Criminal Law Fall 2011 Outline

Criminal Law Fall 2011 Outline

Statutory Interpretation:
A. Plain Meaning Rule (textualist) a. When the statutory language is plain and its meaning clear, the court must give effect to it even if the court feels that the law is unwise or undesirable. An exception to this rule exists if the court believes that applying the plain meaning to the statute will lead to injustice, oppression, or an absurd consequence. B. Context (textualist)- meaning within sentence or other statutes around that provision. C. Purpose a. Over all aim/policy b. interpret in a way that will allow it to achieve its purpose D. Legislative history a. Intent of the legislature for the statute b. Canon of construction: The rule of lenity requires that an ambiguous criminal statute must be strictly construed in favor of the defendant. Ambiguity should be distinguished from vagueness. An ambiguous statute is one susceptible to two or more equally reasonable interpretations. A vague statute is one that is so unclear as to be susceptible to no reasonable interpretation. (rule of thumb, not required) E. During interpretation court’s start with ―plain meaning‖ and context. If there are still unsure they will turn to purpose. If there is still ambiguity they will go to legislative history.

Elements of a Crime:
A. Prosecution is generally required to prove the following elements of a criminal offense: a. Actus Reus (guilty act): a physical act (or unlawful omission) by the defendant b. Mens Rea (guilty mind): the state of mind or intent of the defendant at the time of his act c. Concurrence: the physical act and the mental state existed at the same time d. Harmful Result and Causation: a harmful result caused (both factually and proximately) by the defendant’s act. B. Virtually all crimes require a physical act and may require some court of intent. Many crimes also require proof of certain attendant circumstances without which the same act and intent would not be criminal. Other crimes require result and causation (example: homicide)

Actus Reus: The Criminal Act
A. Bad thoughts alone cannot be criminalized. Criminal statute must include among its elements an actus reus. B. Act must be voluntary (bodily movement)

a. MPC three kinds of acts which it holds to be involuntary: i. Reflex or convulsion 1. However, if the defendant knows they are subject to such reflexed or convulsions (example: epileptic convulsions) and puts himself in a position where he is likely to harm others (example: driving a car), this initial act might subject him to criminal liability. ii. Unconsciousness or sleep 1. Virtually all courts agree that amnesia (claiming blackout) by itself does not constitute a defense. But if the defendant can demonstrate that at the time of the crime, he was on ―automatic pilot,‖ so to speak, and was not conscious of what he was doing, there is a good chance that his act will be held to be involuntary. (example: People v. Newton) iii. Hypnosis iv. Conduct is not the product of the actor’s determination 1. Example: A shoves B into C, with the result that C falls to his death. B cannot be held criminally liable for C’s death. C. In some states the acts you do up to the involuntary act count. Being drunk voluntary will attach to the involuntary illegal act you did because you were so drunk. D. The required voluntary act is distinguished from: a. Thoughts: i. never punishable as crimes b. Words: i. statement of intent to a third person, will usually not be enough to constitute actus reus. However, there are a few situations in which words may constitute the requisite act: such as conspiracy or words of encouragement to commit a crime might well be enough to give rise to a prosecution for aiding and abetting criminal activity. c. Possession: i. Mere possession of an object may sometimes constitute the necessary criminal act. For instance, possession of narcotics frequently constitutes a crime in itself. 1. Knowledge of possession: the act of possession is almost always construed so as to include only conscious possession. 2. Knowledge of guilty character of object: But for possession to be a criminal act, it is not necessarily required that the defendant have been aware of the object’s illegal or contraband nature. 3. MPC: only criminal if the defendant knew he had possession of the object and ―was aware of his control thereof for a sufficient period to have been able to terminate his possession‖

4. Presumptions: The prosecutions burden of proving knowing possession is frequently made easier by statutory presumptions. ii. Constructive possession – power over the object and intent to control the object. You do not need to physically have hold of the object in order to have constructive possession. iii. Electronic possession 1. files on your computer or images on your computer d. Status: i. A defendant may not be convicted for merely having a certain status or condition, rather than committing an act. Example: US Supreme Court held that a statute making it a crime to be a narcotics addict imposed an unconstitutional cruel and unusually punishment. 1. Robinson v. California E. Omission to act: Although most crimes are committed by affirmative action rather than by nonaction, a defendant’s failure to act will result in criminal liability provided three requirements are satisfied: a. Legal duty to act i. Statutory requirement, duty based on contract, danger caused by defendant, relationship, voluntary assumption of care ii. Example: Jones case b. Knowledge of facts giving rise to duty c. Reasonably possible to perform F. The Harm Principle: The court in Lawrence warns against attempts to criminalize conduct ―absent injury to a person or abuse of an institution that law protects.‖ a. Hart/Mill: ―That the only purpose for which power can be rightfully exercised over any member of a civilized community, against his will, is to prevent harm to others. i. Over time, the harm principle prevailed in the legal philosophic debate over the legal enforcement of morality. b. Devlin: principle of legal moralism—the principle that moral offenses should be regulated because they are immoral (such as homosexuality and prostitution) G. Principle of Legality a. No federal common law crimes. Requirement that in order for some conduct to be criminal the state must set out before hand to explain what the conduct is.

Mens Rea: The guilty mind
A. also called scienter or criminal intent B. Classification of crimes: a. Malum prohibitum: Crime that isn’t inherently immoral. It is bad because it is prohibited. i. Regulatory crimes

C.

D.

E.

F.

G.

H.

ii. To ensure general health and safety b. Malum in se: Evil in itself. Crime because it is inherently immoral. i. Common law crime ii. Punish things we believe are really bad or harmful. In most situations, the requirement of mens rea refers to what we would all agree is a mental state (culpable state of mind), either “intent” or “knowledge.” But some crimes are defined in such as way that ―mens rea‖ is merely “negligence” or “recklessness”; in these cases, it is often stretching things to say that there is a particular state of mind involved. In strict liability crimes (regulatory crimes), mens rea is not required. These crimes are usually punishable only by fine and not by imprisonment, and carry no great social disgrace. Certain defenses such as mistake of fact, are not available. a. MPC believes that strict liability should be called violations (instead of a crime) and only punishable by fine. Courts have traditionally (common law) classified the mens rea requirements to the various crimes into three groups: crimes requiring specific intent, crimes requiring merely general intent, and crimes requiring merely negligence. Specific intent: if the definition of a crime requires not only the doing of an act, but the doing of it with a specific intent or objective, the crime is a ―specific intent‖ crime. a. Need of proof: the prosecution must produce evidence tending to prove the existence of the specific intent. b. Application of certain defenses: some defenses such as voluntary intoxication and unreasonable mistake of fact, apply only to specific intent crimes. General intent: Generally, all crimes require ―general intent‖ which is an awareness of all factors constituting the crime. a. A jury can infer the required general intent merely from the doing of the act. It is not necessary that evidence specifically proving the general intent be offered by the prosecution. b. Transferred intent: if a defendant intended a harmful result to a particular person or object and, in trying to carry out that intent, cause a similar harmful result to another person or object, her intent will be transferred from the intended person or object to the one actually harmed. Any defenses or mitigating circumstances that the defendant could have asserted against the intended victim will also be transferred in most cases. c. Motive: the motive for a crime is distinct from the intent to commit it. A motive is the reason or explanation underlying the offense. It is generally held that motive is immaterial to substantive criminal law. A good motive will not excuse a criminal act. On the other hand, a lawful act done with bad motive will not be punished. Statute silent on mental state: this does not necessarily mean that the offense is a strict liability offense. If no mental state is expressly required by the statute, the courts may still interpret the statute as requiring some mens rea, especially is the statute appears to be a codification of a traditional common law offense or if the

statute imposes a severe penalty. If the statute is not based on common law then no mens rea can be read into it.

Categories of Culpability
I. Model Penal Code Analysis of Fault: MPC advocates the elimination of the ambiguous common law distinction between general and specific intent. Instead, MPC proposes four categories into which the mental component of a criminal offense can be characterized. a. Purposely: A person acts purposely with respect to his conduct when it is his conscious object to engage in certain conduct or cause certain result b. Knowingly: A person acts knowingly with respect to the nature of his conduct when he is aware that his conduct is of that nature or that certain circumstances exist. He acts knowingly with respect to the result of his conduct when he knows that his conduct will necessarily or very likely cause such a result. Conduct performed knowingly also satisfies the mental state of a statute that requires willful conduct. c. Recklessly: A person acts recklessly when he consciously disregards a substantial or unjustifiable risk that circumstances exist or that a prohibited result will follow, and this disregard constitutes a gross deviation from the standard of care that a reasonable person would exercise in the situation. An act performed recklessly is also performed wantonly. Recklessly requires that the actor take an unjustifiable risk and that he know of and consciously disregard the risk. Mere realization if the risk is not enough. He must know that injury might result (if he knows that it is certain to result, he acts knowingly). Thus, recklessly involved both objective (―unjustifiable risk‖) and subjective (―awareness‖) elements. d. Negligence: A person acts negligently when he fails to be aware of a substantial or unjustifiable risk that circumstances exist or a result will follow, and such failure constitutes a substantial deviation from the standard of care that a reasonable person would exercise under the circumstances. To determine whether a person acted negligently, an objective standard is used. However, it is not merely the reasonable person standard that is used in torts; the defendant must have taken a very unreasonable risk in light of the usefulness of his conduct, his knowledge of the facts and the nature and extent of the harm may be caused. J. State of mind applies to all material elements of offense a. Example: under a statute imposing criminal liability on anyone who ―knowingly makes a sale of an intoxicating beverage to a minor,‖ the MPC would require knowledge of each of the material element of the offense. Thus, if the defendant can show that she did not know that a sale took place, that the beverage was intoxicating, or that the purchaser was a minor, she will be able to avoid liability. K. General state of mind requirement—Recklessness a. If the statute defining the offense (other than a strict liability offense) does not include a state of mind requirement, the defendant must have acted with at least recklessness with regard to each material element of the offense.

b. Higher degree of fault suffices: under the MPC hierarchy of fault levels, a showing of a higher state of mind automatically satisfies a lower mental state requirement of a statute. Thus, a showing that the defendant acted purposely or knowingly will satisfy the general requirement of recklessness. c. Other levels of fault must be specific: because standard of recklessness is assumed where the state of mind is not specified, if a lower standard of negligence will satisfy liability, or if a higher standard of knowledge of purpose is required, those standards must be indicated in the language of the statute.

Defenses
L. Mistake of Fact a. Mistake must negate state of mind: Ignorance or mistake as to a matter of fact will affect criminal guilt only if it shows that the defendant did not have the state of mind required for the crime. b. Malice and General Intent Crimes—reasonableness required: ie the type of mistake or ignorance that a reasonable person would have made under the circumstances. c. Specific Intent Crimes – reasonableness not required: any mistake of fact, reasonable or unreasonable, is a defense to a specific intent crime. d. Strict Liability Crimes – mistake no defense: since strict liability crimes require not state of mind, mistake or ignorance of fact is no defense to them. M. Mistake of Law a. General rule – no defense i. It is not a defense to a crime that the defendant was unaware that her acts were punishable by a criminal law or that she mistakenly believed that her acts were not prohibited. This is true even if her mistake was reasonable. b. Mistake or ignorance of law may negate intent i. If the mental state for a crime requires a certain belief concerns a collateral aspect of the law, mistake as to that aspect of the law will negate the requisite state of mind. (mistake of legal fact) 1. Example: Bray case where he did not know where he a felon. I didn’t know one of the attendant circumstances. And if knowledge is required of that attendant circumstance then you defeat mens rea. c. Exceptions: i. The defendant had a defense if the statute proscribing her conduct was not published or make reasonably available prior to the conduct. ii. Reasonable reliance on statute or judicial opinion, even though it was later declared unconstitutional or the decision was overruled. This defense is strongest when the decision relied on was rendered by the highest court. iii. Reasonable reliance on official interpretation or advice

1. This is not true under common law, however MPC advocated the emerging rule. 2. Reasonable reliance on advice of private counsel is usually not allowed as a true affirmative defense.

Responsibility and Criminal Capacity
N. Capacity a. Voluntarily intoxication: does not ―excuse‖ criminal conduct. i. Effect upon mental state: may negative the required mental state, and therefore prevent an element of the crime from existing at all. ii. Specific intent crimes: courts have generally held that intoxication is admissible to show that the defendant lacked the specific intent in question. The mental state that is negated by intoxication is the ―specific intent‖ to do an act other than the actus reus. iii. However, modern courts have come increasingly abandoned ―specific and general‖ intent. Therefore, the decision whether to recognize intoxication as a defense is better made on a crime-bycrime basis. Usually this will be done by looking at the precise mental state required in the definition of the crime, and determining whether this has been negated by intoxication. iv. MPC: ―is not a defense unless it negatives an element of the offense‖ v. General intent: some courts are not willing to recognize intoxication as a defense to certain kinds of homicides (first degree-premeditation or deliberateness) and to rape vi. No defense to crimes requiring malice, recklessness, or negligence, or crimes of strict liability b. Involuntary intoxication: much more likely to be able to make a good use of this defense in defending a criminal charge. i. Situations where found ―involuntary‖: duress, drugs taken under medical advice, mistake as to nature of substance, pathological response.

Homicide
A. Two broad categories of homicide: murder and manslaughter

Common Law Criminal Homicides
B. At common law, criminal homicides were subdivided into three different offenses. C. Murder: murder is the unlawful killing of another human being with malice aforethought. Malice aforethought may be expressed or implied. a. Malice aforethought exists if the defendant had any of the following states of mind: i. Intent to kill (express malice) ii. Intent to inflict great bodily injury 1. MPC does not recognize intent to inflict great bodily injury as sufficient for murder

iii. Reckless indifference to an unjustifiably high risk to human life (―abandoned and malignant heart‖) or iv. Intent to commit a felony (felony murder) 1. In the case of ii. iii. and iv. the malice is ―implied.‖ D. Voluntary Manslaughter: voluntary manslaughter is a killing that would otherwise by murder but is distinguishable from murder by the existence of adequate provocation—ie a killing in the heat of passion. a. Elements of adequate provocation: at common law, provocation would reduce a killing to voluntary manslaughter only if it met four tests: i. The provocation must have been one that would arouse sudden and intense passion in the mind of an ordinary person such as to cause him to lose his self-control ii. The defendant must have in fact been provoked iii. There must not have been a sufficient time between the provocation and the killing for the passions of a reasonable person to cool. iv. The defendant in fact did not cool off between the provocation and the killing. b. At common law, some provocations were defined as inadequate as a matter of law. The most significant was ―mere words.‖ Modern courts tend to be more reluctant to take such cases from juries and are more likely to allow the jury to decide if mere words or similar matters constitute adequate provocation. E. Involuntary Manslaughter: a. Criminal Negligence: if death is caused by criminal negligence (or by recklessness under the MPC), the killing is involuntary manslaughter. Criminal negligence requires a greater deviation from the ―reasonable person‖ standard than is required for civil liability.

Statutory Modifications of Common Law Classifications Murder
F. Degrees of murder: in many jurisdictions, murder is divided into first degree and second degree murder. a. First degree: murders committed with ―premeditation and deliberation,‖ and to killings committed during the course of certain felonies. i. no specific amount of time is necessary to demonstrate premeditation and deliberation however, some appreciable time must elapse. ii. Find premeditation through thought process, deliberation, consideration, reflection iii. Was not impulsive. iv. Punishable by death penalty- capital murder b. Second degree: all other murders are second degree i. no premeditation, intent to seriously injure, recklessly indifferent to human life, other felony murders c. MPC does not divide murder into first and second degree because not that there is no ―automatic death penalty, it serves no purpose.

G. Elements of murder: a. Actus reus (conduct by the defendant) b. Corpus delicti-the body of the crime (proof of a death) c. Mens rea (a culpable mental state- malice aforethought) i. Cannot presume intent, prosecution must prove beyond a reasonable doubt there was intent. d. Proximate cause (a causal link between the defendant’s act and the death) H. Felony Murder: A killing—even an accidental one—committed during the course of a felony is murder. Malice is implied from the intent to commit the underlying felony. a. Most common felonies listed: burglary, arson, rape, robbery, and kidnapping b. Many characterize and criticize felony murder as a crime of strict liability MPC does not approve of felony murder for this reason. c. How states limit felony murder: i. What felonies trigger the felony murder rule ii. Some mens rea requirement (at least negligent or reckless) iii. How close the causal nexis must be between the causation connection between the conduct of the defendant and the victim. d. Limitations on liability i. Commission of underlying felony: to convict a defendant of felony murder, the prosecution must prove that he committed the underlying felony. Thus, if the defendant has a substantial defense that negates an element of the underlying felony, he has a defense to felony murder. ii. Felony must be independent of killing: A felony such as manslaughter or aggravated battery will not qualify as the underlying felony for purposed of felony murder liability. iii. Foreseeability of death: 1. Majority rule: death must have been foreseeable result of the commission of the felony 2. Minority of courts do not apply a foreseeability requirement. iv. The death must have been caused during the commission or attempted commission of the felony, but the fact that the felony was technically completed before death was caused does not prevent the killing from being felony murder. v. Killing of co-felon by victims of felonies or pursuing police officers: Redline view (majority position): liability for murder cannot be based upon the death of a co-felon from resistance by the victim or police pursuit. vi. Killing of innocent party by victim or police: courts are spilt.

Manslaughter – voluntary
I. Voluntary manslaughter based on the ―heat of passion‖ J. Intent: a voluntary manslaughter conviction is based upon the intent to bring about the death or serious bodily harm, or reckless indifference to the value of

human life, as long as such a state of mind is accompanied by the requisite ―heat of passion‖ K. Requirements for voluntary manslaughter: a. Acts in response to a provocation that would be sufficient to cause a reasonable person to lose his self-control b. He is fact acts in a ―heat of passion‖ c. The lapse of time between the provocation and the killing is not great enough that a reasonable person would have ―cooled off‖ d. He had not in fact ―cooled off’ by the time he kills. L. Characteristics of a reasonable person: a. Physical characteristics: courts have sometimes been willing to grant ―the reasonable person‖ with certain characteristics of the defendant. b. Emotional characteristics: courts are almost always unwilling to recognize the peculiar emotion characteristics of the defendant in determining how a reasonable person would act. c. MPC allows some subjectivity: The crime is manslaughter if it is ―committed under the influence of extreme mental or emotional disturbance for which there is a 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 believed them to be.‖ d. Voluntary intoxication is never imputed to the reasonable person. That is, he will be judged by the standard of a reasonable sober person. e. Cultural norms i. Example: principle of oyako-shinju- Japanese woman who intentionally killed their children because their husbands, have committed adultery, had ―shamed‖ their families. ii. Cultural defenses used to mitigate punishment M. Other reasons to reduce unlawful intentional killing from murder to voluntary manslaughter is where a person kills in the unreasonable and mistaken belief that he must do so in self-defense, or still in the face or an actual threat of death or serious injury where he himself was the initiator or provoker of the threat from the victim.

Manslaughter – involuntary
N. One whose behavior is grossly negligent may be liable for involuntary manslaughter if his conduct results in the accidental death of another person. O. Criminal negligence required: usually ―gross negligence‖ is required. P. MPC requires the defendant act ―recklessly.‖ Q. Factors in determining whether the defendant’s conduct was negligent: a. All circumstances considered: example: D kills V, a pedestrian, by driving 50 miles per hour in a 30 mile per hour zone. D’s conduct may be held to be criminally negligent if D was simply out for a pleasure spin, whereas it might not be criminally negligent if D was rushing his critically ill wife to the hospital. b. Defendant’s own characteristics:

i. Most physical characteristics are taking into account. The issue becomes thus what a reasonable person would have done had he had that physical shortcoming. ii. Mental characteristics are likely not taken into account. c. Defendant’s awareness of risk: the courts are in sharp disagreement as to whether the defendant may be liable for manslaughter if he was unaware of the risk posed by his conduct. i. MPC requires actual awareness d. Proximate cause R. Most involuntary manslaughter cases involve death by automobile: vehicular homicide. a. Not recognized by MPC

Theories of Punishment
A. Utilitarianism: Derives from the theories of 19th-century English philosopher Jeremy Bentham. The basic concept of utilitarianism is that society should try to maximize the net happiness of people—―the greatest good for the greatest number.‖ Utilitarians believe that ―the pain inflicted by punishment is justifiable is, but only if, it is expected to result in a reduction in the pain of crime that would otherwise occur.‖ Utilitarians cite the following as the narrow objectives that a system of criminal law and punishment should try to achieve: a. General deterrence: If D commits a crime, we should punish D mainly in order to ―convince the general community to forgo criminal conduct in the future‖ b. Specific deterrence (individual deterrence): If D commits a crime, we should punish D to deter her from committing additional crimes in the future. c. Rehabilitation: Criminal justice system should try to prevent D from committing further crimes not by causing him to fear the pain of further punishment in the future but by educating him or otherwise ―reforming‖ him. d. Incapacitation i. Indeterminate sentences e. MPC follows utilitarian views B. Retributivism: Believe that the principle—maybe even sole—purpose of the criminal law should be to punish the morally culpable. a. Punish is justified when it is deserved. And to a retributivist a wrongdoer should be punished, whether or not it will result in a reduction of crime. b. Deterrence not principle focus: Because of their focus on moral blameworthiness, retributivists do not regard either general or specific deterrence as being very important objectives to be served by the criminal law. ―That future crime might also be prevented by punishment is a happy surplus for a retributivist, but no part of the justification for punishing.‖ c. Rehabilitation: For similar reasons, they do not think the criminal law should be spending must effort towards rehabilitation of offenders. Retributivists think that punishment is about achieving moral justice, and

that ―proponents of rehabilitation demean offenders by treating them as sick, childlike, or otherwise unable to act as moral agents. d. It is morally fitting that a person who does wrong should suffer in proportion to his wrongdoing. e. Retributivism involves both a limiting principle (there must be no undeserved punishment) and an affirmative justification for punishment (desert justifies punishment). This view had little influence on American penal policy until the 1970s when disappointment with the apparent failure of punishment to prevent crime prompted a search of alternatives to utilitarianism. C. Two basic differences between retributivism and utilitarianism. a. R looks backwards and justifies punishment solely on the basis of the voluntary commission of a crime. In contract, U look forward. They care about the past only to the extent that it helps them predict the future: no matter how egregious they wrongdoing, U do not advocate punishment unless they believe it will provide an overall social benefit. b. Whereas the premise of U is that people are generally hedonistic and rational calculators, R focus on their view that humans generally possess free will or free choice and therefore, must justly be blamed when they choose to violate society’s mores.

Defenses: Justification and Excuse
A. Justification: covers conduct that is otherwise criminal, but becomes socially acceptable under certain circumstances. Some would say that the act is ―right‖ and the outcome socially desirable. B. Excuse: An excuse is conduct that may not be socially acceptable, but is focused on the actor rather than the act. Mental incapacity is an example. The act is wrongful but the actor is not morally culpable for his act. C. Argument for the Distinctions: a. MPC does not draw lines between the two. b. Sending clear moral messages. People should take justifiable, rather than wrongful-but-excusable, paths. c. Providing theoretical consistency in the criminal law. Appreciation of the justification/excuse distinction can help lawmakers coherently define criminal defenses. d. Accomplice liability: claim of justification is transferable to a third party, whereas a claim of excuse is not. e. Third party conduct. Justifications are universalized, whereas excuses are individualized. f. Retroactivity: To assert conduct A as a defense at trail depends on whether conduct A was a justification or an excuse. g. Burden of proof: Government should carry the burden of persuasion regarding justification defenses and the defendant should be required to persuade the fact finder regarding excuses. D. Utilitarian justifications: will justify offenses necessary to prevent a greater evil. They are skeptical of the claim that self-defense is always justifiable. While the utilitarian self-defender can clearly take one life to save several, she make not

take several lives in defense of one. Nor it is obvious that utilitarianism justifies taking one life to save another. E. Utilitarian excuses: Utilitarian thought generally approves excusing wrongful conduct that is hard to deter because of high cost to the actor of abstaining from the conduct or the actor’s incapacity to discern (self-defense, duress, or necessity) or act in her own best interest (insanity or addiction). F. Retributivist justifications: Likely to see many offenses as justified that a utilitarian would not, particularly apparent in the area of necessary force. G. Retributivist excuses: Would excuse those who cannot fairly be blamed for the wrong acts they perpetrated. Self-Defense (justification) H. Nondeadly force: As a general rule, an individual who is without fault may use such force as reasonably appear necessary to protect herself from the imminent use of unlawful force upon herself. There is no duty to retreat before using nondeadly force, even if retreat would result in not further harm to either party. I. Deadly force: A person may use deadly force in self-defense if (i) she is without fault, (ii) she is confronted with unlawful force and (iii) she is threatened with imminent death or great bodily harm. a. Must reasonably believe that she is faced with imminent death or great bodily harm if she does not respond with deadly force. b. Retreat: Majority rule is that there is no duty to retreat. In the minority of courts that follow a common law rule and impose a duty to retreat, retreat is not necessary unless it can be done safely, where the attack occurs in the victim’s home, where the attack occurs while the victim is making a lawful arrest, and where the assailant is in the process of robbing the victim. J. Generally, one who begins a fight has no right to use force in her own defense during that fight. But can aggressor can ―regain‖ her right to use self-defense in two ways: withdrawal or sudden escalation. K. Necessity component: force should not be used against another person unless, it is necessary. Self-defense is limited at common law to imminent threats. L. Proportionality component: a person is not justified in using force that is excessive in relation to the harm threatened. M. Reasonable belief component: Self-defense contains a subjective and an objective component. First, the jury must determine that the defendant subjectively believed that he needed to use deadly force to repel an imminent unlawful attack. Second, the defendant’s belief in this regard must be one that a reasonable person in the same situation would have possessed. a. A defendant is justified in killing a supposed aggressor is the defendant’s belief in this regard is objectively reasonable, even if appearances prove to be false, ie even if the decedent did not represent an imminent threat to the defendant. b. On the other hand, the defense is unavailable to one whose self-defense belief, although genuine, was unreasonable. In such circumstances, the traditional rule is that the unreasonable mistaken actor is guilty of murder. However, an increasing number of jurisdictions now permit an

unreasonably mistaken actor to assert an ―imperfect‖ or ―incomplete‖ claim of self-defense, which mitigates the offense to manslaughter. i. Example: Battered woman syndrome Necessity (justification) N. The ―lesser evil‖ or ―choice of evils‖ defense O. Conduct otherwise criminal in justifiable if, as a result of pressure from natural forces, the defendant reasonable believed that the conduct was necessary to avoid some harm to society that would exceed the harm caused by the conduct. The test is objective; a good faith belief in the necessity of one’s conduct is insufficient. Cause the death of another person to project property is never justified. The defense of necessity is not available if the defendant is at fault in creating a situation which requires that she choose between two evils. P. The defense of ―necessity‖ may be raised when the defendant has been compelled to commit a criminal act, not by coercion from another human being, but by nonhuman events. Q. Requirements for necessity defense: a. Greater harm: the harm sought to be avoided is great than the harm committed (or, in any event, the harm which the defendant thinks he is committing) b. No alternative: there is no alternative that would also avoid the harm, and would be non-criminal or a less serious crime c. Imminence: the harm is imminent, not merely future d. Situation not cause by defendant: the situation had not been brought about by D’s carelessly or recklessly putting himself in a position where the emergency would arise e. Nature of harm: the harm sought to be avoided is not usually required to be serious bodily harm (as it generally must be for duress), but may be non-serious bodily harm, or even property damage. R. MPC adds the requirement that a statute does not implicitly or explicitly preclude necessity defense. MPC also does not rule out the necessity defense in intentional homicide cases, so long as one life is sacrificed to safe two or more. S. Courts have traditionally been extremely reluctant to permit the necessity defense where the defendant is charged with intentional killing. a. Example: Regina v. Dudley & Stevens – court refused to accept necessity defense that if they had not killed the boy they would have not survived for the following reasons: i. Morality: demands that one die rather than take the life of an innocent person ii. Rescue: a rescue might have occurred before all three died, so that it was not at all certain that a greater evil would be avoided by the killing iii. Unfairness: any means for deciding who is to die is fraught with a danger of unfairness iv. Abuse: If the defense allowed, it may be abused Duress

T. Nature of duress: A defendant can be said to have committed a crime under duress if he performed it because of a threat of, or use of, force by a third person sufficiently strong that the defendant’s will was overborne. The term applies to force placed upon the defendant’s mind, not his body. U. Elements of duress defense: a. Threat: a threat by a third person b. Fear: which produces a reasonable fear in the defendant c. Imminent danger: that he will suffer immediate or imminent d. Bodily Harm: death or serious bodily injury. V. MPC: MPC’s test is whether the threat was sufficiently great that ―a person of reasonable firmness in the defendant’s situation would have been unable to resist. MPC allows duress to be a defense to all criminal charges, even murder. a. does not require imminent danger b. only requires threat of bodily harm, not serious bodily harm. c. Also threat of extreme property damage or economic sanction might give rise to the justification, or ―lesser of two evils,‖ defense under MPC. d. Threat may be directed at a third person. W. Courts have traditionally held that the defense of duress is not available where the defendant is charged with the intentional killing of another. However, it is an accepted defense for felony-murder. Mental Illness X. If the defendant can show that he was insane at the time he committed a criminal act, he may be entitled to the verdict ―not guilty by reason of insanity.‖ Its principal justification is that where the defendant’s mental disease had prevented him from distinguishing between ―right‖ and ―wrong‖ or from controlling his conduct the punishment and deterrence object of the criminal law would not be served by convicting. It is felt that it would be inappropriate and unfair to punish the defendant for something that he could not help, and futile to attempt to deter him from similar misconduct by convicting him. Y. Rarely released upon acquittal. Instead if found insane most states automatically commit the defendant to a mental facility on the basis of the verdict. The commitment is of an indeterminate length. Z. M’Naghten Rule: a. Elements: the traditional M’Neghten rule provides that a defendant is entitled to an acquittal if the proof establishes that: i. A disease of the mind ii. Caused a defect of reason iii. Such that the defendant lacked the ability at the time of his actions to either: 1. Know the wrongfulness of his actions; or 2. Understand the nature and quality of his actions. b. Application: i. If the defendant suffered from delusions (false beliefs), it is necessary to determine whether his actions would have been criminal if the facts had been as he believed them to be.

ii. A defendant is not entitled to an acquittal merely because he believes his acts are morally right, unless he lost the capacity to recognize that they are regarded by society as wrong. iii. Loss of control because of mental illness is no defense. c. Evidence: i. The rule does not unduly restrict the evidence heard by juries. Most jurisdictions admit any evidence that reasonably tends to show mental condition of the defendant at the time of the crime.

Inchoate Crimes Attempt
A. Inchoate offense: is committed prior to and in preparation for what may be a more serious offense. B. Attempt: A criminal attempt is an act that, although done with the intention of committing a crime, falls short of completing the crime. An attempt therefore consists of two elements: (i) a specific intent to commit the crime and (ii) an overt act in furtherance of that intent. a. Intent: the defendant must have the intent to perform an act and obtain a result that, if achieved, would constitute a crime. i. Requires a specific intent ii. Attempt to commit negligent crimes in logically impossible iii. Attempt to commit strict liability crimes requires intent b. Overt act: the defendant must have committed an act beyond mere preparation for the offense. Several test have been used to determine whether the act requirement for attempt liability has been satisfied: i. Traditional Rule—Proximity Test: attempt requires an act that is dangerously close to success. ii. Majority Rule—MPC Test: The MPC and most state criminal codes require that the act or omission constitute a ―substantial step in a course of conduct planned to culminate in the commission of the crime.‖ In addition, an act will not qualify as a substantial step unless it is strong corroboration of the actor’s criminal purpose. c. Defenses to liability for attempt i. Impossibility of success 1. Legal impossibility is always a defense – only arises when the defendant did, or intended to do, acts that would not constitute a crime under any circumstances. 2. Factual impossibility is no defense ii. Abandonment 1. Majority rule: never a defense 2. MPC: withdrawal will be a defense but only if: a. it is fully voluntary and not made because of the difficulty of completing the crime or because of an increased risk of apprehension b. it is a complete abandonment of the plan made under circumstances manifesting a renunciation of

criminal purpose, not just a decision to postpone committing it or to find another victim. d. Prosecution for attempt: A defendant charged with a completed crime may be found guilty of either the completed crime or an attempt to commit the crime as long as the evidence presented supports such a verdict. The reverse is not true. A defendant charged only with attempt may not be convicted of the completed crime. e. Punishment for attempt: Most states punish attempt less severely than the crime attempted. Under the MPC and some state statutes, an attempt may be punished to the same extent as the completed crime, except for capital crimes and the most serious felonies.