civil War time, jury nullification rampant in both North and South (based on divisive issue of slavery) US v. Navarro-Vargas (2005, p.164) -Ds convicted of drug crimes, appeal because grand jury instruction prejudiced it against them (Should vote to indict if probable cause exists and could not judge the wisdom of criminal laws enacted by Congress) -Historically, grand jury independence has been for both good and bad -Jury was improperly instructed, certainly can judge the wisdom of laws US v. Cox (5th Cir. 1965, 170) -Jurors misled by instructions telling them their powers were restricted to probable cause -A full disclosure to grand jury of their power would not subvert law, doing otherwise gives prosecutors too much discretion and consequently power E. Community Pratt v. Chicago Housing Authority (NDILL 1994, p.173) -Housing authoritys sweeps deemed unconstitutional despite popular support a) Would search apartments without necessary warrants -ACLU clients feel taxed by this search policyjust 4 people going against the whole community -Classic collective action problem, everyone else signs up you opt out and maintain your privacy but everyone else doesnt a) And are the people who are opting out likely criminals? Maybe -You need everyone on board or this isnt worthwhile at all -The ACLU is worried about our rights to liberty and privacy -But dont we sacrifice our privacy/liberty at certain instances? (e.g. going through metal detectors for a plane or in a school, DUI checkpoints, etc) -Dont residents of the CHA have rights to not be shot a) Classic balancing test between social order and liberty/autonomy -Other ways to reduce crimes besides warrantless searchesSecurity guards in the lobby -You could beef up number of police -This is a cost-benefit analysis Its often easy for a majority to place a burden on a minority (e.g. Megans Law) a) But with the CHA, theyre all in the same boat, who is the minority? This is more like the metal detector stuff -Is it a judge or a community who gets to make this decision? Who is best situated here to make a decision (like the case with the jury)? a) Do the people really know what theyre giving up with these searches -You could set a dangerous precedent with the CHAs case a) But if the case was never brought, you wouldnt have that problem - Judge is an expert, and would take a more objective longer viewed approach -But these people need drastic actions to save their lives

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Chicago v. Morales (US SC 1999, p.180) -Dont want to have a law where no one will know if they can be subjected to it, far too vague -The people proposing this are the ones that would be hurt by it -Issue is over city ordinance to cut down on gang problems that prevents a group of people from loitering a) So a cop, under certain rules, can break up a group hanging out in public -Found to be unconstitutional because ordinance is far too vague and is therefore an arbitrary restriction on personal liberties a) No Notice and arbitrary and discriminatory enforcement GENERAL PRINCIPLES Actus Reus: the prosecution must always prove the act (taking another persons property; sexual intercourse) Attendant Circumstances: The Prosecution sometimes must also prove that some other facts are true (e.g., the stolen property was worth more than $100; the sexual partner was under the age of consent). Mens Rea: The prosecution usually must also prove a particular state of mind with respect to the act and sometimes with respect to the attendant circumstances.

The requisite mens rea for the act and the attendant circumstances may be different (more on that in a minute)

III. ACTUS REA

Voluntary Act o What isnt voluntary? External - physical compulsion Internal reflexive, unconscious, asleep, etc. (Newton, Jarret) Courts often deny request for involuntary act instructions where they view the defendant as author of their own impulses (Baird, Jacobs) o Who decides if voluntary? Where theres doubt, a jury will usually decide. Causation o Common Law But for cause of the result Result was foreseeable (Arzon, Warner Lambert) or Posnerian enhanced risk (Bracket) o Model Penal Code But for cause of the result Result not too remote or accidental to have a just bearing on the criminal liability of the defendant Intervening Acts o No MPC doctrine on intervening acts, just revert to not to remote or accidental to have a just bearing)

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Common Law The prototypical case for intervening act doctrine is one in which a homicide victims own actions make some necessary contribution to her death. Did the defendant render the victim irresponsible for act that was necessary to death? (Stephenson, Hendrickson) Omissions count as acts in two instances o When the statute defining the offense expressly requires that she perform a particular act o When defendant has a legal duty arising from some source independent of the criminal statute in question (See accomplice liability cases dealing with omissions: Nosfinger, Hunter) o Where these dont exist, an omission is not a criminal act (Beardsly, Pope, Jones)

-Actus Rea: three areas, voluntary act, causation, omissions -Model Penal Code developed in 1960s with the hope that you could have a consistent code derived from the common law MPC 2.01 Voluntary Act
(1) A person is not guilty of an offense unless his liability is based on conduct which includes a voluntary act or the omission to perform an act of which he is physically capable. (2) The following are not voluntary acts within the meaning of this Section: (a) a reflex or convulsion; (b) a bodily movement during unconsciousness or sleep; (c) conduct during hypnosis or resulting from hypnotic suggestion; (d) a bodily movement that otherwise is not a product of the effort or determination of the actor, either conscious or habitual. (3) Liability for the commission of an offense may not be based on an omission unaccompanied by action unless: (a) the omission is expressly made sufficient by the law defining the offense; or (b) a duty to perform the omitted act is otherwise imposed by law. (4) Possession is an act, within the meaning of this Section, if the possessor knowingly procured or received the thing possessed or was aware of his control thereof for a sufficient period to have been able to terminate his possession.

People v. Newton (Cal. 1970, p.206) -D taken out of car by police, struck in the face then the rest becomes hazy, goes unconscious until he gets to the hospital a) D had been shot and cop was shot -Unconsciousness is a complete defense to criminal homicide, need to redo with proper jury instructions -If Newton was unconscious, finding him guilty wouldnt do much for deterrence, he couldnt control himself so it wont serve to stop in the future -On the other hand, you dont want guilty people faking this to get away with murder -There is also no volition here on Newtons part -On expressive grounds, at least Newton is provoked, a self defense story (at least potentially morally justified) State v. Jerrett (NC 1983, p.208) -D robs house, kills husband then kidnaps wife in car -D had history of blackouts from his service in Vietnam (Agent Orange) -Unconsciousness would again be defense and it was an error not to instruct on it 14

-Similar deterrence issue to Newton a) But shouldnt Jerrett have tried to seek help for this problem since this wasnt the first time it happened -Harder to figure out on expressive grounds. He developed his condition from serving the country, a much more complicated story Baird v. State (Ind. 1992, p.213) -D killed parents in-law and wife -Strangled wife then parents wanted to check on her, stabbed them -D contends he was acting under a sudden heat -In testimony, Baird was described as OCD, psychotic, insane, impulsive -The experts described him as volitionally impaired -Motivated by humiliation of ability to close on a new farmNot a good moral reason -Court affirms convictions Jacobs v. Commonwealth (Pa. 1888, p.216) -Jacob (I think) stabbed a man -Jacobs appealed the fact that his expert testimony was denied by commonwealths objections a) The testimony was meant to show that Jacobs has a hot temper and cant think straight when excited -If you allow Jacobs to get off for his temper, you will subvert the normal order of things Martin v. State (Ala. 1944, p.219) -Guy drunk at home, police put him on the street, and then arrest him for public drunkenness -Under the plain meaning of the statute, the court presupposes that the person has to appear voluntarily -Court here reads the statute with common law and model penal code in mind; the statute itself says nothing about voluntary. Legislatures dont specify voluntary because they know courts will read that in -In this case, being involuntarily taken by the police to the highway did not suffice to fulfill the actus reus of appearing in a public place b/c it wasnt voluntary OSullivan v. Fisher (South Australia 1954, p.222) -Police ask guy to leave his house, he walks 10 yards and is arrested for public drunkenness -Needs to be determined if guy voluntarily left the house or if police lied to get him outside -All of this is to say that the voluntary act requirement is indeterminate, courts look to contextual clues to see if an act is voluntary -When theres a question of voluntariness, the judge hands the fact finding decision to the jury -Why didnt the judge allow testimony in Baird or Jacobs? The reason was the impulse they acted on was considered illegitimate by the judge to be considered involuntaryHe was the author of that impulse a) Concern about what it would say about the law if you could act involuntarily on an impulse of rage, etc A. Causation -But for/necessary for the result

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-The cause/act be the proximate cause for the result a) Under classical law, proximity is described as foreseeability b) Posner says foreseeability is too vague, need to look at enhanced risk c) MPC says it cannot be too remote as to have a just bearing on criminal liability People v. Arzon (NY 1978, p.225) -D starts a fire on 5 floor of building. Firemen go to pout it out and then an independent fire starts on 2nd floor of building, and a fireman died -Court finds Ds action was an indispensable link in the chain of actions causing death -The court applies the foreseeability test -Was it but/for Arzons fire that the firemen died -You start a fire, its foreseeable that somebody might die a) But how foreseeable was it that another fire started -No fear of over deterrence here
th

People v. Warner-Lambert Co. (NY, 1980, p.226) -Ds were aware there was a risk of explosion from ambient magnesium state dust arising from manufacturing process -Explosion killed 6 employees -Ds had been told a month before explosion of the dust problem and were working toward a solution by replacing equipment -Actual cause of explosion is only speculative, believe it was oxygen liquefaction process, and that was unforeseeable to Ds -Court finds but for test here to be inappropriate -Not foreseeable because the chain of events, not sure where/how the initial explosion happened, can only speculate on the actual chain of events -What would happen if you punished this capitalist who was employing workers? v. Punishing a squatter (Arzon) a) Could be over deterring b) Lambert could still face a significant civil liability Brackett v. Peters (7th Cir. 1993, p.230) -Ds assault made Winslows death more likely, but for the assault, she wouldnt have died as soon as she did -Though she died a month later, death was the last link in a continuous series of events started by assault -Posner introduces the idea of enhanced risk -In this case there was an intervening act that the D would argue broke the chain of causation -Very narrow approach to risk in this case, not something D would want a) Ds beating of her enhance risk that this women die when a nurse used a feeding tube -Foreseeable and enhance risk are subjective and very open to interpretation Alicke on Causation: Example of kid rushing home to hide drugs vs. hiding anniversary gift and gets into a car accidentproduces different interpretations of causation and culpability MPC 2.03: Causal relationship
1) Conduct is the cause of the result when

16

(a) it is an antecedent but for which the result in question would not have occurred; and (b) the relationship between the conduct and result satisfies any additional causal requirements imposed by the Code or by the law defining the offense. (2) When purposely or knowingly causing a particular result is an element of an offense, the element is not established if the actual result is not within the purpose or the contemplation of the actor unless: (a) the actual result differs from the designed or contemplated, as the case may be, only in the respect that a different person or different property is injured or affected or that the injury or harm designed or contemplated would have been more serious or more extensive than that caused; or (b) the actual result involves the same kind of injury or harm as that designed or contemplated and is not too remote or accidental in its occurrence to have [just] bearing on the actor's liability or on the gravity of his offense. (3) When recklessly or negligently causing a particular result is an element of an offense, the element is not established if the actual result is not within the risk of which the actor is aware or, in the case of negligence, of which he should be aware unless: (a) the actual result differs from the probable result only in the respect that a different person or different property is injured or affected or that the probable injury or harm would have been more serious or more extensive than that caused; or (b) the actual result involves the same kind of injury or harm as the probable result and is not too remote or accidental in its occurrence to have a [just] bearing on the actor's liability or on the gravity of his offense. (4) When causing a particular result is a material element of an offense for which absolute liability is imposed by law, the element is not established unless the actual result is a probable consequence of the actor's conduct.

Stephenson v. State (Ind. 1932, p.238) -Was a KKK leader -Reasonable person might have tried to kill themselves to if they were forced to live with a KKK leader who violently raped them -Not in fear for her life but in fear of her honor, willing to risk her life for it (e.g. women jumping out windows) -She wasnt crazy, she acted rationally, which makes Stephenson even more morally culpable -Found guilty because he contributed to the end result Hendrickson v. Commonwealth (Ky. 1887, p.244) -Was convicted at trial court level -Wife attacked him, got into fight, she left the house in the freezing cold and died in the elements -The wife had a pretty brutal personality and was certainly not submissive to her husband -Different situation than in Stephenson, the intervening acts she makes severes the chain of causation here Regina v. Blaue (UK 1975, p.246) -What if it was a KKK member and not a Jehovahs Witness? -JW was stabbed by D but could have been saved but refused blood transfusion based on religion -Pretty clear here that they intended the victim to die B. Omissions MPC 2.01
(1) A person is not guilty of an offense unless his liability is based on conduct which includes a voluntary act or the omission to perform an act of which he is physically capable (3) Liability for the commission of an offense may not be based on an omission unaccompanied by action unless: (a) the omission is expressly made sufficient by the law defining the offense

-You are liable if dont follow a statutory duty (e.g. paying your taxes) -Non-statutory legal duty apply a lot to doctors and parents

17

Pope v. State (Md. 1979, p.251) -Does she have a non statutory legal duty as she has been taken share of the child? a) It wasnt her child, though, she was just being nice -Law not indignation covers, Pope was not responsible for child, acquitted -So the child abuse is thrown out, what about the misprision of felony (concealment of a felony)? a) Its a common law crime that no one is ever tried for (Similar issues in Beardsley and Jones, no legal duty but a moral one but that doesnt matter in court) -Court doesnt want to deter acts of kindness a) If the legislature wants this to be a crime, then they should pass a law -In VT, a fine and a misdemeanor for omission (Good Samaritan Law) a) Changes the moral quality of assistance IV. MENS REA MPC
o

Purpose Conscious objective to engage in conduct or cause result; Aware of attendant circumstances or hope/believe they exist Meant to do it. (If, say, Pamela Anders wants to run Kid Rock down with her Hummer and does.) Knowledge Aware of nature of conduct; that material element exists or that it is practically certain conduct will cause result Practically certain it would happen, but may not have desired or intended it to happen. (If, say, running over Kid Rock with the Hummer wasn't her intent, but she was in a hurry to meet Borat at the Viper Room. Running over Kid Rock isn't her purpose, it just happens to be something incidental to driving to meet Borat.) Recklessness A conscious disregard for a substantial and unjustifiable risk that the material element exists or will result from conduct. This disregard involves a gross deviation from a law-abiding person's standard of conduct. Conscious of the risk, but did it anyway. (If, say, Pamela Anderson knows that Kid Rock sometimes sleeps in the garage in front of the Hummer and knows that he might be there as she drives off, but doesn't bother checking because she is in a hurry to meet Borat). Negligence Not exercising the standard of care a reasonable person would - a gross deviation from that of a law-abiding person. Even if defendent didn't know, she really, really should have known not to do this (higher than tort standard). (If, say, Pamela Anderson knows that Kid Rock usually sleeps in the garage in front of the Hummer, but it doesn't cross her mind on this occasion because she is in a hurry to meet Borat). Strict Liability

18

o o

No mens rea required. This must be explicitly stated by the legislature. If mens rea is stated for the act, but not the attendant circumstances, read the mens rea as applying to both. If no mens rea is stated, read in recklessness as the mens rea for both the act and attendant circumstances.

Common Law
o o o o o

Intentionally = MPC Purposefully? Willfully = MPC Knowingly? Maliciously = MPC Recklessly? Negligently = MPC Negligently/ who knows?

Common Law: Mistake of Fact

o o o o

When standard is knowledge, an honest mistake of fact (even an unreasonable one) is a defense. When standard is negligence, a reasonable mistake of fact is a defense. When standard is strict liability, no mistake of fact defense. When silent, boundary-line fact analysis. Would the act, if the facts were as the defendant imagined them to be, be a bad act? If so, read in strict liability (Prince, Stiffler, Jadowski, Feola). If not, read in knowledge standard (Morissette). Obviously this test is value laden (Prince, X-Citement Video).

Mistake of Law
o o

Presumption of strict liability with respect to mistake of law. But there are a few exceptions o Where statutes themselves allow for a mistake of law (Cheek) o Where one is relying on an official empowered to interpret the law (usually a court, Albertini, but sometimes others, Cox) o Where mistakes are made with respect to laws that are "collateral" (or sufficiently distant from) the criminal law being enforced. o How do we figure out whether the law is "collateral" enough? o Malum in se no mistake of law defense (Marrero, King) o Malum prohibitum mistake of law defense might be allowed (Long, Cheek, Liparotta) o But note that dividing line between "malum in se" and "malum prohibitum" can be contentious

-The on Mens Rea is the most widely adopted part of the MPC

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-Wherever the legislature is silent about which element of Mens Rea to apply, the MPC says to read in recklessness. If it is unclear if the Mens Rea applies to one or all elements of a crime, MPC says read in recklessness. Wherever there is uncertainty, MPC says read in recklessness -Legislatures have to articulate strict liability under the MPC, you can never read in strict liability -The Common Law is different, especially in regard to strict liability a) Sometimes strict liability is read in and sometimes not MPC 2.02 General Requirements of Culpability
(1) Minimum Requirements of Culpability. Except as provided in Section 2.05, a person is not guilty of an offense unless he acted purposely, knowingly, recklessly or negligently, as the law may require, with respect to each material element of the offense. (2) Kinds of Culpability Defined (see above) (3) Culpability Required Unless Otherwise Provided. When the culpability sufficient to establish a material element of an offense is not prescribed by law, such element is established if a person acts purposely, knowingly or recklessly with respect thereto. (4) Prescribed Culpability Requirement Applies to All Material Elements. When the law defining an offense prescribes the kind of culpability that is sufficient for the commission of an offense, without distinguishing among the material elements thereof, such provision shall apply to all the material elements of the offense, unless a contrary purpose plainly appears. (5) Substitutes for Negligence, Recklessness and Knowledge. When the law provides that negligence suffices to establish an element of an offense, such element also is established if a person acts purposely, knowingly or recklessly. When recklessness suffices to establish an element, such element also is established if a person acts purposely or knowingly. When acting knowingly suffices to establish an element, such element also is established if a person acts purposely. (6) Requirement of Purpose Satisfied if Purpose Is Conditional. When a particular purpose is an element of an offense, the element is established although such purpose is conditional, unless the condition negatives the harm or evil sought to be prevented by the law defining the offense. (7) Requirement of Knowledge Satisfied by Knowledge of High Probability. When knowledge of the existence of a particular fact is an element of an offense, such knowledge is established if a person is aware of a high probability of its existence, unless he actually believes that it does not exist. (8) Requirement of Wilfulness Satisfied by Acting Knowingly. A requirement that an offense be committed wilfully is satisfied if a person acts knowingly with respect to the material elements of the offense, unless a purpose to impose further requirements appears. (9) Culpability as to Illegality of Conduct. Neither knowledge nor recklessness or negligence as to whether conduct constitutes an offense or as to the existence, meaning or application of the law determining the elements of an offense is an element of such offense, unless the definition of the offense or the Code so provides. (10) Culpability as Determinant of Grade of Offense. When the grade or degree of an offense depends on whether the offense is committed purposely, knowingly, recklessly or negligently, its grade or degree shall be the lowest for which the determinative kind of culpability is established with respect to any material element of the offense

MPC 2.04 Ignorance or Mistake.

(1) Ignorance or mistake as to a matter of fact or law is a defense if: (a) the ignorance or mistake negatives the purpose, knowledge, belief, recklessness or negligence required to establish a material element of the offense; or (b) the law provides that the state of mind established by such ignorance or mistake constitutes a defense

A. Mistake of Fact Morissette v. US (US SC 1952, p.269) -D claims he didnt know it was government property -This is a common law case -Federal jurisdiction is common law, no adoption of the MPC

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-Actus Rea (AR): Actor converts -Mens Rea (MR): knowingly converts -Attendant Circumstances (AC): Government property -Statutes horribly unclear (does knowingly apply to govt property or just conversion?) -Mistake of fact defense a) The defense argues that D had to KNOW he was taking government property b) Should mistake of fact be exculpatory? -If this was the MPC, you apply knowingly where it was clear or else apply recklessly -From a deterrence aspect, you want people who are unsure if property is abandoned or not to find out first before they just take a) Cost of over deterrence would be deterring entrepreneurial spirit? -No real just dessert or expressive condemnation issue here -Judgment against D reversed Regina v. Prince ( UK 1875, p.275) -Girl seems of age, so they go off and get married w/o asking for permission (turns out shes 14) a) Permission was important because children were used as bargaining chips in the 19th C -AR: Taking away the daughter -MR: Silent here -AC (attendant circumstances): That she be unmarried, be under 16, and there be lack of consent -Under MPC, the court would look at recklessness, and Prince would be fine -The court says that if Prince thought he had consent that would be fine; even if she was 17 and he took her without consent it would be wrong in and of itselfso court reads in strict liability for silence here a) So he shouldve been mistaken about the lack of consent, then hed be ok -Problem not with age, with failing to obtain consent Compare to Morissette -If Morissette was right there was no illegal act, but the court in Regina maintains that even if Prince was right about the girls age he would still have taken the girl illegally because of no consent -In Morisette, we were concerned about the chilling effect. No worry of deterrence in Regina, the chilling effect is good here, the court maintains a) After the Regina case, the parliament amended the statute to allow reasonable mistake of fact -The moral question at hand is in fact critical to the MR applied a) Courts then delve deep into interpretation depending on the situation b) Should courts be doing the moral balancing? -Theres a reason legislatures and courts like the MPC -MPCs two interpretative rules 1) One for all rule: where mens rea is applied once but not again, you then read it across for all material elements of the crime 2) Silence: read in something less than or equal to recklessness a) These rules shift the burden of the moral boundary line that courts go through

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US v. X-citement Video (US SC 1994, p.280) -MR: knowingly -AR: transports or ships -AC: child pornography -Court finds this is not strict liability a) Pretty broad statute. The mailman could be transporting child porn but how could he know -Under moral boundary analysis here both the sides are not good Statutory Rape -Considered to be strict liability laws -Different age requirements across jurisdictions State v. Stiffler (ID 1990, p.283) -Claims reasonable mistake (a negligence standard) of the girls age -MR: silence -AR: Sex -AC: Underage female -Even though consensual, guy is guilty here (though punishment is only probation) -Most states have a strict liability approach to this issue because you want to deter the significant type of harm that can occur hereMessage here is stay away; if youre in any doubt at all still stay away State v. Jadowski (WI 2004, p.287) -Victim use false ID so she was actually too young for sex -Still convicted because strict liability law and legislatures refusal to allow a mistake of age defense US v. Feola (US SC 1975, p.297) -Didnt know victim was a federal officer -Court finds that mental state to do criminal acts is enough, do not need to know the victim is federal officer B. Mistake of Law -Generally no defense, but 1) Collateral law 2) Reliance 3) In the statute -Public Welfare OffensesStrict Liability -Courts will often hedge by applying a negligence standard instead of a strict liability one. This will often leave it to a jury to decide if a mistake was defensible -Determining a public welfare offense is a social contest, determines whose values are becoming law a) Why some issues are so hotly contested and divisive -Mistake of law gives criminals an easy way out if it is always a defense

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-Most jurisdictions have strict liability approach to mistake of law defense, though some will use negligence Long v. State (DE 1949, p.321) -D thought he divorced his wife when he remarried but technically hadnt -Long went to AK based on his attorneys instructions -Generally reliance on attorneys wrong information will not be a defense Collateral/Penal Divorce / Bigamy -Long is not confused about Bigamy/penal law he is confused about the collateral law regarding the effectuation of his divorce -CL treats a reasonable mistake of collateral law a defense, which was the case here People v. Marrero (NY 1987, p.327) -Corrections officer carries loaded gun because he thought the statute saying peace officers carrying guns applied to him -Morrero lives in NY but is not a peace officer in NY -He did look up the law and tried to investigate if he would be allowed to have the gun, plus other correctional officers and some judges agreed with his interpretation -Is this guy just a loopholer just trying to get a weapon or did he just make a collateral law mistake? a) He knew the penal law required him to register a gun, so he looked up the law, and misunderstood what a peace officer was defined as -D found guilty but more to it, he brandished his gun at a nightclub, so he wasnt acting appropriately State v. King (MN 1977, p.332) -D caught with a drug that was not in state books but in federal register as being a controlled substance -Found guilty because D should have attempted to ascertain status of the drug Cheek v. US (US SC 1991, p.336) -Cheek thought it was a good faith misunderstanding that he didnt pay taxes -Statute says willfully because it doesnt want to punish people who innocently make a mistake about complicated federal taxes -Cheek is not mistaken about the penal law; hes only mistaken regarding the constitutionality of the law -Honestly believed that he did not need to pay fed. income tax; in terms of fed. tax law, ignorance of law is a valid defense for willfulness; Willfulness requires that the person knew the duty and willfully violated it. -In Cheek, Congress use of the word willfully was construed to require a purposeful or knowingly mental state to the crime. At trial, the judge incorrectly instructed the jury that an honest but unreasonable mistake as to the legality of his conduct is not a defense. By doing this, the judge was attaching a negligent mental state to the defense. -In Cheek, the willfulness mens rea created another element of the crime; since this element was not met, Cheek did not commit a crime

23

-Appeal court conviction is vacated Liparota v. US (US SC 1985, p.342) -Ds restaurant was not authorized to receive food stamps -Court rules that the government must prove that the D knew that his acquisition or possession of food stamps was in a manner unauthorized by statute or regulation US v. Albertini (9th Cir 1987, p.352) -D acted based on 9 Cir. Dismissal of charges against him -The SC would later reverse that decision, though -Relies on prior judicial decision but the court decision is later overturned a) So he is charged b) He made a mistake about the law but he was relying on judicial decision -The court said he was allowed to rely on it until the law became bad
th

Cox v. Louisiana (US SC 1965, p.356) -To convict D of protesting where officials told them they could would be entrapment, judgment reversed Mistake of Law Recap 1) General Rule Not a defense (unless mens rea with respect to law is part or statuteSee Cheek, Liparota; but see Bryan) 2) Penal v. Collateral Law (Long / Marrero) a. Long knew about the penal law governing bigamy but was just mistaken about the collateral divorce law b. Morrero is not confused about the peace officer can carry a firearm law (penal), but he is confused about what the definition of peace offer is (collateral)But here court says ignorance of the law no excuse (different values at play here) 3) Reliance (Albertini / Cox) a. Albertini relies on a court to tell him what the law is, but when that law is reversed by the SC what he is doing is no longer allowed b. Cox shows that sometimes the court will extend reliance for reasonable mistake of law beyond the judiciary -The justice look at the underlying acts to see if they conform to societal norms or threaten them, and that influences their interpretations and rulings V. RAPE
o

Mens Rea for Consent Like mistake of fact problems we studied earlier in the semester (see Morrisette & Prince) Legislatures are often silent w/r to mens rea and consent, so courts have to read in a standard Mens Rea & the No Sometimes Means Yes Norm Knowledge - Morgan & dissent in Berkowitz Negligence - most jurisdictions (& Sherry?) 24

Strict Liability - Simcock & Lefkowitz

o o

Force (or Threat of) The traditional (and still predominant) common law approach requires that there be force of threat of force (see MD & NY statutes). Force Standard: There must be proof of resistance on the part of the victim. Resistance must be physical and not merely verbal. Threats A threat must be sufficient to make a reasonable woman fearful (Rusk) Traditional Justification Under the no sometimes means yes norm, the only unambiguous indicator of non-consent is physical resistance (dissent in Rusk). Reform Efforts Objections to the force requirement have lead some jurisdictions to drop the force requirement (MTS). To address the objection that non-forcible rape is not as bad as forcible rape, Wisconsin has adopted a highly graded scheme.

Commonwealth v. Berkowitz (Pa. 1994, p.359) -The victim said no but didnt physically resist and never screamed out -D claims that victims nos were amorously whispered -D convicted of indecent assault because there was no force (which would be rape) but a lack of consent

-The no sometimes means yes norm is subject to dissensus, both behaviorally and morally -Rape law reform has been targeted at repudiating no sometimes mean yes, but prosecutors and juries are not allowing that to happen MPC 213.1. Rape and Related Offenses.
(1) Rape. A male who has sexual intercourse with a female not his wife is guilty of rape if: (a) he compels her to submit by force or by threat of imminent death, serious bodily injury, extreme pain or kidnaping, to be inflicted on anyone; or (b) he has substantially impaired her power to appraise or control her conduct by administering or employing without her knowledge drugs, intoxicants or other means for the purpose of preventing resistance; or (c) the female is unconscious; or (d) the female is less than 10 years old. Rape is a felony of the second degree unless (i) in the course thereof the actor inflicts serious bodily injury upon anyone, or (ii) the victim was not a voluntary social companion of the actor upon the occasion of the crime and had not previously permitted him sexual liberties, in which cases the offense is a felony of the first degree. (2) Gross Sexual Imposition. A male who has sexual intercourse with a female not his wife commits a felony of the third degree if: (a) he compels her to submit by any threat that would prevent resistance by a woman of ordinary resolution; or (b) he knows that she suffers from a mental disease or defect which renders her

25

incapable of appraising the nature of her conduct; or (c) he knows that she is unaware that a sexual act is being committed upon her or that she submits because she mistakenly supposes that he is her husband.

-In MD and NY, force or threat of force still required by rape statute -WI does away with traditional statute, has a more complicated graded scheme where force/threat of force carries a stiffer penalty but other grades where its just sex without consent: -No mens rea in here -So how can courts figure out what the mens rea is when its not specified by the statute -So you look to AR (intercourse) and ATC (No Consent, Force or Threat) and ask what MR should apply a) Remember in Morriessete, court decided to apply knowledge standard for the MR because values supported that interpretation -Establishes gradations based on consent and threat of force -Strict Liability here, you need a yes, not just a lack of non-consent -What distinguishes the gradations? 1) force/causes pregnancy 2) threat 3) Lack of consent -Some chilling effect, but huge deterrence benefit in theory, non consensual sex is thwarted Regina v. Morgan (UK 1976, p.368) -Husband and army buddies come home wake wife up and have sex with her, while she is held down -Court adopts honest belief in consent as mental state standard on lack of consent -Question is whether to apply a negligence standard of honest and reasonable or a knowledge standard of just honest -Judge is saying that negativing mens rea is not a formal defense; the mens rea here is knowledge a) So honest mistake is a defense b) But at trial the Ds had a consent defense and not an honest mistake one c) The AC finds that even if they had made a mistake their TC defense of consent would still not stand -So the court ends up going with knowledge but still affirms Commonwealth v. Sherry (MA 1982, p.377) -Victim taken to one of the Ds home, she verbally protests but has sex with all 3 men, she said she was very frightened during all of this -Ds say very different story and that victim consented to everything -Court holds victim is not required to use physical force to resist, just needs to demonstrate her lack of consent is honest and real -Court says it is unaware of any mistake of fact defense regarding consent without reasonableness a) Its a matter of actual knowledge (honest mistake) versus negligence (honest and reasonable mistake) versus strict liability (no mistakes allowed) -In Commonwealth v. Lefkowitz, arising out of same fact pattern, no means no adopted

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-Problem with knowledge standard: you can fake it, pretend you didnt know; discourages people from asking questions (i.e. asking for consent) because you can just say you didnt know -Most jurisdictions employ the negligent standard: the jury will be doing a lot more work here to see if D was behaving reasonably; the standard is more objective, looks at what is normal reasonable in the community; as for fairness, if the D fails to live up to what the community believes to be reasonable behavior then its fair to punish him -Strict Liability Standard (what MA adopted): forces people to be very cautious; not as worried about a chilling effect like we were in Morissette; but what do you in communities with varying perspectives? In those instances, the chilling effect is going to be great a) Why is that when states institute no means no / strict liability standards, rapes dont go up? Because prosecutors dont bring the cases, judges influence cases, and jurors nullify State v. Rusk (Md. 1981, p.381) -Pat drove Rusk home and she contends he took the car keys making her come into his place -Pat said she was scared to death so went with D up to his room, begged him to let her leave, he refused, even put her hands on her throat lightly choking her, and then had sex with her -Rusk says it was totally consensual , and after sex Pat started freaking out -Majority finds the TC should not be reversed if they thought Pats apprehension of fear was reasonable (dont need force for rape) -Dissent says that Pats allegation of fear is not enough. D did not act in a way to cause fear or make her think he was going to rape her State in the Interest of M.T.S. (NJ 1992, p.387) -Victim claims she woke with MTS on top of her with his penis in her vagina -MTS has a very different story and claims that it was consensual until his fourth thrust when she kicked him out of the room -At TC proved that victim was not asleep but she had not consented -Court looks to the unclear statute and defines physical force. Court concludes any act of sexual penetration without the affirmative and freely-given permission of victim constitutes sexual assault. Physical force beyond penetration is not necessary for it to be unlawful -When no words are given, reasonable person interpreting the physical touchings between parties is how affirmative and free authorization to sex is understood -Acquaintance rape often takes place between two people who know each other with no use of force -Factfinder must only see if Ds belief that victim had freely given affirmative permission to sex was reasonable NOT whether engaging in sex without permission was reasonable -With the court deciding physical force like this, issue of Notice and Over Deterrence come up -Similar case to Keeler a) Controversial issue where institutions may want to dodge accountability MR AR AT Knowledge honest mistake Intercourse w/o consent Force or threat Negligence honest and reasonable mistake Strict Liability No means no -Negligence is the majority rule in the United States -Strict Liability abolishes any local norms that might have no meaning yes

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a) But even with strict liability, theres the potential for other institutions to not uphold the no means no standard (Police, Judges, Jurors) -The majority rule in the US is still requires force or threat for rape -Force or Threat bears on issue of consent and the mens rea -Implied threats are not good enough; the person has to be reasonably in fear of their life a) You need a threat sufficient to have a reasonable woman succumb VI. HOMICIDE CONVENTIONAL HOMICIDE GRADATIONS Intentional Unintentional st Premeditation Felony Murder 1 Degree (Carol & Perez) (Auman, Aaron, Phillips, and Smith) Murder 1. Felony Murder; 2nd Degree No Premeditation (Anderson) 2. Recklessness + Depraved & Malignant Heart Murder (Malone, Fleming?, Watson?); or 3. Intent => GBH Adequate Provocation 1. Recklessness- (no consciousness of risk Voluntary necessary) or Wanton/Gross Negligence Manslaughter + Heat of Passion - Cooling time (Welansky & Williams); or (Thornton, Carr) 2. Unlawful Act (rare, sometimes known as "misdemeanor manslaughter")

1st Degree 2nd Degree Murder

Involuntary Manslaughter

MPC HOMICIDE GRADATIONS Intentional Unintentional Purpose or Knowledge Felony Murder Murder Murder or Recklessness + EIHL Recklessness Manslaughter Purpose or Knowledge + Manslaughter Extreme Emotional Distress (Casassa) Negligence Negligent Homicide -MPC pays close attention to Mens Rea

Common Law: 1st v. 2nd Degree Murder o Supposed doctrinal standard: premeditation o In practice, not so much Most jurisdictions follow the PA standard and dont require much in the way of real premeditation (see Carol) Some (but not as many) require real premeditation (or at least did, compare, eg.g., Anderson & Perez) o Is there anything left over for 2nd Degree murder? MPC: Murder o Only one degree of intentional murder under MPC

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Common Law: Murder v. Manslaughter o Murder can be mitigated to manslaughter if there is: Adequate Provocation Heat of Passion Insufficient Cooling Time o What is adequate Provocation? Derivative of social norms Spousal Infidelity traditionally accepted (see Thornton), but also sometimes rejected (e.g., by MD legislature) o Who decides? Normally jury decides (Maher) Sometimes courts decide (Carr) MPC: Murder v. Manslaughter o Murder can be mitigated to manslaughter if there is extreme mental or emotional disturbance for which there is reasonable explanation or excuse. o Leads to battle of experts in court (see Casassa) MPC v. Common Law on Mitigation to Manslaughter o MPC conceals debate over what is adequate o Do we want contentious norms about who deserves to die to be made public in court, or kept private in the jury room? o MD reform suggests openness is good, but there might also instances where openness reinforces bad norms.

MPC 210.1. Criminal Homicide.

(1) A person is guilty of criminal homicide if he purposely, knowingly, recklessly or negligently causes the death of another human being. (2) Criminal homicide is murder, manslaughter or negligent homicide.

MPC 210.2. Murder.

(1) Except as provided in Section 210.3(1)(b), criminal homicide constitutes murder when: (a) it is committed purposely or knowingly; or (b) it is committed recklessly under circumstances manifesting extreme indifference to the value of human life. Such recklessness and indifference are presumed if the actor is engaged or is an accomplice in the commission of, or an attempt to commit, or flight after committing or attempting to commit robbery, rape or deviate sexual intercourse by force or threat of force, arson, burglary, kidnaping or felonious escape. (2) Murder is a felony of the first degree [but a person convicted of murder may be sentenced to death, as provided in Section 210.6].

MPC 210.3. Manslaughter.

(1) Criminal homicide constitutes manslaughter when: (a) it is committed recklessly; or (b) a homicide which would otherwise be murder is committed under the influence of extreme mental or emotional disturbance for which there is reasonable explanation or excuse. The reasonableness of such explanation or excuse shall be determined from the viewpoint of a person in the actor's situation under the circumstances as he believes them to be. (2) Manslaughter is a felony of the second degree.

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MPC 210.4. Negligent Homicide.

(1) Criminal homicide constitutes negligent homicide when it is committed negligently. (2) Negligent homicide is a felony of the third degree.

-2nd Degree murder is described as everything not 1st degree murder a) Premeditation is what distinguishes them Commonwealth v. Carrol (Pa. 1963, p.422) -The issue on appeal was whether the crime was premeditated or not (difference between murder in the first or second degree) -Carrolls defense is that he was gripped by a sudden impulse; he was conscious of what he was doing but wasnt in full control (he took gun and shot wife twice in the head) -The question here is was there sufficient evidence here to convict on first degree murder -The court affirms, but why? a) Even given the Ds own account, the court will not overturn because in that account you can find premeditation (reaches for gun and commits act) -Murder in Pa is defined as an unlawful killing of another with malice aforethought, express or implied. 1st degree requires willful, deliberate and premeditated killing. Court finds that no time is too short to allow for premeditation to occur (p.424) -On the matter of impulsiveness, society would be unprotected if we allowed impulsive killings to be treated as second degree of murder a) But even convicted of 2nd degree murder he is incapacitated; theres a reason for the gradation -We find the 1st degree murders to be more heinous, more culpable in society -Courts are not allowed to increase the conviction on appeal -In this arrangement, the jury has a lot of discretion here. The court cant bump it up, and in PA, the court wont bump it down, so lies with the jury -Cardozo wants the court to be more straightforward with the jury; they have the power to determine the gradation depending on their view of all circumstances but thats not explicitly told to them like in jury nullification People v. Anderson (Cal. 1968, p.426) -1st degree murder conviction overturned for a conviction of 2nd degree murder -Court uses three part test to determine premeditation: (1) Planning activity, (2) Motive/Prior relationship with victim, and (3) Precision/Manner of killing (was executed like a plan or just a hack-job) a) Court believes this case lacked all 3 of those things -Courts in CA empowered, unlike in PA, to bump the gradation down to 2nd degree a) If you had Carroll in CA, you could have gotten 2nd degree -Why is premeditation something we worry about? Isnt it easier to deter a premeditation than impulsiveness? a) Deterrence argument here is not so great -Expressive argument holds more water for making premeditation worse than impulsiveness

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-Advantages of giving tough questions to jury is that they decide the controversial issue; allows for the people to balance the difficult issues at hand and reach a conclusion representative of the community a) Disadvantages would be inconsistency, bias People v. Perez (Cal. 1992, p.432) -TC found 1 degree, AC reversed that to 2nd, and SC reinstates 1st degree -D killed victim in her home, had limited prior relationship and the manner of killing was sloppy -Court applies same test as in Anderson but yields a different outcome Maher v. People (Mich. 1862, p.437) -In Maher, 3 elements are brought out regarding voluntary manslaughter: adequate provocation, heat of passion, and insufficient cooling time
st

State v. Thornton (Tenn. 1987, p.440) -D shot his wifes lover in the bedroom -Defense is it was a crime of passion -Classic case of mitigation manslaughter -Is there adequate provocation? Sleeping with another mans wife would be provocative -Heat of passion? Seeing your wife sleep with another would no doubt create a heat of passion -Cooling time? D argues that the hours that elapsed was not enough time to diminish his passion -Of course, the prosecution could also argue against all of this a) His wife was loaded, they were separated; he walked into the situation; did a lot of other stuff like let the air out of tires and get camera -Insufficient evidence of 2nd degree murder turns out to be sufficient evidence of voluntary manslaughter -Court finds this to be a classic case of voluntary manslaughter -From Maher, passionate reaction must be reasonable; cant get angry over something because youre a bad person (like in Carr) Commonwealth v. Carr (Pa. 1990, p.446) -D became enraged when he saw lesbians making out. D claims his psychosexual history should suffice as adequate provocation -The ultimate test for provocation is whether a reasonable man confronted with the same series of events would have become impassioned to the extent that his mind was incapable of cool reflection a) If provocation found, still need to look at heat of passion/cooling time -Provocation here is not sufficient People v. Casassa (NY 1980, p.448) -D devastated by neighbors romantic rejection of him, brutally murders her Debate here boils down to extreme emotional disturbance -The trier of fact decides if extreme emotional disturbance (EED) -There are 2 standards to EED 1) Subjective standard, did the D act under EED

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2) The objective standard, is there a reasonable explanation or excuse for EED (determined from the viewpoint of a person in the Ds situation under the circumstances as De believed them to be) -TC applied test correctly and was not right in finding no mitigation because D acted with malevolence -Md. statute states that adultery situation does not constitute sufficient provocation mitigating murder to voluntary manslaughter (enacted after a man was sentenced to a work-release program after shooting his wife several hours after discovering infidelity) -People who kill on slight provocation are dangerous and need to be deterred with more serious punishments than those who are adequately provoked -The question is what is the best approachVoluntaristic in prof.s mind, you evaluate the provocation and passion -The MPC relies on EED that obliterates reason -Jurisdictions largely rely on the voluntaristic approach -When the law mitigates from murder to manslaughter, something is being said about the quality of that life that is taken and that can be distressing -Employing confusing doctrines like EED to juries leads to similar results as under the CL -If we leave the issue to juries the issue could be exposed but it could stay silent -Judges could take the issue upon themselves by restricting the juries access to expert witnesses, certain evidence, and decide doctrinally that certain provocations are more adequate than others and that certain amounts of time are sufficient/insufficient for cooling time a) Or the legislature could come in, like in MD, and say that this (wife cheating) is not adequate provocation for murder

Common Law: Involuntary Manslaughter o At least three Mens Rea standards Negligence Gross Negligence Recklessness (note: not always like MPC recklessness) o Theoretical dimension Objective standard. Makes deterrence sense; maybe not desert or expressive condemnation (compare Welansky and Williams) o Institutional dimension legislatures and courts employ language such as willful, wanton, gross, etc., to distinguish from civil liability, leave it to a jury to decide. MPC: Manslaughter = Reckless Homicide Common Law: Depraved & Malignant Heart o Resulting from recklessness with respect to the risk of death (in some jurisdictions, may not require conscious disregard - constructive recklessness see Malone & Fleming); and o Act and circumstances show a depraved and malignant heart MPC: Just Call it Murder o Reckless with respect to the risk of death; and

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Displaying an extreme indifference to the value of human life. MPC & Common Law: Felony Murder o Limitations Most jurisdictions list specific felonies Many also require that the natural consequences of the underlying act be inherently dangerous (e.g., CA; see Phillips) Merger: underlying felony cant be a lesser included part of murder (e.g., CA; see Phillips) o Reform California Strategy: merger creates odd gradations. Michigan Strategy: repeal.
o

-The MPC says there is criminal liability for negligent actions (most jurisdictions dont agree with the MPC) -Mere negligence around dangerous instrumentalities would constitute involuntary manslaughter -You dont want to over deter things like driving or playing baseball even though they involve dangerous instruments, the difference is the social context -Under the MPC, negligence is someone who is unaware of a substantial and unjustifiable risk -Under the MPC, recklessness is someone who is aware of a substantial and unjustifiable risk but disregards it a) The difference between the two is consciousness -Consciousness of a risk makes someone more culpable because theyre aware about it, it could have been avoided a) You want to deter people from taking substantial and unjustifiable risks b) Its harder to deter someone who is doesnt know of the risk Commonwealth v. Welansky (Mass. 1944, p.464) -D ran a nightclub where the emergency exits were incredibly hard to find/open -Many people died, D found guilty of wanton/reckless care, which is intentional disregard for dangerous risk -The negligence standard is if the ordinary person would be aware of the risk then the D should be or theres negligence -This guy is a greedy SOB (locking fire exits to prevent them from skipping out on the bill) a) Poor character State v. Williams (Wash. 1971, p.471) -Ds negligently failed to provide their child with medical care, and the baby died because of it -Something was wrong with the baby, parents werent very bright, just gave it aspirin because didnt want social services to take it away -Wash. doesnt require gross negligence, the crime is deemed committed even though there was simple or ordinary negligence -Did the Ds have the capacity to know about the risk / make the appropriate judgments? a) Court holds them criminally liable regardless -Hart, unlike Justice Thomas, believes people should be held to a subjective standard (only liable for what they could have known)

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-Thomas standard approach is easier to administer, and its better to err on the side of over punishing Commonwealth v. Malone (Pa. 1946, p.480) -D and victim were boys playing Russian roulette with a pistol when the victim was shot accidentally in the head a) D was convicted of 2nd degree murder -Court finds an act of gross recklessness for which death must reasonably anticipated was committed and that exhibits a wicked disposition (a depraved and malignant heart) -This wouldnt be first degree murder because premeditation was lacking a) What is the mens rea here? Well its reckless for sure b) Manslaughter occurs with mere recklessness, what distinguishes this case to make it 2nd degree murder is that it is GROSS Recklessness that the D should have reasonably anticipated death could result indicating a state of mind of malice Under MPC, there would likely have been a manslaughter conviction a) Not a case of Extreme Indiff. To Human Life (EIHL) because the boy thought the bullet wouldnt be fired -The moment you say should have known youre in negligence; for recklessness you have to know US v. Fleming (4th Cir. 1984, p.484) -D was drunk, lost control of his car and killed victim -Convicted of 2nd degree, appeals arguing it shouldve manslaughter b/c no malice aforethought -Court holds that malice can be established by reckless and wanton conduct that D is aware will lead to death or serious injury -D not only drove drunk but his driving was so reckless to show a depraved disregard for human life -Not consciously making the decisions, this guy is just drunk -The court deals with this fact by pointing out that voluntary drunkenness is not a mitigating factor -What is the implication of this for all drunk drivers? a) Court qualifies that if youre drunk and driving like a normal person would then not as big a deal, but if you drive erratically and are drunk then youre in trouble -The point is that the prosecution, etc are saying he SHOULD HAVE BEEN aware, that by definition is negligence -Court upheld 2nd degree murder conviction Felony Murder 1) Origins 2) Basic Rule (Serne and Auman)-----------> 1st Degree: Rape, arson, kidnapping, robbery, burglary, mayhem; 2nd Degree: all other felonies 3) Limitations a. Inherent Danger b. Merger 4) Debate and Reform

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-Felony murder imported from England to the US -In the US we have always increased the number of felonies on the books and in most jurisdictions we still have the felony murder doctrine -MI court held that felony murder is an unnecessary. Finds that the state has no statutory felonymurder rule which allows the mental element of murder to be satisfied by proof of the intention to commit the underlying felony a) Since this rule, state legislature has not amended murder statute to allow felony murder People v. Phillips (Cal. 1966, p.510) -Charged with grand theft and felony murder for saying he could treat cancer patient without surgery. Court reversed felony murder conviction because grand theft is not an inherently dangerous felony, which you need for felony murder -What happens when merger and inherently dangerous is combined? See Watson case a) D breaks in with a weapon and kills his ex-wife, though he broke in to commit a robbery -Seems like this should be a murder case, but what if the person breaks in steals a stereo, sparks a fire, and the woman dies anyway a) This case is more easy to punish than the one where the husband shoots the wife -This is the problem in CA, where the state is trying to get rid of felony murder by broad interpretations of merging and inherently dangerous -In MI, they decide that felony murder is going to require all the elements of another murder (override felony murder basically); CA wont do that because they dont want to run over the legislature -The argument against the MI approach is judicial activism BUT judges came up with it anyway through common law and if the legislature wanted to change it they could -In CA they pretend to be respectful of the legislature but theyre essentially gutting the law VII. ATTEMPT

Mens Rea o Purpose (and, very rarely, knowledge) generally excludes crimes of negligence and recklessness but some jurisdictions allow for prosecution of strict liability crimes (e.g., statutory rape) o Read the MPC carefully, as it is the majority rule. Actus Reus o Common Law: Dangerous Proximity (Peaslee & Rizzo) o MPC (majority rule): Substantial Step (Jackson & Buffington) Renunciation o Common Law: abandon or otherwise prevent commission of crime (Joyce) o MPC (majority rule): complete and voluntary renunciation of criminal purpose (Joyce?) Merger o If the crime is actually committed, then the attempt is merged with the actual offence

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-Deterrence (preventing them from trying again), expressive condemnation (wrong to try to commit a crime), and Individual desert (bad that someone had malice in the heart to attempt a crime) -Marginal deterrence to be gained from punishing someone less who has attempted a crime and failed than someone who has successfully completed a crime (chance to reconsider and weigh the options) -From a social meaning perspective, less offensive when a crime is not completed -Crimes of recklessness and negligence can never be attempted because of this -An exception: statutory rape and some strict liability crimes. Many jurisdictions hold that someone can be charged with attempted statutory rape even if unaware of the AT (also attempting to kill a federal officer, even if D did not know that he was a federal officer)applies to these specific malum in se crimes, they are wrongs in and of themselves -Posner: want to criminalize attempts to deter future attempts, increase expected cost of crime, and incentivize changing ones mind and not completing crime MPC 5.01. Criminal Attempt.
(1) Definition of Attempt. A person is guilty of an attempt to commit a crime if, acting with the kind of culpability otherwise required for commission of the crime, he: (a) purposely engages in conduct that would constitute the crime if the attendant circumstances were as he believes them to be; or (b) when causing a particular result is an element of the crime, does or omits to do anything with the purpose of causing or with the belief that it will cause such result without further conduct on his part; or (c) purposely does or omits to do anything that, under the circumstances as he believes them to be, is an act or omission constituting a substantial step in a course of conduct planned to culminate in his commission of the crime. (2) Conduct That May Be Held Substantial Step Under Subsection (1)(c). Conduct shall not be held to constitute a substantial step under Subsection (1)(c) of this Section unless it is strongly corroborative of the actor's criminal purpose. Without negativing the sufficiency of other conduct, the following, if strongly corroborative of the actor's criminal purpose, shall not be held insufficient as a matter of law: (a) lying in wait, searching for or following the contemplated victim of the crime; (b) enticing or seeking to entice the contemplated victim of the crime to go to the place contemplated for its commission; (c) reconnoitering the place contemplated for the commission of the crime; (d) unlawful entry of a structure, vehicle or enclosure in which it is contemplated that the crime will be committed; (e) possession of materials to be employed in the commission of the crime, that are specially designed for such unlawful use or that can serve no lawful purpose of the actor under the circumstances; (f) possession, collection or fabrication of materials to be employed in the commission of the crime, at or near the place contemplated for its commission, if such possession, collection or fabrication serves no lawful purpose of the actor under the circumstances; (g) soliciting an innocent agent to engage in conduct constituting an element of the crime. (3) Conduct Designed to Aid Another in Commission of a Crime. A person who engages in conduct designed to aid another to commit a crime that would establish his complicity under Section 2.06 if the crime were committed by such other person, is guilty of an attempt to commit the crime, although the crime is not committed or attempted by such other person.

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(4) Renunciation of Criminal Purpose. When the actor's conduct would otherwise constitute an attempt under Subsection (1)(b) or (1)(c) of this Section, it is an affirmative defense that he abandoned his effort to commit the crime or otherwise prevented its commission, under circumstances manifesting a complete and voluntary renunciation of his criminal purpose. The establishment of such defense does not, however, affect the liability of an accomplice who did not join in such abandonment or prevention. Within the meaning of this Article, renunciation of criminal purpose is not voluntary if it is motivated, in whole or in part, by circumstances, not present or apparent at the inception of the actor's course of conduct, that increase the probability of detection or apprehension or that make more difficult the accomplishment of the criminal purpose. Renunciation is not complete if it is motivated by a decision to postpone the criminal conduct until a more advantageous time or to transfer the criminal effort to another but similar objective or victim.

Commonwealth v. Peaslee (Mass. 1901, p.523) -Guy charged with attempted arson after setting up combustibles around a building but chickening out before he did it -The court applies a dangerous proximity test and convicts the guy, even though the guy clearly renounced that he was going to do the crime People v. Rizzo (NY 1927, p.524) -Bank robbery case -Again the question is how close to committing the crime did the Ds come -Ds not guilty because they had not found nor reached the presence of the person they intended to rob -These guys came as close as you can get to committing a crime without doing it and arent convicted because court didnt find dangerous proximity -Under the MPC, both cases satisfy the substantial step toward a crime, but (4) of the MPC may get Peaslee off (but maybe not because he renounces after the kid hesitates)a question for the jury but under the dangerous proximity test (CL) the judge decides) -So institutional shift from the CL (judge decides proximate danger) to the MPC (jury decides if the facts meet the standard of attempt) -What drives jurisdictions to switch to the MPC approach? a) Law should encourage renunciation b) Stop people before they get to the dangerous proximity -First caveat, where a result is part of the essential element of crime (e.g. death for homicide) then knowledge with respect to that result is sufficient a) So if purpose does something and knows death is likely to result then there is sufficient MR for attempt -Second caveat is that some (but not all) strict liability cases in some (but not all) jurisdiction, purpose with respect to the attendant circumstances is not required (e.g. statutory rape); still have to purposely engage in sexual intercourse but dont need to know the age or purposely go after a younger woman - Under CL, had to get just up to the dangerous proximity and could abandon it without liability -But wouldnt it be able to prevent people from getting dangerously close

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-This is what MPC did with substantial step test (has to be strongly corroborative of the criminal intent) a) MPC allows for abandonment, but it has to be a complete heartfelt abandonment -No longer up to the judge to figure out the doctrine (e.g. whether someone was dangerously proximate); MPC lays out what is needed and exceptions, etc US v. Jackson (2d Cir. 1977, p.527) -Ds charged with attempt to rob a bank -Were casing the joint when they detected surveillance and tried to escape -MPC has 2 tier test for attempt: (1) Must have requisite mens rea and (2) must take a substantial step toward the commission of the crime -The abandonment in the first attempt would not constitute renunciation because they only did that because they thought they might get caught (Is the contrary to deterrence theory? No because deterrence theory is not suppose to encourage people to plan for an easier crime) US v. Buffington (9th Cir. 1987, p.531) -Another bank robbery case -Again the Ds are surveying the scene. Power outage forced bank to lock its door and so men drove away but were then arrested -At trial charged and convicted with attempted robbery; on appeal that is reversed because the conduct of Ds didnt meet substantial step test -If youre a prosecutor you might be able to argue substantial steps: a) Revolvers (2)(e) of MPC p.526 b) Standing around, waiting (2)(a)(c) US v. Joyce (8th Cir. 1982, p.535) -Government sting operation. D refused to show money to buy cocaine and then refused to purchase the cocaine, and left -D renounced his criminal act, all that occurred was a preliminary discussion that broke down The guy flew to St. Louis; demands to see the cocainehow are these not overt acts -Could read it as abandonment but its not heartfelt/voluntary, if he ever really tried to abandon at all -In cases where there is some chance of substantial harm, maybe want a more flexible standard for some substantial step -Prof. believes this judge still relying on their old dangerous proximity test VIII. GROUP CRIME

MPC Section Section 2.06(3)(a) & Modern Common Law Actus Reus o Solicit or Assist in Criminal Act Need not contribute to result (Tally) Mere presence not enough unless it evidences encouragement (Wilcox, Clarkson & Dunlop) Omissions may be enough were there is a duty (Noffsinger & Hunter) Mens Rea

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Mental state of underlying offense (Wilson) Purpose of promoting or facilitating the underlying act (evidenced by what?) Stake in the venture / Nexus of purpose? (Gladstone) Common Plan? (Puffer) Derivative Liability o In a few jurisdictions, the accomplice cannot be held liable for a crime the principle did not commit. (Richards, Hayes) Gebardi Exception o Cant be an accomplice if Defendant is victim of the offense The offense is defined so that defendants conduct is inevitably incident to its commission

o o

MPC 2.06. Liability for Conduct of Another; Complicity.

(1) A person is guilty of an offense if it is committed by his own conduct or by the conduct of another person for which he is legally accountable, or both. (2) A person is legally accountable for the conduct of another person when: (a) acting with the kind of culpability that is sufficient for the commission of the offense, he causes an innocent or irresponsible person to engage in such conduct; or (b) he is made accountable for the conduct of such other person by the Code or by the law defining the offense; or (c) he is an accomplice of such other person in the commission of the offense. (3) A person is an accomplice of another person in the commission of an offense if: (a) with the purpose of promoting or facilitating the commission of the offense, he (i) solicits such other person to commit it, or (ii) aids or agrees or attempts to aid such other person in planning or committing it, or (iii) having a legal duty to prevent the commission of the offense, fails to make proper effort so to do; or (b) his conduct is expressly declared by law to establish his complicity. (4) When causing a particular result is an element of an offense, an accomplice in the conduct causing such result is an accomplice in the commission of that offense if he acts with the kind of culpability, if any, with respect to that result that is sufficient for the commission of the offense. Selected Sections of the Model Penal Code Page 13. (5) A person who is legally incapable of committing a particular offense himself may be guilty thereof if it is committed by the conduct of another person for which he is legally accountable, unless such liability is inconsistent with the purpose of the provision establishing his incapacity. (6) Unless otherwise provided by the Code or by the law defining the offense, a person is not an accomplice in an offense committed by another person if: (a) he is a victim of that offense; or (b) the offense is so defined that his conduct is inevitably incident to its commission; or (c) he terminates his complicity prior to the commission of the offense and (i) wholly deprives it of effectiveness in the commission of the offense; or (ii) gives timely warning to the law enforcement authorities or otherwise makes proper effort to prevent the commission of the offense. (7) An accomplice may be convicted on proof of the commission of the offense and of his complicity therein, though the person claimed to have committed the

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offense has not been prosecuted or convicted or has been convicted of a different offense or degree of offense or has an immunity to prosecution or conviction or has been acquitted.

Accomplice Liability AR: Encouraging, assisting, or soliciting a crime MR: Purpose of seeing the crime succeed Rough heuristics: Nexus / Stake in venture, neither necessary or sufficient a) Something that could help establish purpose -Aiding and abetting is an after the fact offense and in the US, it is considered less liable than accomplice liability, which is quite broad and only has one standard (can be held just as liable as the person who commits the crime) Wilcox v. Jeffrey (UK 1951, p.544) -American saxophone plays in England without the proper license -The D was found guilty because he derived a benefit from the illegal activity (enjoying the music and then writing a column about it)Aid and Abetting illegal act a) Clapping, paying for a ticket and seeing the event succeed so he can write an article all are parts of the AR here Wilson v. People (Colo. 1939, p.546) -Wilson told Pierce he would help him rob a store. Once Wilson had gotten Pierce through a window into the store, Wilson called the police -Sounds like Wilson is encouraging and assisting the criminal a) The guy didnt even have the watch -But Wilson did not have the purpose of seeing the crime succeed, and he doesnt have a stake in the success of the crime -Wilson though is a loose cannon, but is not as dangerous as Pierce, whos committing the crime State v. Gladstone (1980, p.549) -D drew a map for where the undercover cop could find someone to buy weed from a) He is accused of assisting the seller and not buyer with the unlawful sale of marijuana -If Gladstone made a point to say tell Kent I sent you that could change things a) No nexus but thats not necessary, MR arguably established with this -Is Gladstone a dangerous guy, someone worthy to try to deter? -If Gladstone referred Thompson to hit men to kill somebody would that change things? a) Yes because that is a lot more troubling even if theres no change in the MR/AR -Court reversed Gladstones conviction -So you could leave the question of Is this person responsible? to the legislature, the jury (often happens), or the juryBasically everyone in the criminal justice system does this -A lot of the outcome depends on who is trying the case and their background (intangibles) -If Posner did nothing, the legislature would be more likely to do something (Keeler and over punishment v. under punishment) -Posner would want to grade the MR based on purpose not knowledge (e.g. a lot worse if you help a kid buy weed than help Bin Laden). This is not the majority rule. -Legislatures fail to provide the sophisticated gradations thatd you like

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Regina v. Clarkson (UK 1971, p.550) -Two guys watched an army buddy rape a girl. Charged with aid and abetting -Would have to infer the Ds presence as encouragement -While the inference could be drawn, charges have to be dropped Regina v. Dunlop (Canada 1979, p.551) -Another rape case where guy was present when fellow biker gang members rape a girl -Again, D is just present and that does not make him guilty because he did nothing to stop it Accomplice Liability (contd): AR: Encouraging, assisting, soliciting (Willcox & Tally) MR: With purpose or principles success (Wilson & Gladstone) a) Evidence: Stake/Nexus But remember neither necessary nor sufficient 1) Derivative Liability 2) Gradations based on intents (Richards) 3) Kingpin Statutes (Pino-Perez) 4) Special Duties (Dunlop & Clarkson v. Noosfringer & Hunter) Derivative LiabilityCan the accomplice be held liable if the principle is not? State v. Hayes (Mo. 1891, p.560) -D helps robber through window, accepts bacon the guy hands back out, but it was all just a setup to catch the D, who only helped the guy through the window -Hill doesnt have the intent of actually completing the crime -If Hill had boosted D through the window, then D would have been guilty of the more serious crime -D is more dangerous than the principal here, who was not charged -Expressively we may want to do something here, but not convict them of the more serious crime -Cannot convict someone of the offence when the offence is not committed (can get him for petit larceny, for taking the bacon?) Regina v. Richards (UK 1974, p.567) -D had gotten two hired thugs to injure her husband -The guys did not have the intent to do grievous harm; she didnt want her husband killed but wanted him in the hospital -At TC, she gets charged with the more serious crime -Because the more serious crime was not committed, she cant be convicted for it. Is that right? -This woman orchestrated the crime -Accomplices are not going to be held more liable than the offence of the principles -Policy issues cut either way here US v. Pino-Perez (7th Cir. 1989, p.573) -Want to restrict kingpin to the person at the top, if you extend liability down, youve done away with the purpose of the statute itself -Peno is not an underling, hes an independent supplier -Looking at the statute on pg 573, looks like the guy fits the bill

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-Theres another statute on the books (841 on p.575) to punish this guy a) Why have it if you make him an accomplice -Look at this from perspective of institutional performance a) Peno could go either way b) If Peno gets off for the kingpin statute, we risk under punishing him and not deterring c) If Peno gets the statute, the risk is we over punish d) Judiciary should take the under punishment risk, so the legislature does something to fix this NC v. Noffsinger (2000, p.562) -Robin and her boyfriend, David Tripp were in charge of Robins 15 month old child David -The child was rushed to the hospital for injuries and Robin and David appeared to be laughing/concerned about being arrested -Robin had picked up the child 2 weeks earlier from the Proffitts home and it had bruises -Tripp gave David a bath the day before, burned the babys skin off. The next day gave it another bath and the child fell and was hitting its head -The child then look unresponsive CPR administered, ambulance called -Tripp pled guilty to 4 counts of felony child abuse, Robin was sentenced for felony child abuse -Robin appealed; AC finds Robin didnt take affirmative steps to protect her child, therefore she could be found guilty of felony child abuse on the theory of aid and abetting NC v. Hunter (2002, p.563) -Dewella Hunter was charged with 2 counts of felony child abuse in regards to her two adopted girls LaTrece and LaCarol -Dewella married Monte Hunter, watched the girls but had mental problems -Concern that the 12yr old LaTrece was pregnant, Dewella unsurprised to discover this but claims to know nothing about it -In examination with Dr. Russo, LaTrece admits that Monte had impregnated her -Dewella appeals claiming the state did not have substantial evidence that she allowed Monte to sleep with her girls -If Dewella had been convicted on an aiding and abetting theory, then she would have had to have been present -In fact Dewella was aware that Monte might sleep with the girls, knew LaTrece stopped PMSing -So conviction affirmed because she allowed or permitted abuse on her child MPC 2.06: (6) Unless otherwise provided by the Code or by the law defining the offense, a
person is not an accomplice in an offense committed by another person if: (a) he is a victim of that offense; or (b) the offense is so defined that his conduct is inevitably incident to its commission;

-This is known as the Gebardi exception IX. CONSPIRACY

MPC (Section 5.03) & Common Law o Mens Rea

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With the purpose of committing a crime o Actus Reus Agrees to attempt, solicit, or commit a crime; or Agrees to aid another person in doing so (For smaller crimes, there must be an overt act) Similarities with Attempt & Accomplice Liability: o Must have mens rea for underlying offense o Must purposefully seek the criminal act o In most jurisdictions, for strict liability crimes, must have knowledge of attendant circumstances (though there are many exceptions: assaulting a federal officer; and in some jurisidctions, the age of a statutory rape victim) Differences: o Common Law, but not MPC: No merger (can be guilty of conspiracy *and* the underlying crime) o Fully liability for reasonably foreseeable acts of co-conspirators (Pinkerton) o Withdrawal/renunciation: Must declare to co-conspirators or the police What is an agreement? o Interstate (dicta: no clear agreement needed) o Alvarez1 (smile and nod not enough) o Alvarez2 (smile and nod is enough) RICO o New concept of criminal enterprise. Agreeing to participate in the enterprise does not require that the co-conspirators know the identities of other members; rather, they just need to know of the enterprises existence.

MPC 5.03. Criminal Conspiracy.

(1) Definition of Conspiracy. A person is guilty of conspiracy with another person or persons to commit a crime if with the purpose of promoting or facilitating its commission he: (a) agrees with such other person or persons that they or one or more of them will engage in conduct that constitutes such crime or an attempt or solicitation to commit such crime; or (b) agrees to aid such other person or persons in the planning or commission of such crime or of an attempt or solicitation to commit such crime. (5) Overt Act. No person may be convicted of conspiracy to commit a crime, other than a felony of the first or second degree, unless an overt act in pursuance of such conspiracy is alleged and proved to have been done by him or by a person with whom he conspired. (6) Renunciation of Criminal Purpose. It is an affirmative defense that the actor, after conspiring to commit a crime, thwarted the success of the conspiracy, under circumstances manifesting a complete and voluntary renunciation of his criminal purpose.

Conspiracy AR: Agreement MR: Purpose Withdrawal has to be affirmative

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-Biggest gun in criminal prosecutors arsenal -Conspiracy is punished as a fraction of the underlying offense or at some fixed rate -Want to punish conspiracy less for deterrence; but if the crime is committed, some jurisdictions allow for cumulative punishment -Under MPC, underlying acts are charged under one act, not the same in common law, can double up conspiracy with attempt and conspiracy with completed crime -Katal argues conspiracy should be treated as a separate crime because group crime created by conspiracy is more dangerous -Conspiracy is the atomic bomb of federal courts, RICO is the hydrogen bomb -Conspiracy is incredibly expansive and gives great procedural advantages -Only way to constrain broad liability would be through Agreement element of conspiracy -Dont have to show a lot, but have to show entering into a true partnership in a criminal enterpriseHard to figure out what constitutes an agreement Pinkerton v. US (US SC 1946, p.596) -Daniel convicted of crimes his brother did (Daniel is in prison no less) -As a prosecutor, Pinkerton opens the floodgates for charging people -An overt act of one partner may e the act of all without any new agreement specifically directed to that act Interstate Circuit v. US (US SC 1939, p.599) -Price fixing case for movies -Have no evidence that of agreement; the guy just wrote a letter and copied all of the other distributors -The court finds that the evidence established this agreement, D obviously disagrees a) Points to the behavior to prove thats enough (parallelism among movie theaters) US v. Alvarez (5th Cir. 1980, p.602) -Nods and smiles, does that constitute an agreement? -At first go, court says there was no agreement -Alvarez just smiles and nods, doesnt understand English, intimidated by powerful figures -The plot would have gone on with or without Alvarez -In a world without conspiracy theory, couldnt nab Alvarez on attempt or accomplice because the crime hasnt happened yet and really hasnt taken a substantial step toward committing the crime -Alvarez just doesnt seem as culpable as these other cats -If you punish Alvarez this early on in the plot, no point for them in backing out -The first panel said he aided and abetted but didnt commit conspiracyprobably because the panel found him less guilty as the others -Unlike in Interstate, where all the partners were necessary, not the case with Alvarez a) Does Alvarez have an effect on the group dynamic? RICO -Created to breakup organized crime -Can have many degrees of separation between people but all will be liable for the offenses of the criminal enterprise

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-Have to do more than show people are part of a group and someone in the group committed an offense a) Show a series of crimes that are somehow committed X. SELF DEFENSE

Common Law: Classic Formulation o Honest & reasonable belief that: deadly force is necessary to repel threat of death or GBH; and threat is imminent o Not always objective (Wanrow) MPC: Mens Rea limitation - dont worry about it. Imperfect Self-Defense o Honest but unreasonable belief mitigates gradation of homicide (domesticating jury nullification in cases like Goetz?) East Dakotan Modifications o Exception for kidnapping, forcible rape or sodomy, robbery (e.g., NY) o True Man (no duty to retreat) (Renner) Majority position, though some require retreat where possible From Home Just about all hold no duty to retreat from ones home (e.g., FL Statute) Exception in cases of aggression by family members o Battered Woman Syndrome (Kelly & Norman)

-East Dakota example: Human life is sacred to our law but so is individual dignity Refuse to adopt rule that would allow stronger to prey on weak by obliging them to submit to public thrashings Use of deadly force warranted only to secure self-preservation Appropriate standard has both subjective and objective elements but relationship should be stated more precisely than the instruction Honest belief is objectively reasonable so long as he was in fact subject to a physical assault by the victim-who can predict with accuracy the degree of danger he faces? Risk of error more justly assigned to the aggressor than the victim -Why not allow him to defend his dignity? Offends sense of proportionate response -Does it make a difference that the burden is on the defendant to prove that their perception was reasonable? -If honestly believed-encourages vigilante -Has to be something objective that people can agree on State v. Wanrow (Wash. 1977, p.625) -D shot a man who was much bigger than her, the guy had a bad history and was freaking out the neighbors

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-Justification for self-defense is to be evaluated in light of all facts and circumstances, including those known substantially before the killing -Jury should have been allowed to consider the degree of force which a reasonable person in the same situation would use -Respondent was entitled to have jury consider her actions in light of her own perceptions of the situation, including those perceptions which were the product of our nations history of sex discrimination -Liberal humanism values life above all else; drives Self Defense doctrine -In the case of Rama, under the classic doctrine, Ramas loss of dignity and so forth dont justify his killings of the two men -East Dakota offers an alternative, saying that values such as dignity are JUST as important as life; this approach would evaluate the character of the person defending his honor, dignity, etc against the values of those attacking him -Saw some of East Dakota in Wanrow -There are jurisdictions that bend requirements of imminence and reasonableness, like in Wanrow -If courts arent willing to bend self defense doctrine, juries can -A lot of whats going on in trials is based on social norms, how the judge and jury look at the defendant or victim -Bentham: always try to grade the punishment so it seems commensurate to the crime at hand a) What you have with the doctrine of Imperfect Self defense Self Defense -Honest: reasonable belief that deadly force is necessary to repel an imminent threat or death Imperfect Self Defense -Honest nut unreasonable belief (Caps liability at manslaughter) East Dakotan Exceptions Kidnapping, Rape, Sodomy, Robbery -In Ramas case, Imperfect Self Defense (ISD) offers a reasonable alternative to the two possible extreme outcomes of murder 1 or acquittal People v. Goetz (NY 1986, p.618) -Have a grand jury here; convened to give indictments; NY high court overturns dismissal saying that it should be a reasonable person standard under the circumstances, not what Bernard thought was reasonable; more objective standard -NY statute allows use of deadly force to prevent forcible robbery a) Some cracks here in the liberal humanist approach, a bit of East Dakota in NY -Is Goetz even being robbed here? Jury would say hes about to get robbed -What kind of message is the acquittal sending to the public? Vigilante justice, Rama message -Race a big issue in this case -Would the case have come out the same way if ISD was an option? -After the trial, NY expanded self defense to consider more of the surrounding circumstances, like Wanrow

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Duty to Retreat -If one has no ability to retreat then justified to use self defense -About half the jurisdictions have no duty to retreat -True man doctrine: man w/o fault is not obligated to retreat from an assailant (p. 641) -See Beale (p.644); cowardly to retreat but 10 times worse to kill Castle Doctrine & Exception -Dont have to flee your home, if youre assailed there you can hold your ground; maybe about self preservation or self defense -One must retreat if the aggressor is a member of ones own family

TN v. Renner (TN 1995, p.639) -True man doctrine did not apply here for the D because he made sure to leave in a manner that confrontation would ensue when he could have just left through a kitchen door with no problems -Interesting that deterrence is the grounds for justification but a little bit of East Dakota motivating no duty to retreat (duelist mentality) Battered Woman Syndrome (BWS) -Expert testimony bolsters SD argument (reasonable, imminent threat) -No law of justifiable domestic homicide State v. Kelly (NJ 1984, p.647) -D killed husband. Years of frequent abuse and threats from husband. He was coming at her and she stabbed him -History of battery means that victim is an expert of husbands battery, what she should expect -Goes to whether Gladys had a reasonable fear for death when husband came at her -Why hasnt the woman left if things are so bad? a) Part of BWS is that woman is helpless and is unable to change the situation, even by escape -Court finds BWS is scientifically reliable so the case is remanded State v. Norman (NC 1988, p.654) -Judy was subjected to some heinous abuse for 25 years -Judy claims that she needed to kill her husband to save her own life; also had expert testimony supporting BWS -TC finds theres not enough evidence to support claim of self defense so no instruction on it for the jury -At issue in the case is whether there was an immediate threat to Judy, as she killed her husband while she was asleep -Certainly seemed to have reason to fear, husband beat her viciously before shooting and sheriff was afraid for her safety if he arrested the guy -AC finds the threat to be imminent because husbands sleeping was just a break in his reign of terror and was her first opportunity to respond

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-The supreme court doesnt find the immediacy necessary for self-defense here, reinstates TC court conviction -Right after trial, governor commuted her sentence -No solution to BWS in terms of self-defense a) Some courts institute subjective standard based on what that particular woman was going through (psychological evidence). Dissent in Norman says the imminent harm requirement in these cases should be done away with -BWS can be used to show womans belief is reasonable -Under classic definition of self defense, imminent threat required; women who attack their husbands when not being beaten fail to meet that standard -So what do we do with women who respond when not being beaten? a) BWS proponents say the threat is always there, and we need to adopt a different standard -Notion of justified domestic homicide? -If willing to make certain exceptions to self defense (East Dakotan ones), why arent we willing to make an exception with BWS? -Could institute some kind of legislation for justifiable domestic homicide a) Unlikely legislature would take the lead on this b) The courts could take the lead, but how do they go about it? Question of what jurors are allowed to hear in terms of evidence and jury instructions i) So courts could relax the reasonableness standards (Wanrow) -Can just leave the law is and allow clemency in some circumstances a) The executive branch will be more attuned to peoples feeling on a case or issue -Some argue that the law is about privileging life and have a standard for everyone, others would argue more of an East Dakotan approach -Syndrome talk hedges these two approaches. Doesnt say the husband was deserving but explains what the woman was going through XI. NECESSITY

Common Law o Choice of evils o Defendant chooses lesser evil o No contrary legislative intent o Imminent greater evil requires choice o Choice not created by defendant o Not a defense to homicide (Dudley & Stephens) MPC o Immanency not required (but bears on claim of no alternatives) o No bar on self-created choices, but defendant may be liable for crimes of recklessness or negligence o Available in homicide prosecutions Protest Crimes o Generally fail under both Common Law and MPC because there is a democratic alternative (no end run around democratic process. (See Oakland Cannabis, Schoon, and Hill)

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Necessity CL MPC Imminence Imminence a factor Not created by D Self-created choice tracks Mens Rea D chooses lesser evil No contrary legal intent No defense to murder No bar to Murder defense -Motivation behind necessity clear, want people to do the right thing, even if its illegal US v. Oakland Cannabis Buyers Cooperative (US SC 2001) -Congress thought about medical exceptions, didnt put it in there, it was no accident -The Court goes farther saying no statute should allow for an unarticulated necessity defense, but the concurring opinion notes this is an overstep as many defenses are not articulated in statute (e.g. self defense) -Concurring notes that the fact that its distributing marijuana is a problem, and points out the narrow holding of the Court and then says the rest is just dicta US v. Schoon (9th Cir. 1992, p.681) -Act of indirect civil disobedience; many alternatives to Ds actions (had a problem with El Salvador and US tax dollars going there, so they trashed an IRS office) -A democratic enhancing rule, cant go around the process to get what you want US v. Hill (N.D. Fla. 1994, p.684) -D killed abortion doctor and others to prevent abortions -Similar to Schoon, there are legal alternatives to Ds action a) Democratic process for all of this -Many legal alternatives to Ds action (not like helping a prisoner out of a burning jail, no sudden unexpected emergency here) Regina v. Dudley and Stephens (1884, p.686) -Shipwreck survivors kill a weaker member so they can survive -Killing the weaker guy is the lesser of two evils -From a utilitarian calculus no problem here -Enforce the law might mean granting clemency -Men were convicted and sentenced to death but commuted to 6 months in prison Why in the prison escape case would it be good for the jury to have plenary powers but not in the abortion case (Hill) -Imagine in both cases judge gives jury necessity instruction and juries acquit a) What does that say? b) The norm at stake in Unger is that you can protect your own personal safety c) The norm in Hill would be justifiable homicide of abortion doctors (much more controversial) -So in Unger, courts willing to hand it over to jury because the norms jury would be drawing on would be general ones, shared by most people or at least not controversial ones -In Hill could you imagine a community where a jury might acquit?

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-Necessity is a justification defense. Morally speaking, they were justified in doing what they were doing (same is true in Self Defense) XII. DURESS

Common Law o Threat of death or GBH o Against defendant or a close friend o That an ordinary person would yield o Threat must be imminent (Fleming, Contento-Pachon) o Duress situation not self-created o No defense for murder MPC o Threat of unlawful force o That a person of reasonable firmness would not resist o Threat need not be imminent, though this goes to whether a reasonable person would resist o Threat may be against any person o Defendant may not have recklessly put herself in the duress situation What would cause a reasonable person to yield? o Much of what determines whether a reasonable person would yield is cultural and value-laden (Toscano, Romero, Webb, Fleming, Contento-Pachon) Duress CL MPC

Death or GBH D or close friend Would cause ordinary person to yield Imminent No Murder Defense

Unlawful force Anyone Person of ordinary firmness would not resist Must not have recklessly placed self I duress situation -Duress is an excuse defense. What I did was wrong but I want you to excuse me because I could not make the right choice -Deterrence: cant deter someone with a gun to their head unless you ratchet up deterrence all the way to the top (Electric chair. So if you go through with it you get electric chair) -As for just dessert, no culpability State v. Toscano (NJ 1977, p.693) -D makes out false insurance report but only did so out of fear/threats to his family -The TC doesnt think D is entitled to duress jury instruction because threat was imminent -Was AR, did the act; no necessity defense, he had choices (didnt report it to the police because he just wanted the whole thing to go away) -Is the standard how hard the choice is for Toscano? No, the standard is an objective standard -Under CL, the Toscano would not have had duress defense based on imminence -NJ goes with MPC, does away with immanency, and reverse Ds conviction

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People v. Romero (Cal. 1992, p.697) -D claims duress in robberies with her boyfriend, afraid she would be killed if she didnt obey him -Debra contends she should be allowed the BWS defense a) BWS explains issue of duress; Debra really didnt have a choice -BWS would be a response to prosecutors contention that Debra could have left Terrence -She gets a new trial US v. Webb (5th Cir. 1984, p.701) -Charged with injury of child for beating Steve and refusing to get medical help for the child -Would not be as optimistic as the Romeros lawyer a) For one, Webb took part in the beatings b) More than that, though, her own kid died, she let it happenedno duress that bad to allow it -Not just a question of volition but also one of moral evaluation a) Parent expected to protect their child US v. Fleming (Military 1957, p.713) -POW D agrees to enemys orders for fear of punishment -Necessity defense was available to him, but immanency again comes into question -What happens if the court doesnt read imminence narrowly? You could claim imminence in many situations. Guy is found guilty -Part of military ethic requires you to put your country and soldiers above your own welfare US v. Contento-Pachon (9th Cir. 1984, p.714) -Imminent because he was followed and the threats were specific -Deterrence argument here? What happens to the war on drugs, anyone can claim duress -The hard choice also has to be a good choice -No military code here, the guy is just a cab driver, understandable he values his familys welfare more than drug laws -Character of choice being made is vital -Need a threat to be a against a personproperty or reputation wont do -Nature of the threat itself -What is the effect of combining no defense to murder and requiring imminent threat of death or GBH under CL for duress? a) Cant trade an innocent life for your own -A reasonable person will fear rightly and care rightly -Romeros fear is an appropriate evaluation in weighing her fear and threat to strangers, but Webb inappropriately fears for her welfare over that of her child -Similarly, guy wont be condemned for breaking a drug to protect his family but will be for collaborating with the enemy to save his own ass -Appropriate love of ones own; it is sometimes morally permissive in society to love ourselves, loved ones more than strangers (sometimes it would be immorally inappropriate not to do so), but there are limits to this, and they depend on specific facts -The duress defense is abstract and ambiguous

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a) Must look at specific case and look at character of choices -Seems that where a person had a duress defense they had a necessity defense, which means their act just wasnt excused, it was justified a) The difference between duress and necessity virtually disappear XIII. INSANITY

Two Major Approaches o Historically many doctrines of insanity (see Finger) o Today mostly M'Naughten (the majority rule) or MPC o Trend (since Hinkley) has been towards M'Naughten M'Naughten o defendant had mental disease or defect that made her unable to know: the nature of her act; or that her act was wrong MPC Section 4.01 o defendent lacks substantial capacity to either appreciate the criminality (wrongfullness) of her act or conform her conduct to the requirements of the law What is the Insanity Defense About? o Insanity remains an increadibly vague and difficult doctrine. Courts really don't try to define it. (Guido) o Juries don't focus on doctrine; instead, they pay attention to things like: the defendants background/scariness (Green) her relationship with the victim (Bobbit) her intent to harm her culpability before the act for bringing about her incapacity (Freeman & Lyons) o The doctrinal choices often come down to whether a judge or jury has the last say (Green)

-The two traditional insanity defenses are above - MNaughten has a cognition element (nature of the act (squeezing lemons when actually squeezing throat)); not knowing act was wrong = delusional thought they were repelling invasion when just shooting neighbors -MPC is more volitional test (1st prong cognitive, the 2nd prong is the volitional, which is derived from irresistible impulse test) -Moved from MNaughten to MPC and now going back to MNaughten US v. Freeman (2d Cir. 1966, p.729) -Freeman suffers from trauma that impairs his ability to control himself (undisputed). Also undisputed, sold drugs and did it knowing it was illegal -Jury given MNaughten instruction and convicted -On appeal, court moves to MPC standard and remands -Kant would say we dont punish people who arent in control of their own actions -Prosecutors would argue this guy voluntarily got into drugs, shouldve gone to rehab, quit drugs

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State v. Green (Tenn. 1982, p.732) -Prosecution maintained he wasnt insane but just different -Defense witness were testifying his inability to conform to the law -Green said he killed the cop because god or Hitler was speaking to him -Prosecution argued he acted normally when he was arrested a) But witness says he could appear normal but still be a loon -At trial, convicted of first degree murder -Supreme Court reverses conviction because it wasnt shown beyond a reasonable doubt that Green was sane -MPC excuses both impaired volition and cognition; does not required complete impairment either; the court in Green found evidence to weigh so heavily in his favor -Then how did the jury convict Green? For one, he was a crazy asshole that the people of TN were terrified of (but he would be involuntary committed on acquittal) a) If youre defense attorney you would want to tell the jury that the guy is going to walk free, let them know he will be committed to a mental hospital b) Only a few jurisdictions require jury instruction that lets jurors know acquittal will result in involuntary commitment -The big issue here is that Green killed a cop, and the prosecution has extra motivation to burn this guy If a jury was free to disregard Ds experts, how could it be concluded that the jury erred a) The prosecution has the burden of proof to prove that hes sane, court doesnt find that the prosecution did that (only evidence is that Green appeared sane after the murder) -Prosecution put on no expert testimony to show that Green was faking it -What does this tell us about who has authority to say what insanity is? Not the jury, dont have the final word here a) This case largely about jury control -Under MNaughten, burden of proof for insanity is on the D -The TN scheme put the burden of proof on prosecution -After Hinkley many jurisdictions put the proof on defendant -Burden shifting is important for who gets to determine outcome -Putting the burden on the prosecution is a form of jury control, where jurors are eager to convict based on their bias/anxiety short of legal standard -Putting the burden on the defense is a form of judge control Bobbitt -Asserted defense of irresistible impulse, a brief reactive psychosis -Jury acquitted after asking for instruction if they had to accept court appointed psychiatrists opinion that Bobbitt did not have irresistible impulse, the judge said no -Put on evidence of family/friends about how toxic the relationship was (BWS) and expert testimony -With testimony, Bobbitt seems virtuous, without she looks bad a) Act suddenly seems somewhat appropriate -Is Bobbitt distinguishable from Green? a) Green wasnt sympathetic like Bobbitt; jury afraid of Green less afraid of Bobbitt

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b) Dont worry about Bobbitt acting again or doing this to you, not true w/ Green -Issue of general deterrence though. Cant let Bobbitt go free or other women will pick up a knife US v. Lyons (5th Cir. 1984, p.742) -Gets addicted to drugs after being prescribed back pain drugs -Use MNaughten standard, but doesnt doom P; evidence of addiction can be used to address cognitive claim of impairment -Reconcilable with Freeman? Got addicted through prescription drugs. Arguably didnt put himself in this position, put their by his physicians -Signals shift away from volitional standard -Prosecutors and court here: how can we tell if someone really is suffering from volitional impairment or theyre faking it? -Defense would respond that theres no reason to believe psychologists are better to understand MNaughten standard than they are the volitional standard State v. Guido (NJ 1963, p.749) -Defense would say courts understanding of a disease different that psychiatrists -Medical insanity different than mental insanity a) Dont really know what disease is, its obscure -Jurors will decide then if law not really sure what a disease is -Prosecutors dont want everyone to get off on this disease defense -Issue of disease is something youd like to see go to a jury rather than see it decided against you by a judge -Problem: we dont know what disease is. Ends up people infuse moral qualities into Ds action/who the victim was and then make decisions -Morally forgivable, being prescribed painkillers whereas getting drunk is not -Not clear that juries are paying really close attention to the distinctions in MNaughten and MPC -Is it ok to distinguish cases without medical grounds to do so? Central problem with the insanity defense. Transforms medical impairment into a moral question. Courts recognize their definitions are legal and moral, not medical. -Moral intuitions of individuals will push standards in different directions in different cases Review -Dont apply theoretical dimension for the most part except where there is ambiguity, etc -More important is the institutional dimension questionpower allocated across different institutions -Dont confuse irresistible impulse with involuntary act, which is like sleep walking, unconscious, etc -Specific IntentPurposefully wanted to commit that crime (tax crime) -General IntentPurposefully refusing to pay taxes but havent specifically said your going to break the law here (Cheek)

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-Mistake of Fact: take the wrong umbrella leaving a diner, that is an excuse because if the facts were as you imagined them youd be innocent. But if your mistaken with whos umbrella your taking no excuse because even if the facts were as you imagined them youd be breaking the law (Prince case, wrong in and of itself) -Mistake of Law: never clear how collateral law has to be to be excusable, courts will make the decision based on character of accused (guy who is mistaken about divorce but not about polygamy); Not so clear you can rely on law from others than the court, really depends on the underlying activity -For Accomplice Liability cant just inadvertently or knowingly engage in the act must have purpose to the underlying act (Quiz: So long has Orrin had purpose to the underlying act of driving recklessly, the underlying actcould get him for reckless endangerment)

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