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Criminal Law Outline-1

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CRIMINAL LAW OUTLINE I. Introduction to Criminal Law a. Criminal law is a blend of common law and penal codes b. Criminal system is punitive, completely meant to punish the perpetrator in addition to getting justice for the wronged or injured person i. A social condemnation that you did something wrong ii. Fundamental crimes that injure people (murder or assault) are at the core of criminal law iii. Criminal law is a social contract: we give up the freedom to do whatever we want in return for laws that are enforced and provide a safer environment c. Criminal law is focused on the community i. Cases have individual victims, but the goal of criminal law isn’t necessarily to make that person whole ii. We try to remedy a social harm to the community iii. This can lead to a disconnect b/t criminal law and the individual victims of crime d. Three different sources of criminal law: i. The statute/statutory precedent 1. Only conduct that is prohibited by statute can be prosecuted as a crime 2. Statute has to tell you what the conduct is that’s prohibited and what level of intent the actor has to have violated the statute (ACT + MENTAL STATE = CRIME) 3. States will sometimes look to other jurisdictions’ statutes if they have an issue they have never had to deal with before 4. The Model Penal Code a. The model statute, uniform throughout b. No state has adopted the MPC in its entirety, but some states have adopted sections of it (such as the homicide section) c. Since the MPC came out, state codes are significantly less messy than they were before this cleaner version came out (state legislatures used its example and cleaned up their own penal codes) ii. Case law precedent 1. Courts must follow the decisions of courts higher than them in their jurisdictions 2. State courts don’t have to defer to federal courts in interpreting their own laws—sometimes leading to a clash in interpretation
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iii. Constitutions (state and U.S.) 1. Due Process, Equal Protection, Right to Jury Trial—all deal w/ criminal proceedings 2. A court shouldn’t reach out to find a constitutional issue where one hasn’t been raised and where the court can decide based on another method (general rule) e. Proving a case beyond a reasonable doubt: prosecution must prove that all the elements of the statute beyond a reasonable doubt i. In many cases, the burden is on the defense to prove one of the issues that it raises (such as the insanity defense) f. Most criminal cases don’t go through various levels of appeals; in fact, most don’t even go to trial II. Principles of Punishment a. Different approaches to the proper level of punishment for very similar crimes across the country and across other countries b. Theoretical bases for punishment: criminal codes often begin w/ underlying justifications and purposes of punishment that the code is governed by c. Utilitarian approach i. Punishment is justified by its utility to society as a whole ii. Focus on future behavior, look at offender as an opportunity to send a message to society as a whole about what behavior is acceptable iii. Finding the exact amount of punishment that’s important to affect the behavior across society iv. If we truly want to make a change in behavior, we might have to impose punishments that seem to be more than that particular offender ‘deserves’ v. Mostly talking about deterrence (either general or specific/individual) 1. Make assumptions that people are rational thinkers and that any rational thinker would conclude that engaging in crime isn’t the right or rational thing to do 2. Assumptions about ppl that are rational thinkers don’t take into account crimes of passion that ppl are oriented toward the future 3. One of the biggest problems w/ deterrence in the USyour chances of getting caught for any individual crime are pretty low vi. Rehabilitation

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1. Views crime as an illness we can figure out how to cure—very popular in the 1960s in the US—we want to change the character of the offender so they won’t engage in the crime again 2. Opponents looked at this as being soft on crime 3. The more we studied what happened to ppl who went through rehabilitative programs, the less we say that they had any effect (programs weren’t funded to the extent that they needed to be in order to be successful) 4. Keeping someone incarcerated for as long as it takes to rehabilitate them—indeterminate sentencing, doesn’t seem proportionate to what they deserved vii. Incapacitation 1. All we want to do is remove the offender from society 2. We assume there is no one to take that person’s place in crime and that they won’t resume their life of crime when they get out d. Retributive approach i. Punish the offender as much as he or she deserves; punishment fits the seriousness of the crime ii. Don’t focus on society as a whole or on the future iii. Look at the offender and what that person has done in the past iv. Used in 2 different ways: 1. Purely using retributive theories to tell us how much punishment is due 2. Or used to put a ceiling (or sometimes a floor) on a punishment of a crime e. We’re concerned w/ how much an offender deserves, as well as the type of message we want to send III. Principle of Legality a. A person may not be punished unless what she did was defined as criminal and it was defined as such before she committed the crime b. The legislature must define the crime c. All laws have to be drafted with a certain amount of vagueness, but there is a limit on this d. Concern about giving too much discretion to ppl in the criminal justice system, about essentially allowing them to decide what is a crime on the spot through an overly vague statute
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e. f. g.

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i. Police officers and judges and prosecutors have a certain amount of latitude in using their discretion—not so much that they have unlimited discretion and not so little that they are constrained and can’t do their jobs Also a concern about guidance to the individual person about what they can and can’t do is another concern of legality Civil liberties is thus also a concern Requirement of previously defined conduct i. One of the most difficult categories of crimes w/ the legality principle are common law crimes ii. What happens when you have something you think is a crime, but no statute actually prohibits it? Can you punish someone for it? This is why statutes were crafted broadly enough to hopefully capture these crimes iii. Most states have abolished common law crimes to avoid just that sort of problem iv. Courts have to use the statutes that they have; they can’t arbitrarily interpret them based on modern meanings, because that raises due process issues of notice 1. Keeler v. Superior Court: a viable fetus wasn’t covered under the CA homicide statute as written in 1850, so court couldn’t convict D for murder; that was later changed by the legislature (as often happens after a court has to find a result that goes against what’s socially acceptable) The values of statutory clarity i. A statute that is passed has to be specific enough that it gives the type of warning needed 1. Can’t be so vague that it depends heavily on the police, prosecutors, and judges for discretion 2. Can’t be so vague that a reasonable person wouldn’t understand what was prohibited 3. Interpretation of statutory language may narrow the statute, but broad language in said statute could still be problematic ii. The specificity of a statute is important so as not to leave its enforcement entirely up to the discretion of police officers on the street 1. City of Chicago v. Morales: gang ordinance defines prohibited activity so vaguely that practically any activity could violate the ordinance, enforcement was left almost entirely up to the discretion of the

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IV.

police on the streets; court didn’t allow D to be prosecuted under such a vague ordinance, city later changed the ordinance i. Statutory Interpretation j. The meaning of specific words in a statute can cause issues in prosecuting defendants k. Courts will sometimes go to great lengths in order to construe one single word or phrase l. Muscarello v. United States: court looking at whether the phrase “carries a firearm” is limited to the carrying of firearms on the person, determined that it wasn’t limited to that definition Actus Reus a. Crime = Act + Mental State b. Act requirement—called the actus reus c. You need to do something or fail to do something you have a legal duty to do in order to be able to be punished for a crime d. Result crimes: focus on criminalizing the result of your actions or omissions, defines as the crime a bad result; doesn’t tell you exactly what act of yours has to lead to that bad result, any act you engage in that leads to this result (ex: murder) e. Conduct crimes: focus on criminalizing your conduct (ex: driving while under the influence of alcohol i. It’s more than just defining an act—the law wants to prohibit harm where you have control over your conduct f. Voluntary Act g. The act must be a voluntary one (see Martin) i. D taken by police to public road, where he was then arrested for public intoxication ii. Elements of the statute: intoxicated, in a public place, where ppl are present, manifest your intoxication by boisterous conduct or profane language iii. on its face, it looks like D violated the statute iv. But, the court reads into the statute that you must voluntarily be in a public place v. Court concerned here about allowing the police to create a situation in which a crime occurs, whether the D wanted it to happen or not h. Courts are concerned about people faking claimed ‘involuntary acts,’ in which they commit a crime through a supposed involuntary bodily action; they need a good bit of evidence on involuntary acts in order to excuse any criminal behavior i. Omissions (“Negative Acts”)
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j. It must have been possible for the person to have committed the act if you want to hold them criminally liable for not doing it k. Oft-cited case in this area: People v. Beardsley (married man invites woman to his apartment, drinks w/ her all weekend, she takes a large dose of pills, he fails to get her medical attention, she dies—state sup ct held man had no legal duty to help this woman since she was not his wife or very close relative) i. Common law relationships in which you would have a legal duty: parent/child, husband/wife, assuming care of someone who cannot care for themselves ii. Other possible legally-enforceable relationships: create the harm, contract, or statute on point that names people who have a legal duty to respond iii. Courts haven’t been willing to expand the categories in a modern world for relationships like husband/wife or parent/childonce you open up those categories to other relationships, where do you draw the line? l. Just because a person is in danger and you could do something to help them doesn’t mean you are legally bound to do so m. MPC §2.01(3): act or omission i. Statute places an obligation to act; or there is a duty to perform the omitted act otherwise imposed by law ii. Can account for the law to expand and adjust the categories in the common law as society develops iii. Something this doesn’t do: 1. Doesn’t talk about someone w/ specific knowledge having an obligation to act; no foreseeability duty 2. MPC drafters chose to leave these categories out b/c they believed the common law categories were the most fair on balance V. Mens Rea a. Crime = Actus Reus + Mens Rea 1. +Causation/Result 2. +Attendant circumstances 3. Other special factors that must exist in order for this crime to occur, for a statute to have been violated 4. Ex: person who is drunk in public where one or more persons are present 5. Not thinks that a D controls b. There must be a mental state that accompanies every element of the crime
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c. Two different versions of mens rea courts talk about: i. Older version/general sense of mens rea: some level of culpability, wickednessbroad requirement of culpability ii. Modern versions/MPC’s approach: very specific requirements telling us what that mental state must be, elemental mens rea using precise definitions d. If you fail to commit the act with the correct mens rea, it’s not a defense, you are simply acquitted e. Regina v. Cunningham: language of the statute—unlawfully and maliciously (mens rea) i. Administer or cause to be administered (act) ii. Noxious thing (attendant circumstance) iii. To person (attendant circumstance) iv. Endanger. . . (result) v. Court of criminal appeal in this case takes ‘maliciously’ to mean intent or recklessness, as opposed to traditional definition of ‘wickedly’ f. People v. Conley: statute—intentionally (purpose, conscious objective)/knowingly (aware of or practically certain of results) i. Cause ii. Great bodily harm or disability/disfigurement (result) iii. To a person (not anyone specific in statute language) iv. Court says you can infer intent from D’s actions and words, and the fact that he swung the bottle w/ enough force to inflict permanent damage v. Statute draws a line between intent and recklessness, that intent is a higher level of culpability g. Transferred intent i. A couple of different contexts 1. Some courts: intent to harm one victim transferred to another (that you did injure) 2. Transferred intent gets tricky when talking about 2 different types of crimes or 2 categories of crimes ii. Specific v. general intent: have different meanings in different contexts 1. Go back to culpability and elemental meanings of mens rea a. Specific intent: we gave you specific level of intent to be held criminally liable b. Any crime that requires less than knowledge is a general intent crime

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h. i. j.

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l.

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2. Other way: general intent—intend to do the act; specific—intend to do the act and do something on top of that Model Penal Code approach Purpose: conscious object (conduct/result); aware of/hope (ACs)this is what they want or intend to do Knowledge: aware of (conduct/AC); practically certain (result) i. Step down from purpose ii. Difference b/t the two is how crucial the result is to D’s undertaking 1. Wanting something to happen (purpose) vs. knowing it is practically certain to be a result of achieving your real goal (and you don’t care) (knowledge) Many statutes combine purpose and knowledge b/c the difference between the two doesn’t make a big difference i. --purpose and knowledge are subjective tests ii. --a lot of the time we’re not really sure what was going on in the D’s head, so we lump the two together Recklessness: consciously regards substantial and unjustifiable risk—gross deviation from law-abiding citizen i. Need to show that the D was aware that this was a risk (subjective to a certain extent) ii. More objective factors: the risk was substantial and unjustifiable Negligence: should have been aware of substantial and unjustifiable risk—gross deviation from reasonable person i. Whether a reasonable person would have been aware of this significant risk ii. Why use the reasonable person standard? Where recklessness has that subjective test of consciously disregarding a risk, negligence is a purely objective standard iii. Criminal liability in negligence is somewhat controversial—there needs to be a gross deviation to make the jump from criminal to civil standard MPC tells us that this is a hierarchy of mens rea from highest level (purpose) to lowest (negligence) i. If you have proved one level, you have also proved all the levels below it ii. Problem b/t negligence and the other three: negligence doesn’t require an awareness of the risk at the other three levels do 1. You can’t be said to have been aware, and at the same time not aware when you should have been—it’s one or the other MPC gives us rules for what to do, §2.02
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p. q. r. s. t. u. v.

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i. (1) apply mens rea to every element of crime ii. (2) defines the kinds of culpability (see below) iii. (3) where the level of mens rea isn’t prescribed in the statute (at all or for a particular element), it can be established by proving purpose, knowledge, or recklessness iv. (4) apply mens rea to every element of crime, unless a contrary purpose appears (where the mens rea appears in the statute) Line between knowledge and recklessness depends very much on what the D believed or knew what would happen More and more, courts take a MPC-like approach, even where the jurisdiction hasn’t adopted the MPC Strict Liability Offenses Strict liability not favored by the criminal law, it’s an exception to the mens rea requirement for crimes Hold people strictly liable for newer types of crimes that specifically affect the public welfare, put responsibility on the people who control these instrumentalities Strict liability crimes typically the ones punishable by fines; the one exception to traditional strict liability crimes—statutory rape Staples v. United States: case is analysis for when it’s appropriate to impose strict liability i. Firearm that can be converted to be capable of fully automatic ii. Elements of the crime: 1. Receive/possess (act)—not disputed 2. Firearm (AC)—arguing the status of this being the type of firearm that fits the statute 3. Unregistered (result—on a theory of omission, that you fail to register it)—not disputed 4. No mental state requirement iii. Court not comfortable making this a strict liability statute 1. No one disputes that owning a gun is dangerous, but gun ownership is legal and innocent conduct 2. In a lot of other strict liability cases, innocent conduct isn’t clear iv. Court says that nothing here puts the generic gun owner on notice that what they own is particularly dangerous MPC §2.05: strict liability crime only if punished as a violation, which means only w/ monetary penalty; you can’t send someone to prison based on a strict liability crime i. The only exception is for statutory rape
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VI.

VII.

VIII.

Mistake of fact a. Specific intent crime (such as burglary statute) i. If your mistake means you don’t have that intent, then it is irrelevant to whether you’re going to be convicted for that crime b. General intent crime (generally culpable or blameworthy for your actions) ii. Mistake as a defense: not really a defense, way of expressing that you didn’t have the mens rea required to commit that crime c. MPC, §2.04—ignorance or mistake iii. A defense if: 1. The ignorance or mistake negates the necessary mens rea for a material element of the crime; or 2. The law provides that the state of mind established by such ignorance or mistake constitutes a defense Two doctrines as a way of looking at mistakes that come into play: a. Moral wrong—more traditional common law approach i. Criminal law is reflection of society’s views of what is morally wrong ii. Were you still doing something morally wrong, even if you made a mistake? (from D’s perspective) iii. If you were doing something morally wrong, still liable b. Legal wrong i. If we took the facts as you claim them to be, were you still committing another crime (other than theft crime, for example)? ii. If we do have this lesser crime, then we still find you guilty c. At common law, if legal or moral wrong doctrine applied, and you were guilty, you were guilty of the most serious crime (you’re not given any slack) d. Modern approach says you can only be convicted of the other, lesser offense because that’s the only crime you have mens rea forthus, focus is on legal wrong doctrine Mistake of Law a. General rule: ignorance of the law is no excuse i. See: legality, as long as law was enacted before your crime, and is reasonably available to you, then you will be held accountable b. Mistake of law comes up most in mala prohibitum crimes, regulatory laws (MPC §2.02(9)) c. We don’t want to give anyone the benefit of the doubt if they just didn’t bother to find out what the law is (especially where it’s readily available)

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d. Unless the statute says you must be aware of it, we won’t read into the language any mens rea for ignorance of the law e. If you have some official interpretation from the AG or a controlling case that can be relied on, then later is changed, we shouldn’t be able to convict someone for that mistake IX. Causation a. No criminal liability without showing that the D’s conduct was a cause-in-fact of the prohibited result b. “But for” test: D’s conduct is a cause-in-fact of the prohibited result if the said result wouldn’t have occurred but for the D’s conduct c. “Substantial factor” test sometimes used in cases where multiple Ds inflict injuries that by themselves could be enough to cause the result i. D’s conduct is a cause-in-fact of a prohibited result if the subject conduct was a “substantial factor” in bringing about the said result d. Courts struggle w/ whether the injury to the person would have happened at that moment in the same way; looking at whether the D’s actions were a substantial factor in victim’s injuries/death e. Courts construe events from D’s perspective Proximate Cause a. The only thing that “but for” cause tells us is who might be responsible for this crime b. Proximate cause tells us who is the person legally responsible for the crime c. Often comes up when you have an issue of intervening cause i. Act of God ii. Act of an independent third party which aggravates or accelerates the harm caused by the D, or which causes it to occur in an unexpected manner iii. An act or omission of the victim that assists in bringing about the outcome d. Cases apply factors rather than bright line rules that help courts balance out and determine the outcome e. Six factors: i. De minimis contribution to the social harm factor; can’t make a causal argument b/c the contribution is so minimal ii. Foreseeability of what this contribution was—responsive to D’s conduct? Coincidental?

X.

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iii. Intended consequences—not a superseding cause if, even w/ all the things that happen in between, the death still occurs in the way you wanted it (or a way closely linked to that) iv. Apparent safety doctrine—victim in a place of apparent safety, crime has concluded; anything after that isn’t considered linked v. Human intervention by victim—crime over, victim makes voluntary choice to do something that results in their harm vi. Omissions XI. Criminal Homicide a. Murder requires malice aforethought, manslaughter does not b. Malice [aforethought] not limited to murder cases only; 4 mental states (mostly just the first 3): i. Intention to kill (mostly been taken out now) ii. Intention to inflict grievous bodily injury iii. Extreme reckless disregard for value of human life iv. Intention to commit felony, during which death occurs c. What crime you’re guilty of all comes down to your mens rea in most homicide cases d. States’ approaches to homicide v. California’s Homicide Statute 1. Divides murder into different degrees a. First degree murders punished more harshly, and usually the only murders subject to the death penalty in a state with the death penalty 2. Define killings committed in certain, specific ways 3. Definition of felony-murders and which kinds constitute 4. Two types of manslaughter: voluntary and involuntary a. Voluntary: “upon a sudden quarrel or heat of passion”— provoked b. Involuntary: “without due caution and circumspection”— looks like recklessness 5. Also vehicular manslaughter defined—shows what the legislature values in terms of social harms b. Pennsylvania now has three degrees of murder rather than two i. PA was originally the model for splitting murder into two degrees
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c. NY uses the same basic model of first and second degree murder, but much more detailed as to the difference between the two i. Revised penal code when NY reinstated the death penalty, Sup Ct now requires much more specific findings by a jury even b/t first degree murder crimes and those eligible for capital punishment d. NC penal code i. Specifically called out crimes related to drug distribution, as second degree murder crimes ii. Definitions of manslaughter come from case law, not defined by statute iii. Traditional, common law approach to homicide crimes iv. Substantively not very different form CA’s definitions of different levels e. MPC approach v. Definitions of mental states—default back to MPC categories, rather than common law malice categories vi. Murder is a felony in the first degree, but not divided into different levels of murders vii. Felony murder isn’t a different kind of murder, folded into third category of recklessness w/ regard to the value of human life viii. Manslaughter involves two different circumstances (like CA) ix. MPC defines negligent homicide—least serious in terms of punishment Intentional Killings  What kinds of factors differentiate b/t killings that are willful, deliberate, and premeditated, and other types of killings? o Plans; amount of time a person has been thinking about it; nature of wounds; relationship to victim/history; emotional state of the person  Voluntary manslaughter is intentional, but for some reason we think the D’s actions are excusable o Amount of time required to form intent to commit the crime can be very short, as long as it’s enough for the accused to be fully conscious of what he intended  Both the common law and the MPC establish a standard of behavior of how we think people in society should act o Differences:  Nature of the provocation:  Common law “heat of passion,” suddenness, anger (most of the time)
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MPC Extreme mental or emotional disturbance language, not keyed into just anger, no requirement of suddenness  Traits of the reasonable person: common law is reluctant to acknowledge these subjective traits A couple of different tests: o Subjective test—was D provoked? o Objective test—whether a reasonable person (whoever that is, whether under common law or MPC) would have reacted like that  Courts using the common law approach debate on how far to apply the circumstances of the D to the reasonable person, how much to subjectivize this objective standard; courts prefer to focus on objective characteristics rather than potentially more subjective mental disabilities o [Cooling time]—did you cool down? Would a reasonable person have cooled down?  Not a part of the MPC, gets folded into subjective an objective tests there The differences b/t first and second degree murder is about mens rea and mental state o 1st degree murder mental state requirement involves a finding of premeditation and deliberation to commit the crime of which D is accused; if premeditation and deliberation are missing from the findings, then the required mental state was not present and D can’t be convicted of 1st degree murder, but there may be enough for 2nd degree o 2nd degree murder mens rea requirement is less strenuous o Distinction b/t 1st and 2nd degree is a legal one “Rule of Provocation” o There must have been adequate provocation;  Reasonable man standard  Words alone can’t constitute adequate provocation, must also include an act o The killing must have been in the heat of passion; o It must have been a sudden heat of passion—that is, the killing must have followed the provocation before there had been a reasonable opportunity for the passion to cool; o There must have been a causal connection b/t the provocation, the passion, and the fatal actin most cases, this isn’t an issue Traditional 1st/2nd degree murder mitigated to voluntary/involuntary manslaughter (common law model) o Was D provoked? o Would reasonable person have been provoked? if a case is going to fail, it will fail on this question
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o Cooling time—did the D cool off? Would reasonable person have cooled off? only really comes up if you have a time lag b/t what supposedly provoked the D and what the D did, doesn’t come up in many cases o Phrasing you’re looking for in manslaughter statute—“upon a sudden quarrel or heat of passion” MPC model (more streamlined, talks about purpose, etc.) o Under influence of extreme mental or emotional disturbance for which there is reasonable explanation or excuse (view from the person in the actor’s situation under circumstances as actor believes them to be) o “extreme emotional disturbance” could include great sadness as well as the rage or anger that is usually thought of under the common law model o More difficult to determine who the reasonable person is, how you compare the reasonable person to the D, opens door to a lot more of the concerns than the common law model Voluntary manslaughter was originally only for strict categories, and has gradually been opened up

Unintentional Killings: unjustified risk-taking  The D has done something that resulted in someone else’s death, but the D didn’t intend to kill anyone, and may not have even been thinking that their actions could result in another’s death o Includes when D acts recklessly, negligently, and some situations that fall under the felony-murder rule  MPC approach to mens rea o Purpose o Knowledge o (we have inserted here a category of extreme recklessness)—murder o Recklessness—(Involuntary) manslaughter (aware of the risk) o Negligence—negligent homicide (unaware of the risk, look at facts that could put the reasonable person on notice)  We’re talking about the line between knowledge and extreme recklessness  MPC has a defined line b/t recklessness and negligence and what crimes those indicate  “Involuntary” is really a synonym for unintentional—person still must commit that voluntary act  Talking about implied malice rather than express malice  “depraved heart” or “abandoned and malignant heart”
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o MPC language talks about recklessness manifesting extreme indifference to the value of human life, more than a garden-variety recklessness, extreme recklessness o The risk we’re talking about isn’t just a generic social risk, it’s a risk that someone will die and the D just doesn’t care o Extreme recklessness is murder (2nd degree), as opposed to recklessness, which is manslaughter o What do we gain by adding “extreme recklessness” to the categories ofmurder?  Deterrence, especially w/ regard to risk-taking behavior  More severe punishment for someone whose crimes could be swept up by lower categories, but for whose crimes society demands punishment  Idea that the people who take these risks are more culpable Two different tests o Thomas: malice implied w/ D’s “wanton disregard for human life” and “high probability” that D’s actions will result in death  “base, antisocial motive”—D is bad, evil, antisocial person  “high probability”  More descriptive, higher test in many ways  Seems to invite the jury to convict a person based on the fact that they’re a bad, antisocial person o Phillips test: “conscious disregard for life”  Looks a lot more like MPC approach, much more antiseptic, clean test  “knows that his conduct endangers life”—no language about high probability, seems to be a lower standard

Unintentional Killings: unlawful conduct The Felony-Murder Rule  We don’t care about the D’s mens rea w/ regard to the killing  Statutes law out certain crimes (“enumerated felonies”), that will qualify for the felonymurder rule o All felonies  Predicate felonies—could count for felony-murder, broader felony inherently dangerous to human lifesecond degree murder  Enumerated felonieslaid out in statute, 1st degree murder  MPC folds felony-murder into extreme recklessness  Manslaughter can’t be used to bring a charge of felony-murder o Merger doctrine—can’t have felony-murder if the underlying crime and the killing merge
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Doctrine gets complicated when we have a group of felons, and only one is responsible for the killing while the other sits in the getaway car, or is in another room, etc. o Forces courts to try to define the theoretical basis on which the doctrine exists, and how far they think it goes o Factors courts might take into account to determine if the crime is over for a particular D:  Period of time b/t the felony and the killing  Causal relationship b/t the D’s actions in the crime and the actual killing o An issue of agency: does it matter who kills? Does it matter who dies?  The ‘agency’ approach majority rule: the felony-murder doctrine doesn’t apply if the person who directly causes the death is a non-felon o Proximate causation approach makes many of these cases look like felony-murder, even if courts don’t want them to o Assumption of the risk approach (also called protected party approach)  Where a felon is on the hook when an innocent party is killed  But if another felon is killed, not on the hook  Felony-murder applies if a protected person is killed (third party innocent bystander, victim, police officer, etc.)  But this approach can leave a lot to luck—if there is a lot of gunfire and a felon is killed, not responsible; but if a protected person is killed, he is responsible o Other possible approaches:  Misdemeanor-manslaughter rule: has never really taken off; felony-murder w/ lesser levels of crimes  Don’t change what you’re guilty of, but if someone died during the felony, then you increase your sentence a whole lot—many ppl end up serving the same amount of time as they would under felony-murder What limits do we place on felony-murder? o Some states incorporate a mens rea element in felony murder o Some states limit the predicate felonies by saying only the enumerated felonies qualify o Some states require a much tighter causal link; basically use a foreseeability analysis—still leaves a large number of cases, but at least it cuts out the bizarre cases at the end of the spectrum o In states that recognize predicate felonies, the key criteria is that they must inherently dangerous to human life (to divide them b/t the predicate felonies and all others, and b/t predicate and enumerated felonies—1st and 2nd degree division)
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2nd degree felony-murder area o Very often you wind up in the same place (conviction-wise) o Extreme recklessness/abandoned and malignant heart is 2nd degree murder; a lot of 2nd degree felony-murder cases have this type of mens rea o So you don’t get the bump up to 2nd degree murder from something else w/ 2nd degree felony murder b/c you could get here w/ traditional mens rea o Unlike 1st degree felony-murder which allows the crime to be bumped up where it wouldn’t otherwise be able to

Inchoate Offenses  Doctrine of attempt—by definition, just a crime that doesn’t work  Conspiracy—guilty of a crime for simply planning w/ other ppl  Inchoate—incomplete, partial crime; on its way to happening, but not there yet  Attempts come in different varieties o Completed attempt—person goes so far as to point the gun and try to shoot the person, but for whatever reason the harm doesn’t happen o Incomplete attempt—actor stops himself before the crime is completed  Objectivist approach to attempt o Say: this is what the D did, so do we believe this conduct is enough to establish attempt? o Not considering conduct that leads up to the crim, focus more on what happens at the end of the process of preparation leading up to the crime  Subjective test o MPC takes this test, want to focus on what’s in the D’s mind o Once he started making preparations before the crime, that’s enough for a conviction for subjectivists o This approach starts earlier on in the crime  How much do we punish attempt? o For the full amount of the crime—MPC approach says you’re punishing the person for the guilty state of mind, and they’re just as guilty in the mind whether the crime is completed or not  MPC 5.05(1)—attempt, solicitation, and conspiracy are all punished as much as having completed the target crime o For less than the full punishment—possible deterrence effect if a person can be punished less for not going through w/ it? Or the fact that the harm hasn’t actually occurred, so there’s no reason to punish someone as if it had? o Most states punish attempt less than the completed crime
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  

NC, for example, puts attempt into different categories, and attempt crimes are punished one category down Som e states punish for a percent of time States are concerned about deterrence, want to give ppl a reason to back off, also the idea that a person isn’t as bad if they don’t complete the crime

Attempt Mens rea for attempt  Traditional rule: must have the intent to commit the target or substantive crime in order to be guilty of attempt  Remember that attempt is a specific intent crime  In most jurisdictions, you can only accuse someone of an attempt for a crime that is itself intentional  General rule (MPC and common law similar) o Purpose for the result of conduct (for a result or a conduct crime) o Common law not sure to do w/ attendant circumstances o MPC says you need purpose for conduct and for result, but whatever mens rea the statute requires for any attendant circumstances  In some cases, the inclusion of all the alternative mental states is wrong o Attempt itself is specific intent to commit the crime of murder (in one case—see Gentry); you had the intent to kill o So all the other mental states fall short of saying you wanted to kill the victim  Logically, you can’t intend an unintentional crime  MPC, Article 5, §5.01 (pg. 992 in casebook) o Complete, but imperfect attempts: (1)(a and b)  (a): conduct crime, and an attendant circumstance is missing  (b): result crime; you do everything you can, but the result doesn’t happen Actus Reus for attempt  We won’t convict someone for an attempted crime based on what they’re thinking alone w/o any steps toward the crime  Require conduct b/c otherwise we’re not sure what they meant to do o We don’t want to jump in too soon such that something that is completely innocent, legal action o But if we wait too long, we tell law enforcement that they can’t intervene until the crime is in progress  How far do you have to go toward achieving the crime before we can say you have committed an attempt? How far beyond ‘mere preparation?’
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 

Common law has come up w/ various tests: o Last step/last act (not as common today)—we don’t convict someone of an attempt unless they’ve done everything they need to do to commit the crime, but somehow it fails o Physical proximity—were you close to committing the crime? Physical action that must be taken?  Dangerous proximity—Holmes balancing test; the more serious the crime is, and the more likely it is that the D’s actions will cause it to occur, the more likely it is that we will convict a D of an attempt earlier; courts entitled to take into account the risk here, factors other than pure rules, take policy concerns into account o Indispensable element—if you don’t have something you need to commit the crime yet, then you can’t be convicted of attempt o But-for interruption/probability of desistance—whether the D is committed to trying to actually commit this crime  But for the interruption, would you have gone on to successfully commit this crime?  What’s the probability that the D would have desisted/stopped for some reason on his own?  Not a useless test when there was an interruption; it just proves the point o Abnormal step—did the D take a step that a normal, law-abiding citizen wouldn’t have taken? Very subjective, but occasionally used o Unequivocality—is the D’s conduct unequivocal? Was the D sure to commit this crime? o Substantial step—MPC uses this test (§5.01)  Did the D take a substantial step toward completing this crime?  MPC goes further, saying the step must corroborate the D’s criminal intent (§5.01(2))  End up convicted of an attempt at a much earlier point in time Some of these tests focus on how much remains to be done before the crime happens Other tests focus on how much the D has actually done, which is a very different analysis

Impossibility  Factual impossibility—facts beyond the D’s control prevent the crime (like in Rizzo, where the Ds couldn’t have committed the crime they wanted on that day o Not a very sympathetic argument in court’s view
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Legal impossibility—a D is doing something he believes is against the law, but it’s not actually illegal o Most courts do believe this is a defense  Hybrid impossibility— o Example: attempting to bribe a juror in a high stakes trial, but that person is not actually a juror  Not a factual mistake like Rizzo; it’s a mistake about the legal status of someone  Legally impossible for this crime to have been committed (defense argument), but prosecution will say jury tampering is a crime and you got lucky by making a factual mistake o Most courts will treat them like a factual impossibility in such a hybrid situation (i.e. it’s not a defense) o In hybrid cases, it’s always a crime that you’re trying to commit o Tiny category where Ds can get off—inherent factual impossibilities in hybrid situationwhat you’re doing/trying is a crime, but you’re never going to be able to succeed the way you’re doing it  Voodoo cases—trying to kill someone by using a doll and incantations (never going to work) Abandonment  Once someone has crossed the line b/t prep and attempt, should we allow them to give up, not intend to do it again, and go back over the line?  At common law, the rule was that once you crossed the line, you couldn’t go back o Makes sense when you think that common law tests place the line closer to the actual commission of the crime, so you could change your mind before you ever crossed the line to begin w/, even after making a couple of steps toward the crime  MPC lets the attempt go a little further, because to punish someone as soon as they cross that line under its tests would not be a good deterrence policy o MPC convicts you of the crime of attempt much sooner, when you’ve take that first “substantial step” toward attempt o So if you take one step, you might as well take them all if you’re just going to be punished as severely if you do complete the attempt or if you don’t Solicitation  Involves the asking, enticing, inducing, or counseling of another to commit a crime  Solicitor is morally more culpable than a conspirator
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Offense of solicitation merges into the crime solicited if the latter offense is committed or attempted by the solicited party

Conspiracy  Definition of conspiracy at its most basic level—Agreement by two or more people to commit a crime  Assess liability much earlier in time, sometimes before a substantial step has been taken, or about that same time  Crime is complete upon formation of the agreement  Same mens rea issues as with attempt law, with whether we hold conspirators responsible for the unintended consequences of their plan to commit a crime  Don’t get confused b/t the conspiracy itself and the people who are a part of the conspiracy (conspirators)  Traditional common law approach: o Agreement to commit a crime, fairly narrow approach to conspiracy, would have to have at least two people o Specific intent crime, purpose to commit whatever that target crime is o Usually punished as a misdemeanor  MPC Approach (§5.03) o Broadens conspiracy in terms of when you can convict people o Agreement made w/ purpose of promoting the commission of the crime o Mens rea is purpose o MPC uses a subjective approach—someone is guilty if he agrees to commit a crime w/ someone else; focuses on the individual, what they agreed or didn’t agree to do, regardless of whether we can find the person w/ whom you conspired o Punished the same amount as the target crime o Felonies under the MPC are virtually all felonies in the 3rd degree; that is the default o If convicted of conspiracy, attempt, and the completed crime, you can only be punished once—which will ultimately be the same  Modern common laws o Agreement by 2 or more persons o Most jurisdictions require some overt act, something besides the agreement tending toward the crime (doesn’t need to go as far as a substantial step) o Punished in most states only as a proportion of the punishment of the target crime o In most states you can be convicted for conspiracy and the completion of the target crime, because they’re two separate things  Prosecutors love conspiracy law; Ds hate it
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o Much easier to establish a conspiracy o Once you’ve established conspiracy, conspirators become responsible for a whole host of other activities o Based on a smaller quantum of evidence than any other crime that’s prosecuted Mens Rea for Conspiracy  Two different mens rea requirements: o Purpose to agree—most of the time this is not going to be the big issue o Purpose to promote target crime—more often will be more problematic, especially in terms of very large-scale conspiracies where people think they’re agreeing to commit smaller conspiracies, so hard to get everyone under the same target crime  We need not just the agreement but an overt act that helps support our idea that a conspiracy exists o Infer the agreement from the actions of the people afterward o The more orchestrated it looks, the more willing a court is to infer a conspiracy o We don’t have many hard and fast rules for inferring a conspiracy, more a totality of the circumstances o Overt act doesn’t have to reach the level of a substantial step o Only one person needs to commit the overt act to establish the conspiracy itself, not to establish guilt for any particular person o States are inconsistent in terms of whether they require an overt act for conspiracy o Cases tend to fail for lack of charging the overt act o MPC says you don’t need an overt act to charge conspiracy for the most serious crimes, but for everything else, you do need an overt act  Pinkerton rule: a very strong rule in the federal courts; factors a court needs to look at to determine where you can blame one conspirator for what the other one does o Act needs to be in furtherance of the conspiracy itself o Needs to be w/in the scope of the conspiracy (often folded into both of the other analyses) o Has to be reasonably foreseeable to the conspirators  Rule: you can’t conspire to commit an unintentional crime  People v. Swain o Just because someone dies doesn’t mean you should try to convict them of conspiracy to commit 2nd degree o Conspiracy is the overall charge for what the conspirators do at the front end

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o Then you can go after them for what actually happened, and they may be punished more harshly for those crimes directly rather than conspiracy to commit those crimes Intent may inferred from knowledge: o When the purveyor of legal goods for illegal use has acquired a stake in the venture o When no legitimate use for the goods or services exists o When the volume of business w/ the buyer is grossly disproportionate to any legitimate demand, or when sales for illegal use amount to a high proportion of the seller’s total business People v. Lauria o Case deals with the sale of goods that makes a conspiracy possible o Just because you’re aware of how your service is being used doesn’t mean you have a purpose to further that crime o Court looks at several factors, kind of an alternative mens rea for suppliers, allowed to substitute for ordinary purpose requirement  Knowledge plus  Direct evidence of participation, or  Inference—stake in the crime, volume of business, legitimate uses of the business, or  Seriousness of the crime (threat to physical person of people, very serious drug crime...) MPC has no special rules for suppliers

How a conspiracy might be terminated  Once you’ve agreed with the correct mens rea, you’ve committed the crime of conspiracy  Common law not overly sympathetic to a change of mind by someone who already agreed to be a part of the crime o Much more sympathetic to saying that once you’re out, you’re not responsible for what the other conspirators do after that toward the crime  To really withdraw and not be responsible for the conspiracy, the court says you have to do it immediately after realizing you’ve made an agreement to commit the crime, certainly before the overt act o By withdrawing after the overt act, you are responsible for the conspiracy, but not for the crimes that occur later  Withdrawal needs to involve letting the other conspirators know that you no longer intend to complete the crime, a complete voluntary withdrawal
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MPC has idea of abandonment (§5.03(7)(c)—abandonment) o Allowing you to withdraw and not be liable for the subsequent activities of the conspiracy True renunciation of conspiracy (MPC §5.03(6)—renunciation of criminal purpose) o Allows you to get out of the conspiracy altogether o Most states don’t enact this provision o Requires thwarting the success of the conspiracy (usually involving going to law enforcement) o A difficult burden to ever meet If no one does anything, if the conspiracy goes dormant, it stops at the end of the statute of limitations

Liability for the Conduct of Another Accomplice Liability  General accomplice liability occurs w/o conspiracy, where people just help each other out  Complicity (accomplice liability) is not a separate crime, a person is guilty of the same crime as the person who commits it—you don’t commit the crime yourself, but you help someone do it  MPC, modern common law approach o Convict the person directly liable o Accomplice—anyone who helps that first party commit the crime, you don’t really worry about the degree of complicity o Some vestiges of the rule that you can’t convict the accomplice if the principal isn’t convicted (modern common law)  MPC gets rid of that rule o Accessory after the fact—someone not involved w/ the crime until afterward  Treated differently, such a person not held responsible for the crime itself, not convicted of the target crime felony, punished much less seriously o For our purposes, everyone is roughly the same unless they come in after the fact  Complicity doctrine is not necessarily an inchoate crime o You can be an accomplice in an inchoate crime, but accomplice liability also applies for completed crimes  Because complicity doesn’t actually require purpose, as long as you intend to help someone and you have the requisite intent for that crime, you can be considered an accomplice even for an unintentional crime  At common law, the accomplice had to actually successfully aid in the crime, something that actually helped the crime occur
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 

o You had to show that at least minimally, they successfully facilitated that event o Intent to assist, generally requires purpose o Mens rea for underlying crime (usually interpreted to mean you can be an accomplice for an unintentional crime) o Punishment—at common law, guilty of substantive crime MPC doesn’t care whether what the actor does changes anything—just looking at whether the accomplice aided or attempted to aid; you just have to try to be guilty of accomplice liability Ask 3 questions: o What’s the underlying crime that happened? Completed burglary? Theft? Is it an attempt? o Is the person an accomplice to a crime? o If there’s no crime b/c the principal gave up, then you go back to MPC 5.01is this person guilty of an attempt on his own? State v. Hoselton: how you handle people who seem to be part of a crime, but we’re not really sure b/c they seem to be more on the periphery—just there, but not involved at all? Or there acting as a lookout ad that’s why they’re on the fringes? o He was clearly w/ the people who were committing a crime, but we don’t know what his role was there o Him just standing there watching when no one comes isn’t sufficient, says the court. He needs to be doing something toward furthering the crime Is knowledge enough? Or do you have to have the purpose to assist? o Under MPC and majority of jurisdictions, you must have purpose o Minority of jurisdictions say that in some cases you knowing what is happening and that what you are doing will help is enough Two-prong test for determining whether complicity mens rea has been met: o Does he have the intent to assist in the conduct? o Then, does he have the intent required for the result of the conduct? o MPC spells this out directly--§2.06(4)whatever the mens rea is for that result, if you have it, you’re on the hook (including for strict liability crimes) Common law idea that in order to be an accomplice, you have to do something that aids someone, somehow make that crime possible or more likely to occur o It has to be more than you just being there and seeing what’s going on Wilcox v. Jeffery: D understood what was going on and he still intended to profit from it by writing an article for his jazz magazine The fact that a potential accomplice isn’t involved in every single stage of the crime doesn’t mean he’s not involved in the crime at all and isn’t an accomplice
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o An accomplice not being a causal factor doesn’t mean that what he did wasn’t completely irrelevant General Defenses to Crimes

1. Categories of Defenses 2. [Failure of proof defense]: not really a defense, just another way of asserting the requirement of the prosecution that it prove all elements of the crime beyond a reasonable doubt a. You want to use this first to negate mens rea b. You don’t usually jump to the affirmative defenses first 3. Offense modifications a. Basically just where you have a statute that says somebody who is otherwise involved in this crime (w/o whom the crime couldn’t have occurred) can’t be prosecuted b. The victim of a crime can’t be prosecuted as an accomplice to the crime (someone w/o whom the crime couldn’t have occurred) 4. Public policy (non-exculpatory) a. Give people a pass in situations where they are otherwise culpable b. Example: statute of limitations; the time limit is a stronger public policy than the need to convict you 5. Key Defenses: 6. Justification a. What you did is normally morally wrong and a crime, but because of the specific context, we won’t just tolerate it; we’ll say it was the right thing to do b. Negates the social harm, you go free c. Ex: self defense d. Need several things for justification to be a defense: i. There usually must be a triggering condition ii. It has to be necessary for you to respond that way iii. Response has to be proportional to the threat 7. Excuse a. Different from justification b. We think that what the person did was wrong, but we understand why he did it c. At common law, this defense led to dropping the severity of the crime you were charged with, didn’t completely let you off the hook
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d. Now, because of the confusion, there are many states where excuse is a complete defense e. Think about voluntary manslaughter and provocation here 8. In most jurisdictions, D has the burden of proving any affirmative defenses 9. Mental capacity issues (insanity, use of alcohol or drugs) Principles of Excuse Insanity  Using this as a true, affirmative defense and it is an excuse  Not a failure of proof argument  Types of distinctions b/t sane an insane that are salient in this analysis: o Defendant’s own history (of this behavior) and whether this person has sought medical care and whether they have a definable medical condition o Severity of crime, need to protect society—some believe this is the crux of the insanity defense analysis  One major insanity test: extent to which person can control their actions; but we can’t predict this with any degree of certainty  What it means for someone to be found not guilty by reason of insanity: o Not the same as an acquittal o D is almost always involuntarily committed to state or fed mental health institution for some pd of time (states almost always differ in how long that is) o Held until you can prove you are no longer a burden/danger to society; people are usually in for quite a long time, often longer than the regular prison sentence for that crime o Insanity plea doesn’t work very often at all o You have to give notice ahead of time that you’re planning on using the insanity defense, to give the prosecution and court time to prepare o Burden is on the D to prove insanity (law assumes every person is sane)  See handout chart: “The Insanity Defense(s)” o M’Naghten test: was the standard for insanity, is the test we come back to if we think we’ve gone too far or become too flexible on insanity test  What does it mean to not appreciate the nature and quality of your act?  Not a very defense-friendly standard: very strict, requires complete lack of cognition  Irresistible impulse added to the M’Naghten test: the model isn’t supposed to be an irresistible impulse that arises in the moment, but that’s how juries interpreted it, thought it limited to impulsive behavior
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o Durham test (product test): excused the D if what the D did was the product of a mental disease or defect  Relies heavily of experts (why do you need judge and jurors? No role for fact finder whatsoever) o MPC combines second aspect of M’Naghten and the irresistible impulse test  Don’t have to demonstrate complete incapacity and don’t have to show that you knew the nature/quality of the act  Broader standard, a lot more leeway for psychiatrists to testify how they normally analyze patients’ sanity  Became the dominant test in US jurisdictions until Hinckley was found not guilty of attempting to assassinate the president by reason of insanity— public outcry o Federal law: result of severe mental disease or defect, but otherwise goes back to M’Naghten test  Guilty but Mentally Ill: new class of conviction; D receives same sentence as saying just guilty flat out, but you serve out your sentence in treatment for mental health at prison o Criticized: some say jurors will always choose this conviction; other criticism is that you end up putting the person in prison w/ the rest of the prison population b/c there’s nowhere else to put them, inadequate facilities for giving mental health treatment Diminished Capacity  At the time of the crime, the D was impaired, but not insane  This type of evidence can be used un a couple of ways o ‘failure of proof’ defense—to negate the mens rea of an element of the crime  Might be able to be held responsible for a much less serious crime, so still guilty of something  Problem is that there’s nothing to say that this person needs to receive treatment for anything o Partial responsibility defense: separate excuse based on diminished capacity, reduce the degree of your homicide crime (for example; this was how was usually used in CA, very controversial)  CA got rid of this after the “twinkie defense”  Very rarely used to say that the D is less responsible b/c of diminished capacity o How would this be discussed in the MPC?  Extreme emotional disturbance, incorporated w/ heat of passion
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Diminished capacity nothing more than another emotional disturbance type of argument  Clark v. Arizona: no constitutional right to bring in evidence of diminished capacity unless you’re making an insanity defense; it’s up to the state to decide how to treat these issues Self-Defense  Core of self-defense: o Reasonable belief that force is necessary to protect yourself o Force must be proportional o Imminent harm—something is about to happen, you have to respond at that moment  Right of homicidal self-defense only goes to those free from fault in the confrontation  If you can retreat and achieve complete safety, then you can’t use deadly force and then later the self-defense  The original aggressor can use self-defense only if the other party escalates the confrontation and it becomes necessary to defend against serious injury or death he never intended to inflict  State v. Norman: o Most important elements of perfect self-defense in NC  Imminent danger of great bodily harm (necessity)  Reasonable person would believe that they were in that level of danger o Imperfect self-defense in NC: usually used when D is the initial aggressor, when the initial aggressor didn’t have the intent to kill or cause serious bodily injury o What is imminent danger? o Can a woman whose alcoholic husband has abused her for many years and threatened to kill her in increasing measure during the week prior to the crime kill him in self-defense while he is asleep? Court thinks no o Case is no longer good law o MPC §3.04: uses the phrase “immediately necessary” instead of ‘imminent’—MPC drafters wanted to broaden the timeframe to make situations like this one easier for courts to decide



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