Ahrens Criminal Law Fall 2009 Outline
Content
Winship – all elements most be proven P: Crim. Conv. Causes loss of liberty and creates stigma Statutory Breakdown: Conduct Elements, Results Elements, Attendant Circumstances, Mens rea Circumstantial evidence not enough unless there is no other reasonable alternative (Owens v. State drunk driver) Burdens of Proof: Production: POE, need to satisfy to get issue into play Persuasion: BRD, to prove what did, didn’t happen Can’t introduce addt’l elements at sentencing Specific Intent: heightened mens rea; special motive for conduct; actor must be aware of attendant circumstances General Intent: everything else, at least recklessness Nations – strip club – owner had to have knowledge of age Strict Liability • Lack mens rea • Often public welfare/admin offenses • Usually low incarceration rates • Garnett – mentally ill stat. rape
Proof of Guilt at Trial Actus Reus: 1) Voluntary act (limited omissions; px act; volitional) 2) that Causes 3) Social Harm Px: Limited Omissions, act must be voluntary Involuntary Acts: spasms, seizures, bodily movements while asleep; don’t punish for mere thoughts Utter: cant prove it/can’t use automaton
Omissions: no duty to act to prevent harm, except: 1) Status Relationship (Parent/child) 2) Contractual Obligation 3) Creation of Risk 4) Voluntary Assistance 5) Statutory Duty ***Doctors not held criminally liable when they have exhausted all possible resources
Mens Rea (Broad View – guilty mind; Narrow View: Mental state in statute) Purposely – conscious object to engage in conduct or to cause result & is aware of the existence of such attendant circumstances or he believes or hopes they exist Knowingly: aware of circumstances and aware it is practically certain of result Recklessly: disregards a substantial and unjustifiable risk; gross deviation from SOC of law abiding citizen Negligently: should be aware of substantial unjustifiable risk (reasonable man) ***Mens rea modifies each actus reus element unless legislature specifies otherwise ***Need at least recklessly Causation
•
But/For Causation; Actual; Cause-in-Fact: def’s conduct was cause in fact of prohibited result 1) Multiple Actual Causes: if injuries are caused by different wrongdoers, any can be held liable if they are the cause-in-fact of the harm 2) Accelerating the Result: even if inevitable, held liable 3) Concurrent Causes: To test for Causation: 1) Was D’s act substantial factor in bringing about result? 2) Is D but-for cause? 3) Was harm natural and probably cause? a) Was there an intervening cause? If so, was it foreseeable? b) Was IC independent of D’s act?
• •
• •
Proximate Cause: legal cause LaFavre Intervening Acts (comes into play after def’s wrongdoing; Act of God, 3rd party act) 1) Coincidental: Free, deliberate, informed intervention can cause responsibility to be cut off; Coincidence- cut off resp. 2) Responsive doesn’t cut off resp. unless it is abnormal or unforeseeable Apparent Safety Doctrine: if you leave someone somewhere safe, you are relieved of legal resp Doctrine of Intended Results: if you get what you want but it happens in a different way
Theories of Punishment Utilitarian (Forward Thinking) How much punishment should be imposed? • Incapacitation • Special /General Deterrence • Du Case – j can’t use policy; objectives • Reform/Rehabilitation ***Since punishment is evil, • Gementera – Sandwich board; shouldn’t be inflicted when it is Two Step Process for if crime
• •
Role of Criminal Statutes Legality – prohibition on retroactive criminal lawmaking (Keeler fetus case) Void-for-Vagueness Understandable to reasonable law-abiding; sufficient warning;
groundless, inefficacious, too expensive or unprofitable, when action will correct itself and is needless Pro: punish for purpose; express condemnation; prevention Con: ignores moral wrong of acts
•
met punish: 1) Permissible Basis? 2) Reasonably relate to purpose Coker – against 8th amend to give death for rape
•
Retributive (Backward Thinking) • Assaultive – you’re bad • Protective – you have a right to be punished because of societal contract • Positive – you must be punished • Negative – unless you’ve committed social harm, you can’t be punished ***Restorative Justice Pro: punishes past acts, Eye for Eye Con: absence of social good; ignores circumstance
8th Am: Cruel and Unusual 5th: 14th: Jury Nullification: Policy Against: Fundamental flaw, but not a right for a defendant; role to make sure state doesn’t oppress; other ways to challenge laws Policy For: protects against bad laws, power of the jury; punished enough
•
denied dp if convicted for unclear violation P: notice, inconsistent/arbitrary in enforcement (Morales Case) Rule of Lenity – judicial interpretation in favor of accused; Violates 14th Amendment Due Process Clause Ex Post Facto – legislature can’t amend and then punish def (article 1, Section 9)
Homicide; Murder – unlawful killing First Degree Murder • Deliberate • Premeditated – intent to kill is formed with some reflection, deliberation, reasoning, or weighing rather than sudden impulse • Wilfull Cardozo: Twinkling of the; premeditation doesn’t have to be set amount of time Express Malice: 1) Special Types of Committing Crime (poison) 2) Special Victims (police officer) 3) Felony-Murder
of another with malice aforethought Second Degree Murder – “Depraved Heart Murder” • Malice aforethought implied (not specific intent) • Intent to inflict grievous bodily harm or • Reckless indifference to human life/ malignant heart • All other types of killings Malice • Express: manifested as deliberate intention to take life (intentionally killing another) • Implied: no considerable provocation appears or when circumstances show abandoned and malignant heart Two Prong Test for Implied Malice: 1) defendant formed base antisocial motive (Berry) and with wanton disregard for human life, does act with high degree of probability that it will result in death 2) killing was proximately caused by “an act, the natural consequences of which are dangerous to life, which act was deliberately performed by a person who knows that his conduct endangers the life of another and who acts in conscious disregard for life Capital Punishment Gregg v. Georgia: sentence of death disproportionate for rape Atkins: no death penalty for mentally “retarded” Simmons: no death penalty for under 18 Ewing: ok to give life in prison with or without parole? Supreme Court Likes: 1) Bifurcated Trial (sep sent phase) 2) Aggravating factors; may also consider mitigating factors; 3) System of direct appeals; entitlement to S.Ct. review Two Ways Can Reach Verdict of Death:
Felony-Murder – strict liability for death that results while in the commission of a felony 1) Killing, even accidental, caused with intent to commit a felony 2) Co-felons liable if one accidentally causes death, even when co-felon killed 3) Death must be foreseeable and in perpetration of felony 4) Felony must be independent of killing (merger doctrine) Limits: 1) Inherently Dangerous Felony - some states say
should be 2) Merger Limitation – predicate felony must be independent 3) Agency Approach (Majority)– only def’s and accomplices can kill to be charged with this 4) Proximate: (Minority) – you set it in motion, you’re liable Res Gestae – killing must be committed in the body of the crime: Requires: 1) Temporal and geographical proximity 2) Causal relationship between felony and the homicide
1) Mandatory for 1st degree (S.Ct doesn’t like) 2) Separate sentencing phase (likes) Quest for Reliable Procedures: 1) Lingering Question of Racial Discrimination (McClesky) 2) Victim Impact Evidence (Payne) 3) Substantive limitation on death penalty (Tison) must play major role in felony for felony murder
Voluntary Manslaughter
Manslaughter Involuntary Manslaughter a) Unintentional Killing b) Of another human being c) as a result of criminal negligence, or d) caused during the commission of an unlawful act not amounting to a felony or for some other reason insufficient to trigger felony murder Mere words not enough, except: 1. Threats to bodily harm 2. More provocative than mere insults is informational, conveying information info about
In General, Guilty of Manslaughter if: 1) Recklessly kills another (involuntary) 2) Kills another person under circumstances that would normally be murder but mitigated for “extreme mental or emotional disturbance” for which there is a “reasonable explanation or excuse” 3) intentional killing of another with adequate provocation absent cooling off time. Four Things We Need for Manslaughter: 1) Adequate Provocation 2) Heat of Passion 3) Still Be in Heat of Passion 4) Causal Connection between heat of passion and the killing For Jury Nullification 1) Protect against bad laws 2) Protect against bad application of law 3) Protect Minorities 4) Jury are the power of people standing as shield as huge power against the state (voicing) 5) Sympathetic offender 6) They’ve been punished enough 7) Statute is immoral 8) Police behaving badly/abusing discretion
Against Jury Nullification 1) Power of jury, not right 2) Good laws, bad people 3) Legislature to change law 4) Undermines respect for law 5) Jury not large enough sample to change
Five General Categories of Defenses: 1) Failure of Proof: doesn’t have to do anything 2) Offense Modification: might be able to prove every element, but person didn’t actually cause harm (blackmailing) 3) Justifications: you did the right thing Examples: 1) Self-Defense 2) Defense of Others 3) Defense of property/habitation 4) Use of lawful force 5) Necessity 4) Excuses: Less culpable; focuses on def’s moral culpability or ability to posses requisite mens rea
Defenses Justification Defenses Must have triggering condition that is: 1) Necessary 2) Proportionate Objective: reasonably believed they were threatened Subjective: look at all factors; situational Exceptions to Self Defense: 1) Can’t be aggressor 2) Minority: can’t use force if you can retreat in complete safety; most states have done away with that 3) Force must be immediate
Self-Defense (J or E) Trigger: Must actually believe they are in peril (objective); Must reasonably believe (subjective); Response must be proportionate and imminent. Minority: Requires retreat Imperfect Self Defense: Truly believes you need to use force but it isn’t reasonable (mitigates); Goetz: objective/subjective standard Battered Woman Syndrome: 1) Confrontational Homicide: kills spouse during abuse 2) Non-confrontational: kills him
Examples: 1) Duress 2) Insanity 3) Diminished Capacity 4) Intoxication (very limited) 5) Mistake of Fact 6) Mistake of Law 7) Legal Impossibility 8) Factual Impossibility 5) Nonexculpatory Public Policy: statute of limitations, immunity, Defendant has burden of production; must present a scintilla of evidence. State then has burden of persuasion to prove what you said didn’t happen.
Self Defense: maybe more like excuse? Important for accomplice: If Justification – accomplice excuses If Excuse – accomplice not excuses Defense of Justification Theories 1) Justified Conduct: not wrong; affirmatively desired 2) Public Benefit Theory: public officers; benefit of society: (i) officer commanded to take life or (ii) took life to advance social welfare or (iii) prvt person took like to prevent atrocity 3) Moral Forfeiture Theory: people possess moral rights/interests that are recognized in: a) Forfeiture of Right: actor’s voluntary decision to violate rights of others; used to justify killing fleeing felon (focuses on wrongdoing of victim) 4) Moral Rights Theory: Focuses on rights of defendant; rt to protect moral 5) Superior Interest: interest of def outweigh those of person she harms (utilitarian) Duress (Contento-Pachon – bags of heroin case) (E) Requirements: 1) Immediate threat of death or serious bodily injury 2) well-grounded fear that threat will be carried out 3) No reasonable opportunity to escape threatened harm a) take choice away from actor b) no adequate mens rea 4) Usually involves human intervention (Modern view: lack of free will) 5) Not at fault for exposing self to threat Usually no duress for homicide. Duress does not require any weighing of harms like necessity. Intoxication -If voluntary intox allowed, only for specific intent crimes. Rare Involuntary Intoxication Allowed: 1) Pathology – adverse reaction to
while he is asleep; courts split on allowing 3) 3rd Party: courts refuse to instruct on this one Law Enforcement: must be reasonable risk before deadly force allowed Necessity (J) Requirements of Defense: 1) Clear and Imminent danger 2) Direct causal relationship 3) No legal way to avert harm 4) Harm must be less serious than harm he seeks to avoid 5) No legislative intent to penalize action 6) Must come with clean hands Limitations on Rule: 1) usually for natural disasters/emerg. 2) non-homicide cases 3) Protection of persons/property only
14th Amendment Due Process: prove all elements of the crimes;
Mistake of Fact (E) – Defense for specific intent crimes; not nec. Reasonable; sincerely held belief. Approaches for General Intent: 1) Ordinary/Reasonableness: not guilty if mistake reasonable 2) Moral Wrong Doctrine: No mistake if facts had been as def believed, conduct would still be immoral 3) Legal Wrong Doctrine: If facts had been as he thought they should be, it would still be illegal Never for strict liability. Mistake of Law (E): Marrero (corrections officer) CL – Mistake of Law excuses no one, except: • Entrapment by Estoppel: police officer tells you to do something • Reasonable Reliance on Official Word: 1) Statute later declared invalid 2) Judicial Decision of highest court 3) Attorney General (still letter) Lambert : Due Process; person must be on notice
Defense of Others (J) Allowed to the extent that 3rd party is justified in acting in selfdefense; Majority view is that force is justified if it reasonably appears necessary ; Can’t use force if it reasonably appears person can use force themselves Defense of Property (J) Never appropriate to use deadly force to protect property; some courts allow you to protect curtilege; can use nondeadly force if unlawful dispossession is imminent Minority of States: can use threat to defend property Cannot use deadly force/ mechanical device (spring gun) rigged on property even if you would be justified in person Defense of Habitation (J) Do not have to retreat from home. Can use deadly force as long as you reasonably believe they are going to commit felony; Can use deadly force as they enter the home (hybrid property defense)
meds 2) Coerced/ Tricked 3) By accident Insanity – Only applies if they truly suffer from mental illness Four Tests for Insanity Defense: 1) M’Naghten Minus: Knows wrong but think society would be happy if they knew (Clark – thoughts cops aliens) 2) M’Naghten Rule (low standard for insanity): Didn’t know what he was doing or didn’t know right from wrong (critic: moral test) (Majority) 3) Irresistible Impulse; M’Naghten +: Crime impulsively committed; know it’s wrong but can’t help themselves 4) Product Test: Expert testimony permits jury to consider all relevant facts; not criminally responsible; not morally culpable if product of mental disease or defect (Critc: took power out of hands of trier of fact) 5) Model Penal Code: Burden of production on defendant now; Two part test: o When as a result of mental disease or defect, the defendant lacked substantial capacity to appreciate the criminality (wrongfulness) of his conduct o When, as a result of mental disease or defect, the defendant lacked substantial capacity to conform his conduct to the requirements of law Four jurisdictions don’t have insanity defense. Three Categories of Mental Illness: 1) Competency: must have suff ability to consult with lawyer; Dusky Two Prong: Do they understand charge and have rational ability to assist If not found competent, admitted to mh facility until found competent 2) Guilty but Mentally Ill: doesn’t exculpate defendant 3) Not Guilty by Reason of Insanity: sent to MH facility; lacks mens rea
Inchoate Offenses- offenses not yet complete; general deterrence; specific deterrence; incapacitation; incentivize police to intervene before act complete Attempt Actus Reus: more than mere Abnormal and then Substantial Assault: Attempted battery under preparation (other than conduct of a normal ar test Mens Rea: citizen) - low threshold; closest to 1) Intent to act those; requires defendant to have Solicitation: 2) Intent to cause specific harm done the least Merger Doctrine: Merges with crime contemplated by statute Res Ipsa Loquitor - instead of just committed (Under same circumstances for substantial test, you want objective intended crime) pattern of manifest criminality; D intentionally counsels, incites, or thing is speaking for itself. Really induces another to commit a crime; Attempt: General Principles looks objectively some jurisdictions require you to 1) Covers most Indispensable Element Test – a give something of value. felonies/misdemeanors variation of the proximity tests Communication may not be required 2) Rule of Merger which emphasizes any to reach target. indispensable aspect of the criminal Defense of Impossibility: endeavor over which the actor has Conspiracy: 1) Factual Impossibility: not a not yet acquired control; not 1) Can have hearsay from codefense; def’s end constitutes a physically proximate yet because conspirators crime but she can’t do it because of you aren't that close to completing; 2) Actus reus is the agreement factual circ beyond her control; things happen that may make you 3) Mens Rea: mistake of fact that leads to factual decide not to complete act yet 1) Intends to enter impossibility Dangerous Proximity Doctrine – agreement 2) Legal Impossibility: law does a test given impetus by Holmes 2) Intends to carry out not prohibit D’s bx or result she whereby the greater the gravity and crimes sought to achieve (Pure Defense) probability of the offense and the Easier to infer agreement with chain 3) Hybrid Legal Impossibility: nearer the act to the crime, the rather than wheel. goal was illegal but commission of stronger is the case for calling the crime was impossible due to factual act an attempt Pinkerton Rule: def’s who are mistake regarding legal status of Physical Proximity Doctrine – parties to a conspiracy are guilty of relevant factor; (think you are overt act required for an attempt all offenses that arise out of that receiving stolen goods); not much must be proximate to the completed conspiracy different than factual impossibility) crime, or directly tending toward the completion of the crime, or must Conspiracy does not merge with
Abandonment: Defense if it is for remorse No such thing as attempted strict liability statutes (like attempted statutory rape) Policy for Punishment: 1) Prevent crime from occurring 2) Provide police with opportunity and incentive to intervene 3) Deterrence – might eventually succeed 4) Incapacitation – eventually will succeed
amount to the commencement of the consummation Probable Desistance Test –but for intervention, social harm would have occurred Unequivocal Test - defendant shows that they have no hesitation to show that they committed the offense; similar to res ipsa loquitor ______________________________ Rape Actus Reus: 1) Force (Broad: MTS; Narrow: Alston) 2) Penetration (very broad now) 3) Nonconsent 4) Constructive Force Mens Rea: 1) Strict Liability or general attempt (recklessness) (Sherry) (Need reasonable mistake of fact)
crime. Withdraw: must clearly let all conspirators know; you are still guilty of crimes that arise out of it, but you are exculpated beyond that Wharton’s Rule: if two people required to commit target offense, can’t charge them with conspiracy Can’t conspire against yourself. Unilateral vs. Bilateral Conspiracy
Accomplice Liability: This is a theory, not a separate offense. Actus Reus: 1) At least some active participation (mere presence not enough) (Vaillancourt theft case) 2) Encouragement might be enough 3) Some perceived benefit 4) Failed to perform a legal duty to prevent it Mens Rea: 1) Intent to engage In crime/assist 2) intent required by statute for crime to be committed + the natural and probable consequences of the crime (crime actually committed, not just planned) Agency: 1) One who effects a criminal act through an innocent or unwitting agent is the principal in the first (Bailey – cops killed) Withdrawal: 1) Must state that you want out and 2) must thwart efforts
Levels of Accomplice Liability: Principles in the First (Perpetrator): actually commits crime by own hand Principles in the Second (Abettor): encouraged, etc ; either actual or constructive Accessories Before the Fact (Inciters): don’t have to be actually present Accessory after the Fact: punished differently; knowledge of other’s criminal activity, renders assistance in effort to hinder, etc Can’t be convicted if: 1) You are victim that you are supposed to be the accomplice 2) No intent – participation is purely coincidental 3) Completely withdraws Accomplice exculpated with justification defense but not excuse defense. (Lopez – helicopter case)
Legality /Void-for-vagueness 1) Prevents arbitrary and vindictive of the laws 2) Enhances individual autonomy and maximiszes the opportunity of individuals to purpse their own purposes and ends, reducing the risk that a person’s lawful conduct will be punished retroactively 3) Fair notice grounds: citizen lacks adequate time to conform conduct to the law 4) Inconsistency Among Judges; people performing same acts may have different punishments 5) Can’t exercise rights freely if you don’t know what the law is 6) Can’t be deterred if you don’t know what the law is 7) Hard to make rehabilitation argument; don’t know you are doing something wrong so can’t be rehabilitated 8) Could encourage unfair enforcement/ discrimination 4) Not Persuasive: assumes people consult criminal codes, people who look at codes do so for looking for loopholes,
Insanity For: not just anyone can assert Utilitarian: 1) Punishment of insane person pointless/ counter productive; can’t deter 2) Civil confinement so no need to stigmatize with criminal conviction since segregated anyway 3) More rational to separate her from penal system and treat as medical condition Retributive: 1) Lack of free will/ can’t punish for something can’t help 2) Lack rationality and self control Reasons for Justification 1) Public Benefit: performed in public’s interest (po, public welfare, prevent atrocious crime) 2) Moral Forfeiture Theory: criminal forfeits right to life through bad actions bc of voluntary acts 3) Moral Rights Theory: person has a right to protect moral rights 4) Superior Interest: defendant has superior rights to V Self-Defense: 1) Utilitarian a. Socially desirable bc dang. Person would otherwise remain alive. b. Innocent people have permission to avoid aggression; preserves life 2) Non- utilitarian a. Forfeited his right to life b. Px security is natural right of mankind c. Innocent morally superior to aggressor d. Form of private punishment; avoids injustice
Reasons for Abolition of Insanity Defense: 1) Abuse – frequently asserted/ too successful (no evidence of success) 2) Counter-deterrence – might encourage people to try and use it if caught (should educate public then, not abolish) 3) Conflict of Perspectives - law and psychiatry shouldn’t mix (to say that some people are too sick is not antithetical to the criminal law 4) Mental Illness: Merely deviation from cultural norm (not just minor mental illness or depression) 5) Equity – don’t allow all types of mental illness (apples with oranges -
Reasons for Excuse Defenses 1) Deterrence Theory: punishment inefficacious / still deserve punishment 2) Causation: factors outside control/where to draw line on determinism 3) Character Theory: no bad character a. Need to look at person’s entire life b. Doesn’t explain why we punish people of good character c. Assumes people are responsible for character 4) Free Choice Personhood Theory: actor has capacity or opportunity to understand facts relating to conduct, understand acts don’t conform to society’s norms, and conform conduct dictates to law Self- Defense: 1) Innocent person lacks opportunity to choose not to kill 2) Self Preservation; instinctual to save your own life 3) One who is threatened with immediate death is not deterrable. Battered Women Syndrome: 1. Different than regular self defense because they don’t realize that they can actually get away 2) Slippery Slope argument: doesn’t recognize problem to require women to kill them during heat of moment but can’t allow people to kill husbands in their sleep 3) Jury can find that it is a momentary hiatus in rein of terror and they should have opportunity
Reasons for Attempt 1) General Deterrence: show society you punish even just the attempt; stronger argu for completed attempts; weaker argument for incomplete attempts 2) Might create fear/apprehension in society 3) Incentivizes police intervention; gives ave to punish 4) Broken social contract; you tried to commit a crime 5) Retribution: making bad choices and deserve punishment; same guilty mind 6) With completed attempts, morally same position and same choices cause harm 7) Depeneding on actus reus test used, may
Reasons Against Attempt 1) Social harm hasn’t occurred 2) Actus reus not complete 3) Abandonment a) lack guilty mind b) want to encourage people to abandon crimes before they complete them (only works for remorse) c) can’t rehabilitate people who have abandoned
have taken substantial step to commiting crime 8) Incapacitation/Rehabilitative: may one day be successful and want them to not be able to harm society and want them to get better Reasons for Capital Punishment: 1) Separate trial and sentencing phase; Gregg: capital punishment on its phase is not unconstitutional 2) Deterrence – deters others 3) Assaultive Retribution – you deserve to be punished; retributive – society’s right to punish you 4) Ultimate incapacitation 5) More stringent requirements at trial; reviewed more thoroughly at direct appeal to Supreme Court; death is different more qualitatively 6) 6th Amend right to trial by jury; public decides 7) Coker v. Georgia; since death is different more qualitatively, only reserved for crimes resulting in death; Reasons for Felony Murder 1) Deterrence – deter killings during commission of felonies; 2) Transferred Intent – relieves state of proving premeditation or malice because you already have guilty mind for felony 3) Retribution – strict liability bc they committed felony and exhibited evil mind justifying severe punishment 4) General Culpability/guilty mind 5) Reaffirms the sanctity of human life and shows solidarity with the victim; sentencing should fit degree of condemnation 6) Has actus reus; punishing makes sense based on degree of act, not just mens rea (just deserved) 7) Allows them to repay their debt to society 8) TV/Internet has made public more aware; clear and easily understood 9) Optimal allocation of CMJS resources; easier to prove 10) Minimizes perjury
Reasons Against Capital Punishment: 1) Cruel and unusual punishment 2) Disproportionately given to minorities; prosecutorial discretion in deciding to go for it 3) People won’t be more deterred because there is a death penalty; deterred when they think they will be caught, not with severity of potential punishment 4) Risk of executing innocent people; public support has dropped in recent years because of this; more technology now, doesn’t eliminate the risk 5) Fact that jury decides could also be a bad thing 6) Resources it costs the state to put on a dp trial and to house someone; required appeals. Some states get rid of it purely for economic reasons
Reasons against Felony Murder Deterrence: 2) Not degree of punishment but whether or not will get caught; don’t go in thinking someone is going to die 3) Can’t deter unintended act; 4) No notice to criminals if they don’t know; due process argument that people won’t be put on notice 5) Only Western nation that imposes sanctions for what might be accidental homicide Intent: 6) Fictitiously broadens scope of murder 7) Two different types of MR needed: intent to commit felony and culpability for killing 8) Lack of mens rea; essential element in crim law Retributive: 9) Primitive to rely on general culpability; society requires more focus on mens rea 10) Ignores that crim law is rooted in degree of criminal liability, not just guilt or innocence
Proof of Guilt at Trial Actus Reus: 1) Voluntary act (limited omissions; px act; volitional) 2) that Causes 3) Social Harm Px: Limited Omissions, act must be voluntary Involuntary Acts: spasms, seizures, bodily movements while asleep; don’t punish for mere thoughts Utter: cant prove it/can’t use automaton
Omissions: no duty to act to prevent harm, except: 1) Status Relationship (Parent/child) 2) Contractual Obligation 3) Creation of Risk 4) Voluntary Assistance 5) Statutory Duty ***Doctors not held criminally liable when they have exhausted all possible resources
Mens Rea (Broad View – guilty mind; Narrow View: Mental state in statute) Purposely – conscious object to engage in conduct or to cause result & is aware of the existence of such attendant circumstances or he believes or hopes they exist Knowingly: aware of circumstances and aware it is practically certain of result Recklessly: disregards a substantial and unjustifiable risk; gross deviation from SOC of law abiding citizen Negligently: should be aware of substantial unjustifiable risk (reasonable man) ***Mens rea modifies each actus reus element unless legislature specifies otherwise ***Need at least recklessly Causation
•
But/For Causation; Actual; Cause-in-Fact: def’s conduct was cause in fact of prohibited result 1) Multiple Actual Causes: if injuries are caused by different wrongdoers, any can be held liable if they are the cause-in-fact of the harm 2) Accelerating the Result: even if inevitable, held liable 3) Concurrent Causes: To test for Causation: 1) Was D’s act substantial factor in bringing about result? 2) Is D but-for cause? 3) Was harm natural and probably cause? a) Was there an intervening cause? If so, was it foreseeable? b) Was IC independent of D’s act?
• •
• •
Proximate Cause: legal cause LaFavre Intervening Acts (comes into play after def’s wrongdoing; Act of God, 3rd party act) 1) Coincidental: Free, deliberate, informed intervention can cause responsibility to be cut off; Coincidence- cut off resp. 2) Responsive doesn’t cut off resp. unless it is abnormal or unforeseeable Apparent Safety Doctrine: if you leave someone somewhere safe, you are relieved of legal resp Doctrine of Intended Results: if you get what you want but it happens in a different way
Theories of Punishment Utilitarian (Forward Thinking) How much punishment should be imposed? • Incapacitation • Special /General Deterrence • Du Case – j can’t use policy; objectives • Reform/Rehabilitation ***Since punishment is evil, • Gementera – Sandwich board; shouldn’t be inflicted when it is Two Step Process for if crime
• •
Role of Criminal Statutes Legality – prohibition on retroactive criminal lawmaking (Keeler fetus case) Void-for-Vagueness Understandable to reasonable law-abiding; sufficient warning;
groundless, inefficacious, too expensive or unprofitable, when action will correct itself and is needless Pro: punish for purpose; express condemnation; prevention Con: ignores moral wrong of acts
•
met punish: 1) Permissible Basis? 2) Reasonably relate to purpose Coker – against 8th amend to give death for rape
•
Retributive (Backward Thinking) • Assaultive – you’re bad • Protective – you have a right to be punished because of societal contract • Positive – you must be punished • Negative – unless you’ve committed social harm, you can’t be punished ***Restorative Justice Pro: punishes past acts, Eye for Eye Con: absence of social good; ignores circumstance
8th Am: Cruel and Unusual 5th: 14th: Jury Nullification: Policy Against: Fundamental flaw, but not a right for a defendant; role to make sure state doesn’t oppress; other ways to challenge laws Policy For: protects against bad laws, power of the jury; punished enough
•
denied dp if convicted for unclear violation P: notice, inconsistent/arbitrary in enforcement (Morales Case) Rule of Lenity – judicial interpretation in favor of accused; Violates 14th Amendment Due Process Clause Ex Post Facto – legislature can’t amend and then punish def (article 1, Section 9)
Homicide; Murder – unlawful killing First Degree Murder • Deliberate • Premeditated – intent to kill is formed with some reflection, deliberation, reasoning, or weighing rather than sudden impulse • Wilfull Cardozo: Twinkling of the; premeditation doesn’t have to be set amount of time Express Malice: 1) Special Types of Committing Crime (poison) 2) Special Victims (police officer) 3) Felony-Murder
of another with malice aforethought Second Degree Murder – “Depraved Heart Murder” • Malice aforethought implied (not specific intent) • Intent to inflict grievous bodily harm or • Reckless indifference to human life/ malignant heart • All other types of killings Malice • Express: manifested as deliberate intention to take life (intentionally killing another) • Implied: no considerable provocation appears or when circumstances show abandoned and malignant heart Two Prong Test for Implied Malice: 1) defendant formed base antisocial motive (Berry) and with wanton disregard for human life, does act with high degree of probability that it will result in death 2) killing was proximately caused by “an act, the natural consequences of which are dangerous to life, which act was deliberately performed by a person who knows that his conduct endangers the life of another and who acts in conscious disregard for life Capital Punishment Gregg v. Georgia: sentence of death disproportionate for rape Atkins: no death penalty for mentally “retarded” Simmons: no death penalty for under 18 Ewing: ok to give life in prison with or without parole? Supreme Court Likes: 1) Bifurcated Trial (sep sent phase) 2) Aggravating factors; may also consider mitigating factors; 3) System of direct appeals; entitlement to S.Ct. review Two Ways Can Reach Verdict of Death:
Felony-Murder – strict liability for death that results while in the commission of a felony 1) Killing, even accidental, caused with intent to commit a felony 2) Co-felons liable if one accidentally causes death, even when co-felon killed 3) Death must be foreseeable and in perpetration of felony 4) Felony must be independent of killing (merger doctrine) Limits: 1) Inherently Dangerous Felony - some states say
should be 2) Merger Limitation – predicate felony must be independent 3) Agency Approach (Majority)– only def’s and accomplices can kill to be charged with this 4) Proximate: (Minority) – you set it in motion, you’re liable Res Gestae – killing must be committed in the body of the crime: Requires: 1) Temporal and geographical proximity 2) Causal relationship between felony and the homicide
1) Mandatory for 1st degree (S.Ct doesn’t like) 2) Separate sentencing phase (likes) Quest for Reliable Procedures: 1) Lingering Question of Racial Discrimination (McClesky) 2) Victim Impact Evidence (Payne) 3) Substantive limitation on death penalty (Tison) must play major role in felony for felony murder
Voluntary Manslaughter
Manslaughter Involuntary Manslaughter a) Unintentional Killing b) Of another human being c) as a result of criminal negligence, or d) caused during the commission of an unlawful act not amounting to a felony or for some other reason insufficient to trigger felony murder Mere words not enough, except: 1. Threats to bodily harm 2. More provocative than mere insults is informational, conveying information info about
In General, Guilty of Manslaughter if: 1) Recklessly kills another (involuntary) 2) Kills another person under circumstances that would normally be murder but mitigated for “extreme mental or emotional disturbance” for which there is a “reasonable explanation or excuse” 3) intentional killing of another with adequate provocation absent cooling off time. Four Things We Need for Manslaughter: 1) Adequate Provocation 2) Heat of Passion 3) Still Be in Heat of Passion 4) Causal Connection between heat of passion and the killing For Jury Nullification 1) Protect against bad laws 2) Protect against bad application of law 3) Protect Minorities 4) Jury are the power of people standing as shield as huge power against the state (voicing) 5) Sympathetic offender 6) They’ve been punished enough 7) Statute is immoral 8) Police behaving badly/abusing discretion
Against Jury Nullification 1) Power of jury, not right 2) Good laws, bad people 3) Legislature to change law 4) Undermines respect for law 5) Jury not large enough sample to change
Five General Categories of Defenses: 1) Failure of Proof: doesn’t have to do anything 2) Offense Modification: might be able to prove every element, but person didn’t actually cause harm (blackmailing) 3) Justifications: you did the right thing Examples: 1) Self-Defense 2) Defense of Others 3) Defense of property/habitation 4) Use of lawful force 5) Necessity 4) Excuses: Less culpable; focuses on def’s moral culpability or ability to posses requisite mens rea
Defenses Justification Defenses Must have triggering condition that is: 1) Necessary 2) Proportionate Objective: reasonably believed they were threatened Subjective: look at all factors; situational Exceptions to Self Defense: 1) Can’t be aggressor 2) Minority: can’t use force if you can retreat in complete safety; most states have done away with that 3) Force must be immediate
Self-Defense (J or E) Trigger: Must actually believe they are in peril (objective); Must reasonably believe (subjective); Response must be proportionate and imminent. Minority: Requires retreat Imperfect Self Defense: Truly believes you need to use force but it isn’t reasonable (mitigates); Goetz: objective/subjective standard Battered Woman Syndrome: 1) Confrontational Homicide: kills spouse during abuse 2) Non-confrontational: kills him
Examples: 1) Duress 2) Insanity 3) Diminished Capacity 4) Intoxication (very limited) 5) Mistake of Fact 6) Mistake of Law 7) Legal Impossibility 8) Factual Impossibility 5) Nonexculpatory Public Policy: statute of limitations, immunity, Defendant has burden of production; must present a scintilla of evidence. State then has burden of persuasion to prove what you said didn’t happen.
Self Defense: maybe more like excuse? Important for accomplice: If Justification – accomplice excuses If Excuse – accomplice not excuses Defense of Justification Theories 1) Justified Conduct: not wrong; affirmatively desired 2) Public Benefit Theory: public officers; benefit of society: (i) officer commanded to take life or (ii) took life to advance social welfare or (iii) prvt person took like to prevent atrocity 3) Moral Forfeiture Theory: people possess moral rights/interests that are recognized in: a) Forfeiture of Right: actor’s voluntary decision to violate rights of others; used to justify killing fleeing felon (focuses on wrongdoing of victim) 4) Moral Rights Theory: Focuses on rights of defendant; rt to protect moral 5) Superior Interest: interest of def outweigh those of person she harms (utilitarian) Duress (Contento-Pachon – bags of heroin case) (E) Requirements: 1) Immediate threat of death or serious bodily injury 2) well-grounded fear that threat will be carried out 3) No reasonable opportunity to escape threatened harm a) take choice away from actor b) no adequate mens rea 4) Usually involves human intervention (Modern view: lack of free will) 5) Not at fault for exposing self to threat Usually no duress for homicide. Duress does not require any weighing of harms like necessity. Intoxication -If voluntary intox allowed, only for specific intent crimes. Rare Involuntary Intoxication Allowed: 1) Pathology – adverse reaction to
while he is asleep; courts split on allowing 3) 3rd Party: courts refuse to instruct on this one Law Enforcement: must be reasonable risk before deadly force allowed Necessity (J) Requirements of Defense: 1) Clear and Imminent danger 2) Direct causal relationship 3) No legal way to avert harm 4) Harm must be less serious than harm he seeks to avoid 5) No legislative intent to penalize action 6) Must come with clean hands Limitations on Rule: 1) usually for natural disasters/emerg. 2) non-homicide cases 3) Protection of persons/property only
14th Amendment Due Process: prove all elements of the crimes;
Mistake of Fact (E) – Defense for specific intent crimes; not nec. Reasonable; sincerely held belief. Approaches for General Intent: 1) Ordinary/Reasonableness: not guilty if mistake reasonable 2) Moral Wrong Doctrine: No mistake if facts had been as def believed, conduct would still be immoral 3) Legal Wrong Doctrine: If facts had been as he thought they should be, it would still be illegal Never for strict liability. Mistake of Law (E): Marrero (corrections officer) CL – Mistake of Law excuses no one, except: • Entrapment by Estoppel: police officer tells you to do something • Reasonable Reliance on Official Word: 1) Statute later declared invalid 2) Judicial Decision of highest court 3) Attorney General (still letter) Lambert : Due Process; person must be on notice
Defense of Others (J) Allowed to the extent that 3rd party is justified in acting in selfdefense; Majority view is that force is justified if it reasonably appears necessary ; Can’t use force if it reasonably appears person can use force themselves Defense of Property (J) Never appropriate to use deadly force to protect property; some courts allow you to protect curtilege; can use nondeadly force if unlawful dispossession is imminent Minority of States: can use threat to defend property Cannot use deadly force/ mechanical device (spring gun) rigged on property even if you would be justified in person Defense of Habitation (J) Do not have to retreat from home. Can use deadly force as long as you reasonably believe they are going to commit felony; Can use deadly force as they enter the home (hybrid property defense)
meds 2) Coerced/ Tricked 3) By accident Insanity – Only applies if they truly suffer from mental illness Four Tests for Insanity Defense: 1) M’Naghten Minus: Knows wrong but think society would be happy if they knew (Clark – thoughts cops aliens) 2) M’Naghten Rule (low standard for insanity): Didn’t know what he was doing or didn’t know right from wrong (critic: moral test) (Majority) 3) Irresistible Impulse; M’Naghten +: Crime impulsively committed; know it’s wrong but can’t help themselves 4) Product Test: Expert testimony permits jury to consider all relevant facts; not criminally responsible; not morally culpable if product of mental disease or defect (Critc: took power out of hands of trier of fact) 5) Model Penal Code: Burden of production on defendant now; Two part test: o When as a result of mental disease or defect, the defendant lacked substantial capacity to appreciate the criminality (wrongfulness) of his conduct o When, as a result of mental disease or defect, the defendant lacked substantial capacity to conform his conduct to the requirements of law Four jurisdictions don’t have insanity defense. Three Categories of Mental Illness: 1) Competency: must have suff ability to consult with lawyer; Dusky Two Prong: Do they understand charge and have rational ability to assist If not found competent, admitted to mh facility until found competent 2) Guilty but Mentally Ill: doesn’t exculpate defendant 3) Not Guilty by Reason of Insanity: sent to MH facility; lacks mens rea
Inchoate Offenses- offenses not yet complete; general deterrence; specific deterrence; incapacitation; incentivize police to intervene before act complete Attempt Actus Reus: more than mere Abnormal and then Substantial Assault: Attempted battery under preparation (other than conduct of a normal ar test Mens Rea: citizen) - low threshold; closest to 1) Intent to act those; requires defendant to have Solicitation: 2) Intent to cause specific harm done the least Merger Doctrine: Merges with crime contemplated by statute Res Ipsa Loquitor - instead of just committed (Under same circumstances for substantial test, you want objective intended crime) pattern of manifest criminality; D intentionally counsels, incites, or thing is speaking for itself. Really induces another to commit a crime; Attempt: General Principles looks objectively some jurisdictions require you to 1) Covers most Indispensable Element Test – a give something of value. felonies/misdemeanors variation of the proximity tests Communication may not be required 2) Rule of Merger which emphasizes any to reach target. indispensable aspect of the criminal Defense of Impossibility: endeavor over which the actor has Conspiracy: 1) Factual Impossibility: not a not yet acquired control; not 1) Can have hearsay from codefense; def’s end constitutes a physically proximate yet because conspirators crime but she can’t do it because of you aren't that close to completing; 2) Actus reus is the agreement factual circ beyond her control; things happen that may make you 3) Mens Rea: mistake of fact that leads to factual decide not to complete act yet 1) Intends to enter impossibility Dangerous Proximity Doctrine – agreement 2) Legal Impossibility: law does a test given impetus by Holmes 2) Intends to carry out not prohibit D’s bx or result she whereby the greater the gravity and crimes sought to achieve (Pure Defense) probability of the offense and the Easier to infer agreement with chain 3) Hybrid Legal Impossibility: nearer the act to the crime, the rather than wheel. goal was illegal but commission of stronger is the case for calling the crime was impossible due to factual act an attempt Pinkerton Rule: def’s who are mistake regarding legal status of Physical Proximity Doctrine – parties to a conspiracy are guilty of relevant factor; (think you are overt act required for an attempt all offenses that arise out of that receiving stolen goods); not much must be proximate to the completed conspiracy different than factual impossibility) crime, or directly tending toward the completion of the crime, or must Conspiracy does not merge with
Abandonment: Defense if it is for remorse No such thing as attempted strict liability statutes (like attempted statutory rape) Policy for Punishment: 1) Prevent crime from occurring 2) Provide police with opportunity and incentive to intervene 3) Deterrence – might eventually succeed 4) Incapacitation – eventually will succeed
amount to the commencement of the consummation Probable Desistance Test –but for intervention, social harm would have occurred Unequivocal Test - defendant shows that they have no hesitation to show that they committed the offense; similar to res ipsa loquitor ______________________________ Rape Actus Reus: 1) Force (Broad: MTS; Narrow: Alston) 2) Penetration (very broad now) 3) Nonconsent 4) Constructive Force Mens Rea: 1) Strict Liability or general attempt (recklessness) (Sherry) (Need reasonable mistake of fact)
crime. Withdraw: must clearly let all conspirators know; you are still guilty of crimes that arise out of it, but you are exculpated beyond that Wharton’s Rule: if two people required to commit target offense, can’t charge them with conspiracy Can’t conspire against yourself. Unilateral vs. Bilateral Conspiracy
Accomplice Liability: This is a theory, not a separate offense. Actus Reus: 1) At least some active participation (mere presence not enough) (Vaillancourt theft case) 2) Encouragement might be enough 3) Some perceived benefit 4) Failed to perform a legal duty to prevent it Mens Rea: 1) Intent to engage In crime/assist 2) intent required by statute for crime to be committed + the natural and probable consequences of the crime (crime actually committed, not just planned) Agency: 1) One who effects a criminal act through an innocent or unwitting agent is the principal in the first (Bailey – cops killed) Withdrawal: 1) Must state that you want out and 2) must thwart efforts
Levels of Accomplice Liability: Principles in the First (Perpetrator): actually commits crime by own hand Principles in the Second (Abettor): encouraged, etc ; either actual or constructive Accessories Before the Fact (Inciters): don’t have to be actually present Accessory after the Fact: punished differently; knowledge of other’s criminal activity, renders assistance in effort to hinder, etc Can’t be convicted if: 1) You are victim that you are supposed to be the accomplice 2) No intent – participation is purely coincidental 3) Completely withdraws Accomplice exculpated with justification defense but not excuse defense. (Lopez – helicopter case)
Legality /Void-for-vagueness 1) Prevents arbitrary and vindictive of the laws 2) Enhances individual autonomy and maximiszes the opportunity of individuals to purpse their own purposes and ends, reducing the risk that a person’s lawful conduct will be punished retroactively 3) Fair notice grounds: citizen lacks adequate time to conform conduct to the law 4) Inconsistency Among Judges; people performing same acts may have different punishments 5) Can’t exercise rights freely if you don’t know what the law is 6) Can’t be deterred if you don’t know what the law is 7) Hard to make rehabilitation argument; don’t know you are doing something wrong so can’t be rehabilitated 8) Could encourage unfair enforcement/ discrimination 4) Not Persuasive: assumes people consult criminal codes, people who look at codes do so for looking for loopholes,
Insanity For: not just anyone can assert Utilitarian: 1) Punishment of insane person pointless/ counter productive; can’t deter 2) Civil confinement so no need to stigmatize with criminal conviction since segregated anyway 3) More rational to separate her from penal system and treat as medical condition Retributive: 1) Lack of free will/ can’t punish for something can’t help 2) Lack rationality and self control Reasons for Justification 1) Public Benefit: performed in public’s interest (po, public welfare, prevent atrocious crime) 2) Moral Forfeiture Theory: criminal forfeits right to life through bad actions bc of voluntary acts 3) Moral Rights Theory: person has a right to protect moral rights 4) Superior Interest: defendant has superior rights to V Self-Defense: 1) Utilitarian a. Socially desirable bc dang. Person would otherwise remain alive. b. Innocent people have permission to avoid aggression; preserves life 2) Non- utilitarian a. Forfeited his right to life b. Px security is natural right of mankind c. Innocent morally superior to aggressor d. Form of private punishment; avoids injustice
Reasons for Abolition of Insanity Defense: 1) Abuse – frequently asserted/ too successful (no evidence of success) 2) Counter-deterrence – might encourage people to try and use it if caught (should educate public then, not abolish) 3) Conflict of Perspectives - law and psychiatry shouldn’t mix (to say that some people are too sick is not antithetical to the criminal law 4) Mental Illness: Merely deviation from cultural norm (not just minor mental illness or depression) 5) Equity – don’t allow all types of mental illness (apples with oranges -
Reasons for Excuse Defenses 1) Deterrence Theory: punishment inefficacious / still deserve punishment 2) Causation: factors outside control/where to draw line on determinism 3) Character Theory: no bad character a. Need to look at person’s entire life b. Doesn’t explain why we punish people of good character c. Assumes people are responsible for character 4) Free Choice Personhood Theory: actor has capacity or opportunity to understand facts relating to conduct, understand acts don’t conform to society’s norms, and conform conduct dictates to law Self- Defense: 1) Innocent person lacks opportunity to choose not to kill 2) Self Preservation; instinctual to save your own life 3) One who is threatened with immediate death is not deterrable. Battered Women Syndrome: 1. Different than regular self defense because they don’t realize that they can actually get away 2) Slippery Slope argument: doesn’t recognize problem to require women to kill them during heat of moment but can’t allow people to kill husbands in their sleep 3) Jury can find that it is a momentary hiatus in rein of terror and they should have opportunity
Reasons for Attempt 1) General Deterrence: show society you punish even just the attempt; stronger argu for completed attempts; weaker argument for incomplete attempts 2) Might create fear/apprehension in society 3) Incentivizes police intervention; gives ave to punish 4) Broken social contract; you tried to commit a crime 5) Retribution: making bad choices and deserve punishment; same guilty mind 6) With completed attempts, morally same position and same choices cause harm 7) Depeneding on actus reus test used, may
Reasons Against Attempt 1) Social harm hasn’t occurred 2) Actus reus not complete 3) Abandonment a) lack guilty mind b) want to encourage people to abandon crimes before they complete them (only works for remorse) c) can’t rehabilitate people who have abandoned
have taken substantial step to commiting crime 8) Incapacitation/Rehabilitative: may one day be successful and want them to not be able to harm society and want them to get better Reasons for Capital Punishment: 1) Separate trial and sentencing phase; Gregg: capital punishment on its phase is not unconstitutional 2) Deterrence – deters others 3) Assaultive Retribution – you deserve to be punished; retributive – society’s right to punish you 4) Ultimate incapacitation 5) More stringent requirements at trial; reviewed more thoroughly at direct appeal to Supreme Court; death is different more qualitatively 6) 6th Amend right to trial by jury; public decides 7) Coker v. Georgia; since death is different more qualitatively, only reserved for crimes resulting in death; Reasons for Felony Murder 1) Deterrence – deter killings during commission of felonies; 2) Transferred Intent – relieves state of proving premeditation or malice because you already have guilty mind for felony 3) Retribution – strict liability bc they committed felony and exhibited evil mind justifying severe punishment 4) General Culpability/guilty mind 5) Reaffirms the sanctity of human life and shows solidarity with the victim; sentencing should fit degree of condemnation 6) Has actus reus; punishing makes sense based on degree of act, not just mens rea (just deserved) 7) Allows them to repay their debt to society 8) TV/Internet has made public more aware; clear and easily understood 9) Optimal allocation of CMJS resources; easier to prove 10) Minimizes perjury
Reasons Against Capital Punishment: 1) Cruel and unusual punishment 2) Disproportionately given to minorities; prosecutorial discretion in deciding to go for it 3) People won’t be more deterred because there is a death penalty; deterred when they think they will be caught, not with severity of potential punishment 4) Risk of executing innocent people; public support has dropped in recent years because of this; more technology now, doesn’t eliminate the risk 5) Fact that jury decides could also be a bad thing 6) Resources it costs the state to put on a dp trial and to house someone; required appeals. Some states get rid of it purely for economic reasons
Reasons against Felony Murder Deterrence: 2) Not degree of punishment but whether or not will get caught; don’t go in thinking someone is going to die 3) Can’t deter unintended act; 4) No notice to criminals if they don’t know; due process argument that people won’t be put on notice 5) Only Western nation that imposes sanctions for what might be accidental homicide Intent: 6) Fictitiously broadens scope of murder 7) Two different types of MR needed: intent to commit felony and culpability for killing 8) Lack of mens rea; essential element in crim law Retributive: 9) Primitive to rely on general culpability; society requires more focus on mens rea 10) Ignores that crim law is rooted in degree of criminal liability, not just guilt or innocence
