Criminal Law Kadish
Criminal Law and Its Processes: Cases and Materials [Connected Casebook] (Aspen Casebook)
|Related course(s)||Criminal Procedure|
- 1 Rationales for Criminal Law
- 2 Elements of a crime
- 3 Homicide
- 4 Rape
- 5 Causation
- 6 Inchoate Crimes
- 7 Exculpation
Rationales for Criminal Law
Elements of a crime
Actus ReusThe act of the crime. Must be voluntaryOld philosopher guy – “a death row prisoner walking to the chair is voluntary because it’s better than being carried.”Martin – If an act is physically forced, then it is not voluntary. Police carrying man out of home.Newton – Act not voluntary if it is not done consciously. Unconsciousness must be involuntary.Dessina - Epilepsy – voluntary act is getting in car; not swerving car.Fallater – killed wife while sleepwalking – too detailed to be from sleepwalking.Omission (failure to act)Jones – guy doesn’t feed baby and it dies. 4 situations where someone may have a duty to act:
- Statute imposes duty of care;
- Certain status or relationship to another (parent-child);
- Contractual duty to care for another; and
- Voluntarily assumed the care of another and secluded the helpless person to prevent others from rendering aid.
Pope – Duty to care is not established by merely helping someone.Good Samaritan Laws
Most American jurisdictions have lax laws with regard to duty to actMens ReaThe defendant must have knowledge they are committing a crime.
MPC § 2.02:
- Purpose (intent): conscious purpose to do the crime
- Knowledge (intent): Knowing the action will cause the crime with a practical certainty
- Recklessness: conscious disregard of a substantial and unjustifiable risk that exists or will result from conduct. Must involve a gross deviation from the standard of conduct a law-abding person would observe in the actor’s conduct and circumstances.
- Negligence: (1) unaware subjectively of the risk given rise from behavior, and (2) should be aware of the risk.
If statute is silent, presume Recklessness, Knowledge, or purpose.
Can apply to part of a statute (age in Prince) or all of the statute (Balint, Dotterweich)Cunningham -guy pulls gas meter out of basement. “malicious” requires “foresight of consequences.” Need a purpose or knowledge that the act will result in a crime, not just to be doing “wrong acts.” Modern conception of mens rea.Faulkner – boat rum - knowingly doing something illegal does not impute the mens rea on any following acts. Reasserts Cunningham.Elonis – “rapper” posts wannabe Eminem lyrics on fb. SCOTUS read in a mens rea requirement of recklessness. If law is silent Use Recklessness or higher.
Mistake of Fact
Jewell – drug trafficking. Deliberately avoiding knowledge is the same as acting knowingly. Test:
- Belief drugs are present (crime will occur) OR avoidance of confirmation
- Avoidance of confirmation in that belief
- Willfulness in the avoidance.
Δ must take action. “ostrich instruction” ostriches stick their head in the ground, not simply ignorant.Prince – underage girl – Moral Wrong: if what Δ did was a moral wrong still culpable. He was culpable by knowingly taking the girl out.Lesser Crime Doctrine: If Δ’s reasonably mistaken facts would not make him liable for a crime, he should not be liable. If they have a mens rea for a lesser crime and it becomes a greater crime, they are liable for the greater crime.Strict Liability Mistake of fact offenses
used to regulate dangerous behaviors.Staples – gun filed down accidentally. Court can read mens rea (knowledge) into a statute. Should only not read mens rea into a statute where it is a “public welfare” or “regulatory” category. Gun ownership is legal and safe, so it doesn’t fit into either. Extended knowledge from one element to all elements.Balint – illegally selling drugs – Δs liable for selling drugs even though they didn’t know they were drugs, because (1) the legislature said so, and (2)the harm of imprisoning an innocent drug dealer is less than innocent buyers buying drugs. Public welfare.Dotterweich – drug label mixup – this a regulation that works via inflicting penalties; no mens rea requirements in statute. RegulatoryMistake of Law
2 flavors: (1) misreading the law, (2) not knowing the law existsMPC § 2.04(3) – a belief that conduct does not legally constitute an offense is a defense . . . when:
- (a) The statute is not known to the actor and should have been made available
- (b) Acts in accordance with an official statement of law made by (i) statute, (ii) judicial opinion, (iii) administrative order, or (iv) an official interpretation of the public officer charged with enforcement of the law.
Marrero – prison guard “plaxico buresses” – If the law is bad (permits an action but is overturned on constitutionality) then you have a defense. If you misinterpret the law, you do not have a defense.Lambert – failure to register as a felon. Requires (1) actual knowledge of duty or proof of the probability of such knowledge, and (2) failure to register must occur. She didn’t know and a judge should have told her; she should be able to correct mistake.Everyone knows sex offenders should register, so they are not ok to not register.
Murder – no provocationMPC §210.2(1)(a) – criminal homicide is murder when it is committed purposely or knowinglyCarrol – gun above bed – All premeditation requires is intentYoung – pulling the trigger is enough time for deliberationGuthrie – dishwasher hit in nose – Δ must consider and weigh his options for premeditated murder.Anderson standard, requires all 3; strong evidence of (1); or evidence of (2) in conjunction with evidence of (1) or (3):
- (1) Planning activity
- (2) Motive
- (3) Preconceived design in method of killing
Forrest – Mercy killing – convicted of first-degree premeditated murders
MPC § 210.3 – Homicide is manslaughter when it is:
- (1) Committed recklessly
- (2) Committed under extreme emotional disturbance (“EED”)
Misdemeanor-Manslaughter rule –a death resulting from a misdemeanor can be manslaughter. Similar to felony murder.
Provocation: 2 models: “0 to ballistic” and “slow-burn.” 0 to ballistic is the classic formulation, slow burn works under EED.Girouard – military stabbing case – words alone are not provocation, words + conduct can be provocation if there is an intention or belief that the victim will cause Δ harm. Bad public policy to allow murder to be mitigated off of just words alone.Maher v. People – Saloon adultery:
- (1) General rule
- If there is provocation, it is manslaughter
- (2) To what extent must passions be aroused for provocation?
- Whatever would cause an “ordinary man” to be provoked
- (3) What standard?
- Objective standard to prevent bad men from getting off easily.
- (4) Judge’s Role? Jury’s Role?
- Judge: only exclude evidence at the margins – law
- Jury/factfinder – determines whether it is provocation
- (5) Are words provocation?
- Up to jury
Extreme Emotional Distress
Cassassa – Crazy stalker guy. (1) Δ must have acted under EED, and (2) there must have been a “reasonable explanation or excuse” for the EED. (1) is subjective, (2) is objective. Subjectivity includes “personal handicaps” and some external circumstances. Does not include temperament, character, or “idiosyncratic moral values.”
Creation of Homicidal Risk/Reckless Killings
Rex v. Bateman (1925): to make negligence into recklessness, it must show such disregard for life and safety of others as to amount to a crime against the state.State v. Barnett (1951): negligence must be “culpable,” “gross,” or “reckless” in order to be liable. “must be a departure from the conduct of an ordinarily prudent or careful man under the same circumstances”
Welansky –“fire burning on the dance floor.” If Δ realizes danger and is reckless then he is guilty. If he is stupid and does not realize danger he is guilty if a reasonable man would have realized the danger.Pugh – reaffirms Welansky''Hall – skiing off a knoll
- (1) Did Δ’s conduct create a substantial risk of death?
- (2) Was the risk unjustified?
- (3) Was the conduct a gross deviation from the standard of care a law-abiding person would use?
- (4) Did Δ consciously disregard the risk?
Williams – native American family not taking baby to doctor’s office. Standard of reasonable care applied to statute. Ordinary negligence can suffice for manslaughter.
Depraved Heart Murder
MPC § 210.2(1)(b) Criminal homicide is murder if it is committed recklessly under circumstances manifesting extreme indifference to the value of human life. Presumed if the actor is engaged or is an accomplice in the commission of, or an attempt to commit, or flight after committing or attempting to commit: robbery, rape, burglary, kidnapping, felonious escape.Malone – Russian roulette in grocery store – “mind regardless of social duty” proving there was “frame of mind termed malice.”Fleming – very drunk driver. Uses MPC standard. Driver was VERY drunk and doing VERY reckless stuff, so its murder.Taylor – crackhead fight – no depravity because no “torture or brutal, prolonged course of conduct”Prindle – snowplow chase resulting in crash and death. Not depraved heart murder. 4-3 decision at High state court.Jeffries – drunk guy had many DUIs then got in another and killed a lady. Depraved heart because he was super duper on notice.Watson – driving to bar -2 times for mens rea (1) when he got drunk, and (2) when the harm occurred. (1) works for (2), because everyone knows getting drunk is bad news.Recklessness not required for MPC if intoxicated. Everyone knows drinking is bad news
Serne – arson to commit insurance fraud. Felony murder is (1) the killing of another person by an act done with intent to commit a felony, and (2) the act must be done with the knowledge that the act will probably cause the death of someone.Stamp – Felony murder is not limited to those killings committed by Δ, nor those that are foreseeable; felons are strictly liable for all killings commited during a crime by the felon or his accomplices.Philips – quack cancer cure – “inherently dangerous” felonies. If a felony can be imagined to be committed non-dangerously it does not meet the Philips test. Must be dangerous “in the abstract.”Hines – drunk turkey hunting. Inherently dangerous felonies can create felony murders when it is per se dangerous or what its circumstances create a foreseeable risk of death.
If Δ commits a single act that simultaneously fulfills the definition of 2 separate offences, merger occurs. Lesser of 2 offenses will drop out and Δ only charged with greater offense. Prevents hitting someone with felony murder and manslaughter. (Manslaughter drops out.)Burton – killing during robbery. In order to establish felony murder, there must be an “independent felonious purpose.”Ireland – man kills wife after assaulting her with intent to cause harm, no felony murder – assaulting is part of the murder.Wilson – man breaks into house to kill estranged wife, no felony murder. – burglary is part of the murderFarley – man burgles into building to kill lady and kills 7 additional people. Under Wilson, killing the lady would merge, but the 7 people he shot would not merge. Under Farley, burglary never merges, overturns Wilson.Robertson – shooting at someone to scare them is an “independent felonious purpose.”Chun – gang drive by to scare people – Scaring is not an independent purpose for policy reasons. “assaultive felonies” merge with murder. Courts decide what felonies are assaultive. Overrules Robertson.
When does it apply?
Killings must be in furtherance of the felony or felony murder will not apply3 issues:
- (1) When does felony end?
- “place of temporary safety” – if Δ reached place of temporary safety, subsequent killings are not felony murders
- Causal link – if a killing is foreseeably a result of the felony, then it is a felony murder.
- (2) What is “in furtherance of the felony?”
- If a felon does a homicide unrelated to the underlying felony, cofelons are not liable if it’s a “frolic of his own.”
- (3) Cofelons? (Canola)
Canola – rob a jewelry store, shootout, felon dies. Are cofelons liable? 3 theories:
- (1) Agency theory: not liable if someone other than the felons did the killing
- (2) “Shield cases” – if felons use people as a human shield they are liable under agency theory.
- (3) Proximate cause theory – liable if foreseeable risk of death
Rusk – keys from girl – What constitutes lack of consent for rape? Resistance or fear that prevents one from resisting. Fear must be genuine and reasonably grounded.DiPetrillo – boss and chair – 3 kinds of force:
- (1) Authority (not here, no gun, no real authority)
- Burke- police officer has sex with lady, it is rape because he has a gun and is in authority'
- (2) Physical force (only a “modicum” in this case'
- (3) Δ’s size and physical strength (not clear here)'
Alston – guy beat gf in the past and threatened to beat her if she did not have sex – not rape, words alone are not a threat.Thompson – principal and student – no graduation if no sex – intimidation not a threat of force – must be bodily injury or kidnap.Mlinarich – man rapes 14-year-old after threat to send her back to jail – mental coercion, not force, not rape. Offer? Threat?PA law changed to “forcible compulsion . . . by use of physical, intellectual, moral, emotional, or psychological force, either express or implied.”Lovely – man coerces employee – rapeShulhofer – sex as a condition of employment is not ok, but it is ok with romantic relationshipsModernizing rape law.M.T.S – force required to have physical force is the only force required. The force is the lack of consentM.C. v. Bulgaria – Lack of consent is the element of rape. Actus reus of rape is sexual penetration without consent. Coercive circumstances: appearance of explicit mens rea standard; “consent takes center stage.”Prosecutor v. Kunarac – muslim girl in Yugoslavia. Circumstances deprived victim of opportunity to freely consent “coercive circumstances.” Defendant took advantage of “coercive circumstances.”
Mens Rea of Rape
Ways to lack consent:
- (1) Verbal resistance plus additional behavior (crying) totality of circumstances
- (2) Verbal resistance alone
- (3) Verbal resistance or passivity
- (4) Absence of verbal permission (absence of “yes.”)
Gangahar- man could reasonable believe under “totality of circumstances” that his conduct was consented to because of her actions: not saying no, saying she liked it, going to his bedroom, etc. all could be interpreted as consent.Sherry – 3 doctors rape nurse. – mistake of fact with no regard for reasonableness not a defense for rapeFisher – Rape at Lafayette – reasonable mistake of fact can be a defense for rapeWilliams – “stranger rape” – no mistake of fact in stranger rape (especially when threatened with a knife!)Simcox – some jurisdictions have rape as strict liability. Many jurisdictions allow for mistake of fact. House of Lords held there must be (1) a lack of consent that Δ was aware of, or (2) Δ did not care whether there was consent
Originally not a crime: (1) consent through marriage, (2) husband and wife are one, (3) destroy families, (4) not serious.Liberta – Rejects reasons for marital rape. Women are not property, rape destroys the family, marital rape is serious.
Cause in Fact
“but for the defendant’s acts, the crime would not have occurred.
Arzon – man sets fire to building and fireman dies from another fire. An individual is liable if his conduct is (1) sufficiently direct cause, and (2) the ultimate harm is foreseeably reasonably related to the acts. Fires are life threatening, so it is related here. But-for cause is that the firefighter came because of the arsonist’s fire. Proximate cause is that the fire is “sufficiently direct” and foreseeable.Kibbe – abandoned guy on icy road – “sufficiently direct cause.” Ultimate harm not required to be intended.Stewart – guy gets stabbed then stomach surgery, dies due to stomach surgery – factor that caused death must be attributable to Δ. Δ not liable here.Acosta – helicopter crash – proximate cause requires foreseeability. Foreseeability can be broad; here, it was helicopters crashing in a manner that had never occurred before. Not a “highly extraordinary result,” foreseeable for people to die in a police chase.“Multiple description problem”: you can describe a case as “freak helicopter crash” or “police chase.” One has death as a foreseeable result, the other does not.Brady – Deaths from firefighting planes crashing is reasonably foreseeable.Warner Lambert – company has products explode at their warehouse. But-for causation required. “Chain of particularized events” must be foreseeable.Montoya – No but-for causation where it is impossible that victim could have lived even without Δ’s acts.Muro – no but-for causation where it is possible (but not assured) that victim could have lived even without Δ’s acts. But-for required, no “loss-of-chance” doctrine.Burrage – substantial factor test rejected for charging a heroin dealer for a death when all kinds of drugs were involved.
If A intends to harm B but accidentally harms C, they are liable for the same crime as harming B.MPC § 2.03(2)(a) if a crime requires intent, and a defendant intends to do the crime but does it to the wrong person, they are liable.
Voluntary intervening actor
People v. Campbell – drinking and Δ telling Victim to kill himself and handing him a gun. – Must be intent to transfer intent; Victim shooting himself is a voluntary intervening act. Δ just hoped victim would die. “providing the means”Kevorkian – Δ is liable for murder if they participate in the final overt act that causes death, but not where they are merely involved. “providing the means”
Roberts – assisting in suicide is causation for homicide (overruled)
Sexton – Δ charged with murder after holding a gun to wife’s head while she pulled the trigger. “participation.”
Subsequent Reckless action
Kern – racists run black guy into street – racists liable because running away is involuntaryMatos – roof police chase – police being injured during a chase is foreseeable, Δ liable.Root – drag race, Victim swerved into traffic to get ahead and died. Δ not liable, because court will not use tort proximate cause (much broader than criminal law proximate cause).McFadden – drag race, victim runs into a family and kills them and a bunch of people – Tort proximate cause here is fine, foreseeability is all you need; not unjust.Atencio – 3 guys playing Russian roulette, Victim dies. Participating in and mutually encouraging a concerted reckless action makes Δs liable for manslaughter.
Crimes that have not yet happened
Doing an act that would help commit a crime with either specific intent or conscious purpose.
Different normative reasons for punishing attempts differently – utilitarian and AristotelianMPC § 5.05(1) drop grading of crime by 1 for attempts
Mens Rea of Attempt
Smallwood – HIV+ rapes. Not attempted murder because he just wanted to rape.
Earp – required intent is “specific intent to murder”
Raines – inference of intent ok.
Hinkhouse and Cain – intentionally spreading HIV is attempted murder.Thacker – guy shoots at tent with lady inside – no intent to kill, no harmful act, no attempt.Thomas – man shot at guy he thought was a fleeing rapist. Hits him with 3rd bullet; claims first 2 were warning shots and 3rd accidental. That conduct was likely to produce harmful consequences sufficient for intent.Rubio – guy shooting in empty parking lot next to a home is liable for attempted murder under a depraved heart theory.Khan – attempted rape is no consent and no intercourse.Dunne – statutory rape does not require to know that girl is underage.
Actus Reus of Attempt
|Must take last possible step. Anything else is “mere preparation.” Shooting at someone but missing.|
|Conduct strongly correlative of actor’s criminal purpose. Emphasizes what has been done, rather than what remains to be done. Jackson, MPC|
|Actor must come very near to accomplishing the crime. “immediate nearness” But-for timely interference the crime would have been committed. Rizzo|
Substantial Step test Dangerous Proximity Last Proximate ActKing v. Barker – Eagleton test – must do last thing in a step of events for it to be an attempt. “last proximate act” test.White – completion of one of a series of acts intended by a man to result in killing is an attempt to murder, even though the completed act, unless followed by other acts, does not result in killing.First step not necessarily sufficient, last step not necessarily required.Rizzo – driving around looking for money carrier – “immediate nearness” or proximity to act and crime. Dangerous proximity test. In Rizzo the robbers didn’t find the guy, so no attempt.Bell – man pays undercover cop money to have sex with an underage child. On the way he is arrested. Attempted prostitution, but no attempted rape.Jackson – 3 guys rob a bank and it gets delayed – substantial step test MPC. Substantial step in a course of conduct designed to accomplish a criminal result. Looks towards what Δs have already done, not what needs to be done.Harper – atm bill trap – planning activity, but no action. Last proximate act and dangerous proximity, not guilty; substantial step test, guilty.Joyce – cocaine haggling. Did not buy the cocaine because he wasn’t allowed to see it. MPC standard says preparation, not attempt; he stopped trying to buy the cocaine.
Howard – talking about having sex with kids to someone – “substantial steps” included talking about sex, buying tickets, sending photos, etc.
Accomplice LiabilityMens Rea
traditionally conscious purpose. Actus reus is “actual aid.”Hicks – old west Indian shootout – guy said something, perhaps encouragement, to a shooter. If there is a conspiracy and one encourages another to act in that conspiracy, sufficient for conviction.. Words said must have had the conscious purpose to encourage. If there is an agreement to help, conviction is proper; if there is no agreement to help Δ must provide aid.Gladstone – weed man recommends different weed man. – must be a nexus between Δ and person he is “aiding.”
Peoni – “in some sort associate himself with the venture that he participate in it as in something that he wishes to bring about” Possible ways to have a “nexus” in Gladstone:
- Referral deal between dealers when either is low
- Accomplice accompanies buyer to seller’s home
- Accomplice calls seller to make sure that he has drugs
Rosemond – drug sale goes bad. Knowledge of a gun being present must be advanced knowledge. Δ must know they are participating in a crime, not have the crime be the same crime Δ would have committedFacilitation:
Actus reus: actual aid; Mens Rea: knowledgeColumbine gun salesman – recklessness sufficient
Material support to terrorism: Holder v. Humanitarian law project – does not need to be assisting “in furtherance of terrorist acts” just assisting in general. May include tweets.Campbell -Real Estate agent suspected (but did not know) of money laundering but took money anyways. Upheld conviction.Russell – 3 guys in gun battle shoot bystander. Jointly creating dangerous circumstances is ok for accomplice liability.
Abbot – car racers. Other car racer made the first car racer’s acts possible; therefore guilty.Luparello – natural and probably consequences – Δ got friends to go to guy’s house to find ex-lover. The next night they kill him with a gun and sword. It is “reasonably foreseeable” that this would happen, Δ guilty.Roy – cuts back on Luparello a bit. Roy tells undercover to buy a gun from Ross. Ross robs Undercover. Crime must be reasonably foreseeably “in the ordinary course of things” not just something that CAN happen.Pinkerton doctrine. A Δ who is guilty of conspiring to commit one offense is guilty of all offenses that co-conspirators are guilty of. Requires (1) agreement, and (2) crimes committed in furtherance of conspiracy.MPC § 2.06 – rejects natural and probably cause theory. Actor must have purpose of promoting or facilitating the offense. Doesn’t have to go exactly as Δ plans, but must be within conscious purpose.Actus ReusWilcox v. Jeffrey – jazz player in UK. Encouragement is evidence for aiding and abetting. Presence and clapping may be encouragement. Presence is evidence of encouragement.Judge Talley -if someone works to make it easier to commit a crime they are liable even if crime would occur without Δ’s actions. But-For not required.
2 flavors, accomplice liability, and its own crime.Actus reusCrime: agreeing with another to commit an offense. Does not merge. Can infer agreement.Perry – man sleeping with Δ’s young daughter. Conspiracy is when a person “agrees, conspires, combines, or confederates with another person or persons to commit an offense.Parallel action vs. concerted action. Courts have found an agreement where it would be detrimental to work together without an agreement. Factors that are not parallel action: relevant knowledge by all, interdependence, and coordinated action.Overt act requirement – conspiracy attaches way before attempt does. No attempt required.Mens Rea
(1) specific intent to agree, and (2) specific intent to achieve criminal objectiveLauria – Phones and Hoes – requires an agreement. Can infer an agreement from
- Special interest
- Stake in the venture,
- Knowledge that no legitimate use for goods or services exists, Or
- large volume of business
- Aggravated nature of crime itself
Pinkerton – Δs are liable for reasonably foreseeable acts in furtherance of the conspiracy even if he is not aware of those acts. Can disavow the conspiracy through action. Not liable for acts: (a) not within scope, not in furtherance of conspiracy, or reasonably foreseeable as consequences of conspiracy.Bridges – guy gets into an argument and brings friends with guns. – co-conspirators liable for commission of substantive criminal acts that are not within the scope of the conspiracy so long as it is a reasonably foreseeable result of the conspiracy.Kotteakos – accountant cooking books. Wheel, and spoke theory. If someone is the “hub” of the wheel, there must be a rim or else there is no conspiracy among the “spokes.”Anderson – a person referring someone to an abortion doctor – ok to lump all referrers together in a big conspiracy.Bruno – Drug smuggling selling to drug middlemen to retailors. “Chain” of conspiracy. Each link knows there’s more criminals involved by necessity, just does not know who they are.Borelli – elaborate heroin import business. Chain and wheel and spoke conspiracies are nice but can be confusing for present cases.Torres v. Ramirez – 1 drug sale not a conspiracy, it must be ongoing.Morris – 23 street level drug dealers are all co-conspirators for buying from the same plug despite some being rivalsMPC § 5.01(4) abandonment defense – act that voluntarily renounces the conspiracy establishes “abandonment.”
Affirmative defenses (excuses (wrong thing but excused) and justifications (right thing under the circumstances)) contrasted with defenses “on the elements” (state’s proof is inadequate).
Self Defense (Life and Person)
- (1) Actual or apparent threat of deadly force
- (2) Threat must have been unlawful or immediate
- (3) Δ must have believed he was in imminent peril of death or serious bodily injury,
- (4) Δ must believe force is necessary to save himself
- (5) Beliefs must be honest and objectively reasonable
Goetz – subway racist angry guy – “reasonable belief” means objectively reasonable with some facts about Δ’s situation. Physical size of parties, past experiences, knowledge.
Battered Woman’s Syndrome
Kelly – admitting battered woman syndrome evidence will show why she didn’t leave her husband. Does not show reasonableness, shows imminence of danger and necessity.Norman – Wife is unable to get help and shoots husband while asleep. “imminence” means danger is NOW.Sands – imminent means NOW
Duty to retreat
Abbot – neighbors start a fight over a doorstop – Duty to retreat only where (1) force used is deadly force, And (2) when Δ knows he can retreat safely.Peterson – kid stealing wiper blades – cannot exercise self-defense when Δ generates necessity to killCeballos – trap gun in garage – homicide in self-defense only justifiable when resisting a “dangerous” felony.Sydnor v. State – guy attacks Δ to take chain. Δ wrestles away attacker’s gun and shoots attacker while attacker is fleeing.
Can use force because of policy reasons.Panarello – taser is not deadly forceBrown – matter for juries if taser is deadly forceBryan v. MacPherson – crazy guy at police stop, police slams him into ground. Excessive force.
Choice of evils, necessity
- Clear and immediate danger,
- Action will abate the danger
- No legal means of averting the harm
- Harm of averting must be less than harm in doing act
- Act was not prevented by state legislature, and
- Defendant must have clean hands
Unger – prison break to not get raped – accused must be without blame.MPC – necessity allows crimes to be committed when you need to commit them to avoid evil. Avoided harm must be greater than actually inflicted harmPublic committee against torture v. Israel – State cannot create a necessity defense for all its employees, individual secret police agents may have a necessity defense, but not established beforehand.
- Another person threatened to kill or grievously injure Δ or a third party unless Δ commits a crime.
- Δ reasonably believes threat was genuine
- The threat was “present, imminent, and impending” at time of the criminal act
- There was no reasonable escape from the threat except through compliance
- Actor not at fault in exposing self to threat.
Toscano – chiropractor – MPC adopted: crime committed through threat of use of force against Δ or another, which a person of reasonable firmness in his situation could not resist. Imminence not required.
- (1) Duress is a defense to a crime (besides murder) where the Δ engaged in conduct because he was coerced to do so by the use of, or threat of use, unlawful force against his person or the person of another, which a person of reasonable firmness in his situation would be unable to resist.
- (2) Defense unavailable if Δ puts himself in that situation
- (3) Not available if woman acted under husband’s command (unless it was a threat)
- (4) Does not preclude a choice of evils defense
Hood – shooting a cop - drunkenness not a defense to specific intent crimesStasio – drunkenness evidence is bad except where proving no premeditation in murderKingston – involuntary sex assault of minor – Involuntary drunkenness does not exculpate mens rea
M’Naghten – (1) Δ suffered defect of reason from disease of the mind at the time of the crime, and (2) Δ didn’t know the nature and quality of the act, or thought it wasn’t wrong.MPC – Person not responsible for criminal conduct if at the time of such conduct, as a result of mental disease or defect he lacks substantial capacity to either appreciate criminality or conform conduct to law. No abnormality of kleptomania or other such things.Lyons – limits MPC to require failure to appreciate criminality, not inability to conform conduct to law.Arizona – (1) Δ suffered mental illness and (2) did not know crime was wrong