lefrancois crimlaw spring 2012

8/2/2019 LeFrancois CrimLaw Spring 2012

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1) ] Punishment Theories:

a) Utilitarian Theory of Punishment:

i) For the greater good of society; look forward; care about consequences/results.

ii) General Deterrence: Punish to prevent more people from doing that crime.(1) Can involve scapegoating.

iii) Individual Deterrence: Punish to create fear in offender that if he repeats his act, he will be punishedagain.

iv) Incapacitation: Temporarily puts convicted criminals out of general circulation. Physically preventpersons of dangerous disposition from acting upon their destructive tendencies.(1) Negative psychological reform.

v) Reform: Out of prison, a person no longer wants to commit a crime. Criminal wont act because they nowbelieve that their actions are wrong.(1) Positive psychological reform.

b) Retributive Theory of Punishment:

i) Care about the past.Punishment justified because offenders deserve it.(1) Eye for an eye.

ii) Negative Retribution: It is morally wrong to punish an innocent person even if society would benefit fromthe action.

(1) Only going to punish the guilty.(a) Guilt is a necessary condition of punishment.(b) Eliminates scapegoating.

iii) Positive Retribution: Innocents must never be punished AND offenders MUST always be punished.(1) Different from negative b/c negative requires guilt as necessary condition for punishment. Positive

retribution = guilt sufficient condition of punishment.

iv) Assaultive Retribution: The more people we get behind bars, the better.(1) Idea of hating criminals

v) Protective Retribution: Society has a right to punish culpable wrongdoers and criminals have right to bepunished.(1) We owe it to you to punish you.

2) Due Process Void for Vagueness:

a) City of Chicago v. Morales:i) 14th Amendment Due Process void for vagueness requirement

ii) A statute violates the 14th Amendment Due Process void for vagueness if the statute leaves the

public uncertain as to the conduct it prohibits.

iii) The term loiter was vague because it encompasses an apparent purpose and Apparent purpose vaguebecause it doesnt have a common/accepted meaning

iv) The statute left too much discretion to police officers.(1) Too much discretion left to officers can lead to arbitrary decisions.(2) A legislature should establish minimal guidelines to govern law enforcement.

b) When looking at statutes or crimes, ask whether the public is left uncertain as to what conduct is permitted.

3) Actual Reus

a) Conduct element of a crime. The physical or external part of the crime.i) Both the CONDUCT and the HARMFUL RESULT.

(1) Actus:

(a) Voluntary physical movement in the sense of contact; An act(i) KILLING

(2) Reus:

(a) Conduct results in a certain proscribed harm; The result

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(i) DEAD PERSON

b) Voluntary Act:

i) A person is not guilty of an offense unless his conduct includes a voluntary act.

ii) A voluntary act is a willed movementor the omission of a possible and legally-required performance.(1) A willed muscular contraction is a voluntary act.

(a) Actus Reus = willed, muscular contraction.

iii) Martin v. State: D arrested at home, taken to highway by police and the arrested for public intox.;

Statute required D to appear in public; must have willful requirement; not here, D didnt actually doanything, police did it; if action not willful then no moral culpability.(1) Cant punish for mere thoughts; not fair, burden on penal system, no deterrence, etc...

iv) State v. Utter: D asserted an actus reus defense based on the fact his response to his sons approachinghim from behind was automatic, not a product of his WILL; Ct. said insufficient evidence as to theautomatic response to son sneaking up on father.

v) Automatism: Action or conduct occurring without will, purpose, or reasoned intention, such assleepwalking.

(1) May be asserted as a defense to negate requisite mental state of voluntariness.c) Omissions (Negative Acts):

i) People v. Beardsley: Guy fails to act to save a woman who died in his home; was that an act?

ii) Failing to act meets the act requirement ONLYif there is a DUTY.

iii) Four duties that help meet the act requirement in terms of omission:

(1) Where statute imposes a duty : Good Samaritan statute.

(2) Special relationships to others : Husband/wife;Parent/child(3) Contractual duty to care for another : Nursing home, babysitter, lifeguard.(4) Voluntarily assumption of care of another and seclusion of the helpless.

(5) Creation of a risk of harm to another.

iv) Duty is necessary but insufficient to create criminal liability by omission.

v) There are many difficulties is punishing omissions:

(1) FIRST, non-doing is more ambiguous than wrongdoings.

(2) SECOND, difficulties in line-drawing problems arise in omission cases.

(3) THIRD, well-meaning bystanders often make matters worse by intervening

(4) FOURTH, issue of freedom:American criminal law sets minimalist goals.

vi) Barber v. Superior Ct: Whether Dr.s committed murder of a patient who was brain dead, whether therewas a duty to act; Court created a legal fiction stating that the Dr.s failed to act (they actually actedpositively by pulling the plug) and that they had no duty to act; Dr.s have duty to treat IF treatment isproportionate between benefits and burdens taken from the vantage of the patient; treatment which isonly minimally beneficial and highly burdensome = no duty;

vii)RULE:If omission, then a party will not be guilty unless there is a DUTY.

4) Anatomy of a Crime:

a)Mens Rea:i) A guilty mind, the mental element of a crime.

(1) Broad common law definition

ii) Common law doesnt pay much attention to mens rea words or where they may apply if they are listed in astatute

b) Actus Reus:

i) Conduct:

(1) The acting, doing. I.e., discharging firearms, driving while intoxicated, etc

ii) Result:

(1) What law tries to prevent.

iii) Attendant Circumstances: (not always needed)

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(1) A condition that must be present, in conjunction with the prohibited conduct or result, in order toconstitute the crime.

(a) The elements of a crime that arent mens rea, conduct or result.

(b) Dwelling house, tavern, etc

(c) i.e., intoxicated condition, automobile, etc

iv) Conduct, result, attendant circumstance (C.R.A.C.) are the common law culpability requirements.

5) Mens Rea:a) Two questions must be asked w/r/t mens rea:

i) What does the mens rea word mean?ii) How far down the criminal sentence does the mens rea word go?

(1) What material elements does the mens rea word modify?(2) Normally, there is a gravitational pull of mens rea words to the end of the sentence, therefore

applying to all words in the sentence.(3) Save the appearance of the mens rea word to as late in the statute as possible.

(a) Put all the actus reus words first, and then throw in the mens rea words.

(4) Example of good statute:(a) One is guilty of X if they intentionally or knowingly distribute obscene materials to children. In

the preceding sentence, the mens rea elements of intent and knowledge apply only to distributionand children.

b) Common Law Mens Rea: Bad Man Theory-

i) Common law uses of mens rea are ambiguous. It was difficult to discern their true precise meaning.

ii) Elemental Approach: The mental state an actor must have toward the social harmelement of thecriminal act

iii) Culpability Approach: Doing the actus reus with a blameworthy state of mind.(1) Guilty mind; a guilty or wrongful purpose; criminal intent

iv) Four groups: Strict Liability, Malice, General Intent, Specific Intent(1) Intentionally (CL term) = purpose AND knowledge (MPC terms)

v) Specific Intent: Requires high level Mens Rea words (purpose, willful, intentional, etc)(1) Designates a special mental element which is required above and beyond any mental state required

with respect to the actus reus of the crime.(a) High level Mens Rea words = specific intent

vi) General Intent: Requires low level Mens Rea words (reckless, negligent, etc)(1) Reserved for crimes that permit conviction on the basis of a less culpable mental state, such as

recklessness or negligence.(a) Low level Mens Rea words = general intent

vii)Regina v. Cunningham: Ct. used a loose definition of mens rea. Term of art, malicious, was difficult todefine; Conduct element = causing to be taken; Attendant circumstance = noxious thing; Result element =endanger the life of someone; mens rea element = maliciously; issue was what is malice in regards to mensrea; malice is a broad term, trial ct. said malice = wicked; appellate ct. said malice = intentional orreckless.

viii) People v. Conley: Crime of aggravated battery requires more than showing that someone intentionallystruck the P; must show intentionally or knowingly causing great bodily harm, permanent disability, ordisfigurement; State argued that D must only intentionally and knowingly batter (wrong argument); Dargues that one must intentionally or knowingly cause disability (right argument);

c) TEST TO DETERMINE SPECIFIC V. GENERAL INTENT

i) High-level v. Low-level Mens Rea Words

(1) High-level words = intent, knowledge, purpose(2) Low-level words = reckless, negligent

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(3) When looking at definition of crime and see high-level mens rea words then maybe a specific intentcrime, but when low-level mens rea words then its definitely a general intent crime

ii) If high-level mens rea word, then ask these 3 questions. If ANY of the answers are yes, then its aspecific intent crime. If ALL the answers are no, then its a general intent crime. The questions are:

(1) Does the mens rea word require an intention to do an act outside the actus reusof the

offense?

(a) (possession of marijuana with intent to sell)

(b) If yes, STOP, specific intent crime(2) Does the mens rea word require proof of a special motive or purpose for committing the actus

reusof the offense?

(a) (offensive contact upon another with intent to cause humiliation (this is a result, not an act))(i) If yes, STOP, specific intent crime.

(3) Does the mens rea word require proof of the actors awareness of an attendant circumstance?

(a) (intentional sale of obscene literature to a person known to be under the age of 18 years)(i) If yes, STOP, specific intent crime

6) Model Penal Code Meaning of Mens Rea (2.02):

a) There are four levels of mens rea in the Model Penal Code.

b) Purpose : Two definitions-i) Conscious object to cause a conduct or result.

(1) Conduct and Result elements definitions

(a) Conduct: Purposely slapping, shooting, spitting, etc(i) Conscious object to slap

(b) Result: Purposely causing death, harm, etc(i) If one mean to achieve a certain result(ii) Conscious object to cause death

ii) Aware, believe, or hope attendant circumstances exist.(1) Attendant circumstance element definition

(a) Purpose can also modify attendant circumstances.

iii) The definition of purpose we select to use depends upon what material element the word purposemodifies.

c) Knowledge : Two definitions-i) Aware that conduct is of that nature or that such circumstances exist. Aware that you are doing the

conduct.(1) Conduct and Attendant Circumstances elements definition

(a) Ex.- Knowingly run if Im aware that Im running; knowingly spit if I am aware that I am spitting.(b) Act knowingly with respect to attendant circumstances when Im aware that they exist.

(i) I know a person is underage if Im aware that they are underage.

ii) Aware that it is practically certain that his conduct will cause such a result . Aware that result ispractically certain

(1) Result element definition

(a) Knowingly cause death if youre aware the result is practically certain death would occur.

iii) The definition of knowledge we select depends upon what material element the word knowinglymodifies.

iv) If someone makes a deliberate effort to not be aware of a fact, they will be found as knowing. (2.02(7))(1) When knowledge of the existence of a particular fact is an element of an offense, such knowledge is

established if a person is aware of a high probability of its existence, UNLESS HE ACTUALLYBELIEVES THAT IT DOES NOT EXIST.

(2) 3rd definition of knowledge under the MPC(a) Deliberate ignorance and positive knowledge are equally culpable.

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(b) Better known as willful blindness.

d) Recklessness :

i) Consciously disregard (advertence) of a substantial (big) and unjustifiable (uncalled-for) risk that thematerial element exists (attendant circumstance) or will result from the conduct (result element).

ii) Conscious disregard must begrossdeviationfrom the standard of conduct of a law-abiding person.(1) Law abiding is the floor of finding a standard of conduct.(2) Requires awareness of the risk

(3) Requires adverting to a risk(a) DO NOT FORGET TO NAME THE RISK ON THE FINAL.

(b) Advert: Being aware of a risk and running it anyway.iii) Recklessly kill if I consciously disregard the substantial and unjustifiable risk that the death would occur.

e) Negligence :

i) Failing to be aware (inadvertence) of a substantial (big) and unjustifiable (uncalled-for) risk that thematerial element exists (attendant circumstance) or will result from his conduct (result element).

ii) Failing to be aware must be agross deviationfrom the standard of care of a reasonable person.(1) Reasonable person is a higher standard than law abiding.

iii) Does not require the knowledge of a risk.(1) DO NOT FORGET TO NAME THE RISK ON THE FINAL.(2) Requires inadvertence

(a) Inadvertence: An accidental oversight; a result of carelessness

7) Interpretive Measures of the Model Penal Code:

a) When a statute is silent as to the mens rea, the mens rea words that apply are either purpose,

knowledge, or recklessness. (Sec. 2.02(3))

i) If the person acted negligently, they are off the hook.ii) Recklessness at LEAST must be shown.

b) If the prosecutor shows more than they have to, they win. N > R > K > P. (negligently is lowest

level of culpability, purposely is highest) (2.02(5)).

i) If prosecutor establishes purpose, they also establish knowingly, recklessly, and negligentlyii) If prosecutor establishes negligence, no other element can be established.

8) MPC Knowledge v. CL Willful Blindness:

a) Both the MPC and CL say that if there is deliberate ignorance, that ignorance suffices as knowledge.b) Knowledge is established if a person is aware of a high probability of its existence, UNLESS he actually

believes that it does not exist. (2.02(7)).

i) Act willfully = knowledge (2.02(8)).

c) CL: If a party has his suspicion aroused but deliberately omits to make further inquiries to remain inignorance, he is deemed to have knowledge.i) Deliberate ignorance and positive knowledge are equally culpable.

(1) Ct. can find willful blindness where it can almost be said the D actually knew.

(2) Willful Blindness: Deliberate effort to avoid learning the truth.

d) State v. Nations: Issue: whether D knowingly endangered the welfare of a child; question of whether Dknew child was less than 17-years-old; State proved D acted recklessly; D never asked/saw ID, thereforeshe never knew the age of the child; MPC wasnt used in state; MPC says knowledge is established if aperson is aware of a high probability of its existence;

9) MPC Statutory Interpretation:

a) MPC 2.02(4): When one mens rea word is in a statute with many elements, that mens rea word applies

to every single element UNLESS a contrary purpose plainly appears.

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i) To show a contrary purpose, put the mens rea word near the end of the statute.(1) Contrary purpose is a purpose contrary to the mens rea word in the statute.

ii) Ex. Of Contrary Purpose:

(1) This mens rea word applies to every element except this last one(2) A separate sentence outlining what it applies to and what it doesnt.

b) Look to punctuation, but punctuation may not be dispositive.

c) United States v. Morris: Issue: whether the mens rea word intentionally applies to the causing loss; Gov.

says intent only modified access; T. Ct. said intentionally applied to accessing; D says intentionally shouldapply to prevention of use and causing loss; Congress removed second intent word from statute w/r/t causesa loss; Ct. said legislative history showed congressional intent to limit intentionally only to accesses and notto damages.

10) Common Law Mistake of fact and Law:

a) Mistake of Fact:

i) Defense to general intent crime when it is a reasonable mistake of fact. (reasonable and relevant)

ii) Defense to specific intent crime when it negates the mens rea. (reasonable and relevant)iii) NEVER A DEFENSE TO STRICT LIABILITY CRIMES

(1) Two exceptions:

(a) Moral Wrong Doctrine: Even if actors mistake of fact is reasonable, his commission of immoralact serves as requisite guilt to justify conviction.

(b) Legal Wrong Doctrine: If Ds conduct, based on facts as he believes them to be, constitutes acrime, he may be convicted of the more serious offense of which he is factually guilty.

iv) People v. Navarro: Jury should have been instructed that he only needed to believe; State needed toprove that the belief was reasonable; Rule: Mistake of fact will be a defense when there is anymistake relevant to the mens rea (as long as there was a mistake, specific intent situations); Mistakeof fact will be a defense only if the belief is reasonable (general intent situations);

b) Mistake of Law:

i) For a mistake of law defense must show that the mistake is founded upon an official statement of the lawcontained in a statute or official statement in the law afterward determined to be invalid or erroneous.

ii) When we have mistake of law cases, we need to decide whether we have penal law or non-penal

law.(1) Penal law is criminal law.

iii) TEST:(1) Mistakes of non-penal law will defend when:

(a) It negates the mens rea.(2) Mistakes of penal law will defend when:

(a) Lambert (2): Defense if you can show that you got for a malum prohibitum offense, a malum insepunishment, where there was no showing of knowledge or probability of knowledge by theprosecutor.(i) Possibly there is a required omission?

(ii) Malum Prohibitum : An act that is a crime merely because it is prohibited by statute.

(iii)Malum Inse : Conduct that is bad in itself.(b) Authorized reliance (1) on interpretation of law by one charged w/interpreting, administering,

enforcing the law turns out to be wrong. (2.04(3)(b))

(c) Cheek (3): A criminal tax statute that requires willfulness as the mens rea.

c) People v. Marrero: D claims as a defense a mistake of law that under the NYPC, peace officers were exemptfrom carrying a license for a concealed firearm; Ct. said that the statute did not apply to federal prisonguards (peace officer); apparently the statute says that it only applies to NY state correctional officers(peace officers); NY law says that mistake of law is a defense if his mistaken belief such mistaken belief isfounded upon an official statement of the law contained in (1) a statute or other enactment; Ct. interpreted

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statute to contain the clause afterward determined to be invalid or erroneous even though the NYstatute did not contain it; D must have shown that his actions were allowed by a statute that was afterwarddetermined to be invalid or erroneous by a court or legislation;

d) Cheek v. United States:P did not pay and evaded paying federal income taxes; said that paying taxes wereunconstitutional (loses on this issue); P also argues that he didnt willfully seek to file and evade (wins on thisissue); S. Ct. says he wins if he shows that he was unaware of his underlying legal duty to pay his taxes;willfulness = violating a known legal duty; S. Ct. says mistake of penal law is willfulness and the alleged crime is

a criminal tax statute; On retrial. Cheeks must prove that he really didnt believe that he had a duty to payhis taxes.

11)MPC Mistake of Fact and Law:

a) MPC 2.02(9): Mistake of law will not apply to penal (criminal) law, unless the statute explicitly states thatmistake of law is allowed.i) 2.04(3)(a)(b) are exceptions to 2.02(9)

b) MPC 2.04:

i) Ignorance or mistake as to FACT is a defense IF:(1) Ignorance or mistake negates the mens rea; OR(2) The law says that the state of mind established by ignorance or mistake constitutes a defense.

ii) Defense not available if D would be guilty of another crime had the situation been as he supposed.iii) MISTAKE OF LAW IS A DEFENSE IF:

(1) A belief that conduct does not legally constitute an offense is a defense to a prosecution for thatoffense when:(a) Statute or offense not known to actor and not published.

(b) He acts in reasonable reliance upon an official statement of the law, afterward determined to beinvalid, contained in: (statute, judicial opinion, person charged with interp., admin., or enforcinglaw)

12) Strict Liability Offenses:

a) Strict liability crimes do not have mens rea

i) Silence on mens rea doesnt necessarily mean that there is strict liability.b) Absence of mens rea tells us to ask: Is that a strict liability offense?

i) To answer, ask:(1) Whether the purpose of the statute is to punish or to regulate?

(a) Regulate = strict liability(2) Ask about the penalty?

(a) Light penalty = strict liability(3) Is one engaged in a dangerous and deleterious activity?

(a) Yes = strict liability(4) Does the D know that the activity is strictly regulated?

(a) Yes = Strict liability(5) Is there a social stigma?

(a) High social stigma = strict liability(6) Is there a Common law offense (burglary, rape, etc)?

(a) Yes = strict liability offense.

c) Public Welfare Strict Liability: Anti-narcotics laws, violations of liquor laws, motor vehicle and trafficregulations, sanitary, building and factory laws, etc

d) Non-Public Welfare Strict Liability: If there is an attendant circumstance that does not have mens reaelement.i) Statutory rape minor requirement.

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e) Staples v. United States: P accused of possessing an unregistered firearm; statute did not provide a mensrea; is it a strict liability crime? Ct. says no; The fact that there is no mens rea, doesnt mean that there isno mens rea; purpose of the statute was to punish; there was heavy penalty; because guns have become socommonplace and generally available that we would not consider them to alert individuals to the likelihood ofstrict regulation; guns are dangerous, but not deleterious (deadly);

f) Garnett v. State: Statute is silent w/r/t mens rea; D argues that statute RE: statutory rape should includea mens rea element; Ct. said it is strict liability statute and refused to impose an culpability state on D;

g) Arguments against strict liability:i) It is hard to deter people w/r/t strict liability.

(1) How do you deter someone who is not culpable?(2) How do you punish someone who is not culpable?

(a) Can be seen as unjust.(3) Strict liability can dilute the criminal message.

h) Arguments for strict liability:i) Keeps people out of certain market situations (dangerous markets: pharmaceuticals, cosmetics, food

products)ii) Keeps society from committing the same act.

(1) People will be less likely to act in a certain way if it is guaranteed that they will be convicted just for

doing the act.(a) Because there is no requirement for mens rea.

i) MPC and Strict Liability (2.05):

i) When absolute liability is imposed w/r/t any material element of an offense defined by a statute

other than the Code, and a conviction is based upon such liability, the offense constitutes a

violation.

ii) MPC 1.04(5): A violation is not a crime and conviction for violation wont give rise to disability or legaldisadvantage based on conviction of a criminal offense.

iii) The MPC generally rejects strict criminal liability.

Causation and Proximate Cause

13) Common Law Causation:

a) There can be no criminal liability for result-type offenses unless it can be shown that the Ds conduct was acause-in-fact of the prohibited result.

b) Two tests can be used:

i) But-For : A Ds conduct is a cause-in-fact of the prohibited result if the result would nothave occurredbut for the Ds conduct.(1) Cannot use but-for for simultaneous continuous causes of injury.

ii) Substantial Factor : The Ds conduct is a cause-in-fact of a prohibited result if the subject conduct was asubstantial factor in brining about the said result.(1) Occurs when two Ds, acting independently and not in concert with one another, commit two separate

acts, each of which alone is sufficient to bring about the prohibited result.

c) Acceleration: If Ds conduct accelerated the result, then D may be found liable.i) Aggravation without acceleration is insufficient to establish causation.

d) Oxendine v. State: Ps son died after battery by P and Ps girlfriend; State did not meet their prima faciecase to convict on a manslaughter charge; State needed to show that P accelerated the death of decedent;we dont know (beyond a reasonable doubt) that Ps battery accelerated death (there were two differentinjuries);

14) Common Law Proximate/Legal Cause:

a) Determines who or what events among those that satisfies the but-for standard should be held accountablefor the resulting harm.

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i) Person or event cant be a proximate cause of harm unless its an actual cause.b) Issue of supervention (Does the intervening cause supervene?)

i) Intervening cause = cause that comes after the initial cause but b/f the result.c) Must find out whether the intervening cause supervened the act of the first actord) Intervening causes will only apply as a defense when they supervene.

e) To find supervening causes, need to determine what the intervening acts are, then ask two questions:i) Is it fair to hold the D criminally liable for the result?

(1) Dont jump to this first, try the other 6 tests.ii) Was the intervening cause (act) a coincidence or response?

(1) Is it a reaction to the conditions created by the defendant?

(a) If no: Coincidence

(i) Coincidence breaks the chain of legal cause if its unforeseeable.

(b) If yes: Response

(i) Response breaks the chain of legal cause if its abnormal and unforeseeableiii) Sub-Tests to find supervening causes:

(1) Omissions will not intervene:

(2) Any intended consequence of an act is proximate:

(a) Someone intended death by some means and death resulted by those means.

(3) Apparent Safety:(a) When person reaches position of safety, original wrongdoer is no longer responsible for any

ensuing harm.(4) Free, Deliberate, and Informed Human Intervention:

(a) Ds will get off the hook when they can prove that the result was that of a free, deliberate, andinformed human action.(i) The victim does something all on his own to cause the result

(5) Gross medical malpractice doctrine:

f) Kibbe v. Henderson: D seeking to establish that there should have been an instruction of proximate cause;1st intervening cause is decedent being hit by 3rd parties car (this is a coincidental intervention thatsupervenes); 2nd intervening cause is the decedent walking in the middle of the road (this is a responsive

intervention);g) Velazquez v. State:

h) Concurrence of the Elements:

i) State v. Rose: D struck and killed a pedestrian with his car, then drove away. Bum was still stuck underDs bumper when police caught up: D charged w/ leaving the scene of an accident and negligent homicide indragging death; Ct said prosecution must show bum survived initial impact to convict for negligenthomicide in dragging.

ii) Elements must concur, not necessarily occur at the same time.

(1) Must be concurrence between conduct, mens rea and causation

15) Model Penal Code Causation 2.03(1)(2)(3):

a) 2.03(1): Conduct is the cause if it is an antecedent but for which the result would not have occurred.b) The relationship b/t conduct & result satisfies any casual requirements imposed by the code.c) 2.03(2): When P or K is element, element is NOT satisfied if actual result not within purpose or

contemplation of actor UNLESS:i) Transferred intent or where actual harm was less serious than intended harmii) When actual result is same kind as designed, but precise injury was different or occurred in a different

way.

d) 2.03(3): Where R or N is required for culpability, element not satisfied unless:i) Transferred intent; or

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ii) Actual result involves same kind of injury/harm as the probable result and is not too remote/accidentalto have just bearing on actors liability.

e) 2.03(4): When causing a certain result is a material element for which absolute liability is imposed, elementnot established unless result is probable.

Criminal Homicide

16) Common Law, Typical State View, Model Penal Code Murder:

a) Common law murder:i) Unlawful killing of another human being with malice aforethought.

ii) Malice Aforethought is one of four states of mind:(1) Intent to Kill

(a) Awareness that the death of another would result from ones actions(2) Intent to cause grievous bodily harm:

(3) Outrageous recklessness:

(a) Factors:

(i) Magnitude of the harm risked1. Death or serious bodily harm

(ii) Probability of the harm

(iii) Awareness of risk(iv) Whether there was an antisocial purpose

(4) Intent to commit a felony when the murder happened:

(a) Strict liability for homicide committed during commission of a felony.(b) Intending to do a felony so long as the felony caused the death.

b) Typical State View Murder:

i) Most states divide murder into different degrees.

ii) First ask: Is this murder?(1) To answer, it must be a killing under one of the four categories of malice under the common law

definition of murder.

iii) Next ask: What degree was the killing?

(1) First Degree Murder : (Murder 1)(a) KILLING is murder 1 if we can show that the murder is willful, deliberate and premeditated;

(i) Two views:

1. Killing was willful, deliberate, & premeditated =intentional = willful

2. Killing was willful, deliberate & premeditated = willful + premeditateda. Must show both willful and premeditated, or M2

(b) A killing caused by specified enumerated felonies (rememberB.A.R.R.K.S.), burglary, arson,rape, robbery, kidnapping, sodomy.(i) If not listed in the enumerated list, it is murder 2

(2) Second Degree Murder: (Murder 2)(a) Murder which is not murder 1.

c) Model Penal Code Murder 210.2:

i) Criminal homicide constitutes murder when:

(1) It is committed purposely or knowingly; or(2) It is committed OUTRAGEOUSLY RECKLESSLY:

(a) With extreme indifference to the value of human life; or

(b) Recklessness and indifference are presumed if done during or attempting BARRKS, deviant sexualintent by force, or felonious rape.

17) Common law/ Typical State View Voluntary Manslaughter:

a) Manslaughter is the unlawful killing of a human being without malice.

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i) Voluntary Manslaughter:

(1) Homicide committed in heat of passion upon adequate provocation.(a) Provocation negates malice

b) Girouard v. State: Case is about adequate provocation; P killed his wife, claimed he was provoked by her; Ct.said no adequate provocation;

c) How do you show provocation?

i) Just ask (All answers must be yes for there to be provocation):

(1) Was the D provoked?(a) Subjective question; show that D was really mad

(2) Was the provocation legally adequate?

(a) Objective question, determined by the law.

(b) Must show the thing that made the D mad is special under the law.

(c) Sufficient to inflame a reasonable person to act from passion rather than reason.

(i) Must have been: 1.)Discovering ones spouse in the act of sexual intercourse withanother; 2.) Mutual combat; 3.) Assault and battery; 4.) Injury to a relative; 5.) Death

resulting from an illegal arrest.

1. Must be contained within this list to be adequate provocation.(d) Words alone can never be adequate provocation.

(e) Common law = judge determine this element as a matter of law.(f) Typical state view: Juries decide issue as a question of fact.

(3) Had the D cooled?

(a) Is the D calm? Did he calm down by the time he killed?(b) Subjective question; any time that passes seems to hurt the D.

(c) Common law = judge must determine this element as a matter of law.

(d) Typical state view: Juries decide this issue as a question of fact.(4) Was the cooling time inadequate?

(a) Reasonable time; Objective question(5) Was there a causal connection between the provocation and the act?

ii) Defense of Passion as a justification:

(1) We view provocation as a partial justification focused on the wrong done by the victim. Focuseson the acts of the victim

iii) Provocation as an excuse:

(1) Excuses either forgive or sort of forgive the conduct in question.

(a) Focuses on the frailty of the defendant.d) The objective Standard: Who is the Reasonable Man?

i) Deals with the subjectivication of the D in a provocation situation.

ii) Two categories to view this case: (not used in CL, TSV or MPC)

(1) Category (1) characteristics: the gravity of provocation.(a) Anything that could affect how a person might react to a situation.

(i) Ex: Race, height, looks, etc1. A bald person would take more offense to being insulted about the baldness.(b) Any characteristic of the D should be considered so long as that characteristic is relevant

to the provocation.

(2) Category (2) characteristics: Degree of self control.(a) Anything that could make a difference in terms of the self control of the Defendant.

(i) Only Sex and Age can be used to subjectify the otherwise objective standard of self

control.

1. Age and gender might be something that would limit the self control of a person.

(ii) Common Lawand Typical State Viewsays everyone is subjected to the same standards ofbehavior

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1. However, anything the jury thinks is relevant can be taken into account.

iii) Director of Public Prosecutions v. Camplin: D kills guy; D says he was provoked; T. Ct. says he needed tobe judged as a reasonable man; Reasonable man referred to is a person having the power of self-controlto be expected of an ordinary person of the sex and age of the accused; General principle is that thesame standards of behavior are expected of everyone, regardless of their individual psychologicalmakeup.(1) Dont want to require an old head on young shoulders

18)Model Penal Code 210.3(1)(b) Manslaughter

a) Criminal homicide constitutes manslaughter when:

i) It is committed Recklessly; orii) A killing that is committed under the influence of extreme emotional disturbance.

(1) First: Show that there is Extreme or Emotional Disturbance

(2) Second: Show that there is not only EED, but that there is a reasonable explanation or excuse FORtheEED (NOT THE KILLING!!!)

(a) Reasonableness is determined fromthe perspective a person in the actors situationunder thecircumstancesas he believes them to be.

(i) Situationputs you in the head of the person with the EED.

1. Always used as a term of art to mean semi-subjective standard.(ii) Circumstancesare the things/actions the defendant believes are surrounding him at the time.

b) Personal handicaps and some external circumstances must be taken into account.i) i.e., blindness, shock from traumatic injury, extreme grief.

c) Idiosyncratic moral values are not part of he actors situation.

d) EED is a very broad, loose defense.

e) People v. Casassa: P killed decedent after she rejected him; Ct. found that he was extremely or emotionallydisturbed, but they screwed up the rest of the test.

19) Common Law/Typical State View Involuntary Manslaughter:

a) Involuntary Manslaughter:

i) Involuntary, accidental, or unlawful killing caused by:

(1) Criminal Negligence: (Gross Negligence, or Criminal Negligence)

(a) Killing must be Negligentor Reckless(i) Fails to be aware of a substantial and unjustifiable risk that circumstances exist or a result

will follow, and such failure constitutes agross deviationfrom the standard of care which areasonable personwould exercise in the situation. (Jury must find a deviation so astronomicalthat the negligence cannot be a simple omission of duty)

(2) Unlawful Act Doctrine: Misdemeanor Manslaughter

(a) An unlawful act not amounting to a felony kills someone.ii) Involuntary manslaughter may go from accidental to criminal homicide if:

(1) Magnitude of harm risked is great(2) Probability of harm is great(3) Directly averted to the harm(4) Anti-social purpose of the conduct

(a) These are factors and any one is NOT dispositive.

20)MPC 210.4 Negligent Homicide:

a) Criminal Homicide is negligent homicide when it is committed negligently.

b) Negligent Homicide killing committed negligentlyc) Negligence:

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i) Failing to be aware (inadvertence) of a substantial (big) and unjustifiable (uncalled-for) risk that thematerial element exists (attendant circumstance) or will result from his conduct (result element).

ii) Failing to be aware must be agross deviationfrom the standard of care of a reasonable person.

21) Felony Murder Rule:

a) Common Law Felony-Murder:

i) If there is a felony + killing = felony-murder.

b) Typical State View of Felony-Murder:i) Felony-murder is Murder 1 if: there is a killing during the commission of an enumerated felony. Felony

must be an enumerated felony (rememberBARRKS), burglary, arson, rape, robbery, kidnapping, and non-consensual sodomy.

ii) Felony-murder is Murder 2 if: there is a killing of another human being during the commission of aninherently dangerous felony (not enumerated).

c) MPC View of Felony Murder: MPC does not like felony-murder.

d) People v. Fuller: Ds conviction of felony-murder upheld even tough they dont like the rule; If you do a felonythat is enumerated and there is a death, there is Murder 1;

e) Limitations on the Felony Murder Rule under the Typical State View:

i) The Inherently Dangerous Felony Limitation:

(1) People v. Burroughs: P charged with felony murder for practicing medicine without a license (Murder2, not an enumerated felony); Ct. said that if the felony was not inherently dangerous, cannot becommitted of Murder 2.

(2) Inherent dangerousness is only a limitation on MURDER 2!(a) Non-inherently dangerous felonies dont qualify as murder 2.

(3) Test for Inherent Dangerousness:

(a) Look only at the statute or definition in the abstract.

(i) Definition of the felony is only thing you can look at in order to determine if the felony isinherently dangerous.

(b) Can felony be committed in a manner that doesnt create a substantial risk of loss of life?

(i) If so, it is not inherently dangerous.

ii) The Merger Limitation: (limitation on felony murder 1, felony murder 2)

(1) People v. Smith: P was charged and convicted of 2d degree felony-murder because she killed whilecommitting a felony that was not enumerated; Ct. reversed the 2d degree murder charge;

(2) If the underlying felony is integral to and included in the fact of the homicide, the underlying

felony merges with the homicide (merger and no felony murder, just murder), UNLESS there is

an independent felonious purpose, then there will be no merger and felony-murder.

(a) Then ask the following question:(i) DID THE FELON MEAN TO KILL OR DO SERIOUS BODILY HARM FROM THE START OF

THE FELONY?1. IF YES = MERGER AND JUST MURDER2. IF NO = NO MERGER AND FELONY-MURDER (murder 1 or 2, depending on whether or

not there was an enumerated felony)

(b) The UNLESSclause trumps the first half of merger analysis(c) If we can show that you had an independent felonious purpose, like stealing a TV, you are guilty of

felony-murder.

(i) Independent means independent of the homicide.

(d) If we can show you intended to kill from the start, merger MURDER.(e) Guilty of felony murder if you have an independent felonious purpose.

(3) Defendant wants merger because the felony murder disappears.

iii) The Agency Theory: The killing must have been done by a felon.(1) If not, there is no felony-murder.

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(2) There must be a casual link between the felony and the killing.(3) State v. Sophophone

Criminal Law Defenses:

22) Structure and Underlying Theories of Justification:

a) All justification defenses have the same internal structure:

i) Triggering Conditionspermit an apparently necessary&proportional response.

ii) Triggering Conditions: Circumstance that must exist before an actor will be eligible to act under ajustification.

iii) To be justified, response to triggering condition must satisfy two requirements:

(1) It must be apparently necessaryto protect, and

(a) Necessity requirement= D act only when and to the extent necessary.

(2) Harm caused must beproportionalor reasonableto the harm threatened.

(a) Proportionality requirementplaces a limit on the maximum harm that may be used in protection.

(i) Bars justification when harm caused by actor may be necessary to protect or further theinterest at stake, but is too severe in relation to the value of the interest.

23) Common Law Self-Defense Justification:

a) Keep in mind whether or not deadly or non-deadly force is being used.b) United States v. Peterson: D has issue with jury instructions of whether he was the aggressorand whether

he had to retreat;c) Common Law Self-Defense Privilege:

i) Deadly force in self-defense requires:

(1) D must reasonably fearan immanent and unlawful serious bodily harm or death; AND,

(a) The D must believe (subjective) and the belief must be objectively reasonable.

(b) Immanent means that you are subject to serious bodily harm or death at that second.

(i) No immanent threat, no necessity. Something good can happen!

(2) A Reasonable belief that deadly force was necessary.

ii) The initial aggressor in a conflict cannot use deadly force UNLESSthey withdraw (different fromretreat)from the conflict and effectivelycommunicate the withdraw.(1) Must effectively communicate that withdraw so the other understands such.

(2) Initial aggressor:One who provokes the conflict.

(a) An affirmative unlawful act likely to cause a fight causing an injury, is an aggressionwhichnullifies the right of deadly-force self-defense. If one is going about ones lawful business, theyare NOTinitial aggressors.

iii) You dont have to be right in your belief. You can be completely wrong. As long as you reasonably fear

iv) Retreat:

(1) Majority Rule: One has no duty to retreat (Typical American juris. view)

(2) Minority Rule: One has a duty to retreat rather than inflict serious bodily harm, when available.

Except when at home (this is the Castle Doctrine).(a) This is the common law view, NOT the typical American juris. view.

(b) Cannot claim castle doctrine if you are a co-inhabitant.

24)Model Penal Code Self-Defense Privilege (3.04):

a) 3.04(1): Use of Force Justifiable for Protection of the Person

i) Use of force (deadly or non-deadly) is justified when the actor believes it is immediately necessary toprotect himself against the use of unlawful forceby another person on the present occasion.

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(1) MPC appears is more subjective than the common law.

(2) On the present occasionmeans you thought it was necessary to use force NOW, OR RIGHT ABOUTNOW.

(a) MAYBE, MAYBE it stretches (very modest liberalization) the imminence requirement.(i) A little different from the common law perspective.

b) 3.04(2)(a) Force not justifiable if:

i) Resisting arrest by police officer (even if unlawful)

ii) To resist force used by occupier of property where actor knows person using force is doing so under aclaim of right to protect his property. This limitation wont apply when:(1) The actor is a public officer acting in the performance of his duties(2) The actor has been unlawfully disposes of the property and is making a re-entry or recapture(3) The actor believes such force is necessary to protect himself from death or serious bodily harm.

c) 3.04(2)(b): Deadly Force justifiable when the actor believes force is necessary to protect himself

against death, serious bodily harm, kidnapping, or sexual intercourse compelled by force or threat.

i) Not justifiable when the actor provoked the use of force against himself, or

ii) Actor knows he can avoid the necessity of using force byretreating or by complying with demand.(1) Actor is not obliged to retreat from his dwelling or place of work, unless he is initial aggressor or is

assailed at work by a co-worker.

(2) A public officer is justified in using force in the performance of his duties.d) An initial aggressor is accountable for his original unlawful use of force but not for his defense against a

disproportionate return of force by his victim.

25) Common Law & MPC 3.09(2) Justification Limitations:

a) MPC 3.09(2): When actor believes use of force is necessary under justification of 3.03 3.08, but thebelief is reckless or negligent, justification under MPC is not available and the actor would be guilty of crimesup to a reckless and negligent level of culpabilityi) Remember that 2.09, 3.02 have their own clauses relating to this.

b) MPC 3.09(1)(b): Justification unavailable if actors error is due to mistake/ignorance of law

c) MPC 3.09(1)(a): Justification unavailable if actor has false belief in unlawfulness of force he is protectinghimself against.

d) Under the Common Law, justification is unavailable if I have a belief of a likelihood of serious bodily harmor death, but that belief is UNREASONABLE.i) My actions may be mitigated to a lesser included offense.

e) People v. Goetz: Grand jury was instructed with an objective element to self-defense; Grand Jury indicts D;At trial, Ct. said test for self-defense should have been subjective; HE reasonably believed;App. Ct. saidMPC used the word believedand the NY legislature inserted reasonably believed, and that meant theywanted an objective standard applied;

i) Reasonably Believed = D must have believed AND belief of D must have reasonable.(1) Have to believe some stuff; that is far as the subjective element goes

(2) Reasonable = would someone in the shoes of the person have come to the same conclusion.

26) The Reasonable Person: Objective, Subjective, or a Mixed Standard?

a) State v. Wanrow: woman on trial; Is Ct. supposed to use man reasonable standard or woman reasonablestandard?; Ct. said look at subjective factors the actor is placed with;

b) Battered Womens Syndrome:

i) There is no battered womens syndrome defense.

(1) There is NO rule that says one can kill to stave off an eventual demise(2) DEATH OR SERIOUS BODILY HARM MUST BE IMMINENT IN ALL SITUATIONS IN ORDER

FOR THE SELF DEFENSE PRIVILGE TO APPLY.

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ii) If anything, some jurisdictions might allow a tweaking of the self-defense privilege to hear evidence ofbattered womans syndrome.(1) Syndrome evidence can be admitted (in some jurisdictions)(2) Another way to get around BWS is to not bring charges against D.(3) Womans experience givers her a genuine belief of need for force.(4) With battered womens syndrome there are three stages:

(a) Tension building stage

(b) Acute Battery stage(c) Loving stage

iii) State v. Norman: D didnt fear imminent serious bodily harm or injury; but the App. Ct. thought it wasthe only way out and that it was reasonable.

iv) State v. Norman II: S. Ct. overrules App. Ct.; Self-defense rules still apply;

27) Defense of Third Persons Justification:

a) People v. Kurr: Woman killed boyfriend in defense of her unborn children; Decedent was punching D in thestomach; he approached her again to punch her and she stabbed him, he died; D claimed she was protectingher unborn children;

b) Common Law:

i) Same as self defense rule, just applied to different facts (third person).ii) D must reasonably fearan immanent and unlawful seriousbodily harm or death of another; AND,

iii) A Reasonable belief that deadly force was necessary.

iv) Mistake in Defending 3rd Party:

(1) Have to have a reasonable belief that the person you are defending would have the right to use force .(Majority Rule)

(2) May NOT use defense if you were wrong in your belief (Alter Ego Rule)

(a) This is the Minority Rule.c) MPC 3.05: Use of Force for the Protection of Other Persons

i) Use of force justifiable when:

(1) I would be justified in using the amount of force I used to protect myself against the injury Ibelieved to be threatened to the 3rd person; and(a) Put yourself in the shoes of the one you are defending. Would you have been justified in

using the amount of force in protection of the 3rd party?(2) Allowed to use force, under the circumstances as the actor believes them to be, the person I seek

to protect would be justified in using such protective force; and(3) The actor believes that his intervention is necessary for the protection of such other person.

ii) I dont have to retreat when using force in protection of 3rd person, unless I know that I can secure thecomplete safety of the 3rd person by doing so.

iii) If the person I seek to protect has to retreat, I must try to cause him to do so before using force toprotect him.

iv) We dont have to retreat when we are at home/work.

28) Defense of Property Justification:

a) People v. Ceballos: There is no exception to the rule that deadly mechanical devices cannot be used todefend a home/person;

b) Common Law Defenses to murder (6):

i) Ok to use deadly force in self-defenseii) Ok to use deadly force in protection of othersiii) Ok to use deadly force to prevent an atrocious felony.

(1) Enumerated felonies (B.A.R.R.K.S.) = atrocious.

iv) A person may not use deadly force to protect property.

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v) A person may use deadly force to protect home against burglary, arson, or dispossession.vi) A person may use deadly force to apprehend fleeing felons.

c) Force must be reasonably necessary to the actor for the application of force in any of these situations.

d) MPC 3.06(3)(d): Use of Force for the Protection of Property

i) Use of deadly force is justifiable if I believe that:(1) I will be dispossessed of my property not under a claim of right

(2) There will be Arson, Burglary, Robbery or other felonious theft or property destruction ANDeither:

(a) Person has threatened or employed deadly force against or in the presence of me; or(b) Used or employed deadly force against me.

e) MPC 3.07 Use of Force in Law Enforcement:

i) The use of deadly force is not justifiable unless:

(1) The arrest is for a felony; AND(2) I am a peace officer; AND

(3) I believe the force employed creates no substantial risk of injury to an innocent person; AND(4) I believe that:

(a) The crime for which the arrest is made involved conduct including the use or threatened use ofdeadly force; OR

(b) There is a substantial risk that the person to be arrested will cause death or serious bodily harm

if his apprehension is delayed.

29) Necessity Justificaion:

a) Doing a harmful act in order to prevent a greater harm from occurring.

b) Nelson v. State: P pleaded necessity defense in order to justify his stealing of two vehicles in order to gethis truck out of the mud; Ct. said there must be dire situation; If you cause more damage than you sought toavoid, the defense is not available; No legal alternatives available; D did not want the harm he sought to avoidcast in an objective light, but rather a subjective light (his perspective); D must have acted in the beliefthat the reasonably foreseeable harm resulting from the violation would be less than the harm resulting

from compliance with the law; An objective determination must be made as to whether the Ds valuejudgment was correct, given the facts as he reasonably perceived them;

c) You dont need to be right; you need to be reasonable in your appraisal.

d) Ask if value judgment made was reasonable and whether necessity was reasonable.e) Common Law Elements to Necessity:

i) The source of the peril was natural

(1) Common law wants necessity to be caused not by a person, but by nature.ii) Must be seeking to avoid a greater harm.

iii) Necessity is not a defense for heinous criminal activity.

(1) We dont know what heinous means, but I bet murder is heinous.(a) Law favors life and limb over $$ or larger loss of life.

iv) Disinterested 3rd parties who act to save life, but take a life, may assert the necessity defense even if heintends to kill the person, but would be happy if that person lived. (runaway train choice: kill boy on trackkill everyone on train)

f) Model Penal Code 3.02: Necessity-

i) To be justified, Actor must believeit is necessary to avoid a harm or evil to himself or to another AND:

(1) The harm avoided is greater than the harm caused by violating the law; AND(2) Law defining the offense doesnt provide an exception or defense dealing with the specific situation

involved; AND(3) A legislative purpose to exclude the justification claimed does not otherwise plainly appear.

ii) If actor was recklessor negligentin bringing about the situation requiring a choice of harms in appraisingthe necessity for his conduct, the justification is unavailable for any offense for which recklessnessornegligence, as the case may be, suffices to establish culpability.

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(1) As the case may bemeans I am guilty of recklessly/negligently torching my neighbors house if Irecklessly believed it was reasonable to do so.(a) If I was only negligent in believing a thing, and I am accused of a crime of recklessness, I

am not guilty.

(2) This is the same as 3.09(2)s language RE: Reckless and Negligent beliefs.

(a) When I purposely torch a house, I am guilty of recklessly/negligently torching the house when Irecklessly/negligently appraise the necessities.

30) Necessity and Civil Disobedience:

a) Necessity is not available in cases of indirect civil disobedience.

i) Indirect civil disobedience is when you are violating a law you are not protesting.b) Necessity can be available in cases of direct civil disobedience.

i) Involves protesting the existence of a law by breaking that law or by preventing the execution of that lawin a specific instance in which a particularized harm would otherwise follow.

31) Necessity as Defense to Murder?:

a) Queen v. Dudley and Stevens:

b) Necessity is not a defense for heinous criminal activity. (Common law rule)

i) Necessity is usually a defense that arises in relation to acts of nature.c) Utilitarian ideals like necessity as excuse to murder: one dies for the greater good

d) Kantian Ethics: Puts a preeminent value on human individuals.

32)Overview of Excuse as a Defense:

a) With excuse, society knows you didnt do the right thing, so there are attempts to mitigate affects of thepunishment to completely exonerate an individual of a crime

(1) The source of peril is different from a justification defense.(a) In necessity = natural/non-human force of peril (acts of God).(b) In duress = A human is the source of peril

33)Duress:

a) United States v. Contento-Pachon: Ct. used federal duress defense elements to establish that D was ableto assert the defense. (D was forced to swallow cocaine balloons and travel to US, while being watched andfamily and his life threatened).

b) Common Law Duress:

i) D will be acquitted of an offense other than murderon the basis of duress if he proves:(1) That another person unlawfully threatened imminently to kill or grievously injure him or another

person; and

(a) Imminently = any threat made is immediate(2) He was not at fault in exposing himself to the threat.

c) Model Penal Code 2.09 (Duress):

i) Actor can assert duress as affirmative defense if he committed a crime that he was coerced to do soby the use of, or a threat to use, unlawful force against his personthat a person of reasonablefirmness in his situationwould have been unable to resist.

(1) MPC considers Ungera duress case. Unger was implicitly coerced through the threats to his life. Hehad to make a decision to leave, or he would die.

ii) If actor recklessly placed himself in a duress laden circumstance, the defense of duress is not

available.

(1) Kill a person on purpose, but reckless in placing yourself in a duress laden circumstance, defense ofduress is unavailable and youre guilty of MURDER.

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iii) The defense is unavailable if actor negligently placed himself in a duress laden circumstance and

actor is guilty up to a negligent level of culpability.

(1) Kill on purpose, but were negligent in getting into duress laden circumstance, you are guilty ofnegligent homicide.

iv) Not a defense in the case of Battered Women Syndrome

d) People v. Unger: D tried to assert defenses of duress and necessity for escaping min. security prison; Ct.said duress did not apply, necessity was more proper; lesser of two evils to leave farm (escape v. killed) but

not natural force; Ct. said D must be allowed necessity defense, use five factors to determine necessity inthe special circumstance of prison escape cases. Not one of the factors are dispositive over the others.

e) People v.Anderson: Case gets necessity and duress mixed up; Legal issue is that CA has exception to duressdefense- you cannot claim a duress defense to any crime that carried death penalty as of 1850.

34) Intoxication Defense

a) Commonwealth v. Graves: D gets wasted; robs, burglarizes a man who died in course of robbery; jury wasnttold that if D didnt have mens rea of the offenses, not to convict D; Law in PA was that intoxication servedas a defense to homicide and then to reduce the degree of murder from M1 to M2; Graves: You can useintoxication as a defense so long as the intoxicated state is so sever that it negates the mens rea; PostGraves: legislature overruled court and put law back to where it was before.

b) Common Law Intoxication:i) Voluntary Intoxication:

(1) Is a defense to specific intent criminality. (involuntary intoxication is a defense when it negates SI)ii) Involuntary Intoxication:

(1) 4 Types:

(a) Coerced: Induced by duress or coercion

(b) Pathological: Grossly excessive given the amount to which D did not know he was susceptible to.

(c) Innocent Mistake: D is mistaken about character of substance ingested

(d) Unexpected: Due to medically prescribed drug(2) Involuntary intoxication can be a complete defense if:

(a) It negates either the specific or general mens rea; OR(b) If intoxication put D in a mental state that satisfies the jurisdictions insanity test

c) Model Penal Code 2.08: Intoxication -

i) Not a defense unless it negates an element of the offense. ( MPC voluntary intoxication rule)ii) When recklessness establishes an element of the offense, if the actor, due to self induced intoxication is

unaware of a risk he would have been aware of had he been sober, the unawareness is immaterial.iii) Intoxication in itself does not constitute a mental disease

iv) Intoxication that is: (MPC involuntary intoxication rule)(1) Not self induced (not drinking on purpose), or(2) Is pathological(3) Is an affirmative defense if by reason of such intoxication the actor, at the time of his conduct:

(a) Lacks substantial capacity to appreciate its criminality; or(b) To conform his conduct to the requirements of the law.

(i) (insanity standard of the model penal code)v) Definitions under 2.08:

(1) Intoxication means a disturbance of mental or physical capacities resulting from the introduction ofsubstances into the body

(2) Self induced intoxication means intoxication caused by substances which the actor knowinglyintroduces into his body.

(3) Pathological intoxication means intoxication grossly excessibe in degree, given the amount of theintoxicant, to which the actor does not know he is susceptible

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35) Insanity Defense:

a) Legal concept, not medical concept.b) Is it fair to hold a really screwed person legally (morally) responsible for their act?c) Defense almost never works. Juries dont find killers insane because they want to punish the killers.

i) IF (remember - hardly ever works) the defense does work, they go to mental institution.d) MNaghten Test: (Common Law)

i) Defense available if, at the time of the act, D was laboring under such a defect of reason from disease of

mind, and:(1) D didnt know the nature& qualityof the act he was doing, or

(a) Nature = Didnt know what you were doing(b) Quality = consequences of the act

(i) Under MNaghten, only need to show didnt know nature or quality(2) D didnt know that what he was doing was wrong.

(a) Wrong = morally wrong - society views this as wrong

ii) This is not a right and wrong test!!!!

iii) MNaghten test is cognitive, not volitional.e) MNaghten + Irresistible Impulse:

i) Supplements the MNaghten test.

(1) Defense available if, at the time of the act, D was laboring under such a defect of reason fromdisease of mind, and:

(a) D didnt know the natureOR qualityof the act he was doing, OR

(b) D didnt know that what he was doing was wrong, OR(c) D suffered from irresistible impulse to do what he did.

(i) Takes account volitional components of the Ds behavior.

(ii) D powerless to resist by reason of duress of the mind.f) Durham/Product Test:

i) Insane if act was the product of mental disease OR mental defect.(1) Uses causation to link mental illness to act.

(a) But for Ds mental illness, he would not have acted.

(2) Use expert testimony - let jury consider all relevant informationg) Model Penal Code 4.01: Insanity-

i) Person is not responsible for criminal conduct if at the time of such conductas a result of mentaldisease or defecthe lacks substantial capacity either to appreciatethe ([criminality of his conduct] or[wrongfulness]) or to conform his conduct to the requirements of law.

ii) Mental disease or defect doesnt include abnormalities that are ONLY manifested through repeatedcriminal/antisocial conduct. (Sociopath exception under MPC).

h) Federal Insanity Defense Reform Act of 1984 (FIDRA):

i) Insane if as a result of severe mental disease or defect, is UNALBE TO:

(1) Appreciate nature& qualityof act; OR(2) The wrongfulness of the act.

ii) The D has the burden to proving the defense of insanity by clear and convincing evidence.

i) GBMI (Guilty But Mentally Ill):

i) Adjudicated guilty D pronounced insane and sent to prison.(1) Some states are doing this in addition to the insanity defense

(a) Makes ma and pa want to re-elect the state senator.j) Insanity defense only pertains to the Ds acts at THE TIME OF THE ALLEGED ACT.

Clark v. Arizona: Diminished Capacity. An impaired mental condition, short of insanity, that is caused by intoxicationtrauma, or event that prevents a person from having the mental state necessary to commit a given crime.Determined that you cannot use insanity to disprove Mens Rea.

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Policy concern What if someone uses insanity to disprove mens rea, but doesnt raise the insanity defense. Youmight end up with a person who is convicted of a lesser crime (because of negated mens rea) who really needs to bebehind locked doors.

(A) State has the authority to:a. State is free to define insanity

b. State is free to say how strong the insanity presumption is.(B) If we allow D to introduce insanity to negate mens rea, we will have contradicted the state legislatures

intent.Because the state is allowed to say how strong the sanity presumption is, therefore the state cannot be required toallow evidence of insanity to negate mens rea, because that would require the presumption only be raised beyond areasonable doubt.

Did Arizona violate due process clause? No. (Dissent D did not commit the crime as the Arizona Statute defined it, nor was he relevantly aware or necessarilyso.)

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lefrancois crimlaw spring 2012

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